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FROM
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Jacob Jones
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Walker 2 vols
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1
20
Vols.
to 18
-r.,-
Arnold'- vols. Bail Ct. Keports 2 Ball ft Beatty BarneWall & j Barnewall & j
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68, 69, 72 vol 49, 55, 58, 62, 65, 67, 69, 72, 77, 81, 84, 85, 89, 93, 95, 97 . ^- . 102, 106, 108, 111
101
103, 110
II
44 **
38, 40 26 to 31, 34
Bing-ham 10
Bing-ham, N. Blackstone,
'
t/
Bosanquet ft I
Broderip
ft
.6
84, 86,
Bi:
v.
to 18
&
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Campbell 4
,
'.
CoUyer 2
vols
Cooper temp.
COJC
-'
vols.
31 to 34 15 & 17 14 to 18 28
29
,
73
'
15 to 17 31
..
42.62
19 to 29
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J,
34, 35, 38
61
Crompton & M
Crompton, M
'
Daniell
45
3&4
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&
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Me
>
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ft
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9
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East -10
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....
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,,
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1 to 5 5 to 14
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;;
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&
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to 3
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11 1 74, 76, 77, 80, 82, 86, 91, 96, 102, 104 5 ,, vols. 65, 57, 62 . ,,
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,,
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Second Edition,
Now
ENCYCLOPEDIA
OF THE
LAWS OF ENGLAND
WITH
in a definite
number
of
not
collection
books, but
is
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first
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is
minimum
and does
contains
in
search
of,
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It
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on
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IIKAL.
CONVE VANCERS
OF EITHER BRANCH OF THE PROFESS/OA\
BY
T.
OF LINCOLN
S
CYPRIAN WILLIAMS,
;
TO THE INCOEPOKATEB
Editor of " jnilinnis
oti
LAW
SOCIF.TY OF
SECOND EDITION
IN TWO VOLUMES.
Vol.
I.
LONDON
LONDON
PRINTED BY
C. F.
EOWOETH,
88,
FETTEE LANE,
E.G.
ft
IN
THE LAW,
JOSHUA WILLIAMS,
SOMETIME ONE OF THE CONVEYANCING COUNSEL TO THE
was that
his
his
name
in
Remembrance
IS
INSCRIJi ED.
722831
PREFACE
TO THE SECOND EDITION.
made
first
emendations,
the
author
has
been
emboldened by the very kind and gratifying reception, which his treatise met with at the hands of the
profession, to
new
matter.
edition,
was on
its
which
it
was executed.
the
;
between
commencement
and the author,
the
book and
completion
in the course of
working
way which
The aim
of
the additions
first
chiefly in the
i., containing Chaps. I. XII., was published in October, 1903 temporary volume, containing Chaps. XIII. XVI., appeared in January, 1905 and vol. ii. in its entirety was published in April, 1906.
(a) Vol.
; ;
VI
The
writer
is
well aware
is,
how
and injuring the literary quality of the original work. But he has done his best to avoid these evils and
;
it
more
may
be convenient
to
point out
is
exactly
what they
are.
new:
The note
(p. 4, n. {ni))
naming the price the law implies an agreement to buy at a reasonable price the examples stated on p. 6 of the sale of land by a general description (notes (u (>) ), and the criticism
on the
sale of land without
Plant
v.
Bourne
(b)
the
whole paragraph on pp. 24 26 as to the inadvertent acceptance of a bidding lower than the reserve
price, &c.
;
35, to
n and u)
the statements
and k) paragraphs (3) and (4) on pp. 44, 45 (these have been re-written); the paragraph on pp. 54, the paragraph on pp. 69, 55, as to re-sale as owner 70, as to the stipulations left to be implied on sales by auction, and the sentences, to which notes {(/, h) are an{a, c
;
{h)
; ; ;
Vll
the whole of p. 76
83, as
to special stipulations
made
in
by auction
documents incorporated by
refer-
ence; the paragraph on pp. 119, 200 as to title-deeds executed by attorney; those on pp. 124 180, as to
mortgagee or subject
to
solicitor's lien
ments of
thereto
;
fact in public
{c,
d)
annexed;
159
as to presumptions;
what seems
168
</,
to
J.,
Dudley
{c)\
note
(,y)
to p.
which notes
pj).
(c,
o,
^, r)
are annexed
(,^,
5-,
<?,
those on
183, 184, to
half
I)
which notes
p.
/)
are annexed;
held,"
the last
notes
(/<:,
of
185
the
from
latter
''It
is
and
in to
to
thereto,
note
containing a
J.,
by Parker,
the vendor
1
Halkett
v.
Dudley
[d)^
for
the
purchaser's right
if
fail
show a good title the sentence on p. 87 to which note {n) is annexed the last two sentences on p. 191
;
{t) is
annexed
;
annexed
that on
(c)
1907,
{d) 1907,
Ch. 590.
Vlll
p. 267, to
is
annexed
p.
269 down
to
note(o)
of
to
note (d) to
will
;
powers by
issue
unborn
the
first
sentence on
327, dealing
(ind
KehalVs
power
;
of convey-
the latter ance under the Settled Land Acts, &c. " " It is submitted to the end of half of p. 329 from
p.
331
{n, 0, s)
is
that on p. 339, to
annexed
on
an unadmitted
surrenderee
pp.
363
372,
renewable leaseholds,
satisfied terms,
merger of terms,
sionary leases
note
{Jc)
to p.
374
note
{z) to p.
377
[n, o,
p) are
(/>) to
p.
385, dis-
made
in the "
;
Law
Quarterly
''
Review
is
"
It
also desirable") to
393 (end of
of pp.
so
much
396
398 as relates to
the changes
made by
(e)
1908,
Ch. 213.
; ;
IX
on a
lease,
is
of the term,
end of the
para-
graph on
fishing
p.
405
and sporting
436
to p. 446, as to
the
"
;
pp. 456
459, discussing
land to a charity
sell
and Charitable Uses Acts, 1888 and 1^91; the first paragraph on p. 465 pp. 469, 470, as to the power of
;
a surviving partner to
the firm
;
sell
or
pp.
482
487,
as
to marshalling securities,
which note
;
{})) is
{q^ r)
to that
page
those parts of
of
u) to p.
the Lands Clauses Act, 1845; the statement in note (^) note ( ji) to p. 532 the sentence on p. 546 to p. 493
; ;
to
which note
(c,
t',
[y) is
annexed
those on p. bb 1 to which
notes
/')
those on
in
title
by not sending
(y
lyuG,
Ch. oS6.
; ;
requisitions in time
notes
(.r, //)
to
pp.
p.
599, 600
note(/)to
notes
(<7,
p.
617
to wliicli
r) is
note {y)
to
on
624 to which
"
by reference
which note
note
{t) to p.
to
(?)
a plan
is
;
the sentence on
;
635 to
annexed
650
;
are annexed
p.
(s) to
678
new stamp
;
pp. 706
712 relating
Re
to
note
p) to p. 7 1 3 as to the taxes on land note {z) to the last part from p. 733 as to solicitors' remuneration
(
;
"
The
case of
p.
the the
sentence on
annexed
Hickman
{li)
sentences
to
which notes
note note
(
(^,
e)
;
are annexed
J))
to p.
is
842
;
(,//)
annexed
and note
(6) thereto;
p.
865 as
use of a charity.
now
and
included in the
thirty-five
first volume contain one hundred than in the first edition. more pages
(7)
1910,
Ch. 741.
(70 1907,
Ch. 550.
XI
Owing
cases,
to the proposed
will
which
expand
to
of
tlie
second
and
first
transferred to the
volume.
may
is
su])ported
by
the
Re Meijer {i) and Hood v. McKinnoii (^) and note(/). He also submits that
the
criticism
of
doctrine
applied
in
Davies
v.
Fitton (I)
and
31af/ v.
by the judgment of Neville, J., in Thompson v, Hichmui iyn) see pp. 786 791. The writer may also cite the authority of the same learned judge in
\
Beaie
v.
Kyte
(o)
in
v.
case of
Bloomer
(/).
[p)\
see
pp.
794
801,
796, n.
in passing the
impossible to
in the first
be
the
end of
it
as
separate
cliapter
(i)
{k)
(/)
(//()
Ch. 470.
formauce
rectified.
of
the
agreement
as
Dru.
1900,
& War.
1
225.
Ch. 016.
{n) 1907,
(o)
(/<)
Ch. 550.
Ch. 564.
1907,
grant, at suit of a
rectification
the
L. U. 13 E4. 427.
of
an agreement in
Xll
(Cliap.
XXL).
will
contain
been transferred to
tables of
As
at the
in
the
first
edition,
the
cases
and
be placed
In this edition,
however, references
the table of cases
of
;
be added
The
The
.pupil,
entire
work
by the
author's former
Mr. H. Ernest
who
is
is
and
engaged
in
preparing
the
tables
of
cases
and
statutes
The Addenda
whilst
in the
it
was
in the press,
Law
7,
1910.
xiii
INTRODUCTION
TO THE
FIEST
EDITION.
The
and Purchaser
for adventuring
Vendor upon
lawyer as Lord
excuse
is
St.
Mr. Dart.
His
great
first
many years have elapsed and changes have been made in the law, not only
that there appears to be
so
many and
since
Mr. Dart
room
the law of sale of land from the standpoint of the present time.
Such a statement of the law it has been the writer's aim to make and he has particularly endeavoured to give a readable account
;
of
it.
This book
is
of conveyancing,
whether as counsel or
solicitors.
Its design
has
And the scheme of the work is to normal course of such a contract, where it has been made between persons of full capacity and is duly brought to completion, and to examine afterwards the grounds for avoiding the
that
is
and the remedies to be pursued in case of its breach. Thus the book begins with a statement of the law relating to the formation
of a contract for the sale of land.
It
who
XIV
have concluded
sucli
INTRODUCTION TO THE
a contract
;
and the terms of an open contract same form in which the special
After
this,
the usual
attention
title
is
conditions
of
sale
then directed to
discharge.
first
and
its
The
title is
and afterwards with regard to a variety all of which are of constant occiirrence or subjects, special points of In selecting the subjects to be so in the work of advising on title. discussed and in determining upon their mode of treatment, the writer has necessarily had to take into account the exigencies of the and he has often been law and practice at the present time constrained to deal at some length with topics which may be thought to be ephemeral, and which would be disposed of by a statement of very different proportion, if he could regard nothing Thus he has else than the ideal form of a literary composition. devoted the whole of one chapter to the subject of devolution on death, and the death duties {b), regarded from the conveyancer's point But his reason is that on these subjects the law has been of view. so lately recast by the Land Transfer Act, 1897, and the Finance Acts, that its interpretation has not yet been settled whilst the questions which are raised by these statutes occur upon almost every At the end of the dissertations on particular points arising on title. the investigation of title, or on particular titles, the main thi'ead of the discourse is again taken up in the chapter on the effect of the This is followed by an account of the contract pending completion. completion of the contract, dealing with the acts to be performed
considered,
generally,
;
of the title
down
to the execution of
At this point the first volume concludes (c), the reader having been conducted throughout the whole of the normal course of a In the second volume it is proposed to contract for the sale of land.
treat of the parties' position after completion (as with regard to a
want of
title
a chapter
Pp.
39, 41 sq.
(c)
(b)
See above, p.
xi.
v, n., xi.
FIRST
VOLUME OF
XV
counsel.
to
by decided
cases,
or settled
be of questionable autliority.
Thus,
he
Whether,
to sign a
conferred by
contract (d)
;
memorandum
good
(e)
;
of the
an whether a vendor under an open contract has the right of re-sale on the purchaser's failure to observe tlie terms of the contract {/)
to a
title is
;
;
whether a voluntary conveyance is a good root of title under an open contract {y) at what time the purchase-money is payable on a sale of land situate in a compulsory registration district (A) and to what extent the usual remedies for securing payment of a rent;
charge in fee are obnoxious to the rule against perpetuities [i). He has tried to elucidate the mystery of what is called " the compound settlement " in connection with sales under the Settled Land Acts (k),
case of
{d)
{e)
and he has respectfully protested {I) against the decision in the late Re Cormvallis West and Mtmro's Contract {ni). He has
P. 21, n.
[r].
{)
P. 32, note.
^j.^
^
'
3^^
(0
(,)
Pp. 314-316.
I903, 2 Ch. 150.
XVI
INTRODUCTION TO THE
under the Settled remainderman (n). And he has adverted to the difficulties now raised where a limited owner pays estate duty out of his own pocket and so becomes entitled to a charge for the amount paid (o) with regard to the charge of estate duty on the de^th of several where a joint mortgagees not appearing to be trustees (/>) purchaser receives notice of some unregistered process of execuand with regard to the effect of orders made in exercise tion (q) He has of bankruptcy jurisdiction in creating a charge on land (r). suggested (s) that the assignee of part of land let on lease, who pays the rent for the whole under threat of distress, may have a remedy which was overlooked in the case of Johnson v. Wild{t). And he has criticised the decisions in Bolton v. London School Boiird (u), Re Selous (x), Re Williams and Netvcasile's Contract {y) and the late Besides this, he has case of Re Highett and Bird\i Contract (z).
life
; ;
whether
on which,
he
is
aware, his
official
{a).
He
has
made
hardship which may befall a purchaser by private contract, whose advisers tamely submit to the incorporation in the contract of the
{b). He has dealt with view of a mortgage (c). And he has treated at some length of the law of restrictive covenants (r/), a subject on which many important decisions have been given during the last few years, and on which the latest
conditions usual on
London
sales
by auction
title in
leading case
(e)
is
it
reported in the
Law
Reports.
He
(y"),
on conveyancers'
144;
see
p.
See p. 319,
See Chap.
P. 584. P. 386. P. 362.
n.
(i).
(y)
1897,
Ch.
681,
XXI.
below.
(z)
{p)
[q)
()
Pp. 242245.
1902,
Ch. 214
1903,
Ch.
Pp. 605
P. 498.
sq.
(a)
{t)
44 Ch. D. 146.
7
\u)
p.
137.
{d)
[e)
,sq.,
n. {p).
(a:)
Formbi/ v.
Barke)-,
C. A. (July
1901,
921;
see p.
466,
14),
n.
{z),
below.
716; 51
W. N. 133; W. R. 646.
72 L. J. Ch.
FIRST
XVll
shoulders by the development of the doctrine, which culminated {g) in the extraordinary case of Scott v. Alvarez (h).
It is
hoped that
this
book may be
but also to students preparing for conveyancing practice in either branch of the profession. With this object the author has endeavoured, throughout the vrork, to write in a manner intelligible to those who have no greater preliminary knowledge of the subject
and of
contract.
He may
treatise (Chapters I.
and that
it is
which matters of interest to practitioners are more particularly The writer has started with the assumption that his readers will at least have such an acquaintance with the law of real property as may be gathered from a text-book like " Williams on
dealt with.
Eeal Property
"
;
it
as
an
But he has
tried
throughout so to treat his subject that readers who have no greater knowledge than this.
may
understand,
((/)
minster Hall a
his suit
man may
succeed in
D.
see Fry,
Sp. Perf.
(A)
under circumstances in which he would undoubtedly be defeated on the other side" (Wms. Real Prop.
129, 1st ed.
;
1896,
Ch. 596;
Ch. 603.
last
npparent paradox
eclipsed
appears
in
truth
to
be
put forward by eminent judges (see p. 58, n. (), below), that a contract is
really construed in the
in equity as at law.
and cause and in a matter depending on the effect of the same stipulation in the same contract, a suitor may at the same time obtain and be denied substantial relief according as his claim is
same manner
In the days when the Courts of Common Law and Chaneery were separate, the student's curi-
law.
(i)
See
Wms.
2l8t ed.
(/)
osity
Below,
p. 580.
statement that
XVlll
INTRODUCTION TO THE
writer
is
The
conscious of
many
for these he
He
;
has
been occupied with the task of its production for several years hut he has only been able to prosecute his undertaking during such time as he could spare from his other work. He will be much
obliged
if
readers,
who
Mr.
128
He
and he has undertaken the work of has also supplied the writer with many
;
is aflfording
him the
volume.
of the
like assistance
The author has endeavoured to make up for the absence Index from Vol. I. by using particular care in compiling the Table of Contents, and by inserting therein references to the pages under each heading.
7,
to
Chaps.
(^l),
XIII.
to
XV., now
included in
tfie
the
First
to the
Volume
originallg
formed part of
Introduction
Second Volume.
the very outset he
The
lias
writer
may mention
the
true
thai; at
many
doubts and
diffi-
culties
respect
contract.
mistake as a
ground
of
avoiding
is
;
the
warranted,
and
it
is
made by
on
xi.
Benjamin's
classical
treatise
Sale.
On
the other
(/)
See above, p.
FIKST
XIX
hand,
it
seems
W. Hohnes, of the Supreme Court of the United States, who is perhaps the most brilliant and original of all living writers on the Common Law, and with that adopted by Professor Holland. And it
by Mr.
Justice 0.
is
The
question,
how
far
mistake
is
available, either as a
ground of avoiding a
its
Everidge (w),
off in
section of
The
Another
difficult
and partly
by the
is
aware
this point
have been
well claim
carefully considered
full
made
of the questions,
of
whether one
may
the rectification
a written
executory agreement
ment
as rectified (y),
and whether
to
rectification
ought
been
In
ever to
unilateral
be
mistake
l)ntli
has
(r).
parties
and note
190;',.
I
(i).
(/>)
7<'>S.
]'.>02,
2 Ch. '2GG;
Ch.
(y)
(>)
434.
(o)
Pp.
and note
(.r).
63
XX
Frankel{t), Harris
y. Pep2Jerell{ti\
Bloomer
Y.
Spittle [x)^
been
criticised.
and Paget v. Marshall [y) have Under the head of fraudulent mis-
representation, the
much
Fowhe
{z)
and
it
is
suggested
may
yet be in point
where an agent has innocently and without express authority made a false statement as to some fact, on
which
his principal
this
().
it is
sought on
completion
(.v)
ground
1900,
Ch. 616.
(y)
(;)
, .
28 Ch. D. 255.
6
[t)
30 Beav. 445.
M. & W.
j,.,^
358.
^^.
>
{u) [x]
L. R. 5 Eq.
1.
^^^ ^^^^
L. R. 13 Eq. 427.
^^_,^
,
^^24.
xxi
TABLE OF CONTENTS.
4
PAGE
ABBREVIATIONS
xlviii xlviii
ERRATUM ADDENDA
Chap.
I.
xUx
Formation of contract,
acceptance
ofFer
PAQK and
14
14, lo
....
Capacity
General capacity to buy or
.
2
sell
Communication
I
land
for
Revocation
|
I
15
15
2 3
3 3
Time
for acceptance
17 17
17
to sale .... 18
Expression of consent
Form
Consideration
Open
contract
Answering proposals as
3
The whole
Oral agreement
19
. .
19
20 20
20, u.
n.
9,
10
Employment
auction
of
puffer
at
an
22
11
Memoi'andum subsequent
contract
to
the
11
Frauds
1.
11
Advertisement of sale
offer
is
not an
26
Sale
by Court
statute
11
2.
Where
Fraud
Payment
of a deposit
11
3. A.
12
12
Part performance
29
XXll
TABLE OF CONTENTS.
Chap.
II.
PAGE
.
41
Whether the
right to a good title is an imj^lied term of the contract 32, n. or a collateral right
title
42
.
42
42
Proof of
35
3")
the contract
Substantial errors to
13
Remedies
tract
1.
for breach of
the con36
in
purchaser's
detriment
Insubstantial errors
43
44 44
4.5
Rescission and
intcfinim
rcHtitiitio
36
2.
3.
if
46
46
4.
mons
39
Time
The
Rights of property and possession 49 pending completion Interest payable if completion delayed
^O
Terms
an open contract
41
Vendor
to
show a good
title
41
Has vendor
Proof of identity
41
judgment
Chap. HI.
OF THE USUAL CONDITIONS OF SALE.
Stipulations usually by auction
made on
sales
56 56
Eufon'ing
valuation
contract to
of title
sell
at
a
61 61
Commencement
tions
Time
57 58
Time when
contract
64
TABLE OF CONTENTS.
Chap. III.
Evideuce of ideutity
EiTors of description
tion
;
XXlll
condnued.
PAGE
65
PAGE
Unregistered documents
Sale of leaseholds 79
79, 80
compensa65 66
Duplicate of conveyance
80
, .
Conveyance
by underlease
80
67
com67 68
some rent or
81
in lots ....
by auction
deeds
82
82
Right to
re-sell
Custody of
title
covenants
83
to
Fonu
one
83
contracts
83
Deposit
71
71
Deposit
71
87
Time
for completion
.
89
.
89 89
Commencement
of title
No
compensation
description
Completion
Rents, outgoings, &c
Interest
73
74
Expense
74
74
of
verification
of
the
abstract
90
91
Power
of re-sale
to
Evidence of identity
Memorandum
be
indorsed on
74
the conditions
76
76
77
i>articular
7.S
Conveyance
91
92
com92 92
Re-sale
.,
XXIV
TABLE OF CONTENTS.
Chap. IV.
OF THE vendor's OBLIGATION TO SHOW A GOOD TITLE
AND
1
.
ITS DISCHARGE.
Of the
Origin of the rule that the vendor must show a good title
Freeholds or copyholds
94
95 96
Enfranchised copyholds
Leaseholds
Proof of sixty years' title prima facie proof of a good title .... Sixty years' title had to be shown as a rule, in all cases
When
1
be re97
97 97 97 97
Lease when intended to mean lease from the freeholder 100, Contract to grant a lease for years
or underlease
quired
101
101
2. 3.
Advowson
Tithes or property held grant
by Crown
101
101
.
Reversionary interest
4.
Reversionary interest
....
101, n.
97, n.
1874..
re-
98 98
only
now
Best and the usual evidence of title is production of the title 102 deeds
Other evidence of
Title
title
103
99 on purchase of leaseholds Enfranchised copyholds .... 99, and n. The present law as to showing
.
depending on
Statute
of
1
Limitations
04
title
title
100
he can
105
2.
Of the
105
abstract of
title.
deliver
What
tain
The
General devise
106
109
Transfer of mortgage
107
should be abstracted after the root of title. 109, 110 The manner of making an abstract 112
.
What documents
What
113
Deed
exercising a
power
108 108
114 115
Disentailing assurance
TlBLE OF CONTENTS.
Chap. IV.
continued.
XXV
3.
Of the
verification
PAOfe
of the abstract.
of docu-
Stamps
116 116 116 116
130
Evidence that certain events, which would certainl)'^ have affected the
title,
132
.
Documents
Rule as
presumptions of fact
134
Attested documents
116
No
134
What
Expense
Recitals
of proof of facts
136
119
Documents may be
official
Criticism of Bolton \. London School Board 137, n. Recitals of documents forming part of the title prior to the time for commencing the ab.stract 137, 138
. .
in private or
custody
.
121 121
Vendor must produce evidence of documents in official custody Expense of proving documents not
.
138
1
in vendor's possession
121
Recital
in
a public
statute
1
or
38,
document
Statutory declarations
39
Examined copy
Exemplification
Office copies
122
122
122
140
ments
140
is lost
Certified copies
122
123
title
When
the dociunent
141
Recitals
Expense of examining
Deeds
in possession
141
deeds
of vendor's
persons
124
And
the 143
Mortgagor's right of access to deeds in possession of mortgagee 124, 125 Where vendor has a mere right
to production
126, 127
Acknowledgment
Act of Parliament
145 146
Award
a covenant for
127
128
vendor
.
128
.
29
149
XXVI
Cliap. lA'. o
TABLE OF CONTENTS.
cundnued.
PAGE PAGE Presumption as between vendor and purchaser in matters of
pedigree
155 15G
;
Crown grants
Deeds
Missing- documents
150
150 150
151
Enrolment
No
presumption of death
Exchange or
Fine
152
153
153
153 153 154
154
Age
Blarriage
Presumption of marriage Legitimacy or paternity 157 Record in Record Office 159 Recovery 1 GO Registration in Middlesex or Yorkshire
KiO
Kid
161
Seisin
Death
Will
Chap. V.
OF ADVISING ON TITLE GENERALLY. Duty
of conveyancer advising the purchaser on title 163
Stamps
174
What
and residt of the abstract .... 164 Vendor need not show the whole
estate to be vested in himself, if
Vendor bound
to
answer
all rele-
vant questions
178 178
to procure its
good
title
it
proving
Time
IFant
for
v.
making
requisitions. ...
179 180
Good
title not shown, if any estate outstanding in one, whom the vendor has no right to direct to convey 167
StaUlbrass
Jic Tanqiierai/-
What
and
made
182
.
lie
Bryant
unci Baniingh((m''fi
Con1G8
tract
Where Where
the vendor
may
rescind
title
182
184
Purchaser nuist at once repudiate the contract, if he wisli to insist on this objection 168
Requisitions as to the contents of and manner of making the abstract
Where
or recklessly
misrepresentation
169 172
173
.,,.
173
174
Death duties
190
TABLE OF CONTENTS.
Chap. VI.
XXVll
The statutory
Sect. 3 (3) of
limitations
192
Ee Davis
to
Carey
Vrovinvial
205
Conveyancing Act,
193
194 195
.... ....
title
Re National
Bank of
.
1881
Its effect
Phillips V. Caldcleugh
t^r. Co. v. Bidhr Marsh and Eurl Granville Vendor discloHUig a defect of
Xottinyham,
lie
196 197
England and Marsh 20G Re Scott and Alvarez's Contract 206 Recovery of deposit under agreement that title shall commence with some specified instrument which turns out not to be a good
.
199 199
root of title
208
Misrepresentation
He
Banistif,
Broad
v.
Mitntun ....
199
210
211
Humr
V. Beidleij
202
Positionof purchaser buying under special conditions as against jierHons claiming adversely to the
vendor Purchaser not investigating title has constructive notice of equities which he might have discovered
211
when
204 204
by inquiry
211
Chap. VII.
01'
DEVOLUTION ON DEATH
Power
213
215
for executors to sell real estate might be implied 225
22<;
Dower
Curtesy
Statutory powers
Administrators
Succession to freeholds after death before 1898 215
228
Act, 1897
Land Transfer
228
Estates tail and pur aatre vie gavelkind and borough-English 216
Copyholds
Leaseholds
Equitable estates
216
217
229 230
218
owner's debts
Personal representatives' assent Ut
devise of real estate
Effect of the
Sect.
230
231
u.
Act
1881
221
,
Copyholds
owner's debts
222
222 225
234
Equitable estates
235
estjites in
.
Copyholds, ajuitiiblc
235 236
Escheat
XXVlll
TABLE OF CONTENTS.
Chap. VIII.
OF NOTICE OF TRUSTS AND SALES BY TRUSTEES.
1.
Of notice
PAGE
'237
of trusts.
Notice of a trut
Reason
cipal
for the rule that notice to the agent is notice to the prin-
Mortgage
to trustees
238
248
. .
new
trustees
238
248 The exception in case of fraud The law previous. to the Convey-
Acceptance of statements intended to conceal the fact that mort239 gagees or owners are trustees.
.
249 250
250
251
251
document disclosing
240
Atterbury Bradley
v. v.
v.
Wat'is
Richea
Sharpe
Foy
.".
.'.
251
Cave v. Cace
252
Succession and estate duty on death of one of several mortgagees not appearing to be
trustees
Effect of the Conveyancing Act, 252 1882, s. 8 Taylor v. London and County Banl; 252
.
241
Vendor
citor
or
mortgagor acting as
soli-
Notice of a document,
notice of its contents
how
far
24.3
purchaser's or mortgagee's
253
What
Notice, actual or constructive.
.
.
inquiries
?
ought a purchaser
254
246
to
make
Oliver V.
Hinton
255
2.
Of sales
256
Sales
by
trustees
....
with
sale
tli6
trusts
257
powers of
Order of
262
263
Milh
V.
Bugmore
257
257
Time
or
power
money Whether a
266
trust for or
259 the purchase -money Trusts declared by will for sale in 260 order to pay testator's debts 260 Re Homnaill
.
power of sale. authorizes a mortgage .... 267 Whether a trust or power to mortgage authorizes a sale, or a mortgage with power of sale 268
.
Executor's power of sale under 261 the Land Transfer Act, 1897
.
.
by
way
of
269
TABLE OF CONTENTS.
Chap. VIII.
2
XXIX
contmued.
PAGK
PAGE
Timber aud
ation
miaei'als
269
a valu270
271
sell at
Option of purchase
What
As
persons, besides the original trustees, can exercise a trust for or power of sale 271
to trusts or powers coupled 272 with an interest. ..-...
given to executors
arising by implication of
278 279
given to trustees
given to a class
.
279
279
280
281
281
272
Disclaimer
...'.'
272
272
.
By any
New
trustees
273
Persons succeeding to the estate ou the death of a sole or last 273 surviving trustee
Trustees exercising a power conferred by a settlement for some purpose provided for in the Settled Laud Acts 282
Heir of
Devisee
274
274
Where two
life
285
on trust for
sale
287 287
275
Trustees' receipts
288
288
276
interest
Purchase by trustees
278 278
....
What
bought by trustees
entitled successively
290
278
278
General rule
Chap. IX.
OF TITLE UNDER THE EXERCISE OF TOWERS.
Title
293
294, n.
Domicile of testator
299
special
power of
296
299
296
297
As to giving
.sale
.
i
notice of
.
an intended
Remoteness of
limit^itiou
. .
XXX
Chap. IX.
TABLE OF CONTENTS.
continued.
PAGE
As
Who
are trustees for the purposes 304 of the Settled Land Acts
PAGE Purchaser must require the concurrence of all whose charges fall within the second exception 320 The third exception from the life tenant's power of conveyance. 321
.
Deposit
on
sale
hy auction
of
Dispositions
settled land
306
As
power
the tenant for life in exercise of the right of alienation incident to his
made by
ownership
321
321
life
What
is
"the settlement"
. .
307
307 Re Aileshury and Iccagh 308 Re Miwdy and Roper'' x Contract Assignments of or charges on the
estate in consideration of marriage or by way of family
life
322
arrangement
310
settlement
Lease granted by the tenant for 323 life at common law Absolute assignment for value of
the
life
The compound
ment
310
310
Principle to determine under what settlement one is tenant for life 313
Criticism of
Assignments of the life estate in consideration of marriage or by 323 way of family arrangement Settlement and re-settlement limiting rentcharges in priority to
. .
Rf
CornicnUl><
West
314
the original
estate
life
estate
life
323
324
The
life after
324
life.
Sale by a tenant for life deriving his estate from the re-settle317 ment alone
Bankruptcy
325 325
Act
of
The
life' 8
power
of conveyance ....
Estates, &c. having priority to 317 the settlement Estates, &c. conveyed or created for securing money actually 318 raised
Sale under the Settled Land Acts 326 by a bankrupt tenant for life
. .
Trustee
of
arrangement
327
318
Mortgages by beneficiaries of their 318 interests under the settlement Mortgage by a tenant for life or remainderman of his estate. ... 318
.
Purchaser should require evidence of the non-existence of estates, &c. which the tenant for life cannot convey 327
Practice as to abstracting the settlement on sales under the 329 Settled Land Acts
Mortgage by the tenant for life 319 and remainderman in fee Mortgages by a remainderman
alnne
third exceptions relate to interests created before the date of the conveyance, not 330 of the contract for sale
to seeing that a tenant for life selling has not committed any breai'h of his duty as trustee 332
,
As
. .
TABLE OF CONTENTS.
Chap. IX.
Stipulation
co7ifiniie(h
XXXI
PAGE
that the purchaser shall pay the vendor's costs of the sale
PAGK
Copyholds
340
Title under the power of sale given to mortgagees by Lord Cran-
3.'>o
Waiver
of
any particular
worth's Act c40 Conveyance by mortgagee selling under Lord Cranworth's Act 341 Mortgagee selling under power of sale bound only to act in good
.
re-
faith
striction
341
Sale by mortgagee in possession after mortgagor's title barred. 343 Sale after foreclosure absolute
..
343
34;'.
demption proceedings
339
Sale by mortgagee's attorney ....
344
What
convey
339
344
34
Chap. X.
OF
PART
1.
ULAK
TITLES.
Sdh' of copi/holds.
to
.
Wliat
346
349
fines
Where no tenant on
Devise by deree
unadmitted
surren3.")0
2.
Sale of leaseholds.
3.50
Leaseholds
Criticism of
f 'on
tract
shown
3.J7
than
title
3.')1
Evidence that a lease held subject to a condition of re-entry has not determined
Where
3.V2
f^.^,,.
be unreasonably withheld
^f j,,^^.^ ^f ^^^^ for yeai-s
Waiver
'''"*
of forfeiture
by
receipt of
3Gi
.36:!
''^
Pun^hascr buying le.'iseliolds with t a I breach oi covenant notice ot that cannot or will not be remedied 3-53,
-I
t:
,.
'M]^ '"'
3,)4
XXXll
Chap. X.
2
TABLE OF CONTENTS.
continued.
PAGK
Satisfied tenns
PAGE
fee
368
Merger
Cesser under Satisfied
370
Merger
law and in equity .... 367 Purchase of fee by termor or of term by freeholder 368 Present law as to merarer 368
at
How
Reversionary leases
372
in futaro ....
Terms
to
commence
372
.3.
Lands
in Middlesex or Yorkshire.
373
387 387
of
Wills
376
..
377
Exceptions
Wills of leaseholds
378
379
in
several
388
Conveyance on
purchase of an
Lands
Lands
registered
the
Land
380
Registry
undivided share alone 389 Purchase of undivided shares from different owners 389 Successive purchases of undivided shares from the owner of the
entirety
Leaseholds
Sale of unregistered land situate
in a
382
390
compulsory
district
Suggested
scheme
pulsory district
392
of the
Bedford
392
4.
Voluntary conveyances.
393 393 394 395
In favour of a charity
Tending
tors
39;'}
voluntary conveyance
396
397 and n.
Leaseholds
TABLE OF CONTENTS.
Chap. X.
continued.
XXXlll
roads,
rivers, &c.
PAGE
Purchase of ground rents Inquiries on purchase of the version on a lease Succession duty
Reversion duty
Effect of grant
lessee's
398
re-
414
399
400
401
by adverse
415
of reversion
on
401
covenants
and
con-
Streets within an
urban
district
ditions
Mines and
iniucrals thereunder
and
403
418 418
418
Remedy
404
419 419
.
Assignee of reversion cannot sue 404 for rent due before his time
. .
Island in a river
Owner
420
Sea-shore
Foreshore
Reversions or remainders on an
estate of freehold
40G
Foreshore
the sea
421
.
Acts
Subject to succession and estate
407
Land bounded by
to the sea
421
duty
Sale of reversionary interests at an
No
undervalue
Time
Inland lake
422
.
Water
422
Allotments
under
an
Inclosure
Act Exchange
409
effected
by mutual con409
veyances
Water
410
411 411 411
425
and non-
Royal mines
What
are minerals
of
412
413
425 Severed from the ownership of the soil 426 Several fishery 426
.
down with-
Common
Right
of piscary
426
427
of sporting
W.
XXXIV
Chap. X.
Lessee's rig-hts sporting
TABLE OF CONTENTS.
5
continued,
of
fishing
PAGE aud
427
428 Ground Game Acts 428 Waste land of a manor Approvement of part of a common 429
PAGE Support of buildings by buildings 430 on adjoining land 430 Party walls
Right of
lateral support
429
Boundary hedges and ditches .... 43 431 Undivided share in land Tenant in common buying other
shares
Title under trust for conversion
.
431
.
432
6.
iSale
ditaments
436
437
Land charges
Tithe rent-charge
&
n.
Rent-charge
Perpetual rents,
434
Lands
sold as tithe-free
Advowson
Benefices Act, 1898
Remedies of owners of rents ... 434 435 Covenant to pay a rent-charge Proviso for re-entry on non-pay435 ment of rent- charge
Release of part of land subject to 436 a rent-charge
Release of part of land subject to 436 a rent seek
Right
vowson
443
7. Sale
of charity lands.
Assurance of personal estate to be laid out in purchase of land for
a charity
450
Assurance by registered disposition under the Land Transfer 447 Acts Enrolment of separate deed of trust 447
454
Power
not
448 449
No power
amend
other defects
the
trusts
449
The
charity may gain title under the Statutes of Limitation .... 449
To what
Act
in
purchased
463
extcjids
449
TABLE OF CONTENTS.
Chap. X.
continued.
8.
XXXV
Partnership property.
Disposition
is
partnership
of
land
which
is
property
465
partnership property
468
Power
Selous
466, n.
469
9.
made
470
by the Court
Conveyance of the legal estate 47^ The order should have been duly made, and must be properly
. .
What
bound by an
472
carried out 474 Order of the Court not to be invalidated for wantof jurisdiction 475
10.
by mortgagee of the
481
equity of redemption
Marshalling securities
477
482 485
ing
Tacking
Interest
What
inquiries
the
purchaser
478
shoiild
make
now
chargeable
on
a 486
478
irre-
486
to
be
487
48(
foot
....
481
Mortgages
to moneylenders
Time
488
renew licence
400
489
house
12. Land
title
How
491 491
x'estrictions
on land
may
bo
created
403
re-
of
liarker
492 492
covenants
to enforce
49G
Loss of right
Title
to
them.
497
498
benefit
of
restrictive
c2
XXXVl
Chap. X.
13.
TABLE OF CONTENTS.
continued.
Investigation of
title
in vieiv
of a mortgage.
PAGE
to lend
."lOO
498
He
What
499
title
should be required on
''00
'iOl
behalf of a mortgagee
of his costs in
any event
Good marketable
Evidence of
title
title
in view
of
a
''02
mortgage
499
Title on transfer of
show a good
title
mortgage ....
.'i02
Chap. XI.
OF THE EFFECT OF THE CONTRACT PENDING COMPLETION.
1.0/ the
rights
and
liabilities
504
The vendor's
Vendor's lien
beneficial interests
Subject to vendor's duty to show title, his lien, and right to possession until the proper time for completion, the lands are the .504 purchaser's
pending completion
516
51G 517
His right
si?.
to the profits
Wliat
profits
he
may
take
517
Conversion
^505
He must
He may
The vendor's
trusteeship
505
be restrained from disposing of the legal estate to the 518 purchaser's prejudice
after the date fixed for completion
'^08
'508
'512
What
512
to inijirove the
513
Vendor's
liability to
account for
^'5
the rents
up possession
526
TABLE OF CONTENTS.
Chap. XI.
2.
XXXTll
cnntimied.
Of the
and
liabilities
527
.528
Bankruptcy of tenant for life empowered to consent to a sale 551 Bankruptcy of the purchaser .... 552 Act of bankruptcy by the pur. .
when
dis-
charged from
liability
on the
Copyholds
Leaseholds
533
534
Option to purchase
535
&
n.
Conveyance of deceased vendor's estate by vesting order 536 When the Court may make a
vesting order
537, n.
contract 556 Purchaser an undischarged bankrupt at the time of the contract 556 Land taken in execution pending completion 557 Notice of unregistered process of execution 559
Lunacy
Marriage
contract
560
of either party to the
&
n.
561
. .
563
Acts
.
539
Outlawry 564 Party becoming an alien enemy. 564 Assignment by a party to the con.
tract
564 564
for value without
540
To purchaser
notice
565
542
567 568
Shaw
V. Foster
569
As
544
546
570
Co. ..
Browne
v.
London Necropolis
when discharged
.
571
from
liability
on the cimtrait
550
Contract specifically enforceable against persons whose estate would be displaced by a con-
veyance
572
XXXVlll
TABLE OF CONTENTS.
Chap. XII.
OF THE COMPLETION OF THE CONTKACT.
1.
Of completion
PAGE
57.'5
generally.
Time
for completion
of the essence of the
The The
Where time
contract
on either
578
575
578
577
purchaser's duties
of the title
579 579
Making time of
Acceptance
by subsequent by vendor
is
made
57'.'
Time
a term
578
580
2.
Of searches and
580
581
inquiries.
DisentaiHng assurances
59G
Deeds acknowledged
581
596
597 597 597 597
Land Charges
Act, 1900
Copyholds
What
1.
Crown
584
made
Writs and orders affecting
land
2.
Lis pendens
597 597
3. 4.
5. G. 7.
Life annuities
Notice of
life
annuities
Land charges
Land improvement charges created
before 1889
Bankruptcy 597 Deeds of arrangement .... 598 For registration of title 598
.
Land charges
Middlesex
Registers
or
598
Yorkshire
598
8.
Land improvement
requiring 1889
9.
Com-t
rolls
599
10.
On
Statutory charges on land of a principal sum, not payable by 591 way of annuity
Against
what
names
on
seai'ches
should be
made
purchaser to
601
What
created
No
592
593
after 1888
obligation search
is
Lis pendens
Search
notice
Lands
Deeds
in Lancashire or
Durham.. 594
594 595
Duty
of purchaser's solicitor to
Banki'uptcy
of
search
Official searches
arrangement
TABLE OF CONTENTS.
Chap. XII.
2
XXXIX
continued.
PAGE
Official searches for disentailing
609
Inquiries to be pletion
made
before com-
607
607
As As
to statutory charges
Purchaser's rights before and after completion in respect of vendor's innocent misrepresentation .... GIO
609
611
3.
Of
the preparation
..
of the conveyance.
612
parties to the
634
612 614
Intermediate trustees
Trustee-mortgagees
General words
636
Conveyance nominee
to
the
purchaser's
What
615 616 617
637 easements or other privileges the purchaser can require to be conveyed to him 639
.
The usual
costs of
stipulation as to the
conveyance
C20
Discharge of incumbrances on sale by payment into Court 621 Vendor should never be allowed 622 to obtain the legal estate Purchase followed by an immediate
Reservations favour
in
the
vendor's
641
Where
mortgage
of
624
has
625
646
(jualified
Vendor's
627
627
covenants for title confer no indemnity against eviction by title paramount. 647
. . .
Parcels
629
When
covenants
647
How
631 631
plan
by
648
Re Sparrow and
lie Satmoiii
Jameii' Contract
Estate clause
649
the
Limitation
estiite
of
purchaser's
650
reference to a plan
633
XI
TABLE OF CONTENTS.
Chap. XII.
3
continued.
PAGE
Limitatiou by deed of equitable estates in land 651
Sale in consideration of a rent-
PAGE
charge
672
the vendor
is
Vendor
of land
bound
to give the
To what remedies
652
entitled
title
673
No warranty
of title
as a rule, by land
now
653
for
655
.
By
cestui
655
655
Power of re-entry to satisfy arrears 675 Power to limit a terra 676 Power of re-entry by way of forfeiture
By
trustee in bankruptcy
677
Sale under power Sale by trustees for sale Sale by order of the Court
656
657
657
title
.
Criticism of
Re
UoUis'' Hospital
and
678, n.
The
657
679
659
660
680
title
on sale of an
obtained by
661
be handed
680
equitable estate
title
Williiait.s
and New681
to
castle's Contract
682
title
sale
of
663
664
Payment
holds
683 683
684
Where
on the deeds
Covenants for title intended to 665 cover an apparent defect Purchaser agreeing to observance of restrictions on the use of the land bought must enter into an absolute covenant to that effect 666
acknowledgments
takings
and
under684
What documents
ledgment
should be in684
...
the
On
sale of leaseholds
667
Indemnity on
Indemnity on
sale of laud subject to a charge for which the vendor will remain liable 672
Exceptions
TABLE OF CONTENTS.
Chap. XII.
3
xli
continued.
PAGE Proper acknowledgment and undertaking can only be given by the person retaining possession of the documents 690
Sale by mortgagor witli gagee's concurrence
PAGE
Conveyance
parcels
700
Where
mort(500
700
As
By
surrender
701
conveyance
693
Expenses of acknowledgment and 694 undertaking Liability created by acknowledgment or undertaking 694 Endorsement of receipt on convej'anoe
Of equity
of redemption
.
701
702 703
Conveyance in consideration of a
695
69o 695 696 696
....
Conveyancing etiquette
Engrossment
Where
Stamps on conveyance
Increment value duty stamp
in
by
704
70.")
696
Or
prior to conveyance
Expense of stamping
698
70.5
How
70o
698
How How
Ou what
699
charged
. .
Duty on conveyance
consideration
...
70S
When
699
duty
708
709
On
conveyance in separate parcels of property bought fur one consideration by or for several
persons
Whether
700
Where
710
&
u.
Where
it is
contract
710
xlii
TABLE OF CONTENTS.
Chap. XII.
continued.
713 713
stat.
Of outgoings
The
The
Of duties imposed by
in equity
723
Edw.
VII. c. 8
10 714, n.
725
Sale of land subject to a rent attaching thereon and on other 71G land Sale of reversion of part of land 717 let at one rent Purchaser' s liability to pay interest 717
727 727
728
728
Under an open
contract
717
The
Behenham
v.
730
default 721
ance
.
733
Items chargeable against or for 721 vendor 722 Deterioration of the property
Where
722
I 5.
Of the
Completion
Attestation of the conveyance by a witness of the purchaser's
On
a sale by trustees
is
74
Where
737
executed
742
to the
choosing
in person
738
Power
of attorney
when revoked
738
Payment
to
solicitor
ostensibly
.
743
Execution of some
attorney
deed by
740
To whom
money
740
744
.
Payment
What
is
a proper payment
veyance
TABLE OF CONTENTS.
Lliii
Chap. XIII.
OF MISTAKE.
1.
Of luisfake
WhcTo
the coutract i^ iiupfucluihlu for mistake, rai'^i-epicseiitatioii, fraud, &c., there is always an
Executing,
solicitor
without
document presented by
748
inquiry, a one's
75(3
apparent couseut
Misunderstanding as to
legal
effect of a
No
In
document
transactions
756 75C
take
748
tlie case of misrepresentation, fraud, &c., there is real consent induced by belief in nonexistent facts or by coercive influence 748
Conveyance induced by misrepresentation, fraud, &c. not voidable as against a purchaser for value without notice 757
,
Contracts induced by fraud remain voidable, as against the other contractor's assigns 758
,
. .
by misrepre-
Where
money
Mistake as tu the pei'son of the other party to the contract ....
Estoppel from proving error in the person
Smith
V.
758
75'J
The
that, whei'e owing to mistake the parties' minds are not at one, there is no contract. 749
rule
is
75'J
fVheatcraft
700
Unilateral mistake
If
750
tion,
one manifest a certain intenhe is estopped from proving that his real intention was
different
760
v. Evcrldije
Van Praagh
750
761
Mistake as to price
Mistake as to the property or price goes to the root of the
contract
76J
Mistake on some point going to the 751 whole subject of the contract
.
762
to quality
Mistake as
liaJjUx V.
763 763
Wivliclhaus
751, u.
Estoppel by manifestation of a
parti(^ular intention
Warranty
753
of quality
The
rule
is
caveat emptor
763
755
755
No warranty of
Estoppel
ai'ising
careles.sness
764
xl IV
TABLE OF CONTENTS.
Chap. XIII.
continued.
PAGE
Unknown
latent defects
764
76'>
Vendor not
bound to disabuse purchaser of his erroneous belief as to the quality of the thing
sold
765
772
The
Lucas V. James
766
know
this
772
But
the vendor knew of this belief, the contract is void for want of true consent 773
if
774
is fit
for
769
performance against a party mistaken may be refused on the ground of hardship .... 776
has contributed to the
777
Where one
769 770
other's mistake
Misleading conduct
Specific performance may be resisted in some cases where the
and
it
sought
advantage of
778
Hope
V.
Walter
770
Common
Specific
mistake as to some fact which is a condition precedent to the formation of a contract. 778
.
771
Common
ria-ht
mistake as to
private
780
2.
Of mist((ke
in the expression
of consent, and
Rectification
its rectification.
780
written
instru-
real
Equity 781
2.
An
to explain
sti'uments
781 781
proved
784
TABLE OF CONTENTS.
Chap. XIII.
2
xlv
continued.
PAGE
EflPect of denial of the
PAGE
Cases where rectification -with the alternative, at the defendant's option, of rescission, has been ordered on the ground of unilateral mistake 794
agreement
785
by one party
It has
&
n.
may
plaintiff
786
Rectification
Garrard
Harris
Payet
v.
v.
Frankel
794
Pepperell
795
796 796
Bloomer
v.
v. Spittle
Claim for
joined
rectification
might be
Marshall
with claim for relief under the Avriting rectified .... 787 Rule that specific performance of a written contract with a parol variation cannot be enforced by
a plaintiff
788
Rich
V. Jackson ;
Woollam
v.
Ream
788 788
Davies v. Fitton
Common
mi-stake
798
2.
but
798
788
3.
May
v. Plait
790 790
4.
Thompson
v.
Hickman
800
801
Distinction where a parol variation is proved, and whore the defendant's own mistake is alone proved 791
No
all
antecedent contract at
5.
Fraud
802
Where a
parol variation is pleaded in defence, the relief may vary according to the facts proved 791
.
Rectification of a conveyance cannot be had against a purchaser for value with notice 803
On
To
sale of land, rectification may obtained either before or after conveyance 803
be
Chap. XIV.
OF
FH.\UI),
1.
Of Fraud and
fraud
or
Misrfpresentntinn.
Innocent misrepresentation,
.-ind
Contract voidable
misi'epresentation
for
805
even
non-disclosui'e,
might
fiffet
.
Representation
805
806
The
common law
in the case
of other contracts
807
xl VI
TABLE OF CONTENTS.
Chap. XIV.
continued.
PAGE
PAGE
party claiming to have been misled must not have known that the statement was false .... 822 What is requisite to maintain an action for a false representation inducing a contract 822
8.
of
The
mutual stipulations
Equitable rules as to fraud or misrepresentation inducing contract
808
Sll
Innocent equity
misrepresentation
in
813
No
Difference in principle between the rules of common law and equity as to innocent misrepresentation 814
Contracts for sale of land are not voidable for non-disclosure .... 820
Except
The law since the Judicature Acts To be fraudulent, a false representation must be made knowingly or recklesjsly
814
816
Falsity essential
2.
no title 827 Election to rescind or affirm a contract induced by misrepre828 sentation Purchaser's right to specific per828 formance with compensation
. .
Ambiguous statements
Promise not properly a representation
3.
made
828 828
acts 829
818
representation
Must be communicated
Election
The
must
may be evidenced by
No
rescission after an election to 829 affirm the contract Nor where by the act of the party
818, n.
The The
No
830
820
No
820
Fowke
820, n.
By what
The
representation must be a part of the transaction ending with the formation of the contract 821
cission is exercisable
7.
The
have induced
tract
Assignee of a voidable contract 831 pending completion Against what persons the right of 832 rescission is exercisable
Action of deceit maintainable after 832 death of party deceived
821
. . .
TABLE OF CONTENTS.
Chap. XIV.
But not
xl Vll
continued.
PAGE
of deceiving party
PAGE
833
On what
837
Forged documeuts
Adoption of a forged instrument
838
838
83
1,
n.
On what terms
forged authority
839
2.
Influence.
How far
his client
client
S4.'i
840 840
u.
severed
84G
84G 846
Two
classes of cases of
undue
in-
fluence
1.
841
Where
846 846
846
Barker
2.
Where
Stitrge v. Slurge
Examples
fluence
of relations
is
where
in-
presumed
842
Longmate
Clark
V.
v.
Ledger
847
847
is
The
Malpas
not
843
848
843
843
not sufticient
848
by
will
Undue
influence presuined from confidential relation on the ground of public policy 844
Inadequacy of consideration alone no ground for resisting specific performance 849 luadetjuacy of consideration on
sale of a reversion
8.')0
advising another
844
duty of communimaterial
to
cating value
sale
facts
the 844
Contracts induced by duress or undue influence voidable within the .same limits as those induced by fraud
8.51
Tenns
Non- disclosure
844
astiii-
8.')2
853
xlviii
TABLE OF CONTENTS.
Chap.
XV.
PAGE
Sale of pretenoed right or
Sales
title
. .
858
854
854
made
What contracts or
unlawful
stipulations are
What
854 855
i.s
an assurance
860, n.
860
known
to
by way
of lottery
855
861
861
law
Contracts
legal act
contemplating
an
il-
855
Exceptions to the rule that property parted with under an illegal contract cannot be recovered .861, 862
.
863
involving
maintenance or
857
land to a
champerty
865
The 3rd
is
by
Dart, V.
&-
Sir
Edward Fry
himself,
referred to
.The 5th edition, the last revised by Mr. Dart himself, is cited as an authority, but references are given to the parallel passages in the 6th and 7th editions.
ERRATUM.
Page 616,
n.
[l).
.
ADDENDA.
Page
5,
note
(?)
also
Commins
v. Hcolt.
v.
L. R. 20 Eq. 11."
Add
at end, "
Humphries
Hi4mphries, 1910, 2
K. B. 531."
note
{d)
After Rossiter
Forestal,
v. Miller, insert
" Filby
v. Hounsell, 1896, 2
Ch
v. j?m//,
Co. v.
Co., Ld.,
26 Times L. R. 534."
35, line 3
After "title,"
Taylor,
what
is
purchaser to procure the contract or the convej'ance to be stamped with the appropriate increment value duty
stamp;
pp. 696,
64, line 20
see stat. 10
Edw. VII.
c. 8,
ss. 1, 4,
11
below,
705712."
After "contract," add a note, " Cozens-Hardy, M. R., Re Taylor, 1910, 1 K. B. 562, 571, 572."
159, note
165, note
(c)
Add
at end, "
i?e
333, 341."
((/)
Add, "
Hucklesby ^ Atkinson's Contract, 102 L. T. 214, 217, where it appeared that the vendor was entitled under
of purchase."
an uncompleted contract
224, note
(.i)
Add, "The heir or devisee of land charged by wOl with debts and also with legacies or annuities could give a good discharge to a purchaser or mortgagee without the concurrence of the legatees or annuitants
:
but
if
the land
were charged with legacies or annuities only, the concurrence of the legatees or annuitants was necessary in order to sell or mortgage the land free from their charge
;
(1), sect.
xiv. 3;
Horn & K.
658
596
294, n.
(i), line
;
V.
Horn, 2
;
S.
&
v.
S.
448
Johnaon v. Kennett, 3
4 Beav. 269
;
624, 630
Rage
Adam,
Sug. V.
My. & P.
Re Hvnson, 1908,
Ch. 356."
10..
Add
341,"
297, note (0
Add, "Cloidtew
Storey, 1910,
W.
N.
359, note (/), 2nd column, 4th line. .After Jenkins v. Friee, add
"
If'ilbnott v.
W. N.
209, reversing
C,
1910,
Ch. 754."
361, note
[t)
450, note
{s)
W.
THE LAW
RELATING TO
I.
The
estate
is
Sale defined.
and
and completion
land
or
of
contracts
the
conveyance of
other
(a).
money
is,
Now
an
Requisites of
agreement enforceable
law,
it
contr^t
must be
(1.)
Due
The
capacity to contract
expression
by
;
all parties of
common
inten-
tion to create
one of them
or one of
or forbear something affecting their legal relations for the benefit of the others or other of them
;
them should do
(3.)
Due
compliance with the forms or the presence of other matter required to make a promise
enforceable
by English
law,
expression of a
(a)
common
intention
1897,
<^-
W.
^r
OF THE FORMATION
(4.)
(5.)
Nothing unlawful in the object of the agreement; True, full and free consent of the parties that
;
is,
consent
unimpeachable as having
been
undue
influence
(h).
Applying ourselves
contract,
it is
to
be observed
valid
form a must
have, not
only capacity to
natural
make
contracts
sell
generally
land.
As
general rule,
city
:
all
persons
Exceptions
~ women
and
convicts.
are disabled
by
And
corporations
are
limited
in
their
capacity for
buying and selling land (d). There are also eases in which the formation of an unimpeachable contract for the sale of land is prevented by the relation existing either between the vendor and purchaser, as in the instances of solicitor and client, trustee and ce>ifu/ que trust, or between one party to the sale and the beneficial owner of the land or money dealt with, as where a man exercising a trust or power to sell or purchase land
endeavours in the one case to buy the land himself, or
in the other to sell his
own land
proposed
[e)
reserved ^^
future consideration.
and
it
is
fii'st
to
examine the
full contractual
capacity
and
to treat afterwards of
any grounds
XVI.
XVI.
for
Prop. Pers. 158, [b) Wms. 16th ed. {c) Bar. Abr. Outlawry, D. (3), Aliens, D. Co. Litt. 129 b. See
;
below, Chap.
[d)
{e)
mentioned elements of a valid contract, and devote our attention to the second and third, namely, the expression of consent,
and
its
form.
of
The common
an agreement may be expressed either by their uniting in a set form of written or spoken words, or by the acceptance by some or one of them of an offer made to them or him by the others or other of them (./'). As Form, to the forms or other matter requii-ed to make a promise enforceable by English law beyond the mere expression
of a
tract
common
intention, the
b}^
main
(r/).
rule
is
must be evidenced
deed or
else there
always
present.
tlie price, and vice verm. So that a contract for sale of land, though it be not made by deed, fulfils the requirements of English law,
in so far as consideration
is
however one of those contracts on which the law imposes a requisite of form For by the fourth besides the element of consideration.
contract for sale of land
is
Frauds
(A),
no action shall be
memorandum
Prop.
160,
(./;)
(),)
r. 3.
1(2)
OF THE FORMATION
necessary to
make a
(/).
contract
for
the
sale
of
land
enforceable at law
on a on a
sale
by by
private treaty,
auction,
his agent
conditions
of
sale,
also signs as
agent for
But such contracts may also be established by informal written memoranda or letters signed by the
the vendor.
binding contract
essential,
may
result
land.
It
is
however, whether
the
writing
given
in
ascertained
therein
(./).
The
to be sold
must therefore be sufficiently described (/), and the price, or the means of ascertaining it, be stated (ni)
;
(i) The writing required by the fourth section of the Statute of Frauds need not be executed with pen and ink the note of the agreement may be made in pencil or print, by engraving, lithography or photography, or "in any other mode of representing or rei)roducing visible words." And the signature of the party to be charged or his agent may be affixed by any similar means. See Schneider v.
;
Norris, 2 M. & S. 286 Geary v. Physic, 5 B. & C. 234 Bennett y. BrionfUt, L. R. 3 C. P. 28 Bench V. Bench, 2 P. D. 60 Tourrct v. Cripps, 48 L. J. N. S. Ch. 567 Stat. 52 & 53 Vict. c. 63, s. 20. {j) Seagood v. Meale, Prec. Ch. Wain v. Warlters, 5 East, 560 lUagden v. Bradbcar, 12 Ves. 10 466, 471. [k) Williams v. Lake, 2 E. & E. 349.
;
;
{I)
;
Milnes v. Gery, 14 Ves. 400 Elmore v. Kinqscote, 5 B. & C. Morgan v. Milman, 3 De G. M. & G. 24. It is thought 583, 584 that the rule applying to the sale of goods, that in the absence of express agreement as to the price the law implies an agreement to biiy at a reasonable price {Hoadlcu v. McLaine, 10 Bing. 482, 487 ; Joyce V. Swann, 17 C. B. N. S. 84, 102; stat. 56 & 57 Vict. c. 71, s. 8 (2)), has no application to the sale of land. This rule appears to have been laid down with respect to commodities so regularly sold that the market or the usual price is easily ascertainable. With
(;)
;
regard to land, tlie law of specific performance of contracts to sell it is founded on the principle that the advantage of the possession of a
must be defined
(o).
Witli regard to the question, What is a suflfieient Description ^ ^'^ description of the parties to the contract, or the property
to be sold ? the rule is id cevtum est quod ccrtum reddi
potent [p).
by
reference to
Thus a man may be sufficiently identified some character which he fills, if there
So that the description of a vendor as the proprietor, owner or mortgagee of certain land is good enough (/). But if the description be so vague that it does not necessarily apply to some
?
particular person,
it
is
insufficient.
Thus
it
is
not
particular piece of land may be inestimable, and no amount of money may be assessable as an exact equivalent for it Addcrley v. Dixon, 1 S. & S. 607, 610; Falcke v. Gray, 4 Drew. 651, 657; Hexter v. Pearce, 1900, 1 Ch. 341, 346; see below. Chap. XIX. s. 3. Au express agreement to buy land at its fair value is, however, valid, and would, it seems, be specifically enforced Grant, M. R., Milncs v. Gery, 14 Ves. 400, 407 Cranworth, C, Morgan v. Milman, 3 De G. M. & G. 24, 34 ; Sug. V. & P. 287. And aii agreement to buy at the fair value of the land may be inferred from the terms of the memorandum see Gregory v. Zlighcll, 18 Ves. 328, 333, 334 Goarlay V. {ioiiwrsct, 19 Ve.'i. 429, 431. But it is submitted that, if the memorandum do not specify the price or the means of ascertaining it, and contain no evidence of an intention to sell at a fair price, it is It is quite clear that, where insufficient to prove a contract of sale. the price is in fact agreed upon, it must be mentioned in the memorandum Elmore v. Kbxjscote, ubi sup. Re Kharoskhoma, <S;c. Syndicate, 1897, 2 Ch. 451, 464. 467. Where the parties intend that a particular piece of land .shall be the object of au agreement of sale between them, but have not determined whether the price .shall be (1) a definite sum of money, or (2) a sum to be ascertained in some specified manner, or (3) a sum equivalent to the fair value of the land, it is thought that their agreement as to the sale rests incomplete, and does not amount to a contract legally enforceable.
; ; ;
; ; ; ;
(m)
^q Fowlew.
Cooper V.
Freeman, ^Wea.
26 Beav.
Evei'idge,
Ch. 613.
Sale v. Lambert, L. R. 18 Rossiter v. Miller, xxhismp. So the descriptions " the executors of A." {Hood v. Lord liarrington, L. R. 6 Eq. 218), "a trustee for sale of certain property " [Catling v. King, 5 Ch. D.
(r) "Eq^.
\
\
351.
(o)
Ifood,
v.
293
App.
Potter V. Dufiield,
;
Eq.
4, 7
Carr
v.
L. R. 18 Lynch, 1900, I
OF THE FORMATION
enough
Description of the property.
named agent
(.s).
rule
is
applied
property sold, parol evidence being admissible in either Thus in a written case to elucidate the description (t)
.
Mr. Ogilvie's house (n), or Hall Estate (y), or Ashford the or Farm Trogues (:?:), at the Sun Inn, specified on a day of the property sold
sale of
Pinxton
(s),
is
certainty to
and
it
make the contract valid and enforceable may be shown by oral evidence what land in
So also particular description. " the property in Cable Street " has been admitted to be
all
equivalent to
and
Plant V.
liourne.
so
it
sufficient
uphold
the
And
sale
between two persons named at a price specified of " twenty-four acres of land at Totmonslow " contained
a description sufficiently ascertaining the land sold to
satisfy the Statute of
Frauds
{h).
(.s) Potter V. Buffield, ubi sup. Jarrett v. Hunter, 34 Ch. D. 18'2 Lavery v. PurseU, 39 Ch. D. 608, 518. [t] Ogilvie v. Foljambe, 3 Mer. 53; Shardloiv v. Coiterell, 20 Ch. D. dQ, 9^; Plants. Bourne, 1897, '2Ch.
;
281. In that case the quantity mentioned was all the land the vendor had there, and he had
shown the purchaser over it just before the contract was signed. The C. A. admitted oral evidence
of these facts on the ground that the description in the memorandum must be takeu to mean the vendor'' s 24 acres or those so pointed Byrne, J., had exout by him. cluded this evidence because the
281.
[u)
Ogilvie v. Foljambe, 3
Mer.
63, 61.
Goodtith d. Radford v. Southern, 1 M. & S. 299. (y) Rickelts v. Turquand, 1 H. L. C. 472, 487, 493. (z) Shardlow v. (Jottcrell, 20 Ch.
{x)
the description
Qucere,
D.
90.
had been
Bleakley v. Smith, 11 8im. 150, where note that the only question argued and determined was as to the sufficiency of the vendor's signature. (A) Phmt V. Bourne, C. A., reversing Byrne, J., 1897, 2 Ch.
()
whether in principle the judgment of BjTne, J., were not sounder than those delivered in the Court of Appeal, where the Lords Justices appear to have adopted as the rule of law, not
the decision in Ogilvie v. Foljambe
b}'
it
may
be J^Yby^several
that, in Rule as to
memorandum
of Frauds, one
the
other
rule,
(c).
But
which appears
be this
You
{(I).
are entitled to
you
have a document, signed by a party to be charged, which refers to an agreement made by him, but in such terms
that
the description of
the agreement
is
obviously
is,
and
if
the terms of
first
may
be read together as
memorandum
although
that "' Mr. Ogilvie's description sufficiently certain to allow of its being elucidated by parol esidenee, but the dictum of Grant, M. R., that "the subject-matter of the agreement is left indeed to be ascertained by parol evidence. and for that purpose, such evi(3
53),
Mer.
house" was a
may be received"; see 1897, 2 Ch. 287, 289. This dictum was of course uttered purely with reference to ascertaining what house answered to the description of Mr. Ogilvie's h(msf. But, surely, apart from this, it is not
dsDce
the law that a written memorandum of a contract is sufH(deut to satisfy the Statute of Frauds, although the subject-matter of the agreement is left to be ascertained by parol evidence see cases cited above. i)p. 4, n. (,/). 5, n. io). It is respectfully subiuitted that
;
Appeal may be supported on the ground that a sale of 24 acres of land at Totmonslow would be a valid sale of 24 acres of land to be selected by the purchaser out of the vendor's land there; -Shepp. Touch. 251 TapUy v. lAtglcton. 12 Ch. D. 683; and that being so, it was competent to the vendor to prove that the purchaser had made his selection before the memorandum of the contract was signed; see Wylson v. Dunn, 34
of
;
Ch. D. 569.
{()
lildgwaij v.
Gr.
Wharton, 3 D.
677, 693-7, per Cranworth, C, who changed his mind, ('., di-<S. 6 H. L. C. 238. 256 senting judgment of Williams, J., X. Stajfurdshirr Rij. v. Peck, E. B. & E. 986, 1000-3. Wade, 16 O. [d\ Bainbridye v. B. 89.
A:
;
M.
OF THE FORMATION
the evidence connecting
them be parol evidence only [e) a signed document contain a reference to an agreement made by the signer in such terms that a complete agreement is described, and no explanation of the terms of the document is required on the face of it,
.
But
if
tlie
signer
is
not entitled to
is
other than
is
may
prove by parol
he entered, and
of
Frauds ( /").
To
give examples
been admitted to connect a signed letter referring to an agreement to purchase land with an other document giving
the terms of purchase
{g)
;
you
solicit
showing the day on which the term granted by to show that the " instructhe lease was to expire (A) tions " to a solicitor referred to in a letter were a written
;
memorandum
ment sought
be enforced
(/)
to connect a letter
containing a promise to grant a lease for fourteen years " at the rent and terms agreed upon " with another
document in which such rent and terms were specified (k) and to show that the purchase referred to in a signed
;
receipt
for
31/.
certain land
was an agreement
which
{e) Rldnicay v. Wharton, 6 H. L. C. 238; Banmann v. Janien, L. R. 3 Ch. 508 Zonp v. Millar, Shardlow v. Cot4 C. P. D. 450 Studda v. terill, 20 Ch. D. 90; Watson, 28 Ch. D. 305 IJ'ykon Dunn, 34 Ch. D. V. 569, 574, 575 Oliver v. Huntmy, 44 Ch. D. 205
;
v.
(y) Tf'esfern v. Emscll, 3 V. & B. 187. See also Cave v. HaHtbigs, 7 Q. B. D. 125 (reference to ' our arrangement for the hire of your
& R.
Sheers
v.
Thimhlehy,
V.
;
13
Times
WhitehouHe, 7 East, obS, h69, 570 Kemvorthyv. SchoPeircey. Corf, Jicld, 2 B. & C. 945
;
Ridyway
v.
Wharton, 6 H.
Jaicx,
v.
L. R.
memorandnra signed by
letter saying, " I
the purchaser
(/).
So
if
one write a
is
no doubt that
this
may
be
shown by parol evidence to refer to another letter previously received, in which the terms of the offer are
fully stated, so that a complete contract in ^vi'iting
may
be established by the two letters read together (/). Similarly, parol evidence has been admitted to connect a letter addressed " Dear Sir " only with the envelope
in
which it was enclosed, and on which the purchaser's name was written {ii). On the other hand, memoranda of sales written in auctioneers' books in terms, which
needed no explanation, have been held insufficient to satisfy the Statute, on the ground that they contained
special conditions
on which the
sales
(1) Long V. Millar, 4 C. P. D. see also Studds v. fFatson, 450 28 Ch. D. 305 Olirei- v. HuhUikj, in -which cases 44 Ch. D. 205 writings referring to the purchase - money " were allowed to be explained by parol evidence and so connected with other documents containing the remaining terms of the purchase.
; ; ;
' '
name
memorandum;
;
v.
Selhy, 3
may be enough
{m)
Millar
Field, J., Cave x. Haxlings, 7 q'. B. D. 125, 128; Kekewich, J., Oliver v. Bunting, 44 Ch. D. 205, 209. /--.I 1 1 on-T (n) Fearce v. Uardner, 1897, 1
,
OB ^'
(0)
rss
Hinde
v.
Whitehume,
.')70
;
Kcnworthy
;
B.
&
C. 945
Peirce
;
scription,
which may be
sufficient
[p) The party's usual signature, with initials for the Chrisll.\.Arerii, tian names, will do Writing the iui18 Q. B. 57(i.
;
ante, p. 5), may not be sufficient to constitute his signature of the memorandum; Srlby v.
fielby, 3
Mer.
2.
10
liis
OF THE FORMATION
authorized agent
(y).
(^/),
so as to authenticate the
memowhat
randum
And
does not
much matter
is
in
placed, provided
name be inserted in such a manner as to govern the whole memorandum (s). Thus in the case of memoranda drawn up in the third person, the mention of the names of the parties at the beginning has frequently
(f). So writing a head of a memorandum of an agreement, to which he is a party, has been held to be a sufficient signature (u). But where a name inserted in the body of a memorandum relates only to particular
been held to be a
sufficient signature
person's
name
at the
sentences,
it
whole document
parties in a
And
of
memorandum
agreement (even
so as to
intended
If,
to be authenticated
by further signature
(//)
parties'
further signature
missible
names are inserted, leave a doubt, whether was intended, parol evidence is adto show that either party made, authorized or
(s).
{q)
Philliiiwrev. Borrij,
Camp.
Taunt.
'ilQ.
513;
20'J.
()
White
v. Proctor', i
for signature
Stoke-sv. Moore,
Cox,
(s)
53
Lobb
V.
defendants' name was actually written by their authorized agent; St'im V. Landrai/, 1894, 3 Ch.
318.
[x]
Cato)i
Caton, L.
R.
H. L.
Caton
127.
127, 143.
[t) See cases cited in preceding and I'ropcrt v. Parker, note Blmklei/ v. Russ. & My. 625 Smith, 11 Sim. 150.
:
&
()
Schneider v. Norri!f, 2
;
M. &
286 Elans v. Hoarc, 1892, 1 Q. B. 593, where note that the letter was written by the defenS.
dants' clerk
by
their authority,
Turner, 4 Scott, N. R. 486. iz) Johnson v. Dudyiion, 2 M. t^W. 653 see also Schneider v. Norris and Evans v. Hoare, ubi sup., which were decided upon Hucklesby v. Hook, this principle 82 L. T. 117.
; ;
11
of
required to be signed
It
is
memorandum,
sufficient that
it
is
he be ready and
{a).
mlling
to
perform
his
An
memorandum
of contract for
need not,
it is
in
loritiny
(/>).
And
the
memorandum may
is
well be Memoraudum
made
it {c).
or signed at
any time
been
t" th^"^"
contract,
brought to enforce
Cases where
in certain exceptional cases, although the requirements enforceable of the Statute of Frauds have not been complied with, without com-
These
are, first,
where the
sale is
made by
of
when
held
Fi'aiKi^-
to preclude the
Court.^
2.
was intended
to prevent
Where
present practice, the defence of non-compliance with statute not the requirements of the Statute of Frauds must be taken,
specially pleaded in
(./).
So
that
sale
one sued in respect of an oral agreement for the of land omit to plead the defence of the Statute, the
if
agreement
may
{e) A.-G. v. Daif, 1 Ves. sen. 218, 221; Sug. V. A: P. 109; Dart, V. & P. 197, 1201, 5th ed. 227. 1329-30, 6th ed. 218, 1168, ^th ed. Fry. Sp. Perfce. 562.
;
(c) '
^
-D
II
11
(d) Lerotix v.
Brown, 12 C. B.
v.
19, r. 15; Clarke v. CnUoic, 46 L. J. N. S. Q- B- '"'3; See Oiham.s v. Bninrpt t> .jr..> ntny, i.i 12 Times L. R. 303, reversed 13 Times L. R. 65.
(g)
(/) R.
S.
C, Order
801
Maddi'^on
Afderson,
See R. S.
C, Ordor
19. rr.
13-20.
12
SO admitted
OF THE FORMATION
by
oral evidence (A).
Aud
now
relief
3.
Fraud.
or
damages
Thirdly, an agreement
may
be established by oral evidence, notwithstanding the terms of the Statute of Frauds, where it would be
a fraud to repel proof of the agreement under cover of
the Statute
(/>).
Thus
if
up the Statute Frauds as a defence to an action to enforce the right of redemption (/). So if one be induced to sign a written contract for the sale or purchase of land on the faith of some variation being made in the terms of the written agreement or of the performance of some collateral
stipulation,
so
oral
stipidation
So where it is arranged that an agreement made orally shall be put into writing, but
prevented by the fraud of one of the parties, he
Fourthly,
will not be allowed to avail himself of the defence of
this is
4. Part performance.
the Statute
(k)
Ollcij V.
().
if
an
367
384.
James
v.
()
Under the
specifically
old
Chanceryif
it
be
enforced,
were admitted by the defendant's answer, and he did not insist on Limondson v. Swecd, the Statute
;
And see Futeher v. Futcher, 45 L. T. N. S. 306. {K) Eldon, C, Mestaer v. Gilhspie, 11 Ves. 627-8 Haiyh v. Eaye, L. R. 7 Ch. 469, 474 Rochefoucauld v. Boustead, 1897, 1
393.
; ;
Gunter v. Halscy, Amb. v. Wharton, 3 De G. M. & G.'677, 689-692. But at common law, it was not necessary or proper to plead the StaIf the defendant tute specialh/. pleaded the general issue (that is, a general denial of the contract), the plaintiff had to establish a
Gilb. 35
.'580
;
;
Ridgway
Ch. 196, 206. {D 1 Eq. Ca. Abr. 20, pi. 5 Walker v. Walker, 2 Atk. 98 England v. Codringtmt, 1 Eden, Lincoln v. Wright, 4 De G. 169
;
&
J.
16, 22
well, 3 Giff.
251
20.
(;) See Pember v. Mathers, 1 Clarke v. Grant, Bro. C. C. 52 Jervis v. Berridge, 14 Ves. 519 L. B. 8 Ch. :-!5I Fry, Sp. Perfce.
; ;
;
and
he failed to prove compliance with the Statute of Frauds, the defendant might then raise the
defence of the Statute
;
568, 809.
(?*)
Maxwell
526.
v. Montacute, Prec.
see Butte-
Ch.
13
thereto, that
may preclude
(o).
For
it is
held in equity
when
we have
seen,
is
much
from have
(q)
as
upon the
equities arising
is
The
case
considered to
gone beyond the stage of mere contract and therefore to be outside the mischief aimed at by the Statute and
;
in order to do justice
of the contract
is
between the parties, oral evidence admitted (/). But to have this effect,
the acts of part performance must, according to the authoritative phrase, be " unequivocally and in their
own
alleged "
That
is
must be such
is
the
no other title (f). The acts moreover must be such would render it a fraud to raise the defence of want
The terms
of the agreement, of
fraud, au oral agreement to put in writing and sign the terras of a contract rcguhited by the 4tli section of the Statute of Frauds cannot be enforced; Wood v.
sell,
on account of part performance of the contract Lavnii v. Pur39 Ch. D. 508, 518. Above, 11. p. {p) (</) See the words of the Sta;
;
Do G. M. & G. 41, 45 see Fry, Sp. Perfce. \ 575, p. 267, Johns3rd cd. p. 254, 4th ed. <o V. //oye*, 42 Sol. J. 610 6'. ^., on further proceedings, 1899, 2
Midgleij, 5
; ;
tute
(r)
v.
Alderxon, 8
8
3
v.
Maddison
479.
v.
Aldemon,
Stradlinn,
;
App. Cas.
Ch. 73. (o) See Sclborn(>, C, Muddison V. Aldemon, 8 App. Cas. 467, 474 et seq. A party sued for damages on an oral contract imdcr common the law jurisdiction of the Courts is not precluded from
raising the defence of the Statute
.^forp/icff
Jones,
(h)
Sw.
172, 181.
Sch.
Jolift'e,
&
5
167,177.
14
OF THE FOKMATION
which the existence
is so
inferred,
by
oral evidence
(./).
And the
agreement
be a contract enforceable
of signed writing)
under the equitable as distinguished from the common law jurisdiction of the Courts (y).
To
oral
it is
the
strongest case of an act of part performance raising the equity in question. For " the acknowledged possession
of a stranger in the land of another
is
not explicable
save on the supposition of an agreement, and has therefore constantly been received as evidence of
an ante-
cedent
contract "
(s).
not unequivocally
{a).
new
So
payment of part and possibly the whole of the purchasemoney is not sufficient to let in oral evidence of a contract for the sale of land for " the payment of
;
money
is
an equivocal
is
act,
not (in
itself),
until the
connection
established
by
In regard
governed
by
tlie
requisite of
form
{d)
(e)
has just been considered. Thus in order that the acceptance of an offer
Communication.
(.r)
may make
a contract,
it is
essential
and
its
38
8
Jesse], M. R., TJngley v. TJngh'y, 5 Ch. D. 887, 891) ; Dickinson v. Barrow, 1904, 2 Ch. 339, 344. (a) Wills V. Stradling. 3 Ves.
Britain v. Eossifcr, 11 Q. B. McManus v. Cooke, 3o 123 Laveri) v. Pursell, Ch. D. 681 39 Ch. D. 508, hik Fry, Sp. 592-098. Perfce. ^ Pluraer, M. R., Morphett {z) and see V. Junes, 1 Sw. 181
D.
Maddison v. Aldcrson, jun. 381 S App. Cas. 480. [h) add lion V Alderson, 8 App. Cas. 478-9.
;
(r^
15
and the
ac-
If therefore
you
offer to sell
me
your
is
make up
my mind
to accept, there
no
my
And this Avill be the ease, even though you state in your offer that, unless you hear from me, you will con5>ider the matter as concluded for though you may indicate to me the manner in which my acceptance shall be signified, you are not at liberty to stipulate
acceptance.
;
that
my
if
I do nothing
1,0(()/.,
(//).
an no acceptance of my offer, but a counter- proposal on your part it is a rejection of my offer and if I should decline your proposal, you would not be at liberty to bind me by accepting my terms, unless I had renewed my offer to you {/i). An offer may be revoked {i) at any time before its acceptance be duly communicated to the proposer but, as in the case of acceptance, mere change of mind is not enough to revoke an offer the change must be communicated to the other party (/.) When the acceptance of an offer is duly commimicated to the
if
Again
you
my
land for
it is
Revocation.
is
party
that,
is at
liberty to recede
Here we may
(e)
11 C.
man
v.
Mnrn/af,
'21
Beav.
14, 20,
v. iJodds, v.
affd. 6
[k)
H. L. C.
v.
112.
Metro666,
App. Cas.
C. P. D.
It
691-2.
(/) Hyde v. Wrench, 3 Beav. 334 and see Fe/thon.se v. Bindley, ubi sup. lionnewell v. Jenkins, H
; ;
Frii.sn; 1892, 2
Van Tienhoven, ft Henthorn v. Ch. 27, 31, 32, 36. appears, however, that an offer
Byrne
U4, 317
may
'li'^
Ch. D.
(ff)
70.
but one.
{h) 1)
ayae Hyde
v.
nreiicn, Wreiich.
.)
Beav. neav.
change of mind and this come knowledge of the other though the proposer did not make the communication j)ickimon v. Dodds, 2 Ch. D. 463!
(/)
334
varied, variation hciiig a revocation and new offer Honey(i)
;
Adams
;
V.
I.indsetl,
B.
I'i:
Or
16
OF THE FORMATION
the post, or where the post
of the offer
is the natural channel for sending the answer to a proposal of contract, acceptance
is is
when a
letter of
is
acceptance
posted [m)
bound,
in
notwithstanding
post
that the
be delayed
the
beyond the time when he naturally expected to receive it (n), and even though the letter be lost in the post and he never received it (o) and he cannot withdraw his offer after a letter accepting it has been
;
posted to
its
him
{/>)
This
is
making
which he might naturally expect the answer to be sent by post, must be taken, if not to have authorized that mode of communication, at least to have
accepted
its
an
Posting a letter
of acceptance of such
an
(q)
may
withdraw in the interval between the posting of the acceptance and its arrival. So delay or loss of a letter in the post is no fault of the sender, who parts with all
control over
it
when
(>).
it is
posted
to
suffer therefrom
This doctrine,
should be stated,
which,
if
communicated by
post,
only takes
effect
See Household Fire Insurance Ex. D. 216 Henthorn V. Fraser, 1892, 2 Ch. 27; and Northern Bank, lie London 1900, 1 Ch. 220. {n)l)unlop V. Hiygins, 1 H. L.
{ill)
[p)
Re Imperial Land
;
Co.
of
7
Co. V. Grant, 4
L. R.
Ch. 587
^^^
(o)
g^^
'
Henthorn
v.
Fraser,
diss.
five
17
the
lettei'
;
whom
it
addressed
an
offer is not a
matter which
recipient
(s).
for
made
(t).
What is
a reason-
Here
it
may
an
offer
unenforce-
so that an offer want of consideration (x) accompanied by such a promise may be withdrawn,
able for
provided
fied
it
has elapsed
to
Owing
the
above-mentioned
tlie
provisions
of
the Negoiiation
^'^'^
Statute of Frauds,
the sale of land
is
And
it is
a contract Open
and the price and leaving the other terms to be implied by law), but to modify by express stipulation the legal For as we shall see, the law incidents of the bargain. imposes on every vendor of land the duty of strictly proving his title and it is not often advisable that
;
full
Thus a formal
(.*)
(/>)
V.
Ltd., 190S,
(<)
'K. B.
'ifKJ.
J.
liummcnn S. 88
v. liolniis, 3
De G.
Ex.
109.
(m)
See
Diiiilo/)
V.
Jii(/!/i>ii,
H. L.
[x)
Ch. 27. (z) See above, pp. 3, 4. (a) It is frequently desirable that a vendor should limit by express stipulation the time for
2
w.
18
OF THE FORMATION
generally contains special
character.
It
is
stipulations
of a teclinical
who
to
the formation
of
contract.
remember is that unconditional acceptance of an offer makes a contract, to which no new term can be added, and from which neither party can recede, except by the consent of both whilst any acceptance, which is conditional on the variation of some term of the offer, is really a new proposal, and must in its turn be accepted
:
Answering
^g"o"saie.
\)y
is
formed
(h).
Any
which
one,
who
receives
an
he
is
make up
his
mind
before answering whether he wishes to conclude an immediate contract or merely to signify his assent that
future
for instance, conditionally and in the simplest words " I aocej)t the offer contained in yoiu- letter of such a
date."
In the
latter event
all
settled.
The
way
to
do this
contain
may
;
other terms than those provisionally accejited to say, for example, " I am willing that the terms of purchase
proposed in your letter dated, &c. shall form the basis of a future contract between us to be approved by my
solicitor
and
as
he
may
be
advise
me
to insert therein"
For
if
an
offer
which he is to show title audit is always advisable that he should reserve to hinuself the power of
;
p. 15; and Chi/mock v. Marchioness of Ely, 4 De G. J. & S. Cronshy v. Maijcovh, L. E,. 638
;
18 Eq. 180.
(c)
29,
terms of lease, "subject to the preparation and approval of a formal contract," was held not to
19
may
and the contract formed at once (d) Here we may notice that, when The whole of corresponit is sought to establish a contract by letters which have *^ dence will be Y passed between different parties, the Court will take looked at.
acceptance
is
practically unconditional
.
is
which
of
Oral agree"^'^*-
has passed, and will not draw the line at any particular
letter or letters,
a contract,
if
of
memorandum
of the
agreement be wTitten
offer Oral acceptoffer
in writing specifying all the terms of a proposed agree^^^t^^n ment and signed by the proposer may be accepted orally,
and
to
memorandum of
the contract
{[/).
constitute a contract, the reference to the approval of the formal contract being considered to imply contemplation of the poss-ibilit}^ of
introducing
new terms
rib
Ilairkis-
L. J. Ch. 335. As to the effect of a stipulation the approval of one's solicitor, for see Bartlett v. Greene, 30 L. T. N. S. 553 Hudson v. Buck, 7 Ch. D. 683 Huxsey v. Hume Payne,
irorlh V. ChaJ/'ei/,
;
;
8 Ch.
322
276.
See Fowle v. Freeman, 9 Ves. Lewis v. Brass, 3 Q. B. D. 667; Bouniwell \. Jmkins, 8 Ch. D. 70 Rossiter v. Milkr, 3 App. Jluckle^by v. Hook, 82 Cas. 1124 When an offer is L. T. 117. accepted in writing with a reference to the preparation of a formal contract, it is of course a question of the construction of the particular document, whether
{d)
;
351
the acceptance is unconditional or not. If not, it is merely a count^r- proposal and no contract is made. See the cases cited in this and the two preceding notes, and Vale of Xvath Colliery Co. v. Fumess, 45 L. J. N. S. Ch. 276 Harrty v. Barnard^ s Inn, 50 L. J. N. S. Ch 750 Xorth v. Percivnl, 1898, 2 Ch. 128 [quare if rightly decided JFinn v. Bull, 7 Ch. D. 29, w-as not cited). (e) Hussey v. Home Pai/ne, 4 App. Cas. 311, 31ti; Bristol, Cardift and Swansea Aerated Bread Co. v. Mayys, 44 Ch. D. 616, a case in which, after there had been unqualified acceptance of an offer, the parties continued to negotiate about other terms of
;
; ;
their agreement,
(</)
1901,
Ch. 543.
2(2)
; .
20
Sale by auction.
OF THE FORMATION
sale of
With regard to the formation of the contract on the land by auction, a bidding at an auction is no
offer,
more than an
offer
is
;
and no contract
is
accepted
by the
auctioneer, as
the
vendor's
of the
agent
fall
auctioneer's
hammer.
As an
may
fall
hammer
(/*)
For
no bidding
It seems
shall be retracted
however that
.
su.ch
cannot be
Leonards pointed (/) an action would lie on an implied out (/t), to hold that undertaking not to retract a bidding would be an
enforced
For,
as
Lord
invasion
Statute
of
of
the
before-mentioned
provision
of
the
Frauds (/), whereby no action shall be brought to charge any person upon any contract or sale of lands, unless the agreement be in writing and signed
by him
Auctioneer
ag-ent to siorn.
or his agent.
held
to
by auction are within by auction the auctioneer be the agent both of the vendor and the
sales
And
On
a sale
memorandum
of
This authority
is
appointment of the auctioneer to conduct the sale. In the case of the purchaser, the agency is conferred by the acceptance of his bidding, which is considered to imply an offer of such authority (n). The vendor may
(h)
(i)
Payne
v. Gave, 3
T.
E,.
148.
Auctioneer's
clerk.
sale by the Court has been held to bind the solicitor of a mortgagee, who consented to the sale but was not a party to the suit Freer v. Rimner, 14 Sim. 391. 1 Dart, {k) Sug. V. & P. 14 V. & P. 124, 5th ed. 139, 6th
; ;
Whiie v. Froctor, 4 Taunt. Kemeys\. Proctor, IJ. & W. Sug. V. & P. 42, 43, 147 Fry, Sp. Perfce. 529 the auctioneer cannot delegate his authority in this respecc. Fur vendor or purchaser to be bound by tlie
38 209 350
;
signature
clerk,
of
the
auctioneer's
ed.
(I)
Above,
p. 3.
.
\m) 466.
(w)
B lagden v
Bradbear,
2 Ves
he must have authorized the clerk to sign for him. It seems that such authority may be implied on the part of the vendor from his appuintment of
the auctioneer, the usual course
21
any time before the bidding is accepted (o) There is no doubt that if property be knocked down to any one at an auction and the auctioneer sign a memorandum
at
.
an authority to sign
be not done, the
has been held that
and
if this
it
((/).
And
hammer
him
so that a
memorandum
that one of
the
fall of
them expressly forbade the auctioneer, after the hammer, to sign on his behalf (>). If
But it has
37, a memorandum signed by an auctioneer was considered to bind the vendor at law, though he swore in his answer that he had revoked the auctioneer's authority before such signature and by the fact that in I)a>i v. Jf'elh, 3U Beav. 220 (approved by Stirling, J., Bellx. Halls, 1897, 1 Ch. 672), an argument against specific performance, that the vendor so revoked the auctioneer's authority, was held to call for no reply and by the statements in 1 Dart, V. &P.182,5thed.; 209, 6th ed.; Fry, Sp. Perfce. 208, 7th ed.
:
take
been held that no similar authority can be implied on the part of the purchaser from his bidding
:
Bell V. Balls, 1897, 1 Ch. C63. If, however, either party assent in any way to the clerk's signature on his behalf, he is bound. See Bird V. Boidtcr, 4 B. cV: Ad. 443 Peirce v. Corf, L. R. 9 Q. B. 210 Dyaa V. Stafford, 7 L. R. Ir. 590, G02; Sug. V. (& P. 146; Fry, Siiii.s v. LandSp. Perfce. ^ 531 raij, 1894, 2 Ch. 318, where the
;
purchaser stood
auctiiineer's
by while the
inserted
his
clerk
the memorandum. See Warhw v. Harrison, 1 E. & E. 295, 309; Johmton v. Boije.s, 1899, 2 Ch. 73. See the cases cited at the ( p) beginning of the last note but
name in
(o)
In Mason v. A riiiiiaffr and Day V. Wells, however, the actual decision was that, if there were a
530.
one.
(?)
Bell V. Balls,
1897,
Ch.
663
]'nn Braaqh v. Evcridge, (>) 1902, 2 Ch. 206,270, reversed on other grounds, 1903, 1 Ch. 43t. The proposition in the text is also countenanced by the fact that in Mason v. Arinitagc, 13 Ves. 25,
contract enforceable at law, specific perfonnance thereof would not be enforced in equity on account of circumstances of mistake. And it is said that if one authorize another to sell his land privately, and the agent make an oral contract for sale, the principal may withdraw his authority at any time before the agent signs a written contract on his behalf Farmer v. Rohhtson, 2 Camp. 339, n. ; Sug. V. & P. 146. in the
;
22
OF THE FORMATION
however after a sale by auction the vendor or the purchaser
refuse to sign a
memorandum
of the contract
it is
and the
difficult to see
what remed}^ the other party has to enforce his bargain. we have seen, apart from fraud, an agreement to put into writing and sign a contract for sale of land
For, as
cannot be enforced
(s)
And
memorandum no
Employment
at
Under
if
a puffer, that
is,
a person
an auction,
engaged to bid on the vendor's behalf in order to prevent a sale at an undervalue or to force up the
price,
At common law
of
it
was well
employment
fraud, where
sale
would
employment
of a single puffer,
the
sale,
offered
without reserve
though
Lord
case of a private sale made orally by an agent, the policy of the Statute of Frauds is sufficiently strong to prevail over the general principle that agency cannot be revoked after the agent has so acted under his authority as to induce a third party to alter his legal position (as to which, see Story on Agency, ^ 466-8), it is difiBcult to see why a sale by auction should be governed bj' a especially when different rule the publicity of an auction is expressly held to be no reason for excluding the operation of the
;
Above,
;
p. 12, n. ().
Bradbear, 12 Blagden v. and see Rainbow v. Ves. 466 Soivkins, 1904, 2 K. B. 322, 324. (m) Eou-ard v. Castle, 6 T. R. Thornett v. Haines, 15 M. & 642 W. 367 Sug. V. & P. 9, 10 Green v. Barerstoek, 10 Jur. N.S. 47 3Iortimer\.Bell,lj. R. 1 Ch. 10. 12 Ves. {x) Smith V. Clarke. JFoodicardv. Miller. 2 Coll. 477 1 279; Sug. V. & P. 9, 10 224, Dart, V. & P. 195, 5th ed. 6th ed. 209, 7th ed.
;
; ;
23
Beli
{//),
would be bound
established at
The law
is
common law, did not hold good in equity. now settled by the Sale of Land by Auction
whereby
it is
Act, 1867
(2),
enacted
(r/)
that whenever
The
Act
of sale
by auction
of
any land
shall state
whether such
whether a right
to bid is reserved
and
if it is
it
employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person. And it is further enacted {c) that, where any sale by auction of land is declared either in the
particulars or conditions of such sale to be subject to a
it
auction in such
any one person on his behalf to bid at such manner as he may think proper. It
if it
be stated that
reserved,
is
reserve price
And
judiciall}'-
who has
of
reserved
on his behalf
(e).
The terms
a condition
((/)
L. E.
Ch.
&
(rf)
Gilliat
v.
Gilliaf,
L. R. 9
Eq.
(f)
60.
&
31 Vict.
c.
48,
s. 5.
(c)
Grove
Sect. G.
24
observed
once, a
;
OF THE FORMATION
as if the
vendor reserve
tlie
right of bidding
sale
(_/').
In consequence of
this law,
when land
is
to
may
please
and
if
reserved
vendor as well
is
(g).
Where land
sold
by auction subject
to a condition
will be a reserve price, and the auctioneer biddm^'^lower ^^^^ there than the inadvertently accepts a bid lower than the reserve price,
he
is at
and
to decline
to sign a
memorandum
doing
;
of the sale,
and
will incur
no
liability in so
the property will not be sold for less than the reserve
price,
is
bound by that
stipulation (h).
up the property and that the vendor would be bound by a memorandum signed by the auctioneer But it seems that on his behalf of a sale so made (A-) if an auctioneer instructed to put property up to auction
of instructions to the contrary, to put
(t),
memorandum
liable
(/).
would not be
his
on the
It has
contract so
made without
authority
Above,
See
N.
(/) FarJiU v. Jepson, 46 L. J. S. C. P. 529, 532, 533. Davidson, Prec. Conv. 1 (g) Key 618, oth ed. 607, 4th cd. & Elphinstone, Prec. Conv. 257.
; ;
(k)
p. 21.
v. Fortrscuc,
(l)
McMannK
n. (^),
(h)
245 and
McMannsv.Foytcseuc, 1907,
B.
1.
2 2
K.
(i)
Rainbow
322.
v.
Howkins, 1904,
K. B.
1907, 2 K. B. 1, 6, 7, apparently tjverruling the decision or dicta in Rainbow y. Hoioliins, 1904, 2 K. B. 322, to the contrary. The general rule certainly is that a plaintiflp suing a principal upon a contract made by his agent has the omm of proving that the principal did
25
Liability of
advert?^inff a sale without
up
who
is
memorandum
he
is
liable in
of a coutract or of
13 ut
it
has
(w).
It Liability of
property advertising a
sale
an advertisement that a
sale of
land by auction
:
.
by
auction
^g*g{.yg*^
liable, if
be held and
lie
then decline to
sell
to the
be carried out under the conditions advertised, and such contract is not required to be put in AVTiting by the Statute of Frauds (o). But it has been held
sale shall
.
that, if it
be advertised that a sale of property by by auction is ^''' ^^ auction will be held on a certain day and that the "*^ open to
^
1.11
IP
Advertise-
ment
of a sale
amount
day
to
an
offer capable of
aoieptance,
*^=\^,
^^^
^^^
and
if
bidding.
{ti)
Maitipricc v. Wcstleij, 6 B.
&
S. 420.
Johnston v. lioyes, 1899, 2 ('*) Ch. 73, 77, following JFurlow v. Harrison, above, u. {m) and see Blackburn and Quaiu, JJ. Harris v. Nirhirson L. K. 8 Q. B. 286, 288, 289.
;
26
a person,
OF THE FORMATION
to bid for
it,
has no cause
of action to recover
If an advertisement of a sale
by auction be fraudulently
is
Payment
a deposit.
of
A matter to
contract
of
is
For no deposit
sale
has been
concluded as the whole price is not payable until the time for completion, w^hich in the case of an open contract is the time when the vendor shall have shown a good
title (r).
On
sales
by auction a
stipulation
is
invariably
made
ten per cent.) of the purchase-money shall be paid by the purchaser immediately on entering into the contract. On London sales, it is usually provided that the deposit
shall
country
in part
pointed to receive
(
The
deposit
is
payment
"^i
it is liable
guarantee for the due performance of the contract and to be forfeited b}^ the purchaser if he fail to
carry out the agreement.
stipulation
for
This
of
is
payment
{f).
the deposit
is
provide, or not
When
the deposit
paid to an
023,
&S.
and
Bulks y.ltokebij, 2 Swans. (>) 222; lioe d. Grai/v. iitainon,! M. 695, 701 ;'2 Dart, V. & P. &
Davidson, Prec. Conv. 619 Key & (c), 5th ed. 1 Elphiustooe, Free. Conv. 258 and 246, n. (), 8th ed. u. (i), 4th ed. {t) JIuue v. ^miiJi, 27 Ch. J). Booth, 19U9, A. C. 89 Spraytir \.
1
n.
27
pay
it
(u).
The
with
sum
deposited
him
as
this
and not
as
agent for
either party, he
own
benefit
any
interest
it
he
may make by
whilst
is
Where
it
the deposit
is
paid to the
vendor's solicitor,
is
generally received
by him
it
as
In that
out
;
vendor
and
if
the vendor
himself, the
to
to
him
(//)
If
and not
as
as the
any other
stakeholder
Sometimes provision
on
sales
is
made
for
by
is
private contract.
Payment
of
condition
^aleahy'^ to pii^ate
To
is
the
cor-
payment
it
of a deposit
respondingly prejudicial; as
leaves
him exposed
to
(m)
Ilariiifjton v. Uoijgurt,
& Ad.
XIX.
{x)
1
577.
1.
(y)
Edgcll v. Daij, L. R.
C.
P. 80.
(z)
Jn(fgi,isv.LurI,iBe&v.SO.
ed.
Dart, V. & P. 178, 5th 205, 6th ed. ; 203, 7th ed.
(a)
Above,
p.
'26.
28
OF THE FOEMATION
Court, while refusing to enforce
specific
performance
(b).
purchaser by
take
by a
stipulation for
payment
doing
so.
And
if
sell
ment
on no account
on placing the deposit in the hands of a stakeholder. If the vendor's solicitors be of good repute, they may
usually be accepted as holders of the deposit, the contract expressly providing that the
same
is
to be paid to
them
a
as sfakeJiol'Ifrs.
For
if
deposit
to
the
vendor's
the
vendor's
title
agents, he
may
make no
and
is
insolvent
and
in such a
Stamp on
safeoTlands.
AH
formal
made by
be duly
memoraudum
;
or
by
letter
(rf),
must
stamped
except in criminal proceedings, and are not available for any purpose whatever. But they may be stamped after execution, and so received in evidence on payment of the proper duty and the appointed penalty {e)
See below, Chap. VI. Alvarez, 1895, 2 Ch. (iO'?. GouUon, 1893, 1 Q. B. 350. Carlill v. Carbolic (d) See Gvcythor v. Gordon, 3 Times L. R. 461 Smolce Ball Co., 1892, 2 Q. B. 484, 489, 490, affirmed 1893, 1 Q. B. 256. {e) Stat. 54 & 55 Vict. c. 39 (Stamp Act, 1891), ss. 14, 15, rfiplamng k 18 Vict. c. 125, ss. 28, 29. 33 i: ."^4 Vict. c. 97, ss. 1517, and Under the Stamp Act. 1891, asreements under hand only are, as a rule, iharjieable with the duty of sixpence, which may be deuoted by an adliesive stamp to lie cancelled by the person by whom the agreement is first executed and agreements under seal re chargeable, as But deeds, with the duty of ten shillings sect. 22 & 1st schedule.
(I))
IScott V.
(()
Jdcis V.
by
sect, h\):
contract or agreement mad(! in England or Irelaud under (1) seal, or under hand ovlj, or made in Scotland, with or without any
Any
29
in
Any
alterations
made,
the contract.
agreements, didy stamped. (4) Provided that where any such contract or agreement
missioners
may
conveyance or transfer shall be stamped accordingly, and the same, and the said contract or agreement, shall be deemed to be duly stamped. Nothing in this provision shall alter or affect the provisions as to the stamping of a conveyance or transfer after the execution
thereof.
(G) Provided also, that the ad valorem duty paid upon any such cimtract or agreement shall be returned by the Commis-^iouers in case the contract or agreement be afterwards rescinded or annulled, or for any other reason be not (ubstantially jierformed or carried into effect, 80 as to operate as or bo followed by a conveyance or transfer. The provisions of sub-section ] of the above enactment have been considered in Smelting Co. of Australia, Ld. v. Commrs. of Inland JFest London Syndicate, Ld. v. Commrs. of Revenue, 1897, 1 Q. B. 17o Inland Revenue, 1898. 2 Q. B. 507; Farmer,^- Co., Ld. v. Commrs. of Inland lievnue, 1898, 2 Q. B. 141 (contract made in England for sale of equity of I'edemption of lands in New South Wides held chargeable with ad valorem duty) Chesterfield Brewery Co. v. Inland
;
;
30
and signed,
its
altered
form
as a
(./')
new agreement.
;
Revenue Connnrs., 1899, 2 Q. B. 7 Banuhian Sugar Factories, Ld. v. Inland Revenue Commrs., 1901, 1 Q. B. 245; Inland Revenue Commrs.
^-c. Id., 1901, A. C. 217. practical result appears to be that contracts for sale of anylegal estate or interest in any lands, tenements or hereditaments are only chargeable with the stamp duty of sixpence or ten shillings according as they are under hand or seal. While contracts for sale of any equitable estate or interest in any pro^jerty whatsoever, including lands wherever situate, are chargeable with ad valorem duty, but may be stamped with the fixed duty of sixpence or ten shillings, if a further conveyance of the estate or interest sold be contemplated. To leave the last- mentioned contracts unstamped would appear to involve the risk of having to pay double the ad valorem duty on stamping after execution see sect. 15 of the Stamp Act, 1891.
V. jVidler,
The
XVIII.
1.
31
CHAPTER
II.
Having
we have
on to examine
its
terms.
As
seen
{a)
by law.
>i
1
And
connection with sales or land includes drawing ^^ ness up the conditions of a sale by auction, a task in which
ancers' duties
g^^i^^g
he
is
engaged exclusively
in
the vendor's
interest
may
title
behalf,
is
and
settling the
conveyance on either
side.
It
any open
contract,
and a
clear under-
standing
of the
conditions
generally
made
in
more
formal agreements.
ascertain the rights
Our
object therefore
will be to
a contract to
sell
land,
when
and the
sider at the
stipulations
contractors'
relations
are
commonly
it,
modified.
And
our design
is first
to take a general
view of the
contract
for enforcing
and then
to
Above,
p. 17.
32
When
The vendor bound to show a good title to the property sold {b), and for that purpose to deliver at his own expense to
sale of land, their chief duties are these
is
title to
the property,
{b)
Flureau
;
v.
TlwruhiU, 2
;
W.
Bl. 1078
Smiter v. Brake,
;
,5
B.
&
Li/saf/ht v. Doc d. Gna/ v. S/aniuii, 1 M. & W. 695, 701 Edwards, 2 Ch. D. 499, 507 l/is v. Eoffers, 29 Ch. D. 661, 670, 672. In the last-menlioued case, Cotton, L..I., suggested a qviestion whether the right to a good title is an implied term in the contract or a colIt is submitted, however, that the lateral right given by the law. obligation to show a good title on a sale of land is not an undertaking collateral to in the sense of independent of the main contract. Cotton, L. J., quoted the authority of Lord St. Leonards (Sug. V. & P. 16) and Parke, B. {Doe d. Grai/ v. Stanton, ubi sup.), for the view that this obligation is an implied term of the contract. The opposite view he rested upon a dictuni of Grant, M. R., in Og'ilvie v. FoJjamhe, On examining this dictum, however, it appears that 3 Mtr. 53, 64. Grant, M. R., meant to say nothing more than that in the particular case before him the purchaser's right to have a good title was not provided for by the written agreement between the parties. It is true that he spoke of the controvcrst/ between the parties, as to what title the purchaser could require, as being collateral to the agreement, because no term in the written agreement was sought to be varied or added to and said that the right to a good title was a right not growing out of the agreemeut between the parties but given by law. But this sui ely means no more than that, in the particular case before him, the exteut of the purchaser's right to require a good title was a matter depending, not on the express, but on the implied terms of the contract. As the failure to show a good title, on the sale of land, is such a breach of contract as discharges the purchaser from the necessity of performing his part of the agreement, it seems clear that the obligation to show a good title is an integral part of the agreement Bl. 270, 278 Sranardv. Willock, see J)Hke of St. Albamv. Shore, I 5 East, 198, 202 Soiiter v. Drake, Ellin v. Rogers, ubi sup. Breuer below, Chap. XYIIL, 2. V. Broadu-ood, 22 Ch. D. 105, 109 This would not be the case, if the obligation to prove title were strictly Breach by the vendor of a strictly collateral to the contract of sale. collateral warranty upon a sale does not discharge the purchaser from the main contract, as in the case of a warranty of quality on the sale of specific goods, whei'e the buyer has had the opportunity of inspectEeiiivortli v. Hutchitison, ing them Street v. Blai), 2 B. & Ad. 456 Benjamin on Sale, 448, 741, 748, 749, 2nd ed. L. R. 2 Q. B. 447 Sale of Goods Act, 1893 (stat. 56 & 57 Vict. c. 71), ss. 63, 62 'l) see below, Chap. XIV., 1.
Ad. 992
H
;
>{
33
title is
(c)
.
by law
as
or express
In the absence of
a
rule,
period
is
is,
forty
years
{(I).
The vendor
also
bound
to verify the
abstract
wills
by producing proper evidence of all the deeds, and other documents appearing on the abstract
[fi)
and
-to
and he
is
bound
relate (/).
But the
documents
of producing all
which are not in the vendor's possession (^), and of procuring all other evidence of title which the
vendor has not in his possession
also bears all expense of the
(h).
The purchaser
title
is
examination of the
further
(i).
The vendor
bound
all
produce
land
corresponding substantially in
and available
to
(c)
son
{d)
8. 1.
Stat. 37
&
38 Vict.
c.
78,
Sug. V. & P. 406, 414 et seq., 447450 1 Dart, V. & P. 142, 143, 310 et seq., 407, 5th ed., 159, 160, 350 et seq., 470, 6th ed., 155, 156, 345 etseq., 481, 7th ed. 1 Davidsun, Prec. Conv. 550, 4th
[e]
;
(/) Ffoucrv. Ilartopp, G Bea-v. Cnrlinii v. Austin, 2 Dr. & 476 Sm. 129; 1 Davidson, Prec. Conv. 557, 4th ed., 463, 5th ed. {(/) See He Willett and Argenti, Times L. R. 476 Re Stuart ^
; ;
Olivant and Seadon's Contract, 1896, 2 Ch. 328. (A) Stat. 44 & 45 Vict. c. 41, s. 3, sub-8. 6, reversing the previous rule, (i) Sug. V. & P. 406, 429, 430 Wms. Conv. Stat. 4750. (A-) See Hahnjv. Grant, 13 Ves. 73, 7779 Fliyht v. Booth, Bing. N. C. 370 1 Itc Arnold, 14 Ch. D. 270 Jacobs v. RevcU, 1900, 2 Ch. 858; lie Hare and
;
; ;
Ch. 93
Contract.
258
below. Chap.
XII.,
j 4.
w.
34
specified
incumbrances
(/).
The vendor
is
therefore
and
to
put the
(n).
And
preparing this
conveyance
stipulation,
although,
the
in
the
the
absence
expense of
concurrence therein
by The vendor
thereof
fall
bound
all
chaser on completion
and must,
acknowfor
ledgment of right
to production
and undertaking
make
good
title,
as
may
by
some other person than the vendor (.s). duties of the purchaser under a contract for
The
chief
sale of land
(l)
Wms.
{m) Ee Gary Ehves' Contract, 1906, 2 Ch. 143, 149. (w) Enyell v. Fitch, L. R. 4
183; 83 L. T. 316. Re {q) Sug. V. & P. 407, 433 Duthy and Jesson's Contract, 1898, 1 Ch. 419. {r) Stat. 37 & 38 Vict. c. 78,
;
s.
561,
see
557-8; Dart, V. & P. 707, 721, 798. 814, 6th ed. 722, 5th ed. 1 Davidson, 714, 723, 7th ed. Prec. ConT. 570-2, 612, 4th ed., He Sander and 477-9, 5th ed.
;
1 Ph. 388 ; P. 446450, 453; Stat. 44 & 45 Vict. c. 41, s. 9; the vendor must also furnish the purchaser with attested copies of such last-mentioned muniments of title, if the purchaser require them, but at the purchaser's expense stat. 44 & 45 Vict. c. 41,
(s)
Sug-.
V.
&
W. N.
8.
3 (6).
^^
vendor, and
the
title,
examine the evidence of title offered by the if and when a good title is shown, to accept
to prepare a
and
veyance accordingly
(u).
The most prominent term of the contract is that which show a good title. This obligation is the cause of most of the disputes and litigation between buyers and sellers of land. As is well known, the procedure
requires the vendor to
Proof of
title,
have
to send in written requisi- Requisitions answers. tions dealing with the points in which they consider the ^^^
title
deficient or
insufficiently
proved or
the
charged.
To
these
requisitions
the
vendor returns
be.
Unless he
accede to
replies
his
side and these again will demand So the contest continues until all grounds of difference are removed, the title is accepted, and the parties proceed to completion, or the questions on which neither party will give way are submitted to
further response.
In advising as to the
it is
of course
of
the
to
know when
to insist
and when
On
determined by the countenance he ma}^ expect his contention to receive from the Court, in ease he should
to convince his
fail
opponent
and
at every step
ho must
{t) Baxter v. Z^'M.-is, Forrest, 61 Martin v. Smitfi, 6 Eiist, .'iSo Poole V. Hill, 6 M. & W. 835
Siig.
(<)
V.
Jir
&
P. 240, 211.
Cart/
Elwei>'
Contract,
3(2)
36
It
thought therefore
will be well
performance and of
the
breach
{x)
In the case
the contract
of a breach of
any
of the
main
duties of
{i.e.,
by one
title to
of the contractors
is
at
be restored to their
^ former
1.
and
to
Rescission
restittitio
and
in integrum.
reimbursement of
the
tract,
_
I
common law
may
an action for
the
money under
or sue under
sion
common law
its
Where
is
integrum
that
its
such
performance
not entitled
Damages
at common damages in affirmance of the contract (s). The damages recoverable by a vendor of land for breach
and
his only
remedy
to sue for
[x) The remedies for breach of the contract are fully discussed below, Chap. XIX.
(/)
[b),
33-3.5.
{z)
Chap.
XIX.,
kk 1, 2.
37
recoverable by-
common law
by
money payment,
(a)
.
actually performed
Thus
if
the
vendor have conveyed the land to the purchaser without receiving payment, he can recover the whole price. But
if
parted with his legal estate in the land, he cannot recover the full price as damages, but
limited to the
amount of the loss he has actually sustained (i). The damages recoverable at law by a purchaser of land for breach of the contract are regulated by an exceptional
principle
;
^y the
purchaser.
and, as a rule, he
is
any damages for loss of his bargain, but can only obtain reimbursement of his expenses of investigating title, &c. and the amount of his deposit, if any (c) This ex.
ception to the
common law
rule regarding
damages
for
breach of contract seems to have been allowed in consideration of the difficulties attending the fulfilment of
title.
But
the
3.
Action for
most
effective
remedy
of either party
is
formance.^^"
common law
granted or
withheld on principles entirely different from those of the parties' iegal liability for breach of their agreement
that
tract
is,
under the
it is
equitable jurisdiction
of this relief,
of
the
Court.
The administration
tionable cases
are given at law
(r/)
granted as
,
is
a discretion
Bl.
E,. 7
however which
is
Parke, B., HobinsoHv.Har1 Ex. 850, 855 Wall v. City of London Real Property Co., L. R. 9 Q. B. 249, 253; see below. Chap. XIX., 2. {b) Laird y. Pirn, 7 M. & W.
man,
XIX.,
[d)
2.
Grant, M. R., Hall v. Warren, 9 Ves. 605, 608 ILexter V. Pearcc, 1900, 1 Ch. 341, 346
;
;
474.
[o)
Ruddy.
Flureau v. Thornhill, 2
W.
^^
To obtain a
but
circumstances
and
the parties,
and,
is
considering
is,
determine
whether
it
equitable (that
principles
by which Courts
of
(./).
Thus
it
is
that in
which
either
Unfairness.
it
relief
contract at law
of land will
conformed
to
the
have
set
although he
to exact his
may
full
common
measure of compensation
thereunder.
of
specific
vendor
in
notwithstanding that
stij)ula-
may
be able to
insist
on those same
any proceedings
determined solely
which the relief administered by the rules of law (?). So also the
(e)
Elrlon,
C, White \.
I)amo)i,
{h)
ville,
(t)
151;
V.
Ch.
Me Davis and Caveij, 40 D. 601, 607; Be National I'rovincial Bank of England and
(/) Cloives V. Hiygimon, 1 V. & B. 524, 527; lainare v. Bixon, L. R. 6 H. L. 414, 423, 428. See below, Chap. XIX. 3 (ff)
,
Mar.sh, 1895, 1 Ch. 190; Scott v. Alvarez. 1895, 2 Ch. 603; see
below, Chap.
VI
39
may
may
at the
adjudge him to be liable in damages Besides an 4. Vendor for a breach of the agreement (/). , and purchaser p 'r> specinc pertormance law or damages at action lor gunimons.
same
,
time
equity, there
is
and purchasers
of land
may
be
decided.
This
is
summons under
section
9 of the
In such a sumVendor and Purchaser Act, 1874 (/). mons the rights of the parties may be measured by the
rules of equity or law, according to the relief claimed.
where
it
is
claimed that the vendor has shown such a title as the purchaser is bound to accept) are determined according
to the rules of equity applied in actions for specific per-
formance.
relieved
his
But
if
from performing the contract, but also to have deposit (if any) returned to him, and his expenses of
title
investigating the
paid, he
is
law
{tn)
and
be governed
strictly
considerations which
by the rules of law, without reference to the would guide the Court in granting
To give
to express
by law
which
them
in a
manner
similar to that in
This will
Ch.D.
James,
15
(;k)
Van Praagh
greaves
V. Ereridf/c, 1902, 2 Ch. 266, 272, 273, revervse'i on a different point, 1903, 1 Ch. 434; below, Chap.
XIII., 1.
(/)
32 Ch. D. 454. the cases cited in () See note (i), above; below, Chap. XIX., 4-
JStat.
37
&
38 Vict.
c.
78.
40
the price
(o).
This
may
Fonnal
Memorandum
first
memorandum
of an open contract.
day
of
this
&c.
and whereby the said A. B. agrees to sell and the said 0. D. to buy at the price of 4,000/., the freehold in fee simple free from incumbrances of All that &c. \ Insert description of the propert>/~\. In witness whereof the said parties have hereunto set their hands the day and year above
\_Inserf descriptioii~\
scription']
named.
(Signed)
A. B.
CD.
Contract
formed by
letters.
Open by the
as thus
:
contracts,
however,
are
very
rarely
signature of
a formal
memorandum.
made They
June, 1898.
Dear
Sir,
fields adjoining.
Yoiu-s faithfully,
A. B.
C. D., Esq.
Above, pp.
4, 17.
(o)
^1
Blank Street, W.
2 June, 1898.
Dear
I
Sir,
accept
the
offer
made
in
youi'
letter
of
yesterday.
Yours
faithfully,
CD.
A. B.,Esq. In such
is
(oo).
understood that the interest sold the fi-eehold in fee simple free from iucumbrances,
cases
it
is
J^J'j^^p^^^"fgg
simple con-
unless it appear from the memorandum that some lesser ^^{ll^ ^^l' interest is the suhiect of the contract, or that the pui-- contrary
-,
chaser
is
incum'i
appear,
of
Whether
:
the
memorandum
of
an open Terms
tract.
an
open con-
shall
show a good
title
to the Vendor
title.
to
show a good
property
(2.)
sold.
In order
he shall
Delivery and
verification of abstract,
own
and
all
and of
prove the proof of "^entity, identity of the property described in the contract with
shall
and
muniments
of
If therefore
an
instrument of
of "title,
(oo)
9,
18.
Caldcleugh, L. R. 4
[q)
W.
{p) Buffhexv. Parker, 8 M. Boucr v. Cuopcr, 1 Hare, 244 408 ; Sug. v. & P. 298 ; rhillips
&
Above,
pp.
32,
Q. B. 159. Re 33;
42
commencement
root of title
;
that
it,
to say, it
on the face of
by which the
any doubt on the title of the disposing parties. Otherany deficiency in any of the above respects must be made good by further evidence (r).
wise,
Proper
evidence of
title.
(4.)
Proper evidence of
title
as
(5.)
and descriptions
of
facts,
Acts of Parliament or
statutory declarations
twenty
(;*).
Production of
and
earlier
than
not to be required or
made.
The purchaser shall not require the production, any abstract or copy, of any deed, will, or other document dated or made before the time prescribed by law or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished nor shall he require any information, to the purchaser or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed,
(6.)
or
title,
;
is
recited,
and he
shall
170
(a)
See
below,
Chap.
IV.,
sect. 3.
{t)
Re Cox ^
37
&
43
title
and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if aud as required, by fine,
are correct
2.
{i.)
The vendor
to be transferred to the purchaser in fulfilment of tlie propertv* contract, a piece or pieces of land substantially identical identical with
.
,,
th'it
described
iu the con*^^*^'^'t-
able
to Substantial
^^"riiDtion
convey
sJiall
not be
detriment,
as broken
(.//)
but
if
be a
money
specific
may
in equity exact
the
performance of the
(a)
()
stat.
44
&
10721078,
1198
46 Virt.
41,
s.
6th ed. 147, 1086 1092, 7th ed. Fry, Sp. Perfce.
; :
1205,
.)th
ed.
151,
152,
BiuK.
j 1209,
1217-1238.
;
N. C. 370
Dtursleii,
29 Beav. 430
Torrance
;
Ch. 118 Re Arnold, UCh.Ji. 21 Vi\ Re Beijfm and Masterx^ Contract, 39 Ch. D.
V. Bolton, L.
R.
110; Re Faircrttand Jlolme.s' Con42 Ch. IJ. 150; Jacobs v. Revell, 190O, 2 Ch. 858 Re Hare and O'Morc's Contract, 1901, 1 Ch. 93 ; Dart, V. & P. 134, 135,
traet,
;
(z) Thoinas v. Derhx/, 1 Keen, 729, 6 L. J. N. S. Oh. 267 Willmott v. Barber, 15 Ch. D. 96. (a) JIurtlock v. Buller, 10 Vcs. 292, 315; Cmtlc y. Wilkinson, L. R. 5 Ch. 534, 536; Hooper v. Smart, L. R. 18 Eq. 6S.5 Ilorrocks v. Ri;iby, 9 Ch. D. 180; Fry. Sp. Pfrfce. 1209, 1210, 1257 sq. Ruddy. LascelUs, 1900, 1 Ch. 815.
;
44
Insubstantial
errors of description of
by the
may
and
performance
(b)
;
damages
own
Errors of
description the vendor to his
(e).
made by
own
If the vendor by have described in the contract of sale a property more extensive than that which he meant to sell, and is
(4.)
own
fault or inadvertence
shall
detri-
ment.
him comentitled,
pensation
(,/')
and in
(i) CaJcraft v. Roebuck, 1 Ves. jun. 221 Fry, Sp. Perfce. ^ 1213, 12291238. follows, a fortiori, (c) This from the proposition stated in the
;
performance with compensation, and of the prevalence of this equitable right over the purchaser's rights at common law
;
see liri/nolds v. Kelson, 6 Madd. 290 Frank v. Basnett, 2 My. & K. 618 Phelps v. Frothero, 1 Be G.
;
that described in the contract is a breach of one of his main duties under the agreement see above,
;
[k),
36,
Chap. XIII.
722; Hall, V.-C, Tredegar v. TTindiis, L. R. 19 Eq. 607, 615; Judicature Act, 1873, stat. 36 & 37 Vict. c. 66, ss. 24 (5), 25(11). (/) See Manser v. Back, 6 Hare, 443, 447, 448; Alvanleijx. Kinnaird, 2 Mac. & G. 1, 8
M. & G.
4.
45
{(f)
arising from
except that,
made and be
so serious that
specifically, the
on the vendor to oblige him to perform the contract purchaser shall not be entitled to enforce
performance unless
lie
specific
3.
(1.)
title,
which
The vendor shall produce all the evidence of is in his own possession, at the proper place
is
Place of veri^
abstrant'*
upon or near the property sold or in London or he shall pay the extra expense occasioned to the purchaser by the examination of any such evidence elsewhere but he may produce any documents of title, which are in the possession of other persons than himself, at the place where such documents are, and the purchaser shall pay any extra expense so caused of the examination of such documents by him or his solicitor {k)
residence,
;
(2.) The purchaser shall pay the expense of procuring Expense of and producing all evidence of title which he may require [Jj^^/^^jq ? possession. but which is not in the vendor's possession (/).
(i.)
The vendor
title,
shall at his
own expense
procure
all
And
of
documents of
to be unstamped documents.
Above, p. 37. See Tamplin v. James, 15 Ch. D. 2ir,, 222, 223; below,
((/)
(/()
P- 430
Sharp v.
;
Ptiffr,
Sug-.
JIuff/ies v. JF;/)!)!,; 8
I>art, V.
-170,
V 333; .. 443
8 E.
,,^ Manxer
v.
A, I Alvanlei/
;
v.
a Pd.
.-
& P. 407, 408, 5tli ed. 481, 482, 7th 471, Cth cd. < r< ^ ic^i \ ^ 44 .. \Conv. Act, ISM, stat.
;
Viot. 40 -xtl.
c.
41, >
is
ii
8.
3 (0 /
\
w,
Mac. & G. 1 2 K. k J. 33
irood v.
Scavlh,
c.
(/)
This
Scott v. LittMale, Webster v. Cecil, B. 815 Dmham v. Lnjard, 30 Beav. 62 Jiiu/d v. Lascelloi, 34 Beav. 611 see below, 1900, 1 Ch. 815, 820
;
Act,
&
41, s. 3 (6); see Re Willett and Argenii, h Times L. R. 4 76 Ji>r and Seadon''s Contract, 1896, 2 Ch. 328.
Stttart, Oliraut
Chap. XII.
Chap. XIII.
1.
46
Purchaser to
accept the
title, it
4.
j^^ie
^
The purchaser
^
shown
abstract of title
;
to be good.
of
it
and
if
shall at his own expense examine and the evidence offered in support ' and so soon as a good title shall be shown,
"^
title {n).
(1.)
The purchase
title
shall be
completed so soon as
title,
h*^^
that
is
to say,
when
the
upon the
and by all the evidence necessary to The purchaser shall thereupon verify the same
abstract
(o).
prepare at his
own expense
same
and
same time tendering the whole amount due in payment and the vendor shall thereof the purchase-money (q) upon accept such payment and execute the conveyance at his own expense and shall give possession of the property to the purchaser (r), and the purchaser shall
;
().
A proper
nominee, and containing the usual covenants for title by These are covenants for right to convey, the vendor.
quiet
enjoyment,
done,
freedom from
incumbrances
and
thing
who became
on
D.
D. 8-2,
249.
()
(o)
Whiting to Loemes, 14 Ch. 17 Ch. D. 10; i?c Lovell and Canard's Contract, 1907, 1 Ch.
Above, Above,
p. 35. p. 34.
Above, p. Above, p.
35. 33.
(s)
Re
Gary
Elwes^
Contract,
4/
were given
{t)
order to convey to the purchaser the whole estate contracted for, other parties than the vendor
must join
in
own expense
procure
all
Tlie vendor shall deliver to the purchaser on Vendor to ^ehveroyer all muniments of title relating- solelv to the D the muniproperty purchased (.r) but he sliall retain any docu- ments of title
6.
(1.)
completion '
./
which are in his own possession and tion.""^^ relate to any part of an estate retained by him as well as to the property sold (//) and he shall not be required to obtain and hand over to the pui*chaser any documents of title, which relate to other property as well as to the property sold, and of which any person other than the vendor is entitled to retain possession (s) (2.) The vendor shall give or procure to be given to Or give the purchaser proper statutory acknowledgments of gjl^^uto right to production and delivery of copies, and proper acknowledgstatutory undertakings for safe custody, and also (if re- undertakino-s quired by the purchaser, but at his expense) attested ^^ ^ ^^J aocumeuts of fii 11 I'-i copies 01 all such documents or title as are not handed title rightfully '*^*^^"over to the purchaser on completion and are necessary to make a good title according to the contract except documents in public or official custody and other documents of
title
:
^'
ITT
{l) Church V. Broun, I'l Ves. 258; Williams, Real Prop. 447
4th ed.
lie
Sander and
WatforWs
183,
419,
ed. 86.
;
13th ed.
607-610, 2l8t
1900, L. T. 316.
Contract,
W. N.
:
83
74
() Esdaile v. Oxcnhnm, 3 B. & Siig. V. & P. C. 22o, 228. 229 2 Dart, V. & P. 557, 558, 561 79.S, 814. 707, 721, 1'1>. -ith ed. 6th ed. 1 714, 723, -th ed. Davidson, Prec. Conv. 572, 612,
;
; ;
(.c) Above, p. 34 below Chap. XII. $ 3. V. & P. Act, 1874, stat. (v)
37 & 38 Vict. c. 78. s. 2 (rule 5) see below, Chap. XII. ^ 3. (;) Suir. V. .c P. 446 -4iO. 4.J3 1 Dart. V. & P. o26, 6th ed. 578, 7th ed.
48
ments, not being in the vendor's possession or power,
which the purchaser can always obtain good evidence but the purchaser shall not require any fresh acknowledgment, undertaking or covenant to be given to him as regards any documents lawfully retained by some other person than the vendor, for the production and safe custody whereof the pui-chaser will on compleof
himself
who
retains
Such statutory acknowledgments and undertakings as the purchaser can and shall require shall be
furnished at his expense
;
all
The
statutory
an objection
will
on completion of the contract have an equitable right to the production of such documents (d).
Time
for
^^^
7.
carrying out
( 1 .)
Any act
() Cooper V. Emery, 1 Ph. 388 Sug. V. & P. 446 400, 453, and Conv. Act, 1881, stat. 44 & n.
: ;
45 Vict. 0. 41, ss. 3 (6), 9(8, 11) see below. Chap. XII. 3. {b) See Conv. Act, 1881, stat. 44 & 45 Vict. c. 41, s. 9 (1, 9). & P. Act, 1874, stat. (c) V. 37 & 38 Vict. 0. 78, s. 2 (rule 4),
(8,
11),
49
In the ease of imreasonahlo delay by either party in the performance of any act necessary to caiTy out the contract, the other party may serve a notice on the party in default requiring him to do the act, which he
delays to perform, within some time (which must be a
reasonable space of time as from the date of the notice)
specified in the notice,
'
the notice be
and
if
the
(
specific
performance of the
equity
/),
(g).
and
shall be liable at
contract
8.
(1.)
As from
of
-ill
ii
'J.!,
property and
possession
^^^^^fj^j^
own
use
The vendor
shall
be entitled to an apportioned
{e)
Romilly, M.R.,
:
Jiaker
v.
599601.
(17)
Metropolitan Ittj. Co., 81 Beav. Fry, J., Green 504, 509, 510 V. Sevin, 13 Ch. D. 589, 599; .ffow V. <Sii7/i, 27 Ch.D.89, 103, 104 ; Romer, J., Compton v. Bagley, 1892, 1 Ch. 313, 321. (/) Spurrier v. Hancock, AYqs. Lang-dale. M.R.. Taylor v. 667 Broun, 2 Beav. 180, 183 Romilly, M.R., Parkin v. Thorold, 16 Beav. Pegq v. Wisdeu, 16 Beav. 59, 71 Fry. J., Cratr/ord v. 239, 244 Toogood, 13 Ch. D. 153, 158 Green v. Serin, 13 Ch. D. 589,
: ;
Compton
v.
Bagleij,
1892,
Ch. 313.
(A)
Paine \. ^[eller,&\es.
M9,
;
Wall v. Bright, 1 J. & W. 494, 500 Cairns, C, Shatv v. Foster, L. R. Jessel, M.R., 5 H. L. 321, 338 Lymghl v. Edaardx, 2 Ch. D. Be Cary Elwes' Con499, 505-8 Dart, tract, 1906, 2 Ch. 143, 149 V. & P. 247, 649, 5th ed. 285,
352;
Plumer, M.R.,
289, 672, 7th ed. 1870, (i) Apportionment Acf, Vict. c. 35, a. 2. stat. 33 & 34
733, 6th ed.
;
W.
50
of
and
trustee is
manage and preserve it with the same care as a bound to use with regard to the property
(A-).
The vendor
shall
pay
all rates,
he
shall
Of such outgoings as are apportionable by law only pay a due proportion up to the proper
:
all
out-
may
Interest payable if completion be delayed.
(/).
9.
annum
(n)
on the price
profits of
the property
(o)
completed,
all
when he
profits
rents
and
This is the rate usually allowed in equity Sug. V. & P. 643 2 Dart, V. & P. 627, 5th
()
; ;
ed.
1
673-675, 7th ed. (I) Carrodus v. Sharp, 20 Beav. Midfflty v. Coppock, 4 Ex. 56 D. 309; lie Bettesworth and Richer, Ch. D. 535 Tubbs v. Wynne, 37 Barsht v. Tagg, 1897, 1 Q. B. 74 Stock v. Meakin, 1900, 1 Ch. 231 see Egg v. Blayney, 21 ib. 683 Q. B. D. 107.
; ;
Davidson, Prec. Conv. 575, 576. 4th ed. 483, 5th ed. Re Davy, 1908, 1 Ch. 61.
; ;
Baine v. Meller, 6 Ves. 349, Hardwicke v. Sandys, 12 M. & W. 761 Monro v. Taylor, 8 Hare, 51, 70, 3 Mac. & G. 713, Sug. V. & P. 627. [p) M'Namara v. Williams, 6 see below. Chap. XI. Ves. 143
(o)
;
352
51
If
occupation of the
completion
(3.)
iq).
to the vendor,
money
to the purchase
and giving the vendor notice of such approfrom the time of such appropriation, pay no more interest on the purchasemoney, except such interest, if any, as he shall receive
otherwise,
priation, the purchaser shall, as
in
respect
of
such deposit
(>)
but
if
the delay in
pay
interest
on
the
appropriation of his
money
have already briefly described the contracting parties' remedies by application to the Court (f) It Has
.
We
the
riJhtof re-
ease the
contract.
purchaser
make
default
in
performing the
doubtful.
It
This
appears
exceedingly
was incidentally held by Bacon, V.-C, in Noble v. EdwardeK (u), that, if the purchaser unjustly repudiate
(q) Sherwin v. SJiakspear, 5 De G. M. & G. 517, 18 Jut. 843;
The
Metropolitan It;/. Co. v. Defrie.s, See Le(/ffott 2 Q. B. D. 189, ;)87. V. Metropolitan lit/. Co., L. R. 5 Ch. 716. v. Maxsey, 13 Ves. (>) Roberts
RegenCs Canal Co. v. Ware, 56i Davidson, 1 23 Beav. 575, 587 Prec. Conv. 573, 574, 4tli ed. 480, 481, 5th ed. Dart, (.i) Sug. V. & P. 628 V. & P. 627, 628, 034-636, 5th ed. 708, 709,716-18, 6th ed. 650, 651, 657-659, 7th ed. (<) Above, pp. 36-39. It does (k) 5 Ch. D. 378, 388. not appear that the decision of
;
;
;
loss, to enforce his claim at ooinmon law for damages for breach of contract. All that the V.-C. decided was that the vendor was entitled to sue for the dift'erence between the original contract price and the price on the re-sale see 5 Ch. D. 392. But it seems that the vendor was clearly entitled to make this claim at law, even though the re-sale were wrongful: see Stephens v. Wilhinsou, 2 B. & Ad. 320; Page v. Cowasjee, L. R. 1 P. C. 127 Benjamin on Sale, 648, 654. 2nd ed.
:
;
4(2)
52
the
vendor
of
may
amount The V.-C.'s judgment was reversed for other reasons by the Court of Appeal, which made no pronouncement as to
intention to do
any
been accepted by the editors of and Purchasers (v), and Davidson's Precedents in Conveyancing (?r), as an authority for the proposition that the vendor of land has the right of re-sale, on breach of contract by the purchaser, without any express stipulation to that effect. But of this opinion seems questionable. The the correctness Y.-C. held (x) that the common law gives to the vendor of land the same right of re-sale, in case of the purIt chaser's default, as it gives to a vendor of chattels.
his decision has
And
Dart's Vendors
is
I
at
common law for the vendor of goods to re-sell them upon the buyer's default rests upon very slender autho(?/)
.
rity
(v)
And
common law
(w) P. 476, .5th ed. [x] b Ch. D. 388. In Benjamin on Sale, 2nd ed. 1873, pp. 649, 6o5. it is laid down that the ca.ses decide expressly that the vendor has no right to re-sell, for they determine that he is responsible for nominal damages for non-delivery of the goods where there is no difference between the contract and the market price thereof and in support of this proposition Valpij V. OakeJet/, 16 Q. B. 941, and Griffiths v. Ferrn, 1 E. & E. 680, are cited. But see the view now maintained by the editors of Benjamin on Sale, 934 sq., .5th ed. In Ex parte Stnpleton, Re Nathan, 1879, 10 Ch. D. 586, it was decided that an unpaid vendor of goods, who had re-sold (after notice of his intention to do so) upon the purchaser's bankruptcy, was entitled to prove for a deficiency in price on the re-sale. But it appears that he would have had this right even though the re-sale were wi-ongful; Stephens v. Wilkinson, 2 B. & Ad. 320; FagcY. Cowasjee, L. R. 1 P. C. 127; Benj. Sale, 654, 2nd ed. Mr. M. D. Chalmers, however, in his Digest of the Law of Sale of Goods (1890), sect. 50 (3), evolved out of certain obiter dicta in Page v. Lord v. Frice, L. R. 9 Ex. 55, and Ex Cotvasjee, L. R. 1 P. C. 145 parte Stapleton, ubi sup., the rule afterwards adopted in the Sale of Goods Act, 1893, stat. 56 & 57 Vict. c. 71, s. 48 (3), viz., "Where the goods are of a perishable natui-e, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract."
(y/)
53
an unpaid vendor
on the buyer's
demand and
is
notice, given to a
[
But the
lien,
pending completion,
{a),
common law
right of a pledgee
by
sale,
because
an unpaid vendor of
common
law
lien
by
sale.
And
lien
an unpaid vendor's
is
It
still
is
by the authors
ancing
(c)
;
of
only be lawfully
the case of goods
default by
a
made with
{d),
Equity or Bankruptcy.
a re-sale
made on
the purchaser's
power
that,
even
the vendor
his
may
{e)
;
the re-sale
and
;
that,
if
and (z) See preceding note Johnson v. Stear, 15 C. B. N. S. C'ub/ei/, ib. 701 330 I'if/ot V.
: ;
Seton on Judgments, 95, n. 22902294, 6th ed. see below, Chap. XL 1, XVIII. 2, XIX.
; ;
Blackhum,
L. R.
J.,
Donald
V. Sucklitii/,
;
1.
(c)
Black585. C16 1 Q. B. burn on Sale, 325, cited Benj. Sale, 644, 2nd ed.
See Jessel, M.R., Lymqht V. Edwards, 2 Ch. D. 499, 506, above, p. 49. 507 Bowles V. Rogers, 6 Ves. (i)
(a)
;
Vol. i., pp. 568-70, 4th ed. See Benj. Sale, 648, 654, 2nd ed. Maclean v. Dunn, 4 Bing. 722; Stephens v. Wilkinson, 2 B. & Ad. 320 Page v. Coivasjee, L. R. 1 P. C. 127. [e) Ex parte Seaforth, 19 Ves.
(c?)
;
;
54
excess
But
it
if
re-sale
by
the
Court,
is
would be
entitled to
And
it
seems
made
he had notice
of
the
original
contract for
In this respect the case of lands differs entirely sale [h). from that of goods, in which the purchaser on a lawful re-sale now obtains a good title under an express enactment in the Sale of Goods Act, 1893 (/).
Re -sale
owner
as
breach
of
,
ment
ship
(/r)
he
purchaser's default
of the
land,
as
(/)
.
owner
re-sell or
otherwise dispose of
as
he
j)leases
If he so re-sell
is all
purchase-money
his
own
and
or after
if
price,
in
judgment
made with
Harding
514.
v.
Harding, 4
My. &
Cr.
respect to such a sale. It seems too that Mr. Davidson's statement was really intended to
(/) Greaves v. Ashlin, 3 Camp. 426; Valpy v. Oakeley, 16 Q. B. 941 Griffiths v. Ferry, 1 E. & E. 680. The contrary appears to be laid down in 1 Davidson, Prec. Conv. 570, 4th ed., and 1 Dart, V. & P. 186, 6th ed. 179, 180, but Ex parte Hunter, 7th ed. 6 Ves. 94, 97, cited as the authority for these statements, was a case of re-sale under an express power of re-sale, whereby the original contract is rescinded Lamond v. Davall, 9 Q. B. 1030; Sug. V. & P. 39. And it appears from 1 Dart, V. & P. 163, Sth ed., that Mr. Dart's statement was
; ; ;
apply only to such a sale. Davidson, Prec. Conv. 1 (//) Note that Bacon, 570, 4th ed. V.-C, decided nothing in Noble V. Edivardes, 5 Ch. D. 378, 392,
as to the vendor's right to recover the expenses of re- sale. ih) He might, of course, obtain a good title as a bond fide purchaser ivithout notice of the
&
57 Vict.
c.
71,
48
{k)
(/)
(2).
Above,
p. 34.
Houe
V.
Smith, 27 Ch. D.
See below,
Chap.
XIX.
1.
55
judgment has been recovered by or against him in an action for damages for breach of one of the main duties
arising under the contract in).
^'
(n)
See above, p. 36
below, Chap.
XIX.
^ 2.
CHAPTER
III.
Having
and attempted
terms of an
by
special stipulation.
We
sales
will first
examine the
conditions generally
made on
on a
by
auction.
Reserving the
right to bid at an auction.
1.
As we have
seen,
sale of land
state
by auction the
particulars or conditions
will
must
price, or
is
reserved
and
if
the
sale
it
will not be
agent
[a)
is
therefore
the practice
expressly to
may
please
(b)
and
it
is
vendor and his agents may bid as often as he or they may please (c), notwithstanding the doubt judicially
expressed as before mentioned
for a vendor of land to
(d) whether it be lawful employ more than one puffer at
is
an auction.
Where
there
(a)
8.
c.
48,
{b)
(c)
Above,
1
p. 24.
518, 519, 5th ed. Elphinstone, Prec. Conv. 258, 4th ed. 245, 8th ed.
;
;
Key &
(d)
Davidson,
Prec.
Conv.
Above,
p. 23.
57
The
lowest
is
amount
by which
the
biddings
shall
advance
lated
it is
provided that
by the auctioneer
is
also
made
may
be worth, notwith-
it
is
thought to be unenforceable.
if
And
declared that,
any dispute
/).
2.
We
Deposit;
purchase-money can
be lawfully demanded after an memoranopen contract for sale has been concluded as the whole dum.
;
But on
of the
sales of
land by auction
it is
always provided
It
is
also in-
that
memorandum
sale.
the
contract
is
This stipulation
it
appear that
3.
it
can be enforced
ik).
day
is
for
contract.
In such cases
at
'^"'"^
See above, p. '24. (/) See above, p. 20 ; 1 Davidson, Prec. Conv. T)!'), 607, 4th 1 Key & ed. 432, 52r), oth ed.
{e)
; ;
(A)
Davidson, Prec.
;
Conv.
ed.
;
519,
.5th
Key &
/
257,
^')
(k)
58
that
is
Common Law
bound the vendor to have shown and verified a good and to be ready to convey on that day in default of which the purchaser was entitled either to rescind the contract and to recover his expenses incurred thereunder (such as his deposit and his costs of investigating the title) or to sue in affirmance of the contract for damages
title
; ,
agreement (m). In equity, however, was well established that neither party to a contract
Tliat
Courts
of
Equity, in
administering their
own
do some act within a given time, but would look to what they called " the substance of the contract," and
ascertain whether a stipulation as to time were intended
to be material or
merely formal.
And
they granted
formal stipulation as to time, upon a principle analogous to that on which they decreed the redemption of mortgages after the day fixed for redemption was
past {n).
The nature
v. Fotvell, 9
of this jurisdiction
is
thus de-
(l)
Marshall
Q. B.
779. (w) See above, p. 36; Berry v. Wilde v. ToMwy, 2 Esp. 640, n. Handip v. Fort, 4 Taunt. 334
; ;
PafZM;ic/L-,o
257-9
482, 1071, 945, 949, 5th ed. 495, 984, 1072, 1076, 6th ed. 985, 990, 7th ed. {n) Pincke v. Curteis, 4 Bro. C. C. 329 Redesdale, Ir. C, Lcnnon
;
Napper, 2 Sch. & Lef GS-t Eldon, C, Seton v. Slade, 7 Ves. 265, 273-5; Radcliffew. JFarrin(/ton, 12 Ves. S26; Hearnev. Tenant, Hipwell v. Knight, 13 Ves. 287 1 Y. & C. Ex. 401; Parkin v. Roberts v. Thorold, 16 Beav. 59 Berry, 3 De G. M. & G. 284 Fry, Sp. Perf. 1072, p. 489. In recent times, equity judges seem to have thought it necessary to allege that, notwithstanding the
v.
.
; ;
59
will
" A Court
specific
of
Equity
for
towards completion,
parties,
V.
and
1
if
(as
Lord
is
RoherU
Ben- I
) ( /;)
there
between the
legal riglit.
it is
This
is
what
is
meant, and
is
meant, when
Of the three grounds against interference menby Lord Justice Turner, express stipulations requires no comment. The natui-e of the property is illustrated by the case of reversions, mines, or trades. Tlie surrounding circumstances must depend on the
tioned
' ' ' ' '
(</).
Under
the Judica-
(/),
or otherwise, which
ment
of the
On an
tlie
contract
exercise of this jurisdiction, the is (ionstrued in the same manner in equity as at law
Romilly, M.R., I'drkin w.'Thorold, IG Beav. 66; Knig-ht Bruce, L. J., lluherls v. Berry, 8 De G. M. & Gr. 29U Cairns, C, Tillcijw. Thomax, L. R. 3 Ch. 67. But there can be no doubt that the Courts of Equity, in assuming a jurisdiction to enforce contracts which were broken at law by faihire to observe a stipulation as to time,
;
delays that have been condoned in equity on the ground that time is not of the essence of a coutract to sell land, it appears very questionable whether this doctrine has really conferred any benefit upon the community. (o) In TiUcy v. Thomas, L. R.
3 Ch. 61, 67. 3 De G. ( p)
(q)
Fry,
107.)-I091,
c.
Stat. 36
(7),
c.
&
10.
37 Vict.
66,
amended by 38 & 39
s.
Vict.
77,
60
make time
of the essence
When
day
is
fixed
for
profits
up
to that
day
(.s).
And
money
as
is bound to pay interest on the purchasefrom that day, whether he have entered into
possession or not.
But
if
outgoings)
when he
title
either
actually took
or
might
[f).
the
latter
has been
shown and
discharge
himself
from the
is
pay
interest,
attributable to the vendor's and by appropriating his money to the purchase in manner before explained (if). But, as we shall see, these matters and especially the payment of interest are usually provided for by special stipu-
own
fault,
4.
If
it
sum agreed on
:
as the
otherwise the
Jo)ies v. Mudd, 4 Russ. 122, 123 118; Sug. V. & P. 627 sq. ; 2 Dart, V. & P. 627, 628, Sth ed. 708, 709, 6th ed.; 650, 651, 7th ed.
; ;
Esdaile v. Stephenson,
S.
&
S.
(m)
Above, p. 51.
fil
payment
(./-).
Such a stipuUxtion
mode
of valuation
is
usually specified
for instance,
by
an
two valuers
to be appointed one
by
either party, or
umpii-e to be appointed
by the
valuers.
But an agreeby
ment
to sell
valuation
made
a particular
if
an enforceable contract
for
if
that
to be fixed
hy
A.,
and A. do not
certainty
the price
is
and the Court will not, as a (?/) means of fixing the price, for that would be holding the parties bound by a contract different from that which they made (s). It is thererequired
rule, provide other
made
in a
value.
In such
if
case, the
Court
will, it
seems, direct a
(^).
reference,
5.
^'
law
shown, within a shorter limit than the period fixed by (h). No such stipulation is necessary if the vendor
(c)
which
if it
title
and extending over the whole period, can by law be required to be shown.
But
(j-)
Colegrtivr v.
Safito.i,
B.
&
(y)
C. 76.
See above, p.
[a) See above, p. 4, Sug. V. & P. 2S7, 288 V. & P. 221-3, 5th ed
; ; ;
n.
1
;
(in)
Dart,
2.57-9.
[z) mines V. Genj, 14 Ves. 400 Bluudell\. Breltnrah,\lYo.2\l\ Collins V. fol/ins/ 26 Beav. 306; Vickers v. Vicktis, L. K. 4 Eq. 529; Fry. Sp. Perf. ^ 354-367, pp. 161-7.
6th ed. 242-4, 7th ed. 1 Davidson, Prec. Conv. 522, 523. C07, 608, 4th ed. 435, 513, 519, 5th ed. (A) See above, p. 33. (c) Above, pp. 41, 42.
;
62
by law,
may
require title to be
shown or
of
title is to
(1
It
is
tions ou or objections to
or
anything
else
ou
title.
sale, shall
twenty-one days)
(r),
and that in default of or subject only to any such requisitions and objections so made the purchaser shall
be taken to have accepted the
to the
title (/).
And
it is
some-
specified
it is
time
(ff).
Where
not
as
if
he should
chaser
It
is
fail to deliver it
to
make
(//).
as perfect
an
is
may
title (/).
Hence
[d)
it
is
sale
See Be
and
Earl
Ch. 436;
;
Dart, V.
;
&
Granville, 24 Ch.
[e)
D.
11.
5tli ed.
7th ed.
(/) 1 Davidson, Prec. Conv. 449, 5th ed. 539, 614, 4th ed. 1 Key & Elphinatone. Prec. Conv. 8th ed. 253, 265, 4th ed. Davidson, Prec. Conv. (f/) 1 521-2, 5th ed.; 1 Key & Elpliinstone, Prec. Conv. 265, 4th ed. 253, 254, 8th ed. (A) Upperton v. NickoUon, L, R.
; ;
Beav. 17 2 Hare, 111; Smith, 2 Ex. 789 Graij v. Fowler, L. R. 8 Ex. 249, 1 Dart, 279; Sug. V. & P. 21 V. & P. 126. 161, 162, 281, 5th ed. 142, 184, 321, 6th ed. 138,
(i)
Hobson
v.
v. Bell, 2
Morlei/
Cook,
Blackburn
v.
63
any
requisition or objection,
if it
supply the
Such a stipulation
far
it
is
:
sanctioned by the
but
;
it
decided
how
is
efficacious
and
its
enforcement of
specific
performance
(/.)
.
operation would
The
stipulation, that in
made within
the
perty sold,
if
show no
title
does not bind him to take the proon the face of the abstract the vendor at all to convey the same, even though tliis
(/).
As we have
seen
{?n),
in the absence of
is
any
stipulation
bound
bound
to
make
the abstract
and if the latter make undue delay in examining or accepting the title, he may lose his riglit
to enforce the specific performance of the contract
(ii).
And
making any
of the title
to
an acceptance
purchaser's
part, the
requiring
definite
him
See
Dart, V.
473. 474
(/)
Above,
p. 48.
503.
(o)
p. 38.
(/)
TFisdrn,
1351, p. 601.
64
and
if
the
purchaser
his
riglit
fail to
notice,
he will lose
to
and the vendor will he at liberty to rescind the What is a contract or to sue upon it as broken (/>).
tract,
reasonable time
Purchaser should ask
for abstract.
is
title,
the
if
he
fail to
do
this,
he will
may be,
to
{q).
7.
the contract
sition or objection
which he
shall
be unable or unwilling
to
{>').
is
from
this is
A right
so reserved to
good
faith,
and not
but
present tendency of
effect of
the Courts
such a condition
by enforcing
()
specific
performance
{p) Taylor v. Brown, 2 Beav. fValker v. Jrfreys, 1 180, 183 Hare, 341, 348 Sug. V. & P. 1092 Fry, Sp. Perf. 268, 269
; ;
sq.
pp.
499
1
sq.
Bagleij, 1892,
Sug. V.
&
7t.h ed.
This has long been usual Falkner v. Equitable Reversionary Co., 4 Drew. 352 Juridical Socy. Papers, ii. 590 1 Davidson, Prec. Conv. 564, 4th ed.
()
; ;
Re Dames and Wood, 29 Ch. Re Glcnton and Saunders to Haden, 53 L. T. N. S. 434 Re Terry and White''s Contract, 32 Ch. b. 14 Re Starr Bowkett Bdg. Socy. and Sibuu''s Contract, 42 Ch. D. 375 Re Deighton and Harris's Contract, 1898, 1 Ch. 458 Qninion V. Home, 1906, 1 Ch. 596 see Greaves v. JFilson, '2b Beav. 290 Bowman v. Hyland, 8 Ch. D. 588 Smith V. Wallace, 1895. 1 <Jh. 385 Re Jackson and Haden!' s ConHolllwell tract, 1906, 1 Ch. 412 426 below, Seacomhe, ib. V. Chap. V.
D. 626
65
who
of a stipulation entitling
dition
is
him
to rescind.
now very
The conway as
withdrawing
to be the
not comply
fair
8.
The
Ev-idence of
^*^^"*'*y-
by a
stipulation,
which
precludes
tity
him from
is
than
this
afforded
by comparing the
in
its
descriptions in
(.r)
But
stipulation,
common
if
such comparison
with that or
9.
])art of
(y).
It
is
shall not
usually provided that errors of description annul the sale, and either tliat no compen-
Errors of ^^^scnption
tion.
therefor
(s).
The
better opinion
is
that an agreement
ajiplies
and small,
so as to preclude the
specific
pensation
but
it is
not thereby
Key
^*c
Elphinstone, Prec.
;
25.'), 8th ed. Conv. 266, 4th ed. {) Above, pp. 33, 43. (x) 1 Davidson, Prec. Conv.
I
;
Dart, V.
174,
see Sug. V. & P. & P. 153, 154, 5th 175, 6th cd. 170, 7th
;
od. 520, 5th ed. Elphinstone, Prec. Couv. 250, 8th ed. 262, 5th ed. (y) Flower v. Hartopp, 6 Beav. 476; Curling v. Auntin, 2 Dr. &
610,
1
Key &
(;) I Davidson, Prec. Conv. 559, 4th ed. 464, 5th ed. 1 Key & Elphinstone, Prec. Conv. 207, 268, 4th ed. 255, 256, 8th ed. (a) See above, pp. 43, 44.
;
:
w.
66
OF THE USUAL
CONDI'l'IONS
OF SALE.
(b).
An
express
make compensation
(c) but it which he would not otherwise possess (rf), to recover compensation for an error innocently made by the vendor but not discovered until
:
him
the
right,
{e).
The vendor
cannot,
by reason
(,/')
may
when
the
if
Court be
purchaser will
compensation
the vendor
sation
is
is,
vendor
(i)
;
may
and
[k).
take advantage of
it
as well as
it
the purchaser
shall
it is
before completion
Conveyance.
10.
{b)
The execution
of the conveyance
by the vendor
996
4
De
D. 351.
(f) Flight v. Booth, 1 Bing. N. 4 L. J. N. S. C. P. 66 see below, Chap. XII. 4.
C.370
[g)
V. Whitte)>iore,
L. R. 8 Eq. 603
Re
and.
Holmes, 42
6th ed. Jacobs v. 680, 7th ed. RereU, 1900, 2 Ch. 8.58; see below. Chap. XII. ^ 4. (c) Dart, V. & P. 741, 6th ed. above, pp. 43-45; 681, 7th ed. see below, Chap. XII. 4. \d) Jolife V. Baker, 11 Q. B.
; ; ;
Davidson, Prec.
v.
Conv.
9
See Leslie
Tompson,
{t),
;
4th ed.
1
467, 520,
5th ed.
D.
2.55.
(c)
'
Facmcr
v,
Johnson, 13 Q. B.
Prec. Conv. 267, 268, 4th ed. 255, 256, 8th ed,
67
the pur-
by
chaser on the clay fixed for completion are usually the subjects of express provision and it is generally stipu;
any
title {/)
outstanding estate or interest or perfecting the vendor's and it is sometimes declared that the pm-chaser
;
ance of
11.
all
vendor
Apportion^(j* outgoings.
and
and
outgoings up to the
day fixed for completion, and the purchaser afterwards and that the rents and outgoings shall, if necessary, be
apportioned for this purpose
()
pay interest at a specified rate on his unpaid purchasemoney, if from any cause whatever the purchase be not completed on the day fixed for completion (o). If the purchaser bind himself to pay interest by an express stipulation in terms like these, he must pay interest in
case of delay in completion, notwithstanding that the
in c^ompleti\)n.
title
or otherthis
by
the vendor's
(/)
ed.
De
G. M.
Baiinerman v. Clarke, 3 Drew. 632; Vickers JFilliams V. Hand, 26 Beav. 630 Su^. v. Gkufon, L. R. 1 Ch. 200 V. & P. 633-7: Dart, V. & P.
&
G.
.517, -529
144, 719. 128, 63.5, 639, .5th ed. 140, 661, 664. 7th 723, 6th ed. and -^ee Me Bayky-Worthed. higtoti if Cnhen\s Contract, 1909, I
; ; ;
Ch. 648,
6.54.
5(2)
68
by
Sometimes the contract is so worded as to bind the purchaser to pay interest in case of delay in completion arising from any
appropriating his
the purchase
{q).
money to
cause whatever
ot//er
and
must pay
interest unless
such default
were the
In
this
form
Bowen
of attempting
meaning of " wilful default in such contracts (), and the question, what conduct amounts to wilful default, can only be solved by consideration of the circumstances of each particular case [t).
Right
sell.
"
to re-
i;3.
In conditions of
sale
Re Riley to
StreafJieM,
34
Contract
and
Bennrtt
v.
where the 524, 1894, 2 Ch. vendors, having omitted to examine their title, misdescribed it in the contract this was considered by Lindley and Lopes, L. JJ., not to be wilful default, Re Wilsons diss. Kay, L. J.
and
Stevens'
Contract,
1894,
inteutional delay, wilful obstruction on the part of a vendor may be all absent, and yet there may be wilful default""; C. A. 1893, 3 Ch. 281.
(/)
Contract, 31 Ch.
was held
beft)re
com-
pletion
and Merton^s Ch. 269, where Contract, a mortgagee was abroad and the vendor relied on a power of attorney from him, which was held insufficient this was conHetlnii/
Re
1893, 3
Re Mayor
Contract,
Ch. 546. where it was held wilful default for a vendor of copyholds not to have procured certain admissions necessary to enable him to convey the legal estate Re Strafford^and Maplt-s, 1896, 1 Ch. 235, where Kekevvich, J., held it wilful default for a vendor not to haA'e procured the concurrence of necessary parties to the conveyance Re Woods and Lewis's Cotitract, 1898, 1 Ch. 433, 2 Ch. 211 North V. Pereival, 1898, 2 Ch. 128; Bennett v. (Stone, 1902, 1 Ch. 226 1903, 1 Ch. 509, where fomjudges were exactly divided iu opinion whether it was wilful default for a vendor to insist in good faith upon ati unreasonable contention as to the form of the conveyance,
; ; ;
'
69
commonly
sale
A reoriginal
{ii).
The vendor
benefit
is
therefore entitled
own
may
It
is
sale, to Stipulations
show a good
of the proper
implied on
sales
or verify the
or
title
by the production
over the
title
by
evidence,
agreed to be
pletion,
deeds on comtitle
(y)
or
that the
(r).
when proved
by law.
And
it
is
also
by the Vendor and Purchaser Act, 1874 (z), and the Conveyancing Act of 1881 (a), unless it be desired to make more stringent or other stipulations than those so implied by statute. Thus, in respect of making recitals in instruments twenty years old prima facie evidence (h), barring the |>roduction of and incontrary,
quiries as to the title earlier than the date
fixed for
for
commencement
of
the
title
(c),
providing
the
title
Ex
((/)
Lamond
v.
(-)
&
38 Vict, c 78.
Vic-l.
c.
^g,
j^ 2. (a)
i.
ir> T> n 1 Davidson, Free. Conv. 4th ed. 518 f-?., 5th ed. Conv. 257 1 Key & Elph. Prec. 245 sq., 8th ed. ."^y., 4th ed.
-1
:
Stfvt.
44
& 45
p. 42.
41, '
^'
**
(*)
(c)
Above,
70
by
the
vendor of
title
and
{e)
be regulated by statute
{/').
The following is a simple form of conditions of sale by auction of freeholds in one lot. They are intended
to
holds in one
lot.
be annexed
to
particulars of
sale containing
the
property corresponding
(g)
;
to ascertain that
is
not in point of
able
or intends to convey
(h).
performance of the
agreement
Bidding
right to bid reserved.
1.
No
less
than
(/).
/.
at a
There
right to
and the vendor reserves the bid in person or by his agents as often as he or
please
(/>).
they
If
may
any dispute
ed.
237
iff)
{h)
8th ed. Above, pp. 33, 43, 65. See, as to the consequences
sq.,
of misdescription or misrepresentation in the particulars of sale, the cases cited above, pp. 33, 4345, 65, 66, and below. Chaps. XII. 4, XIII. 1, XIV. 1. (i) See above, pp. 20, 57. (/t) See above, pp. 22, 23, 56, 57.
71
The purchaser
shall
pay a deposit
and sign the subjoined agreement (/). 'i. The fixtures, timber and otlier trees, tellers, pollards, saplings and underwood upon the property, down to the value of l.s. per stick, shall be paid for by the
purchaser at a valuation to be
Fixtures and
p^id for at a
valuation.
made
as hereinafter pro-
The
valuation shall be
made by two
valuers to be ap-
by an umpire
to be apj)ointed
by the
valuers,
or
if
so,
by
him
to proceed
otlier party's
valuer
(ii).
The
title
shall
commence with
in-strinnent
of
atich
Amj
special conditions as to
here'\.
title,
uhich
').
requisitions
and Time
limited
objections
title
and
all
See above, pp. '26, IT. In See above, p. 60. many cases it would be sufficient to say " by two valuers, or their umpire, to be appointed in the usual way, or otherwise at their but this would not fair value" authorize one parly's valuer, in case of the default of the other party or his valuer, to make a valuation binding on the other
(/)
party.
if
(?)
desired. See Bos v. Helsham, L. R. 2 Ex. 72. (w) The la-st words are inserted to remind the parties of the fact, that the appointment of a valuer
is
not cuinplctely
made
until it
has been notified to the opposite party; yVu- v. //(orw, 11 Q. B. 7{o) See above, p. 62.
72
the
No.
Street,
of Messrs.
day
and in
this respect
time shall he of the essence of the contract (p). In default of or subject only to any such requisitions and
objections so made, the purchaser shall be taken to have
accepted the
Reservation to vendor of
right to rescind the
contract.
title.
6.
on any requisition or
title,
objection as to the
evidence of
conveyance,
on the
with the
any negotiation or
litigation
the purchaser or his solicitor notice in writing of his intention to rescind the contract for sale unless such requisition or objection
be withdrawn
and
if
such notice be
shall
scinded
(/).
The vendor
title,
ment whatever.
Identity.
7.
The purchaser
shall
by the vendor
upon
by a comparison
of the descrip-
and
in the
muniments
(s)
{p}
{q)
Ec Arbib
1
These words will not enable the vendor to rescind after final judgment has been given against
and
601.
(r)
[s)
Classes
Contract, 1891,
Ch.
him
73
and shall be taken to be No compensaand otherwise. The f descripto all chief and other rents, tion. property is sold subject rights of way and water, and other easements (if any) charged or subsisting thereon, and to all leases, tenancies, and Qccupations, whether mentioned in the and to all rights and claims particulars of sale or not If any error, misof lessees, tenants and occupiers (t).
The property
is
believed,
tlie sale,
The purchaser
shall
timber and
day
of
to the
Messrs.
vendor or as he
shall in writing or
Upon
vendor and
chaser
all
any)
will
but
[ii
sucli assurance,
and
act
any
out-
title,
title,
16 Q.
loii,
7tli
B.
ed.
J).
7~S
;
Dart, V.
(ith
X;
T.
172.
nature of the
.5th ed.
177.
od.
the.se
property Hold, are inserted to protect the vendor against rents. easements, or tenants' claims of which he may be unavyare at the time of sale. They" would not enable him to enforce specific performance of the contract subject to any rents, easements, or tenancies, which would be serious
(;
"Words like
have been
held to throw upon the purchaser the costs of the concurrence iu the conveyance of the vendor's
mortgagees
gcnti, o
Jie
lUllett
;
Times L. R. 476
:
title to anj'
incumbrances and were known to the vendor, but not mentioned in Ilei/uood v. Maithe particulars Nuttiugham lalieu, 2.5 Ch. D. 3.37
:
outstanding estate lie Admus^ Trustees and Frost'.t Contract 190", I Ch. 69.5. But if it be intended
.
74
day
of
next.
10.
The
and the outgoings discharged by the vendor up to the said day of next. As from that day the outgoings shall be discharged, the rents received and possession taken by the purchaser. The rents and outgoings
shall, if necessary,
tion.
from any cause whatever the purchase shall not be completed on the said next, day of the purchaser sliall pay interest on the remainder of his purchase-money and on the aforesaid value of the fixtures, timber and other trees, tellers, pollards, sap/. per cent, per lings and underwood, at the rate of annum, from that day until the purchase shall be completed and shall not be entitled to any compensation
If
;
Power
resale.
of
manner and subject to such conditions, as he shall think fit and any deficiency in price which may happen on, and all expenses, which may
at such time, in such
;
by the
defaulter to the vendor and, in case of nonpayment, shall be recoverable by the vendor as liqui;
dated damages
Memoran-
{//).
dum
to be
name and de-seription^ hereby acknowledge by auction this day of of the property mentioned in the foregoing particulars I
I
\_insert
conveyance of necessary parties other than the vendor, it is better to make an express stipulation to
that effect; see above, pp. 47, 67. If the vendor has a clear title
in
himseK
it
is,
of course,
un-
necessary, and it is simply depreciatory to stipulate that the purchaser shall bear the expense of getting in any outstanding estate. (x) See above, p. 67. (y) See above, pp. 51-54, 68.
75
and that I have paid the sum of by way and in part payment of the said purchasemoney to [the ((uctiono(>r~\ and I hereby agree to pay the remainder of the said purchase-money and complete
of
/.,
/.
of a deposit
As
witness
my hand
for
this
day
of
\_Pnfclia><i'r.~\
As agent
tioit [z)']
Mr.
\_ui>ii'rt
(/e-sen'j)-
[Avctioneer.l
The above
are of course
conditions are in
common form
but they
drawn
It is not found,
fi'om bidding
sales {a).
by such
London
In the provinces, lands are often sold subject to the common form conditions of the local law society and some of these conditions are far more favourable to purchasers than those set out above {b).
;
See above, p. 5. This seems to have been the case during the latter half of the lastcentury; see 1 Davidson, Pre<;. Conv. ')05, ."ioe, 4th ed. Juri(s)
(rt)
;
ii.
589
vy.
the conditions of sale by auction were usually far less stringent; see 2 Sug. V. & P. 1076. tlth ed.
this,
Before
of sale of the BirmingSociety, the purchaser expressly contracts to pay interest at 5/. per cent, on delay in completion, but is allowed, if such delay shall arise from any cause other than his own neglect or default, to appropriate his money to the purchase by placing it to a deposit account in a bank and giving notice of such deposit, and is thenceforth chargeable only witli the interest given on the deposit the expense of perfecting the vendoi''s title or of conveyance by necessarj' parties other than the vendor is left to fall on the vendor the vendor has to bear the cost of production of any documents, which are in the possession of a mortgagee, or other incumbrancer, or of a person obliged to produce them at the vendor's request the vendor is empowered to rest^iud only if he is unable or ou the ground of expense unwilling to coniply with some requisition and corapensjition is to be given for errors of description if jiointed out before completioji. The conditions of the Bristol, Liverpool aud Manchester Law Societies are nearly as favourable to purchasers.
(//)
ham Law
76
General
is
usual,
where the
sale
(c),
on
:i
sale
under vendor
selling
trust for or
or sale.
power
to
"
for
(
The vendor
/) sale,
is
a trustee
{e)
selling
under a trust
the
statutory" cove-
any
The reason
of this
is
that,
as
a trustee,
title,
but
a trustee,
in
who
sells as
apparent
larly
for title
imposed on a vendor of land {//) to give covenants and an undertaking for safe custody of any
deeds retained.
And
will
purchase-money
entirely
by
express stipulation, to
him
or
them
to concur in the
conveyance and
title
shares therein
(')
A
(/)
,
under
M^
above
is
usuall}^
made on
by a mortgagee under
power
As
of sale
(c)
to sales
by
trustees, see
(/)
Or pouer
of,
as the case
below, Chap. VIII. 2. {d) 1 Davidson, Prec. Conv.612, 1 Key. & Elph. 613, 4th ed. 252, Prec. Conv. 264, 4th ed. 8th ed. (e) Or an executor, or an administrator, as the case may require.
; ;
may
;
require.
Worley v. Frampton, 5 Hare, (ff) 560 Sug. V. & P. 69, 575 below. Chap. XII. 3. (/) Above, pp. 46-48. (j) See below. Chap. XII. ^ 3. [k) See below, Chap. IX.
^^
77
equity of redemption
(/).
A few
words
may
Special con^j^ig
he would be entitled to
some incumbrance, easement or right in Such conditions, in order to be completely binding on the purchaser, must be framed
favour of other persons.
care.
It
is
may
meaning of the words used and so may have no right to recover his deposit if he object to
;
{m).
But
in equity a
vendor
performance
good
faitli.
any
lie
way
call
is
misleading, that
do not
fairly
and
explicitly
to submit, or if
contain
tation
And
(o).
if
it
the condition
be
will be construed
But
if
tlie
condition will
Q. B. D. 778. inisrepresentav. M'Leai/, G.
{I)
Re Davis and
Co.
As
of EtK/l'iud and Marsh, Ch. 191);' Scoll v. Alranz, above, p. .'SS. 2 Ch. 608 (m) Rr Banister, liroad v.
lidiik
i
;
\ii9b,
ISO-i,
Suainr, liahr,
[o)
11
1.
Chap. XIV.
,Mi<ii-
ton, 12
Ch.D.
131
Rr Marsh and
Si/mons v. James, 1 Y. & C. Seafon v. Mapp, C. C. 487, 490 2 Coll. .i56. .562 Rhodes \. Ibbetson, 4 De G. M. & G. 787.
;
;
78
A very
is
common
dition of sale
to accept a title
less
in such cases, as
we have
seen,
the vendor cannot enforce specific performance accordletter of the contract, if this
title (q).
instrument be
So
if it
be intended that
must be
he
is
to
buy subject
to
an incumbrance of
The construction of special conditions of sale is the same, whetlier they be made on a sale by public auction, or
contained in a contract of private sale
(s).
Other
stipulations
usiially
It
may
made
of conditions of sale
by
which are
of
ever
title
it
stamped documents
executed
before 17th May, 1888.
made in is known
Thus, whenor
or apprehended that
any document
is
(t),
may
it is
provided
shall
be taken
on that
the
{n).
on the
sale of
{p)
338
787, 793.
4-^.
Contract, 1891,
V. Keeves, 1906, 2
pare
lOOo.
[q)
Wtfliaiiif!
See above, p.
if
Such a
to
condition,
made
as
docu-
ments executed after that day, is void by stat. 54 & 55 Vict. c. 39,
s.
2i Ch. D. 11
(/)
c. 8, s.
See
I'hitlips
Culdclcugh,
{a)
Key &
Rhodes v, Jbbetson, 4
De G.
79
it
London
(.r),
is Unregistered
usual to stipulate that no objection shall be taken or sale^^^land"" requisition made on account of any document which *^ Aliddlesex
or of unregis-
^^^^ ^^"^
"^
is sold, it is
advisable
S;,ie ^f leaseholds.
all liabilities
;
under the
lease,
is
held
chasers the opportunity of inspecting the lease at the opportunity office of the vendor's solicitors within a limited time ^^ inspecting
before
the sale
and
purchaser,
"^
to be
deemed
whether he shall avail himself of this opportunity of mspection or not, shall be deemed to have full notice of
the. contents of the lease,
or not
(s)
And it
is
payment
of
fo^ renTto^^be
fw;c^'tv-
be accepted
and that
it
shall be
assumed
Person giving
to^be'assumed *< be rever'
lessor, are
the rever-
Where
to
out of
and
should
property out
'^^
y^^P^"'
and condition
of the property,
as
to
See below. Chap. X. ^ 3. Key fc Elph. Prec. Couv. Daed. 261, 8th ed. vidson's Concise Precedents, 11/), I8th ed. {z) 1 Key & Elph. Prec. Conv. 259, n. {e), 269, 270, 4th ed.
(x)
26.),
2.
8th ed.
see below,
Chap. X.
{a) 1 Key & Elph. Prec. Couv. 254, 270, 4th ed. 239, 266, 8th ed. Davidson, Prec. Conv. 115, 18th ed. see below, Chap. X.
; ; ;
2.
80
Purchaser to
give the usual
?y/.s
It
is
also
common (though
not necessary
(c))
to
covenant of indemnity.
and
to
and
it
is
desirable further to
{d)
)
And
execute
his
own
at his
own
expense,
procure
to
deed of conveyance
(e).
Where
is
held by underlease,
it
by
lease
(which
(_/')
is
;
intended to
the property
mean
a lease from
the freeholder)
and of every superior leme ; and the stipulations above recommended on the sale of leaseholds should be adapted to the case, proit
is
held,
vision being
made
is
See below, Chap. X. 2 Elph. Free. Couv. 259, n. {e)l 8th ed. below, Chap. XII. See {()
{h)
;
Key &
{d) It is thought that, in the absence of special stipulation, a vendor of leaseholds would be entitled to require a duplicate of the conveyance to be executed and handed over to him, but would have to bear the expense of engrossing and stamping it. The rule appears to be that any party to a contract for sale of
bear any extra expense occasioned by such conveyance to himself see above, p. 46 Lift. 37u s. Co. Litt. 2-9a and note. This rule seems to be exemplified in the case of the grant of a lea.-e. when the lessor has to bear the expense of the counterpart; Mr JS'cffKti, 1895, 1
self
; ; ;
Jie Grai/, 1901, 1 Ch. 73, 81 239, 243, 244; KcCoh-,, andCuhen, 1905, 1 Ch. 345, 350. And it is thought that it applies in every case, in which a purchaser of land is bound to enter into a
;
Ch.
land,
fo
whom any
benefit
is
to
be assured by the conveyance, is as regards that benefit a purchaser, and is therefore entitled to have a duplicate of the deed of conveyance to keep as evidence of his title, but must therefore him-
[e)
Key &
81
and of
ereri/
Where
subject,
together with
^^^^'^
is
some specified proporany legal apportionment thereof to be made (h) and the vendor agrees either to covenant to pay and to indemnify the purchaser against payment of the rest of the rent, or to grant to him by way of further indemnity a rent-cliarge in fee of an amount equal to the remainder of the
shall bear
rent to
issue
out
of
other lands
belonging to the
is
vendor
(/).
land sold
usual to
too-etheV
"^'ith
but shall
be
other
made
Also
any property, which is from become subject to some charge or to give rise to some liability at the instanoe of some local authority under some Local Management or Improvement Act, or the Public Health Act, 187o(/),or the Private Street Works Act, 1892 (w), as for the expenses of paving, sewering, or lighting an adjoining street, or of complying with a " dangerous
situation or condition liable to
^
,
perty^liable to become
it is
not unusual to
make a
special
I Key & Elph. Free. Conv. iff) Da260, 8th ed. 271, 4th ed. vidson's Concise Precedents, 116. 18th ed. (//) As to the apportionment of such rents, see below, Chap. X.
; ;
sq.,
Free. Conv. 337 4th ed. 339 sq., 8th ed. (/) See below, Chap. X. ^ Chap. XII. 1 Davidson, Free. 5.')8, oth ed. Conv. 691, 4th ed. & 39 Vict. c. 55, (/) Stat. 38
1
; '>
6.
() See below. Chap. XII. 4 Davidson, Free. Conv. 544, 684 4.")1, 551 sq., 5th ed. ^.,4thed.
;
see
41, 150, 257, and stat. 53 & 54 Vict. c. 59, s. 19. {m) Stat. .')5 & 56 Vict. c. 57.
.S8.
{n)
^ 1.
82
or liahility
(o)
and, of
course,
is
ment on the
Where land
variably
course,
is
((/),
are in-
made (where
expressed to
are,
bind the
purchaser of any
lot.
There
Custody of
title-deeds to several lots.
provision should be
made on
a sale of
land in
lots.
Thus
it
is
be retained by
all
some future
and
shall
who
shall then
Sale of lease-
lots(r).
holds in
Where
lots.
usual to stipulate
take an
specified rents
(.s)
And
it
on the
one entire
Chap. XI.
Chap. XII.
2.
Liverpool, and Manchester Law Societies' conditions of sale contain a stipulation throwing these expenses on the purchaser where the requirement is made after the
sale.
special stipulation of this kind, casting the liability on the vendor or the purchaser according as the requirement or demand creating it is made before or after the sale, is contained in the common form conditions of sale of the Birmingham Law Society; and the Bristol,
Pp. 70-75.
See below, Chap. XII. See below. Chap. X.
^^
3.
2 at
end.
83
commonly
buy
it
and
shall
;
to be legally apportioned
more or
on
all
of the
lots,
and
for granting
new
rent-charges to
charged in order to
indemnify any purchaser against having to pay a greater proportion (if any) of the rent than is so agreed to be
charged on the
(f).
When
land
it is
proposed that
covenants.
any
that,
lots
to the
remaining on his hands unsold shall be subject same restrictions, care should be taken to stipulate as regards any lot or lots which shall not be sold,
bound by the covenants (//). According to the Purchaser of present law, on a sale of any property in lots, a pur- entitled to fi-b^^ract chaser of two or more lots held whollv or partly under "'^f only 01 the the same title has no right to more than one abstract of common title.
to be
^' t-
-^
the
is
common
(//).
title,
except at his
own expense
sale
(x)
so
it
unnecessary to
make any
effect
form of conditions of
lots,
by auction
of
giving examples of
(z),
and containing
the Appendix
[a)
conditions usually
made
Stipulations
contracts for private sale.
by
auction,
it
remains to inquire what stipulaDart, V. & P. 126, ."ith od. 1 Davidson, Prcc. Conv. .52(5, (MO,
4th ed.
, ,
See above, p. SI, n. (i). See below. Chap. X. ^ 12. Act, 1S81, (x) Convcyancinfr stAt. 44 & 4.^ Vict. o. 41. s. .S (7). a stipulation was (v) Such usual before the year 1882: 1
(<)
(m)
"'
-(,
(a)
Apprn-lix A. llow.
iy{2)
84
by
private contract.
The
first
We
find that
down
press
to the
end of the
the
obligations
upon them
of proving
in the case of
an open contract
years' title
notwiththe
standing that
those
obligations, including
at the
duty
a good sixty
vendor's
After
this,
who would
title,
and on
by auction
(e),
but on private
sales, to stipulations
evidence of
title
neces-
binding the
purchaser to pay interest on delay in completion " from any cause whatever " (d). Then legislation took place,
entirely in vendors' favour
;
evidence of
purchaser
trary
(,/').
of
stipulation
to the con-
By
special stipulations
terest
drawn entirely in the vendor's inhad become so much a matter of course that conveyancers engaged in settling contracts for sale on
(i)
See 1 Bythewood & J.innaii, Conv. 3rd ed. by Sweet Sug. V. & (1841), pp. 490, 500 P. 52, 1076, 11th c-d. (1846). (c) Above, p. 75, ii. (). {d) See Juridical Society Papers, ii. 589 sq.; Davidson, Prec.
Free.
;
Conv.
(1877).
>
vol.
ii.
pt.
i.
^ ^^^^-
'^'
'^
'"
y. ^^'^^^-
^-
''^'
(/) Stat. 44
,s.
&
45 Vict.
c.
41,
3 (6).
Ot'
SALE.
85
claim to protest
(g).
making the purchaser pay for all evidence which the vendor has not, have shown that it may work most unfairly to the purchaser, who has been
tion of the enactment
title{//),
tlie
vendor's mortgagees
and
of
searching for a
tlie
absent from
vendor's possession
It has
also
(/)
(k) and the pay the costs of may work great hardit
Owing
to these decisions,
is
thought that practitioners are again becoming sensible of the duties incumbent on them when acting for a pui--
and when on private sales vendors propose the would make on a sale by auction, it is no longer a matter of course that the
chaser
;
same
stipulations as they
purchaser's
advisers shall
receive
the
proposal
with
supine acquiescence.
conditions of sale
is
Of
like
coui'se
The ultimate
But a
on a by auction
liis
that
tion.
it
He
is
;
and even where he finds himself reduced to the alternative of withdrawing his objection or abandoning the purchase, lie will often have extracted
contentions
((/) See 1 Key & Elphinstone's Prec. Conv. 283, n., 2nd ed. 316, n., 5th ed. 348, n., 4th ed.
; ;
(i) Jte Stuart, Ulivaut and Srudmt's Contract, 1896, 2 Ch. 328. (A) See above, p. 67.
86
why
his
own judgment.
reasons
Vendor's
reasons for not desiring
The main
desire to sign
why
he wants
;
to
an open
contract.
requisition be
tion as
to
contract to
and he wants the time stipulaand the express pay interest on delay from any cause what;
made making
requisitions {m)
ever
(//),
the
contract
(o).
him
as
In
all
is
decidedly advantageous
insist
him
title
met by a
expense,
own
interest
by the
On
the whole,
always to
offer,
and
if
If the vendor be anxious to sell of an open contract. price proposed, such an offer will the with and satisfied advantage of binding the purhim the bring home to
33, 41,
87
And
if
any
special stipulations.
am
willing, he
may
:
point
by law
you wish
to
modify them.
If
Be
it
so
but
it is,
have the and being enabled to rescind on receiving an unwelcome requisition, advantages which you can only acquire by special stijjulation, you must at least purchase them by relieving me from part of the expense now cast on me by law, and you must not expect me to contract to pay interest on delay caused by your fault.
to
you expect
a
great
advantages
of
receiving
deposit
draftsman
In settling a private contract then, the object of the actinar for the vendor will usually be to
-^
. . .
Points to be
m settling
^^^
'
po'^sulered
made on
sales a private
by auction
all
to oppose
such provisions in
to be unreasonable.
shown
We
now go through
of a
is
The payment
requirement, and
deposit
is
not an unreasonable
Deposit,
chaser be a person
well-known solvency
{q).
Nor
;
as stakeholder,
solicitor
and
as his
agent
(/).
But
if it
contain
special
stipulations
purchaser
(g) (r)
vol.
ii.
pt.
i.
p. 4,
4th ed.
may
complying with some which is prohibited by the letter of the condition (.s). The vendor may decline to do this and the purchaser cannot force him to do it,
the vendor's
suit
without his
requirement as to
title,
because
if
good
title
(t)
and even
if
he
failed to
prove
this,
the
{x)
And
in such
he will
fail,
because that
is
on the
And
the
common
which in equity
and
him to
(?/)
And
buy land on
special conditions as
mind
of a purchaser's adviser,
his client
ditions as
(*)
when it is demanded that pay a deposit and yet submit to special conto title and he should endeavour, if he must
;
Above, p. 38. Re Banister, Broad v.Munton, 12 Ch. D. 131, 145; Lawrie v. Lees, 14 Ch. D. 249 7 App. Gas.
[t)
;
19
, ^
(m)
-n
JJ
T?
Sug. V. & P. 646 2 Dart, P. 1129, 5th ed. 1263, 6th ^^'> 991, 7th ed. In such case the purchaser could not recover his own costs as damasfes at law Maiden v. Fyson, 11 Q. B. 292. "
347
;
:
V.
&
'
'
'
^y)
Re National
Provincial
Bank
{x)
429
^^ Marsh, 1895, 1 Ch. 190 Ee Scott and Alvarez, 1895, 2 Ch. 603 see above, p. 38.
^j, j^^^^j^^^^
;
89
some
substantial
concession to
free
himself,
of
all
as
that the
expense to the
purchaser.
It
is
for
within which
it is
reasonably
^"'"^
Too
often the
day
It
is
of
or
"^
that fixtures or timber shall be taken at a valuation, on y^^uation a private sale as on a sale by auction (z).
purchaser should, as a rule, resist the insertion in Commence*^*^*^" a sale by private contract of any special stipulations ^^*
limiting the vendor's obligations in respect of showing
and should only accept such provisions on condition of concession in other matters to himself. Thus if it be proposed that the abstract commence with a deed less than forty years old, and that a deposit be
title,
is
a good root of
the
title.
This would,
it
is
thought, save
purchaser from
(a).
And
further concessions
should certainly be demanded as the price of consent to any large curtailment of the time for which title is
required to be shown
by law
making
requi-
Above,
p. 60.
()
Above,
p. 87.
90
sitioiis or oLjectioDK.
care that a
reasonable time
by
his counsel
and he should
It is usual to
reserve to
vendor of
comply with some on which the purchaser insists (d). This is a stipulation which it is generall}^ essential for the vendor to make. But as it is no part of an open conrescind, if unable or unwilling to
requisition,
tract
and
its
is
make
acceptance
a ground
of securing
it,
And
if
he admit
he should
expense, for
{e).
He
the
of
alternative
withdrawing the
unwelcome
requisi-
tion (/).
Expense
of verification of the abstract.
to try to obtain
evidence of
(g).
title,
which
not in the
vendor's possession
He
sell
of
(1)
Above, p. 62. See above, p. 62. Free. Conv. (d) Davidson, see vol. ii. pt. i. p. 4, 4th ed.
(h)
(c)
;
above, p. 64.
See 1 Key & Elphinstone, Prec. Conv. 266, n. (b), 4th ed.
(e)
8th ed. above, p. 64, to the construction of a stipulation so framed, He Weston and Thomas^n Contract, Ch. 244, 248. 1907, (/) See above, pp. 65, 72. (y) Above, pp. 33, 47.
254, n.
;
11. (s)
and as
OF
'I'HE TJSTTAL
CONDITIONS OF SALE.
any documents, which the
as
91
ments were in
his
own
be required to be
these
stipulations
other iucumbnincer.
The
(I/).
last
of
object to
any
and
"
'
^n
y.
the
more stringent in this respect than common-form condition on sale by auction (/r).
seen
(/),
As we have
more
errors of descriptiou.
The
stipulation
fairest
to
both parties
and not
compensa-
A
(h)
contract
Such
vol.
ii.
pt.
i.
tained in the
common form
(/,.)
W
(iii)
Above,
p. 65.
Law Societies and the Birmingham Law Society conditions are, as we have seen,
castle-upon-Tyne
;
even more favourable to the purAbove, p. 75, n. {/> chaser. (i) See Davidson, Prec. Couv.
.
condition of this kind is usually made on sales by order of the Court; 1 Davidson, Prec. Conv. 653, 663, 4th ed. 587, 591, 5th ed. R. S. C. 1883, App. L. No. 15, j 9 see above, p. 66.
; ;
92
SALfi.
any outstanding
vendor's
of
title,
any necessary
vendor
(>?).
In
these
would have under an open contract (o). This is only and we have seen that, under the common form conditions of the Birmingham and other law societies, purchasers on sales by auction are not deprived
reasonable
;
of these rights
Apportiourents
p)
is
The same
ly auction
It
is
provision
made on
and
outgoings.
pressly agree to
pay
interest
(r).
delay in completion
object to a stipulation
" delay in completion arising " from any cause whatever or " from any cause whatever other than the wilful not to agree to an excessive default of the vendor " (s)
;
rate of interest, as
ditions of the
5/.
and to stipulate that, if from the state of the title or any other cause except the purchaser's own fault, he may discharge himself of his liability to pay interest by
delay in completion shall arise
money market
Such a
in
as
we have seen
of
(/),
contained
the
common form
Birmingham,
Societies.
conditions
Bristol,
Re-sale.
A
(n)
stipulation reserving
to the
re-sale
on any breach of
contract
pt.
by the purchaser
;
Above, pp. 67, 73. Above, p. 47. Ip) Above, p. 7-5, n. {b). (q) Above, pp. 67, 74. (r) Davidson, Free. Conv. vol.
(o)
1 i. Key & p. 4, 4th ed. Elphiustone, Free. Conv. 259, 351, 4th ed. 247, 351, 8th ed. (.s) See above, p. 68.
;
ii.
(t)
Above,
p. 75, n.
(*).
93
among
is
But there
and
if
it
be inserted
on the vendor's
behalf, the
it
purchaser's
advisers are
recommended
to strike
out
(.r).
A
the
(ii)
sale will be
found in
Appendix
Davidson,
pt.
i.
Free.
;
Conv.
1
vol.
ii.
p. 4. 4th cd.
Key
See
Davidson's
{a),
&
Elphinstone, Free. Conv. 268. 3il. 4th ed. 242, 319, oth ed.
;
Freoedents, 112, n.
((/)
94
CHAPTER
IV.
1.
2.
-3.
Of the general nature of the proof Of the abstract. Of the verification of the abstract.
required.
1.
Of
ilie
fitJe
and
Origin of the
rule, that the
its
dkcharge.
vendor must
show a good
title.
[a) that every vendor of land is bound show a good title to the property sold by him. This rule would appear to be of equitable origin. The Courts
We
have seen
to
considered that
was only
fair to
sell {b).
And
the obliga-
equally incident to
obligation,
is
he engaged to
sell
a freehold or copy-
hold in fee
() [b)
Ante, p. 32.
Ad. 992
1
Loe
d.
Gray
v. Stanton,
Jenkins v. Hiles, 6 Ves. 616, 6.53; White v. Fu/jambe, 11 Ves. 337 Deverel/ v. lioliuii, 18 Ves. 508; FiMcs v. Hooker, 2 Mer. 424 Purvis v. L'ai/er, 9 Price, 488, 518, h\<d. {() Flurenu v. ThvnihiU, 2 W. Huuttr V. Drake, 5 B. & Bl. 1078
;
;
M. & W.
had no
mainly
This rule
mediaeval
coiimiou law,
to their feoffors'
for their security see Wnis. Real Prop. 444-6, 13th ed. 588-590, 21st cd. [d) As we have seen, a contract
;
95
which he described
of equity
as held.
ex- Proof
of sixty
title for
not
than sixty
It
(e).
is
im-
a subordinate rule
amount
of evidence
It simply
title,
bound
evidence
ending in the vendor or in some person or persons whom the vendor would have the right to direct to convey provided, however, that nothing appeared to show that the ownership so proved was not full or complete (,/'). But it was of no avail to show sixty years' title, if the result of the evidence produced were not to discharge the vendor's main obliga;
tion, that
is,
to
(r/).
what he
if it
sold
Thus on the
had had possession and exercised acts of ownership for would no doubt be prima facie evidence of a seisin in fee, and the purchaser would be But supposing it apbound to accept the title {It). peared from the vendor's evidence, or the purchaser could prove from other sources that such possession and ownership were enjoyed under a demise for a long
sixty years back, that
.sell a piece of laud, without specifying wliat e.state therein is to be conveyed, is construed as a contract to sell the whole estate therein, that is, in the absence of any limiting expressions, the uuincumbered freehold in fee; above,
to
F.
(
& J.
/')
f/rovr, 4
{g)
Drew.
18.3.
See
Sug.
V.
L.
&
H.
v. v.
3tit>
;
P.
-5
;{(>()
Frond
2 IS.
{/<)
v. Bueldfij.
Q.
B..
See
.if);
Prossfr
Cottrel/
36.5,
Jfatli,
(j
p. 41.
ie)
Madd.
Bamwefl
V. Harris, I Tiixint. (Jonperv. Emeri/. I Ph.
1
U'ntkiiis,
Beav.
:}61,
Parr
v.
4.30. 4.32;
Lovrtjroro,4
Mo>if'/>ti
Drew.
&
J. 2*6,
96
would not prove that the vendor could convey the fee simple which he sold. The purchaser
title to
the fee simple, and if this were not forthcoming, would have the right to rescind the contract. It seems worth while to insist on this apparently simple distinction between the main rule imposing the duty of showing a good title, that is, a title to convey what was sold (i), and the subordinate rule defining the manner of proof. As a matter of fact, omission to remember
this
distinction has
especially in cases
required to
lation.
been a fruitful source of error, where the time for which title can be be shown has been limited by special stipu-
advisers,
In some such cases, the vendors, or their would appear to have forgotten that such a
first instance, and does not exempt them from the general duty of proving tliat they have the right to convey what they have sold {k)
.
a rule, in
cases.
all
quii'ed is
was
The
of
sixty years'
ownership in
proof of
title
the
(i)
Lmvric
v. Lees, 7
App. Gas.
and
109.
Ncve'^s Contract,
1891. 2 Ch.
19.
[k) See Phillips v. Caldclni(/h, L. R. 4 Q. B. 159; Waddell V. Wolfe, L. R. 9 Q. B. 515 Nottinqhani Patent Brick and Tile Co. V.' Butler, 15 Q. B. D. 261, 271 J6 Q. B. D. 778 Re Cox
; ;
(l) Barnwell y. Harris, \Ta,\xat. 430; Cooper sr. Emery, \ 'Ph. Z9,^\ Hodgkimou v. Cooper, 9 Beav. 304 Moiiltoii v. luhiioiids, 1 De G. F. & .T. 246; Su?. V. & P. 365,
;
407.
; ;
'
ITS DISCHARGE.
old, the
97
were
as,
less
vendor might
hi.
(1.)
would make up
These
Advowson.
Not
less
title
must have
i-
been shown
(2.)
an advowson
().
2.
Upon
Long
term,
But
of the
the
title
(o)
Upon
sale
held
3.
Tithes or
under a grant from the Crown, the original grant must have been shown, although more
than sixty years
tract
title
by'crown''^ g^ant.
old.
The intermediate
its
"i 4. Reversionary interest.
(4.)
could not be required (p). Upon the sale of a reversionary interest, 1, V T1 creation must have been shown, whatever
i
i.
i.
its
antiquity
{q).
9 Price,
B. & Ad. The rule also applied to a 99-i. contract to grant a lease, whether for lives or years, such a contract being regarded as equivalent to a sale for the time the
488
Souterv. Drolr,
.5
Sug. V. & P. 370; Frend L. R. 5 Q. B. 213; Dart, V. & P. 294, hth ed. 1 Contract to 335, 6th ed. 330, 7th ed. Wms. grant a lease, Real Prop. 450, 3th ed. 592,
(o)
v.
Bitckki/,
21st ed.
/i) Pickrritui v. Lord Sherborne, Craw. & Dix, 251; 1 Prest. Abst. 30, 2nd ed. 1 Jiirm. Conv. by Sweet, 68 Su?. V. & P. 367 1 Dart, V. & P. "^295. oth ed.
(
lease
1 Pre.st. Abst. 19, 2nd ed. Jann. Conv. by Sweet, 61 Dart, V. & P. 294. 5th ed.
;
W.
98
prove
and unless the evidence offered in support of the this, it is insufficient, though it were evidence
The
holds
is
particularly instructive.
On
purchaser of leaseholds was entitled equally with a purchaser of freeholds to the assurance that he should have the very thing he bought,
it
was bound
were
less
But
if
it
had
itself
vendor could assign the very interest which he had The other cases will be found to depend on sold ().
similar principles.
Vendor and
aT m"*!
Forty years'
required.
The law being as above stated, it was enacted in the Vendor and Purchaser Act, 1 874 (0 as follows : In the completionof any contract of sale of land [k) made after the 31st day of December, 1874, and subject to any stipu,
which a purchaser
theless earlier title
may
of
such
commencement
never-
may
be requii-ed in
(>)
n. (w/).
()
Ante, p. 97.
Stat. 37
& 38 Vict. c. 78, s. 1. the Interpretation Act, 1889 (Stat. 52 & 53 Vict. c. 63, B. 3, replacing 13 & 14 Vict. c. 21,
(f)
[u)
By
s. 4), in every Act passed after the year 1850 the expression " land " shall, unless the contrary intention appears, include messuages, tenements, hereditaments, houses and buildings of any tenure,
ITS DISCHARGE.
earlier title
99
which
than sixty
years
may now be
;
required.
This enactment in no
way
from the main rule that the vendor must show a good title it merely reduces the time, for which title
detracts
By the same Act (x) the purchaser of a term of years was deprived of the right to call for the title to the freehold, in the absence of stipulation to the contrary and by the Conveyancing Act of 1881 (i/) the purchaser of a term granted by underlease was deprived of the right
,
;
Title
on
feaseliold8
*'^^
years
leasehold reversion.
of enfran-
^^^^'
holds.
by express agreement)
(s).
to
make
the enfranchisement
We
have seen
was
title
grant
tenant,
it {a).
And
lord's
effected
by the
it
is
to
make the enfranchisement in order to establish a good But before the above-mentioned right to the land (b).
enactments were passed purchasers frequently submitted
in practice to special stipulations of the like nature
(c),
why
these
statutory
37
& &
38 Vict. 45 Vict.
c.
78,
(y) Stat. 44
8.
c.
41,
cannot be inquired into on a sale of the land after such enfranchisement see Stat. 4 & 6 Vict, c. 36, 8. 64 Kerr v. Fousoii, lio Beav. 394 1 Dart, V. & P. 166,
;
;
;
1 Dart, r. 372 V. & P. 289, 5th ed. Enfranchisement under the Copyhold Acts, 1841, 1852, or IS94, makes the land freehold, irrespectively of the validity of the lord's title which is therefore immaterial and
(b)
Sug. V.
&
290, .5th ed. 189, 330, 6th ed. 183, 326, 7th ed. Stat. 57 & 58 Vict. c. 46, ss. 21, 26 (3), (4),
;
;
38, 61.
(c) 1 Dav. Prec. 623, n. (y), 4th ed. P. 166-68, 5th ed. Prop. 452, 13th ed.
;
7(2)
100
The
law.
present
OF THE VENDOR
The
bound
OBLIGATfON TO SHOW
is
this
is,
The
vendor
is
show a good
title,
that
In some exall
may
complete proof of
the world,
is
this, as
where a
title,
good against
vested in
him by Act
of Parliament {d).
of special stipulation,
must be not
is
Freeholds
mentioned below in the following cases of sale 1. Of freeholds of inheritance or for lives, or copyholds, title for forty years next before the contract
(/').
or copyholds.
lives,
2.
must be produced, though more than forty years old. 2. Of freeholds, formerly copyhold but enfranchised
within forty years of the
sale,
chised copyholds.
the freehold
title
back to
{g)
title to
make
the enfranchisement
(/?)
for years.
Of leaseholds for years, production of the lease under which the property is held in all eases and, if the lease be more than forty years old, the title under
3.
;
the lease for the forty years next before the contract,
otherwise the whole
title
but
title to
This might be by special and appears to be the case with persons registered as owners with an indefeasible title under the Land Registry Act, 1862 (Stat. 25 & 26 Vict. c. 52, s. 20), or with an absolute title under the Land Transfer Act, 1875 (Stat. 38 & 39
[d)
Act
of Parliament,
& P. 305, 306, 5th ed. 347, 6th ed. 342, 7th ed. Land Transfer Act, 1897 (Stat. 60 & 61 Vict. c. 65, s. 16) below, Chap.
V.
;
; ;
XX.
(e)
Dart,
Vict,
c,
87,
s.
7)
see
Uart,
(*),
'
101
Contract to
f^j.
years.
for years
(/),
and Purchaser Act, 1874 (/w), from calling for the title the freehold, and by the Conveyancing Act of 1881 (n) from calling for the title to any leasehold But on a reversion to the intending lessor's interest.
to
Contract to
contract to grunt an
still
underlease, the intending lessor underlease. remains liable to produce the lease under which he
holds,
and
to
title
thereunder,
if it
be
less
Of an advowson,
title for at
(o).
least
one hundred
4.
Advowson.
5. Of tithes or other property held under a grant o. Tithes, from the Crown, production of the original grant in all by'crown cases, and title thereunder for the forty years next grant.
or
^
Of a
reversionarj'
interest,
it,
production
all
of
the
in
instrument which
created
in
cases
and
instrument so produced
(^/).
If
(t)
Here
it
be noted that, ou the wale of a term granted V)y an underlease, the property must be described as held by under/ease. For if property sold be described as held by lease, that is intended to mean a lease from the freeholder, so that if the vendor be possessed only of a terra granted by underlease, he is not in a positicm to lie Bci/fiisatid fulfil the contract Ma-stem's Contract, Z9 Ch.t). 110; above, 80. see p. [k) Goslinfi v. Woolf, 1893, 1
;
may
{l) Above, p. 97, u. (tii). Property held (w) Stat. 37 & 38 Vict. c. 78, by underlease s. 2, r. 1 Jones v. Watts, 43 Ch. must be so D. 574. described, () Stat. 44 & 45 Vict. c. 41,
;
s.
13.
(o)
1
Dart, V.
&
P. 293, 5th
ed. ; 334, Gth ed. ; 329, 7th ed. "Wras. Real Prop. 451, 13th ed. 592, 21st ed.
(jo)
1
Dart, V.
;
&
ed.
{q)
Q. B. 39.
'
102
course
the whole
title
In other its creation must be shown. would appear to depend on the nature of the interest sold what title ought to be shown subsequently
subsequeut to
cases
it
to its creation.
were a reversion or
For
in such a case
there
rent,
and
If
however
what was
In
this case
any time-limit
the whole
vendor has
and
it is
thought that
of the reversionary
The
best and
At
show a good
and
to
make
whom
he
is
en-
of
payment off of mortgages), to direct to conve3\ Now, as some of the best evidence of ownership is proof of the power of disposition incident to ownership, especially for valuable consideration (r), and as proof that the vendor has the right to convey what he sold must necessarily be made out by showing the devolution of
as the
it
(r)
418-427.
ITS DISCHARGE.
is
103
devised.
is
title
mentary.
since the
method
end of the mediieval period of law, the usual making a conveyance of land has been by If then, on the the execution of deeds or a deed (). sale of a freehold in fee, the vendor produce the titledeeds for the last forty years, and these show that the fee simple in the land sold has been conveyed to him,
of
free
if
there be satisfactory
and the vendor be in possession of the land and of the But deeds, he has shown a good title to the land. although title deeds are the most common, and, owing long prevailing custom of conveyance by to the deed, the best evidence of title, it must not be supposed that they are the only evidence which the purThis will appear clearly if chaser is bound to accept. we bear in mind oui" main rule, that what the vendor has to show is that he has the right to convey what he
sold,
Other evi-
rule, that, if
nothing appear
shown on proof
is,
Now
deed
;
may
be proved without
by evidence
of the seisin of
some ancestor
of
title
sion
vendor by descent. And if the facts of possesand kinship on which such a title must depend, were fully proved, the purchaser would be bound to
accept
(s)
it [f).
But
to illustrate the
See
Wms. Real
Prop. Ho,
1
200
sq.,
(t)
Beav.
361,365,366; Dorlinpy. Ciai/dot,, Sug. V. & T. 1 H. & M. 402 2 Prest. Abst. 23, 2nd 410, 421
;
; .
104
it
may
would scarcely discharge his obligation to show a good title by simply proving that he himself had been in For although possession of the land sold for forty years.
the rule applicable in actions for the recovery of land
that possession
fee
(?/), it
is
is
prima
is
convey what he
as with his
sold,
than
is
afforded
by
facts equally
(.r).
In such a
case therefore
of his possession,
fee, for in-
and
to establish that
he entered as tenant in
stance,
under a conveyance on
[y]
him, or as heir, or
Here
it
may
pending on
Limitations.
purchaser to take a
Limitations,
that
to
(s) of the right and some person or persons who are shown to have But it must not be supbeen rightfully entitled {a) posed that this doctrine enables a vendor, who has been
the
common
proof of a good
title
all
it
ed.
6th ed.
& P. 298, 336, 340, 380, 381, 6th ed. 334, 376, 377, 7th ed {h) Doc di.. HaU v. Penfold, 8 0.
;
Dart, V.
;
Dart, V.
;
.
&
g
^
^^
r ^'""^
i,
WJ.
&
P. 536
{ic)
Cole on Ejectment,
^- <')
(2)
^- ^'^^' ^
m, ^^-
^ t- ^c.
^^ ^^
^
&
in.
See Hiern v. Mill, 13 Ves. 114, 122; Eyton v. Uicken, 4 Fri. Cottrcl'l v. Watkins, 1 Beav. 303 Sug. V. & P. 461 361, 365, 366
; ;
Stat. 3
&
4 Will. IV^.
27,
s.
34.
(a)
Scott
;
v.
Mxon,
y.
;
Dru.
64.
War. 388
Games
33
Bonnor, 54
L. J. Ch. 517
W.
K.
105
(b)
who were
right-
A good
which
title
title
then
may
But
Vendor must
""
the land SSe.deeds sold has been conveyed by deed within the period for if he can.
if
and
has to be shown,
it is
by other means.
theii'
He
if
they be
lost or destroyed,
contents
(d).
2.
or
the
Ahstrad of
Title.
on sales being for the most part Vendor bound and such as can be weighed only by ^,**^'^ ^^^ skilled legal advisers, it became usual to facilitate the abstract of ^' task of judging of the effect of the title-deeds by ^^^ making an abstract of their contents for the perusal of
title
Evidence of
documentary
[e),
deeds were handed over to the purchaser for examination, and any abstract of them which he might require was made at his expense. But afterwards it became established that the vendor was bound to make at his own expense and deliver to the purchaser an abstract of
{b)
Stat. 37
;
&
.'i8
Vict. c.
57,
88.
1-5
I'eddvr v. Uitnt, 18
lie
Q. B.
D. 565
(c)
the dictum here cited is uuexceptionable but the decision in this case is criticisetl by the writer iu 51 Sol. J. 141, 155.
:
Jacobs
v. licvcll,
1900, 2 Ch.
.Visbet
1
.<
j,
Ch. 391, 401, affirmed, 11)0(3, 1 Ch. 386. It is respectfully submitted that
and
R"-
t>
7";';/f J--*o(<)
.Z*^ /'"^'^''l.J^'J*^^'^">'^. 1
^^
F.
Ante,
p. 103.
; ;
106
the
(_/'
and
so the
law
still
remains
What
title
ought to
a statement
or
of
by which any diswas made during the time for which title has to be shown it ought also to contain a statement of every birth, death, marriage, bankruptcy
will
other instrument,
The
abstract
same period
If
should com-
this
be offered in un-
must be what is called a good root of title that it must be an instrument of disposition dealing with or proving on the face of it (without the aid of extrinsic evidence) the ownership of the whole legal
title, it
;
is
to say,
and equitable estate in tlie property sold, containing a description by which the property can be identified, and showing nothing to cast any doubt on the title of the disposing parties. If the instrument be deficient in any
of these particulars, the purchaser
General
devise.
may
(i).
require further
For example,
if
the abstract
commence with a
perty sold
is
And
if
the
first
equity of redemption,
that
is,
of laud subject to a
mortgage
term of years,
^-
it is
& P. 406. It has not been altered by Conveyancing of the sect. 3 (6) Act of 1881 ; lie Johnson and Tustin, 30 Ch. D. 42. 1 (h) Sug. V. & P. 405 sq.; Dart, V. & P. 279 sq., 5th ed.
(/) Sug. V.
{(/)
Ee
Wallis
[i)
2 Ch. 206.
Dart, V. & P. 295 sq., 5th ed. ; 337 sq., 6th ed. 331 sq., 7th ed. Re Cox ^ Neve's Contract, 1891, 2 Ch. 109, 118.
1
; ;
(A)
Parr
v. Lovegrove, 4
Drew.
319
sq.,
6th ed.
315
s^.,
7th ed.
170.
ITS DISCHARGE.
107
thought that the purchaser is entitled to require the mortgage deed (however old) to be abstracted and produced
(/).
But
is
way
of mortgage
a good root of
mortgage in fee where it is made with the concurrence of all parties interested in the equity of redemption, and a new equity of redemption is reserved. But unless a new equity of redemption be reserved, a transfer of a mortgage appears to be no more a good root of title than a conveyance of the equity of redemption is.
The
is
explained by Reason
.
of the
referring to the rule that a g-nod title is shown by proof ^"^^ requiring " a good root of forty years' title This means forty years' title to tlie of title.
"^
*^
is
by proving a
contract,
a right to procure
(?).
It
is
commencement
his to convey.
show
is
now
This
is
the reason
why
if
further evidence
first
the
itself to
may be required by the purchaser, document on the abstract be insufficient of prove the ownership of the whole estate. Con-
Convevance
"^ equity of
sidered with regard to this principle, the conveyance of an equity of redemption {n) and a lease for years, even though it be a demise by way of mortgage for a long
term, obviously
(/)
fall
ciples
down
in
P/ii/lipn
;
v.
lie
Caldvkuyh, L. R. 4 Q. B. 159
109, 117, 118.
Above, p. 106.
; ;
108
Deed exercising a
power.
OF THE VENDOR
root of
title.
OBLIGATION TO SHOW
Disentailing assurance.
So a deed appointing an estate under a power of appointment is not of itself a good root of title as to have a power of appointment over an estate is nol the same as to be the owner of it, and what a vendor has to prove is the full ownership, at the time of comFor mencement of title, of the estate he is selling. evidence of such ownership he must go back to the On the same prindeed, which created the power (o). ciple, a disentailing assurance is not a good root of title as it only shows the ownership of an estate tail at the time of commencement of title, and this, like a power of appointment, is merely a derivative interest and not full ownership, which is fee simple. In such cases, the deed
creating the estate tail should be abstracted
(jj)
.
Whether the It is of course advisable for a vendor to commence must abstract with a conveyance for valuable considerahis commence with a contion, as that affords the strongest evidence of ownership,
abstract
veyance for
valuable consideration.
it
on account of the mortgage the prior title was investigated in the usual way and was approved. It does not appear however that a purchaser can object to
for the property, but also
money
presumption that on a
(o) 1 Jarm. Conv. 3rd ed. by1 Dart, V. & P. 297, Sweet, 67 333, 7th 5th ed. 339, 6th" ed. By the Conveyancing Act, ed. 1881 (Stat. 44 & 45 Vict. c. 41, s. 3 (3) ), a purchaser of any property shall not require the production or any abstract or copy of any document dated or made before the time prescribed by law or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instriiment abstracted in the abstract furnished But as, by to the purchaser.
; : ;
the specific performance of the contract, like an express stipulation to the same effect, it follows, according to the principle laid down in lie Marsk and Earl Granville, 24 Ch. D. 11, that, unless a vendor fairly and explicitly stipulates that the abstract shall commence with a
deed exercising a power, he cannot take advantage of this enactment in enforcing specific performance against the purchaser.
{p)
1
V.
&
Dart, V.
;
&
Sug. P.
333,
ITS DISCHARGE.
109
on the ground that the disposition was not made was made on an occasion
it is
on which
it
title.
Thus
title, if
Voluntary
or a family
ment.
made by deed
ing a
if
and that a
specific devise
would be a
which the
title
was
to
commence.
But
if
of title
make a
law,
Tfo
which
1
title shall
is
given by
title
dmerent considerations apply, ouch a stipulation must be fair and explicit, or the vendor, in seeking
specific
CI
curtailed by special
st^P'^atioii-
performance,
Avill
it.
If therefore a stipulation be
made
that the
title shall
commence with
old, the
is entitled to assume that the deed was made on an occasion on which the title would be investigated and should this not be the case, as if the deed were voluntary, the vendor cannot force him, in an
purchaser
to
accept the
title
as
limited
by the condition
(r).
Such
conditions, to be
must state clearly the natui'e with which the title is to commence.
ment
of
title,
h^'^abstracted
Marsh and (q) Cotton, L. J., lie Earl Granville, 'M Ch. D. 11, 21. The contrary '\h stated by the editors of Dart, 1 V. A: P. 38'J,
33;i. 7th ed., rehiiifr on 6th ed. the decision iu tlie above case but it is submitted that this deci;
sion goes no further than is .tated below, and has no application, where the purchaser's rights are not curtailed by special stipidation.
(/)
villr,
110
after the root of title.
will,
legal estate
(s)
;
leases
and
all facts
whereon the
title
affecting the equitable but not the legal estate in the property sold, if they be documents on which the purchaser's
title
will
ought
to
be
placed on
the
abstract
(t).
But
as a
who
any property, is not bound by any equitable which he has no notice, it is obvious documents creating equitable many that there may be
interests theiein, of
which are not necessary to the purchaser's title, so long as he obtains the legal estate without notice For instance, the vendor may be possessed of of them.
interests only
documents showing that some former owner who appeared on the face of a conveyance to be entitled for his own benefit, was in fact a trustee, or that persons who had advanced money on mortgage were trustees of the mortgage money. In such cases it would be unusual to
allow notice of the trust to appear on the abstract
This, Mr. Dart points out,
is
(k).
it is
and not the vendor's, to judge of the materiality of the muniments of title but it is sanctioned by convenience and universal practice (rr). Again, if a charge should have been created on the property by a document which could only create an equitable interest therein, and the charge should afterwards have been
;
paid
off,
it
is
as mentioued (s) And except above, pp. 100102; 1 Dart, V. & P. 299, 5th ed. 340, 6th ed. andcons-ider TFhit335, 7th ed. 17 ing to Loonies, 14 Ch. D. 822 Ch. D. 10 Re TFallis 4- Grout's Contract, 1906, 2 Ch. 206.
;
{t)
Dart, V.
;
&
ed.
(m) 1 Dart, V. & 5th ed.; 341,342, 336, 7th ed. (.r) See Ee Harman and JJxbridge, ^c. 1/. Co., 24 Ch. D. 720.
P. 299, 5th 335, 7th ed. P. 299, 300. 6th ed. ; 335,
HI
the abstract
(ij)
This
is
contrary to the
Tracy
down by Wood, V.-C, in Dnonmond v, who stated that he had no doubt that
It
[a),
Hown may be
theoretically
as
but
its
practical inconvenience,
is
much
:
to
purchasers as vendors,
all
nor
all,
by that
decision.
be
abstracted
:
Leonards {h) " The solicitor should abstract every document upon which the title depends, or upon which any difficulty has arisen. Wherever he begins the root of title, he ought to abstract every subsequent deed."
This general rule
seen,
is
is
that
laid
down
by Lord
St.
however
qualified,
as
we have
by the
trustees on mortgage, or where the trustee appears on the face of the conveyance to be entitled for his own benefit and
trusts of
money advanced by
of purchases
by the
practice
of
charges which have been paid off. There is a difference however between equitable charges which may and those which cannot affect the legal estate. A mortgage of an equity of redemption, or second mortgage, made by deed, with a proviso for redemption in the same form
as a legal mortgage, could operate to convey the legal
estate if
it should not have passed by the prior mortSuch a charge, Mr, Dart pointed out (c), should
gage.
(y)
ed.
.34 3,
&
;
P.
:^37,
112
memorandum
in writing or
;
by deposit
of title-
In
Drummond
Tracy
(d), it is
the practice to
mention of such charges in the abstract after they have been paid off nor are they generally disclosed, even
;
when
The manner
an abstract,
still
subsisting
[e]
manner
in
At
making an
is
abstract of
it
title
seems
to
bound
judge of their
therefore be required to
clause,
which
is
material to the
he
words
For the
is
examine the
is all
a convenient
way (_/)
the abstract
he sees
and
if
before him,
it is impossible for him to exercise his judgment on the title. And counsel should not accept a mere statement of the effect of a material clause provi-
proving to be correct
the disabstract
for this
is
which he ought
with the deeds
The general
that the
John. 608. Dart, V. & P. .S()0-a02, 336342-344, 6th ed. 5th ed. 338, 7th ed,
(d)
{e)
See
2nd
ed.
113
The material clauses are those which have What are taken effect upon the estate, to which the title is being clauses, shown. Thus in deeds of conveyance, the names and descriptions of the parties, the recitals, which show their
intention, the testatum with its statement of the con-
and operative words, the parcels, the habendum, and the declaration of uses or of trusts, if any, are all material to the conveyance of the estate and should be fully abstracted. Of covenants for title, however, it
sideration
is,
Covenants
as a rule, sufficient to
know
common forms
in use before
enough
of
When
covenants for
title
the Conveyancing
Act
be abstracted verbatim.
cised
So
Powers,
stracted but it is sufficient simply to refer to powers which have not been exercised. The same considerations apply to the abstracting of any provisoes which may
have
come
into operation
if
not, they
have taken
T
1
effect.
And
a
1
,.
and to whom the reconveyance is to be made for in a mortgage the proviso for reconveyance, being a qualification of the conveyance to the mortgagee,
is
just as
much an
itself (A)
(A)
.
title
should
and
see
See
&
P. 407-410;
w.
114
OF THE VENDOR
OBLIGATION TO SHOW
be abstracted in chief, notwithstanding that they be fully recited in some subsequent instrument
if this
(/)
:
may
but
be
Documents
incorporated
it
by
reference.
document as " hereinbefore abstracted." And all documents should be abstracted whicli are incorporated in the title by reference as where land is assured to the uses of some settlement even though the document be of an earlier date than the time of commencerecited
ment
Execution of
deeds, &c.
of
title.
should be
stated.
what j)arties to any same and whether such execution was attested and in the case of documents which are invalid unless attested by some particular number of^ witnesses or executed with some other special formality,
abstract should always state
title-deed executed the
;
The
such as wills
(k),
the
number
be mentioned
so that the
conveyancer
may
be satisfied
The receipts usually endorsed on purchase and mortgage deeds before the year 1882 (m) should be mentioned, as their absence was accounted an informality (>?). And any formality necessary to give complete effect to any abstracted document should be stated as probate
;
(o),
(v)
Dart, V.
;
&
ed.
Ee Stamford,
Contract,
Co.
1
1900,
[m) "Williams, Real. Prop, 19313th ed. 627, 628, 2l8t ed. Williams, Conv. Stat. 227, 229.
4,
;
(m)
Grouf s
Contract, 1906,
V.
Dare,
292
2nd
245, 2l8t ed. 206, 13th ed. 298-302, 13th ed. (;) Ibid. 384-387, 2l8t ed.
(o) Williams, Pers. Prop. 385, 11th ed. 447, 16th ed. Williams, Real Prop. 196, (_?;) 212, 262, 2l8t ed. 223, 13th ed.
; ;
115
been considered
that a
(-s)
.
map
or
plan
is
no
Tracings of
^^
may
be doubted
But the
the parcels
is
duty
{t),
and he cannot
as
is
And when,
is
now very
made
them,
by
reference to a plan,
is
really a material
and ought
as such to be included in
the abstract.
It is
and
wherever a plan
is
a material part of a
title-deed, the
3.
Of
the vendor
is
Vendor bomul
^
further bound, in order to discharge his obligation of abstoct^ showing a good title, to verify the abstract by producing
all
is
the statements
made
therein.
there-
which
lie
has
Sug. V. ,,.
(')
&
P. 408.
^r
^"S^"
^-
t>
^-
^l"^"
^m
(m) 1 Dart, V. & P. 303, 304, 5th ed. 34.5, 346, 6th ed. 339, 340, 7th ed.
; ;
(2)
116
on wliich the
title
depends, such as
the Court
Expense
intestacies
At common law
all
evidence not
in vendor's possession.
expense (^) but now under the Conveyancing Act of 1881, the purchaser, in the
be made
at the vendor's
all
evidence of
{z).
which
is
Evidence
required is (1) of documents,
(2) of facts.
The
proof,
nish of his
title,
which a vendor may be required to furis of two kinds; (1) proof of the
Proof on sales
differs
In both
is
from
accepted on sales
proof in
litioration.
Thus
it
where
it is
must
be shown,
alleged
;
fii'st,
that there
is
or
was such
is
a writing as
this is
;
original
that
is
is
his
deed, that
executed by him,
it
or, if
the writing be
his
unsealed, that
Documents
thirty years old prove
authority so as to bind
him
(a)
At common
law, the
themselves.
documents thirty years old coming from the proper custody these, whether deeds, wills, letters or similar writings, were and are presumed to have been executed
;
(/>).
In other
k
cases, the
c.
Sng. V.
420, 429, 431 310 sq., 5th ed. 345 sq., 7th ed.
;
My.
{y)
414, 415, 417, Dart, V. & P. 350 .sq., 6th ed. Southhij v. Hutt, fcCr. 207,212, 213.
1
;
; ;
&P.
(-)
Stat. 44
45 Vict.
41,
s.
3(6), (9).
Sug. V.
&
P. 417,420,431.
{a I Zet/ifield's Case, 10 Rep. 88a, 92b, 93a. (J) Taylor, Evidence, 74, 75, 593-601, oth ed. Stephen, Evidence, Art. 88.
;
DISCflARGi!.
117
been proved,
if
evi-
best
the party
who executed
its
execution, or an admission
by or on behalf of such party of the fact of execution (c). The common law rule as to proving the execution of attested documents was so stringent that such execution could not be proved by the admission of the executing
. .
Proof of
attested
documents.
party, unless
made
Common Law
is
Pro-
not requisite
and
{e).
such instruments
wise, as
if
may
there
Under
generally
established
by admission
made pursuant
to a notice in
which either party may serve on the other (/) but of course where there is any contest as to the fact of execution, it must be proved by the best And on evidence according to the ordinary rule {jj).
that
behalf,
:
unopposed applications and in non-contentious cases the rule still is that the execution of a deed must be proved by an attesting witness (//). Upon sales of land, how- No
ever,
it
evidence
is
tjon of
any
however document
sales.
required on
(/)
unless there
Taylor, Evidence, ^ 1637 Stephen, Evidence, Arts. 15.sry., 63-b!). {d) Callv. Dioinhiff, i Edat, 53; Doe V. Buniford, 2 M. & S. 62.
(c)
Av/.,
Re
1
N.
35;
S.
Reay^ Estate, 1 Jur. lie Rice, 32 Ch. D. 222 Seton on Judgments, 156,
;
6th ed. the custody in (t) That is, which they may reasonably be
Croicihtoiiexpected to be found v. lilake, 12 M. & \V. 205, "208 Ihv d. Jiuobf: v. rhiUips, .s Q. B,
;
(c)
Stats. 17
&
8.
26;
1, 7.
28
&
18 Vict. 29 Vict.
c. 125, c.
18,
88.
(/) R.S.C. 1883, Ord. XXXII. rr. 2, 3, and Appendix B. No. 11. Lloyd, 35 Beav. (g) Leigh v.
158.
118
In the presumed by conveyancers that every deed, will or other document of title was executed or signed as appears on the face of the document (/). Conveyancers act, in this respect, on the presumption that everything is rightly done, until the contrary be shown (/) a presumption which
not in fact executed as
it
purports to be.
it is
is
by the
relate.
What
is
the
The
strict
a purchaser as to proof of
title-deeds?
Under
the old
common
law practice requiring strict proof of attested documents (m), there were conflicting decisions at Nisi Prius
at
upon the question Avhether a vendor suing the purchaser law for damages for breach of contract must prove
title (n)
.
was pointed out, however, that such actions are usually brought in consequence of a dispute raised as to
the vendor's
title
that
is,
as to the
efi'ecf
of the deeds
an abstract and communications thereon, in the coiu'se of which the autJicntiviii/ of the
after the delivery of
round
at the trial
of the genuineness
1904, A. C. 64, Bcane, 1905, 2
Coventry, Conveyancers' (/.) Evidence, 13-16; 1 Sug. V. & P. 418, 438; 1 Dart, V. & P. 312, 5th ed.; 353, 6th ed. 348,7th ed. See Jaredy. Clements, 1902, 2 Ch. 399, 402 1903, 1 Ch. 428,
;
69
Heath
86, 93.
,
,
v.
Ch.
^'"^
.i
()
431.
[l) Litt. sect. 377; Co. Litt. Clarke v. Imperial Gas 232 b; Liyht and Coke Co., 4 B. & Ad. 315 B'Arcy v. Tamar, ^-c. Ry. Co., L. R. 2 Ex. 158, 162 Clippois Oil Co. v. Edinburgh, ^-c.
; ;
v. Miles,
184; that he must, Crosby v. Percy, Mansfield, C. J., 1 Camp. 303. Lord St. Leonards evidently thought the former the right decision Sug. V. & P.
;
439.
119
Under
call
first
Act, 1852
any
introduced by the
litigant
Common Law
upon
Procedm'e
may
his adversary to
on pain,
pay
is
proof of the
execution of title-deeds
mentioned alterations in the law {q) and practice as to the proof of documents in an action, that the Court
a requisition,
that
the
any reason
ment
(/)
Here
it
title- Title-deeds
creat- attorney. ^
C. 421, 427. The decision there was, that in the absence of any such communications as might establish the admission of the authenof the deeds, a vendor ticity suing to recover under special stipulation in the contract the amount of the loss on a re-sale of leasehold property rejected by the original purchaser, and alleging himself to have been in poxsexsion of the property under the lease, must prove this allegation by showing the execution of the leiuse in the usual way. (p) Stat. 15 & 16 Vict. c. 76, . 117 ; R. S. C. Ord. XXX. r. 2.
linimit,
{q) (f)
Bing.
N.
200, 214, 216; Powell v. London ^ Provincial Bank, \^^Z, 2 Ch. aorj, At common law 558, 563, 565. an attorney authorised to execute a deed was bound to execute it in the name of his principal, and not in his own name otherwise
;
the
execution would
be void
;
Combes^ s Cane, S Rep. 75 a, 70 b Fronfin v. Small, 2 Ld. Raym. White v. Ciojler, 6 T. R. 141S 176; JFilks \. Back, 2 T^&^i, W'l; Laxvrie v. Lees, 14 Ch. D. 249, But in deeds 7 App. Gas. 19. executed by attorney after the year 1881 the attorney might and
;
Above,
See
;
p. 117.
;
Dart, V. & P. 312, 5th ed. 353, 6th ed. 348, 7th ed. (<) power of attorney authorising one to execute a deed on behalf of another is required by law to be given by deed Hibhlewhite v. McMorine, 6 M. & W.
1
m.iy (whatever were the date instrument creating the power) execute the deed either in his principal's name according to the common law rule or in liis
still
of the
his
own
signature and seal under the authority of the Conveyancing Act of 1881, Stat. 44 & 45 Vict, Davidson, Preo. c. 41, s. 46 1 Conv. 101, 5th ed.
;
120
Besides
this,
if
necessary,
was not revoked by the donor's death or otherwise before it was so acted upon (u). Such evidence is not necessary ( ) where the power was given before the year 1883 for valuable consideration, and was made exercisable in the names of the principal's representatives after his death (,r) or (2) where the power was given by an instrument executed after the year 1882 for valuable consideration (//) or (3) where the power was given by an instrument executed after
that the power
I
from the date of the instrument (z), and the power was acted upon within that time. But where the power was given otherwise than for valuable consideration by an instrument, wherein the power was not so expressed to be irrevocable, the purchaser may, and should, require evidence to be furnished that the power was not revoked by the donor's death or otherwise before it was acted upon {a).
See Eaton v. Sanxter, 6 Sim. above, pp. 34, 47, 48. [h) Sug. V. & P. 417; 1 Dart, V. & P. 311, 312, 5th ed. 352, 348, 7th ed. 353, 6th ed. [x) See below, Chap. XII. ^ 5. Such a jjower, if not expressed to be exercisable in the names of the
{t)
517, 519
representatives after at common law by the principal's death L>-iven in eq uity but relief would be ,. T i.t,aeramst such revocation, in this . t -i. i,i. u case therefore it might be necessary to require evidence that the
principal's his death,
principal was alive at the time when the power was acted upon by the attorney, in order to be satisfied that no person could set up a legal estate acquired for value without notice of the power in opposition to the estate purported to be assured by the exercise of the power,
(y)
c.
was revoked
39,
i
(2) s.
gee Stat. 45 & 46 Vict, 8 below, Chap. XII. 6 5. . p ,,? Tra ui. Seebtat. 45 &46 Vict.
s.
;
i.
i.
^ 9
i
; '
c.
39,
0.
()
^^e note
{x),
above.
121
in support of a title
may
Documents of
j^
which are kept in the custody of the parties interested, and which the purchaser can require to be handed over to him on
First, private writings
prate or
cus-
official
completion
of
this
conveyance.
And
and to the possession of which the purchaser can have no right. Such are Acts
Parliament public or
proved.
private, records,
of
orders
of
manor, and
wills, if
With regard
abstract for
;
to the latter
himself
is
by
to Vendor must
document
for
he
bound
verification
of the dence of
any document
\vill
in public or l^ocuments
custody as
it is
be entitled
jjiinid facie
him on comall
(c)
.
pletion
(b).
At common
But
Expense
of
the purchaser, mentTnot'hr' in the absence of stipulation to the contrary, must bear vendor's pos
it
not
is
-1 m trie
session.
vendor's possession.
not re-
he
is
merely exonerated
it.
expense
of
dis-
charging
be mentioned that, in litigation, the any public document may be proved, at common law, either by production of the original document or its equivalent, or by an examined copy,
it
Here
may
Evidence of
ment.
contents of
Diidlnj, Unlketl V. 1907, ")90, 608, 604. (c) Sug. V. Ac P. 431, 448; 1 472, Dart, V. & P. 408, 5th ed.
(b)
1
Ch.
6th ed. 1 482, 7th ed. Davidson, Prec. Conv. 550, 55.'), 4th ed. {d) Stat. 44 & 45 Vict. c. 41,
;
s.
3 (6), (9).
122
Examined
copj'.
that
Exemplification.
Office copies.
to
an exemplification
officer of
{g).
by an
not at
the Coui-t,
who
is
authorised
to
made by rule
are
of Court
make them,
common law
equivalent to an exemplification,
{h).
by
copies certified
copies.
some
if
official seal
or signature or otherwise
and
in
nature
certifier
required or
(/.).
of
the the
official
the
(/),
And by
Evidence Act,
is
1851
of such a public
its
mere
M.
M. &
Taylor, Evidence, 1333, 1368, 1389 sy., Stephen, Evidence, Arts. .jth ed. 73 aq. The rule extends to any dt)cument or book which is of such a public nature as to be admissible in evidence on its mere production from the proper custody It. V. Hain.s, Comb. 337 Lynch v. Clerke, 3 Salk. 154 li. 2 Doug. 590, 593 v. Gordon, Taylor, Evidence, and note 1436, 1437, 5th ed. Bac. Abr. Evidence (F) ( f) Taylor, Evidence, ^ 13781381, Evidence, Stephen, 5th ed.
102, 106.
& W.
124
Lloijd, 1
Bac. Abr. Evidence (F) Taylor, Evidence, 1384, 5th ed. Stephen, Evidence, Art. 77.
;
[h)
Evidence,
^^
1440,
Stat. 8
&
9 Vict. c. 113,
s. 1
{I)
Stat.
;
s.
14
Ai-t. 77.
(g)
Stephen,
Evidence,
123
of
which renders
its
contents provable
by means
extract by the ofiicer to whose custody the original is entrusted. On sales, however, it has always been the practice to receive office copies and extracts in evidence, whether the same would be admissible as evidence in litigation or
as
a true copy or
not (m).
The proper
or in
is
Prop^'i'.pla^e
tion of the
'^^^^t^''^^*-
London
{u).
any one
common
The
them and
vendor
duction of
of
any journey
or
:
(o).
may however
all
some
some other
place or places
common
law be bound to pay any additional expense incurred Expeuso of by the purchaser in the examination of the deeds, titieeeds
1 (m) Sug. V. & P. 414, 417 Dart, V. & P. :U8, oth ed. 361, 6th ed. 1 Davidson, Prec. Conv. .5,)0-2, 4th ed. Halkettx. Dudhi/, It 1907, 1 Ch. o90, 603, 604. should be noted that proof of a public document by what is called
; ; ; ;
the deeds are to be exin London, a country solicitor must employ a London agent for the purpose and he cannot charge his client with the expense of a jouiney, even though
(w) If
amined
an examined copy is iKjt available on sales, ;us the admissibility in evidence of such a copy depends on the statements made on oath in Court of the person who examined the copy with the orif?inal H. L. C. 544(Jraivford Feerngv,
'I
undertaken at his client's request, in order to examine the deeds personally, unless he first explain to his client what is the regular practice. But a London
solicitor
need
not
employ
country
solicitor as his
agent to
Taylor, Evidence,
^v
i:$89,
')th
attested copy, that is a copy endorsed with a written and signed declarutii m that it is a true copy, is of no more use to a
ed.
And an
Ahop v. Oxford, Uiighcsx. Wynne, 8 Sim. So Re Tn/mi, 7 Beav. 496; Sug. V. A: P. "430; 1 Dart, V. ^ P. 407, 408, 5th ed. 470. 471, 6th ed. 481, 482, 7th ed. (o) Sug. V. & P. 429 1 Dart. V. ic P. 407, 5th ed. 470, 6th ed. 481, 7th ed. I Davidson, Prec. Conv. 554, 4th ed.
clerk.
own
1
See
My.&K.
.)64';
;
124
not. iu
vendor's posses-
sion.
The vendor
title,
therefore
must
his
produce
all
documents of
which are in
own
Deeds
iu pos-
session of
vendor's
mortgagees
pay the extra expense incurred by (r). But in the absence of stipulation to the contrary, he can produce any documents of title, which are not in his possession, at whatever place they may happen to be, without being called upon to bear any extra expense so caused. It has been held that, under the last-mentioned enactment, a purchaser must pay all the expense of the examination on his behalf of title-deeds, which are in the possession of the vendor's mortgagees, and are in consequence
of the abstract or
their examination elsewhere
produced at the
or other per-
office
such pro-
and
examination
all
equally bear
the expense
production and
by whom the
vendor
title-deeds in possession
Here it may be mentioned that by the Conveyancing Act of 1881, where a mortgage has been made after as long ^^^ ^jg^ December, 1881, the mortffas:or. f as his o o
-
(jj)
430;
85
;
Sharp V. Page, Sug. V. & P. Hughes v. Wynne, 8 Sim. Dai-t, V. & P. 408, 5th ed.
;
;
[q)
s.
Stat. 44
45 Vict.
c.
41,
3 (6), (9).
(/)
See
1 482, 7th ed. 6th ed. Davidson, Prec. Conv. 554, 4th
471,
ed.
735.
ITS DISCHARGE.
125
from time to time, of amortga^ and at his own costs, ^^^r^Je and on payment of the mortgagee's costs and expenses made after in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee and this enactment is to have effect, notwithstanding any stipulation to the contrary {t). A vendor of land, which is subject to a mortgage made
entitled
at reasonable times,
on
his request,
and
verifyMortgagee's
th^ mcTrtgao-e
^'^^
before the year 1882, the old rule remains in force that
the mortgagee in possession of the title-deeds of the
ade
mortgaged property cannot be compelled to produce them for the inspection of the mortgagor or any one claiming through him, without being paid off (/^). In such case therefore the vendor must arrange with the With mortgagee for production of the title-deeds (x)
.
Stat. 44 & 4o Vict. c. 41, 16; see also sects. 1, 2. (m) Setihome v. Earl, 2 Ves. sen. 450; rosththuaitc v. Bhjlhe, 2 Swanst. 256, 257 Brown v. LockGreenwood v. hurt, 10 Sim. 420 ChicJuHter liothinll, 1 Beav. 291 V. Bonegal, L. R. 5 Ch. 497, 502. Accordiug to these cases the rule extends to the mortgage deed itseU and the decision to the
{t)
8.
contrary in J'atch v. Ward, L. R. 1 Eq. 436, appears to be incon-ect. Where the mortgage was made before the year 1882, the old rule
applies to documents modifying the terms of but not entirely
superseding and discharging the contract of mortgage and executed after the year 1881 Burn v. London South TJ'a/cs Coal Co., 1890, W. N. 209.
;
if-
With respect to the concurrence of any mortgagee (whatever be the date of his mortgage) in a sale by the mortgagor of the mortgagetl property (see above, p. 47), the mortgagnr's right, where the mortgage is in the usual form, evidencing an intention to confer a permanent security, and the day for redemption at law is past, and the mortgagee has made no express or implied demand for npaymeut of the mortgage money, is to redeem on payment of the whole amount due on the mortgage for principal, interest and costs {National L'roiincial Bank of Etiyland v. Games, ',il Ch. D. 682), and either after giving six calendar months' previous notice of liis intention to redeem, or on payment instead of .>ix calendar months' interest in advance SItarpnell v. Blakf, 2 Eq. Ca. Abr. 603, pi. 34; Johnxon v. Erans, Smith v. Smith, 1891, 3 Ch. 550, .562 1889, W. N. 95. 01 L. T. 18 FitziivraUV s Tru.stic v. Mclltr.sh, 1892, 1 Ch. 385, 388, 389. Where the mortgagee has demanded, or has taken tiny legal proceedings to
{x)
; ;
126
Deeds, of
wliich the
wliicli
a vendor of land
posfiession
vendor has
mere right
production.
same
sold),
or otherwise not
the
question,
Right
to pro-
depends on the nature of his right to production of If the right to production arise under a the deeds.
duction under statutory acknowledgment taking effect by virtue of the statutory aeknowledg'Conveyancing Act of 1881 (z), the duty of production
ment.
is
incumbent on and
may
Chap. XII.
(</)
3.
Stat. 44 & 45 Vict. c. 41, see sub-ss. 1, 2. The statutory undertaking for safe custody
iz)
s.
equally enforceable against the and every person having possession or control of the documents from time to time sub-s. 9.
is
undertaker
ITS DISCHAEGE.
127
therefore
may
when they
or pui'chasers from the giver of tlie acknowledgment and it is immaterial whether tlie mortgagee or purchaser had notice of the acknowledgment or not. If however Where the the vendor have only an equitable right to production ^^f^e equit-'^
of the deeds, such as appears to arise without express able right
of
agreement when land held under one title or the estate therein is severed, and the right to the custody of the
deeds goes with some particular part of the land or
estate (n),
it
seems that he
may
"vvith
who had no
.
"Where the
covenant^for production of
And
it
is
mortgagee having no notice of the covenant for it is now considered that the burthen of a covenant to produce title-deeds does not run at law with the land, to
the ownership of whieli the possession of the deeds
incident.
is
But where
a mortgagee
or
purchaser has
taken the land with notice of an equitable right to production of the title-deeds,
it
is
it (r)
See below, Chap. XII. \ 3. See below, Chap. XII. 3 WalUnjn v. Lvv, 9 Ves. 24 /,Heath hcrt V. Rogi'rx, 2 Mer. 489 V. Crealock, L. R. 10 Ch. 22, 32, With respect to the rule 33, 3.'). affirmed in the la.st (;asc that a Court of Equity will not interfere to deprive a purcliascr for value of the possession of title-deeds acquired in good faith and without notice of a superior right or equitable, (whether legal thereto, note the difference under
\b)
; ; ;
the pre.seut law where a liffal right to the possfs.sion of deeds i.s sought to lx> enferced in the Chancery Division Re Cooper, 20 Ch. D. 611 ]{e Iuf,hain, 1893, 1 Ch. 352, .161.
; ;
(c) See below, Chap. XII. 3. In any case in which the liability to produce a title-deed is really incident to the legal estate in some land, a purchaser or mortgagee is of course affected by it. Thus the a.ssignee of a lease,
^^
whether by way of
sale,
mort-
128
Solicitor's
lien.
When
solicitor,
who has
the solicitor
paid
pur-
relate
(<?).
But where
who has
a lien on his
client's title-deeds, is
is
his duty, if
he
and it
is
thought that
if
he should
omit to do
this,
by refusing
(g)
.
But
him from
if
on completion
(g)
and
bound
gage or otherwise,
is
to
Re Hawkes,
produce the lease in aid of the lessor suing him on some covenant contained therein Balls v. Musgrave, 3 Beav. 448, 4 Beav.
;
119. {d) Expte. Sterling, 16 Ves. 258 Stevenson v. Blachlock, 1 M. & S. 535; Re Morris, 1908, 1 K. B.
473.
{e) Lord v. JFormleightoi/, Jac. Cottenham, C, Bozon 580, 582 V. Bolland, 4 My. & Cr. 354, 358 Sugden, Ir. C, Blundenv. Desart, Dru. & War. 405, 418, 420, I Frlh/ v. Wathm, 421, 425-431
;
;
De G. M. & G.
R.
6
16,
23; Re
;
FaUhfiill, L.
Eq. 325
Re
proceeding, discharges himself before it is completed, he must give up all documents received from his client in the course of the proceedings to the new solicitor chosen by his client to be inspected or produced for the purposes of the proceedings, but to be held by the new solicitor
129
ment with his client for satisfaction of what is due to him out of the purchase money or otherwise, he would
lose all the benefit of his lien
(/i).
If a solicitor
having Where
the
^^^^
f^^ both
purchaser as well as for the vendor in the matter of the vendor and
sale, it
is
lien
it
deeds for
lien cannot
verification
of
the
abstract
(/).
and delivery
A solicitor's
Solicitor's
paramount to his client's right to withhold or retain them (/.) Thus if title-deeds be in the possession of a mortgagee, whose solicitors have them in their custody and so acquire a
or delivery
up
of the deeds
which
is
lien thereon,
up to him on payment of all moneys due under the mortgage (/), or to inspect the deeds by vu'tue of his right under the Conveyancing Act of 1881 (/). So where a mortgagor is allowed, to keep the title-deeds for a while and his solicitor so acquires (since the mortgage)
a lien thereon, the solicitor cannot resist the mortgagee's
V. Metcalfe, 8 Cr. 183, "iS'J (irijfil/is V. Griffiths, 2 Hare, 587, o9(t, o92 Rubins v. Goldinghain, L. 13 Eq. 442; lie Ilawkes, Re 1898, 1 Ch. 1, 18-20, 20, 26 RapU Road Transit Co., 1909, (>, 1 A\ nn 1 i.-J see also the cases 1 Ch. 9l>, 99 .. .V / J ,,.^ t^^ notes. cited in the two previous (A) Re Safety Explosives, Ltd., ubi sup. v. Keat, 3 Jur. (i) Sec Hicks
;
;
subject to the old thereon; Colegravr & 11. 400 Ucslop Sim. (522, 3 My. &
;
solicitor's lien
v. Mtaiki/,
T.
Brunton v. Electrical Eiiginrcring Corpn., 1892, 1 Ch. 434, 439; all ca.see of solicitors acting both for
J^^
Tt
^^i
.,
' '
^^'\^ allien, 1
.,<
^S'-"""'
23, 24 ; i 7 t?
'
'
.i
2 Ch.
f<\.
(0 Wakefield v.
276;
l^S,
Re Lkwellin, 1891,
Above, p. 125.
Neubon, 6 Q. B. 3 Ch.
1024
Re
Moscli/,
1
')
W.
;
Rfi Snell,
6 Ch.
D. 105
R. 975 Re Mason
;
(m)
W.
130
And
in possession of
Also,
if
a solicitor have
quently
make some
sale or
mortgage
by
Stamps.
documents, we
proof of the
so stamped,
In connection with the production of the abstracted may mention that the purchaser is
document, on which the
title
if
in a court of justice
insufficiently
stamped documents
in
not being, as
a rule,
receivable
{q).
e\idence
except
a penalty
is
If therefore
any such
unstamped or insufficiently stamped, the vendor is bound to procure it to be properly stamped at his own expense and the pm-chaser should require him to do In consequence of this liability, vendors often so {r).
;
specially stipulated,
it
should be
no objection
appeared to
()
Dru.
1
c. 97, ss. c.
15
Felly v. TFathen,
It).
G.
V.
Sug. V.
&
P.
Jjavies
Vernon, 6 Q. B.
443, 447.
D. 822
;
&
[p) Blunden v. Lesart, 2 Dru. War. 405, 420, 421, 427-431. {q) See Stat. 54 & 55 Vict. c. 39,
Whiting to Loonies, 14 Ch. 17 Cb. D. 10 lie Lovell and Collard''s Contract, 1907, 1 Ch. 249 45 above, p. for a dis; ;
;
replacing 33
&
34 Vict,
hold
Land
Society, 24
Ch. P. 119.
ITS DISCHARGE.
131
it is
to be
duly stamped.
But
now
ground of absence or
insufficiency of
and every contract, an-angement, or undertaking for assuming the liability on account of absence or insufficiency of stamp upon any such instrument or indemnifying against such
shall be void.
liability, absence,
if
or insufficiency,
So that
it
any such
special stipulation
be
now made,
made
some document of
stamped.
of
With regard
facts
to tlie
as
distinct
an
qq ^jeg
abstract,
testimony reduced
to writing so that
may
be preserved as a muniment
of
title.
So far as the
facts
may
be proved by written
is
can be obtained.
But
on
if
evidence such as
sales.
For example,
and of burial
but
if
may
not only
litigation,
members
of the family or
such testimony he
living
may
members
of
Stat. .')4 & .=>5 Viot. c. 39, 117, replaciug 51 & 52 Vict. c. 8, 8. 20.
()
(<)
Key &
;
Elphinstone, Free.
;
8.
240,
78.
Sth ed.
see above,
p.
9(2)
132
a living
member
of the
is
inadmissible in court in
but
(x).
on
Evidence that
whiclTwoiad^'
certainly have
title,
sales
The purchaser
I'sq^iii'e
entitled,
proof of
all facts
material to the
to call
events stated
in the
did not
.
happen.
title,
is
in
many
proof
:
than of positive
occurrence must
but
if
some evidence
from which
its
absence
may
reasonably be inferred.
For example,
if it
that he left
no brother or any
issue of
any brother
sister.
The
facts
is
the evidence
;
want of
issue or the
number
of children born of
husband and
wife,
marriage
(.r)
(<)
See
Stephen,
Evidence,
V.
ed.
&
;
Dart,
393, 6th
A GOOD TITLE
AND
ITS DISCHARGE.
133
are the evidence usually obtained (//). So where title was made under a voluntary settlement executed in 1845 on trust for the settlor for life and afterwards on trust for sale, but with a power of revocation, and under a
settlor's
entitled to proof,
had not been avoided by a subsequent conveyance for value, and secondly, that the power of revocation had never been exercised. But it was held that, there having been long possession in accordance with the alleged title, sufficient evidence was afforded by a
settlor's solicitor that he believed remained in the settlor's possession that the property had never till his death, and that he (the solicitor)
declaration of the
And
it
made
after the
settlor's
the
bound
to
assume
recitals in
deeds twenty
(rt^).
This case appears to show that, whenever a power of appointment has been created, and title is deduced as
in default of appointment, the purchaser
is
entitled to
require
inferred
evidence from
that the
which
it
may
reasonably be
where the
cesser of a power, as
donee thereof,
conveyance for
power was never exercised. But by the death of the is clearly shown, long possession and value under the title in default of
{v)
(s)
lie
Greaves v.
;
ville,
Gremwond,
Ex. D. 289
Re
(a)
rif/>,
Jackson, 1907, 2
Ch
354.
24 Ch. D. 11, 19. Re Marxh and Earl Gran24 Ch. D. 11, 19 see below,
:
p. 136.
134
due weight to
sion or
power or
is
afforded
hy
tion
Rule
as to presiimption.s of fact.
{b)
Here we may
the purchaser
with respect to
;
which
is,
that
is bound to presume whatever a judge law direct the jury to presume, but not matters which the judge would leave to the jury to pronounce on the effect of the evidence (c) For
would
at
example, a pm'chaser
beneficial title, that
may
be required to presume,
accordance with the
some bare legal estate, which was previously outstanding and ought to have been assured to the beneficiaries, was duly conveyed to them, although no such conveyance can be found {d). But the Coui't will not oblige a purchaser, who has notice of some equitable incumbrance affecting the property sold, to take a title depending on the fact that the vendor bought without notice of such incumbrance (e).
Besides events, which
title,
if
Events of
which, the
would
certainly affect
the
happening
the
title.
[b)
5th ed.
(c)
mihtry
54,
V.
Walhr, 12 Ves.
v.
Emery
57
;
Grocock,
& P. 1 Dart, V. & P. 327, 333, 399 5th ed. 371, 377, 6th ed. 365, Fry, Sp. Perf. 371, 7th ed.
Madd.
;
Sug. V.
vian V. Sybou)-),, 7 T. R. 2 Wihon \. Allen, 1 J. & 611, 620; Co-'ke V. Soltau, 2 S. & S. 15i ; Clippens Oil Co. v. Edinburgh, ^-c. Trustees, 1904, A. C. 64 and cases cited in previous note
;
W.
Taylor on Evidence,
\\ 113-121,
890, 891.
5th ed. {e) Freer v. Hesse, 4 De G. M. <&: Nottingham Patent G. 495 Brick and Tile Co. v. Butler, 16 Q. B. D. 778, 787, 789, 790.
;
135
An
instance of this
is
when
marriage settlement
and,
if
made,
proas a
perty sold.
rule,
It
to
bound
answer
that
is,
questions relevant
title
;
to the
abstracted
title,
the
(,/')
he
is
offering
for
answer the question whether a particular event, which might or might not have affected the title, has happened.
If
it
the
happened,
he
though
(at
it
seems
a
may
call
to
make
the pur{[/) )
that the
may
statutory declaration
but he cannot,
(h).
it
seems,
If the
(/) Sug-. V. & P. 415, 416; Dart. V. & P. 328, 329, 5th ed. 372, 373, 6th ed. 366, 36", 7th ed. It is submitted that the case of He Ford and Hill, 10 Ch. D. 365, contains nothing contrary to this proposition. It was there held that a vendor is not bound Is to answer the requisition there to the knowledge of the vendor or his solicitor Huy settlement, deed, fact, oiiiissit)n or any immmbrance affecting the pi"operty not disclosed by the abstract ? The Court considered that such a requisition is in fact an interrogatory searching into matters bovond the vendor's duty .. , , f n ot tunnshmg verityiug an and abstract of title. Considering the established practice of not abstracting purely equitable charges
1
;
:
(above, pp. 110-112), it seems obvious that this is a coiTect view. The vendor in delivering an abstract offers the abstracted title as a good title; and if it appears so to the piu'chaser's advisers, it seeuLs not unreasonable to preclude them from requiring the vendor to set forth generally whatever else he may know about the title. But to require him to answer all questions relevant to the abstracted title is an entirely different thing; that does not go beyond requiring him to prove the title which he
offers.
,
'
{(i)
^"
(//)
366,
136
may
or
may
is is
any equitable
interest created
by the document
is
(').
But any
as this
no protection
limited
by such document
in the
examination
(k).
Expense of
facts
^i^
At common law the vendor was bound to procm'e at ^^ expense the evidence necessary to prove all the
(/)
:
all
is
As
remarked (><), this enactment does not discharge the vendor from his obligation of procuring proper evidence of the facts, if he have not any evidence in his possession it merely exonerates him from the expense of so doing.
Recitals and
There
is
are,
however, certain
facts, of
which a purchaser
show ground
(o), it is
Under
the
Vendor and
Jones v. Smith,
Ph. 244,
document
253
English and Scottish MercanCo. v. Brunton, tile Investment 1892, 2 Q. B. 1, 700. {k) 2 Dart, V. & P. 876, 6t.li 895, 7th ed. ed. 986, 6th ed. The purchaser cannot require an)'
; ;
Sug.V.
A:
s.
&
45 Vict.
c.
41,
Above,
p. 124.
38 Vict. c. 78, s. 2 (rule 2). It had been usual for several years previously for vendors to make special stipulations to the same effect: Juridical Society Papers, ii. 589 sq. ; 1 Davidson, 1 Dart, V. & P. 147, 148, 5th ed. Prec. Couv. 556, 609, 4th ed.
(o)
Stat. 37
&
137
and descriptions of
facts,
be taken to be
facts,
sufficient e\'idence of the truth of such matters and descriptions (p) And by the Cuu- Recitals of veyancing Act of 1881 {q), the purchaser is requii-ed to for'Sg part
.
Williams, Real Prop. 451, 13th ed. The old practice of conveyancers, in the absence of special stipulation, was to dispense with evidence of facts recited iu deeds upwards of thirty years old, when there had been uninterrupted possession in accordance with the recitals, and under the deeds containing them, and where there were corroborative circumstances streugtheniug the presumption that the facts agreed with the recitals: 1 Jarm. Couv. 3rd ed. by Sweet, 121 Coventry, Conv. Ev. 317 see Fort v. Clarke, I Russ. (501. {p) In Bolto)i V. London School Board, 7 Ch. D. 760, Malins, V.-C, decided that a recital that ->'. Il'alker, a former owner of land contracted to be Bold, was seised thereof in fee simple, contained iu a deed dated twenty- five years before the contract, was by the above enactment rendered evidence that .S'. U'ullar was so seised until the contrary were shown by the purchii.-er, and that the vendors were therefore discharged from the obligation of showing a forty years' title. It is submitted that this decision is clearly wrong. First, the law, as we have seen, allows a vendor to discharge his obligation of showing a good title by proof of forty yeai-s' title, that is, of forty years' seinin in fee by himself and his predecessors in title above, How can this obligation be possibly discharged by proof that p. 107. one of such predecessors was seised in fee twenty-five years before the contract? Secondly, assuuiing that the recital must be accepted as evidence of the fact stated, it apparently alleged nothing but a seisin in fee and made no assertion that the land was free from incumbrances (see Nott v. liiccurd, '22 Beav. 307). Mere seisin in fee is perfectly compatible with the existence of a long term of years granted to other persons at a nominal rent to secure either their beneficial occupation or money advanced and it seems that on this ground tlie purchaser was plainly entitled to forty years' title, the very object of allowing the investigation of title for forty years past being to enable the purchaser to ascertain, on an inspection of all the transactions during that period, that no incumbrances have been created which hinder the vendor from conveying what he contracted to sell. Besides, no one would contend that a vendor ehows a forty years' title if he begin the abstract with a deed of conveyance, twenty-five years old, expressly limiting the land to one of his predecessors iu fee and it seems utterly absurd, if this be so, that a mere recital, iu the same deed, of the grantor's seisin in fee should avail to deprive the purchaser of his right to investigate the earlier title. In Itv U'alli.s and Grout' Contract, 190(i, 2 Ch. 20G, 210, the reasons here given (as stated in the first edition of this book, p. 109) were approved of by Swinfen Eady, J., who expressed his concurrence iu the writer's conclusion. ifj) Stat. 14 & 4j Vict. c. 41, s. 3 (3).
;
138
of the title prior to the time for commenciug the abstract.
document forming part of the title prior to the time prescribed by law or stipulated for commencement of title, are correct and give all the material contents of the deed, will or other documents so recited, and that every document so recited was duly executed by all necessary parties and perfected, if and as required, by fine, recovery, acknowledgment, enrolment
will or other
or otherwise.
Recitals no evidence as a
rule.
As
no evidence
law
(s)
or as admissions
(v).
(t)
of a party (u)
who
They may
But owing
made
ante litem
motam
by a deceased member of a family on matters of pedion such matters so made by way of recital in a deed executed by such a person may be
gree, statements
Recital in a public statute
received
in
(i/)
The only
i^gtance of a recital
purposes
is
a recital in
(r) Bristow v. Cormican, 3 Gas. 641, 653, 662. Baker v. Dewei/, 1 B. (,s)
App.
&
G.
Hardimj v. Amh/er, 3 M. & W. 279 and see 8 M. & W. 212. This kind of estoppel by deed has become comparatively unimportant since law and equity have been administered in the same Gourts under the Judicature Acts of 1873-5, as there was no such estoppel in Courts of Equity
704
;
:
Coppifi
895.
(t)
Carpenter v. Bidler, S
;
M. &
W. 209
139
(a)
is
not
sovereign
authority
{b)
.
of the
realm,
untrue statement
of
what are
called public
documents,
made by some
or
public officer
public
{()
duty to and either for the purpose of the making use of and having access to the docu(/rt.s/- judicial
Crown
in
some
matter which affects the property or revenues of the Crown, and is thus a matter of public interest (d).
jU. v. Greene, 6 A. & E, 548. Co. Litt. \^ h, R. \. De Berenger, 3 M. & S. 67, 69 It. v.
(a)
(*)
Sutton, 4 M. A: S. -I'i'l, 542. (c) It appears that the officer need not be au officer of the
Crown, and the ducument need [d) Roue V. Brenton, 8 B. i: C. 732, 743, 744 (caption of seisin to the use of the Duke of Cornwall by persons assigned by fiim to do so admitted on the ground of the interest of the Crown and therefore of the public in the Duchy and its revenues) Evans v. Taijlur, 7 A. & E. 617 (statements contained in a survey, which was made under statutory authority, but relating to matters outside the scope of the duty
;
not be made for the infurmation of all the King's hubjccts, but may be public if made for the use of some class of them see Blackburn, L. A., 6Vm7 v. F/we/rt, 5 App. Cas. 623, 643, 644: Taylor, E\-idence, jj 1429-1433, 5th ed.
;
of inquiry, rejected) Irish Society v. Bishop of Lerrrj, 12 CI. & Fin. 641, 668, 66y (entry in one of the books of the First Fruits Office Shrew-hiinj ricrage Case, 7 H. L. C. 1, 20, 21, 24, 25 (books received)
;
:
from the
Heralds' College admissible, if containing information obtained on the Heralds' visitations, but otherwise not see 5 App. Queen's Proetor v. Fry, 4 P. D. 230 (records of marCas. 644, 645) riages and baptisms kept by order of the Government of India Manchester Coijioralion v. Lyons, 22 Ch. D. 287, 299 receivable) (inquisition as to manorial rights directed to justices of the Duke of Lancaster at a time when he had sovereign rights in the Duchy, admitted) Sturla v. I-'reccia, App. Cas. 623, 643, 644 (statements as to the place of birtli and the age of one Mangini contained in the repoit of a committee of a public department ot a foreign state, directed to inquire as to his fitness for a diplomatic post, rejected, and a general rule laid down by Lord Blackbui-n) ^V<i7/ v. iJtvonshire, 8 App. Cas. 135, 183-186 (inquicitions on attainder and post tnorti ni admitted, also the decree in a possessory suit in the Irish Court of Chancery); Eians v. Merthyr Tydfil, ijr. Cuitncil, 1899, 1 Ch. 241, 25U, 252 (survey of Crown lands made in pursuance of a statutory duty, admitted); Ly,ll v. Kmiady, 14 App. Cas. 437 (extracts from parish registers kept under public authority in Scotland, received)
;
.')
140
Statutorydeclarations.
member
of the family as to
But
(./'),
liiin {;/),
(if
or after the
so
made) either
to
{//).
A
an
recital of a docu-
deeds of other
documents
ment
a deed
operates
as
admission of
the
existence
of the recited
document by
recital,
who has
(i)
:
but
any evidence
(/.)
or of
its
And
P. 138 (entry in a register of births made under admitted as evidence uf the actual date of birth); Mercer y. Borne, 1904, 2 Oh. 534, .511, 644-546; ISoo, 2 Ch. 538, 555-558, 561, 564, .,68 (reports made in 1610 by a surveyor by order of the Lord Warden of the Cinque Ports as to repairs made necessary to Walmer Castle by encroachments of the sea, and an e.'-timate nuyle by King's engineer for reparation ol Walmer Castle, all produced from the Record Office, and maps and plans prepared by direciiuu oi the Board of Ordnance in 1641, lo44 and 1647 and produced from the War Office, rejected as having been made for private information and temporary purposes cbart made bj^ a private person, but in po^session of the Admiralty, rejected charts made by direction of the Admiralty for the use of the navy aLd merchants, admitted
Ite Goodiich, 1904,
Stat. 6
&
Will.
4, c. 86,
v. Freceia discussed)
;
and see
Stephen, Evidence, Art. 34. Taylor, Evidence, ^ 1429-1433, oth ed 4 Evidence, Arts. 15, 16 Peerage Case, [e) Berkeley [h] Taylor, Evidence, !^\ 543 Reilly v. Fitzgerald, Camp. 401 sq. ; 602 sq. ; 630 sq., 5th ed. Dru. 122 Gee v. Ward, 7 E. & B. Stephen, Evidence, Arts. 25, 27, Shedden v. Patrtek, 2 Swa. 509 28, 30. & Tr. 187 Sug. V. & P. 418 (t) Burnett v. Lynch, 5 B. & C. Hubback, Ev. Succ. 68, 69 Brvngloe v. Goodnon. 5 589, 601 Taylor, Evidence, ^ 571 sq.,bth. Bing. N. C. 738. Stephen, Evidence, Art. 31. ed. (k) Jlo/tltoii V. Edmonds, 1 De (/) Hubback, Ev. Succ. 66, Burton, O. E. & J. 246, 251 67. lie Waiiis and Comp. pi. 480 (g) Taylor, Evidence, 653 Stephen, GrouCti Cuntract, 1906, 2 Ch. 206. ed. *v/. ; 712 ><q., 5th
; ;
141
is
deed,
the recital
not
has Maybeevibe
is
recited
(/).
But
if
it
lost,
been proved that a document recited in a deed has been document the recital may be good secondary evidence of the ^''^'"
lost
Apart from the stipulation now incorporated in conabove mentioned (/<) by the Vendor and Pur^ chaser Act, 1874, and except so far as recitals or
tracts as
-^
Recitals of
fiom proof,
in
litigation,
the
facts
furnish
is
evidence
of
all
material to
in
no way discharged by
But
made on some previous sale and produced by the vendor from among the muniments of title as eWdence of the
facts
deposed to therein
authenticity
as, if
there be no reason to
declaration
suspect the
of
the
and the
by statutory declaration, a new statutory declaration would seldom afford better evidence than an old one. And, as we have seen, in some eases an old statutory declaration may have become good evidence through
the death of the deponent.
Now
is,
as a rule,
boimd
to
pay
his
Acceptance of
evid^uce^
(^
Sweet, 120 I Dart, V. & P. 328, 3th ed. 372, 6th ed. 366, 7th ed. Williams, Real Prop. 451, 13th ed. {q) For mauj' years before the comnieucoment oi the Conveyancing Act, 1881, it was usual
;
;
142
Hence
it
frequently happens in
to
title
mode
of proof.
such proof.
It
is
true that
any
fact
on which
may
sell,
suffer
no
the pur-
him will by the rule be at the cost of procuring it. But if a fact admitted on irregular evidence be not verifiable by regular evidence, the
purchaser
may
advantage on a
As an example
may,
it
of the reception
is
the fact
conceived, usually
or even
duty paid as on
is
his death.
often to be found in
may
getting a certificate.
that the fact of death
In
is
from the
presumption that things are rightly done (.s), biit also from the fact that the survivors have done an act
against their
own
interest in
and
such payment and the granting of probate or administration are acts extraneous to the
Again, the
is
greatly
that the purchaser should bear this expense; Juridical Society 1 Davidson, Papers, ii. 589, o90 Prec. Conv. o06, 555, 609, 4th ed.
;
(*)
Above, p.
118.
IT.S
DISCHARGE.
it
143
Thus
if
appear
surviving mort-
But
it
in a subsequent deed
new
In this case no act extraneous to the title has been done on the faith of the event in question having occurred.
The
of
the abstract,
is
that
It
only
verification of
that the
real proof of
begins.
The most
or
may
it.
be utterly
Extreme
any
abstract
and
if it
the reasons
why
the same
may
be regarded as affording
substantial proof.
It seems needless but is really very necessary to point importance of out that no part of the verification of the abstract is naliou"S\"he
of the title-deeds,
title-deeds
when
abstract,
which have been di-awn in the most slovenly and unskilled manner. This fact enhances the necessity of Lord St. Leonards'
abstracts
are
constantly
delivered,
144
As Mr. Dart
:
pointed out,
it is
that
what has been abstracted is correctly abstracted secondly, that what is omitted is clearly immaterial thirdly, that all the documents are perfect as respects
execution,
attestation,
;
and fourthly, that there are uo endorsed notices, nor any circumstances attending the mode of execution or attestation, &c., which are calculated to excite suspicion (ii). Every part of every document, especially
stamps, &c.
of a will, should be read through
{.r)
.
And
(//)
,
very parnot
of
execution of
it
the documents
for,
as
we have
seen
is
the practice on
sales to require
than
is
apparent
Proof of identity of
property.
the title-deeds
tity is usually
(s).
The
requisite evidence of
iden-
tracts
from parish and land-tax books, and statutory It is, however, a comdeclarations of old people (r^).
mon
purchased with that comprised in the muniments offered by the vendor as the title to such property upon the
evidence afforded by a comparison of the descriptions
Sug. V. &P. 411. Dart, V. & P. 415, 5th ed.
;
{t)
(y)
(:)
(ffl)
(m) 1
Conv.
V.
&P.
411.
145
ments
but
it
(6).
identity as part of
If therefore
title
obligation to
show a good
title.
the same as
It of
may
of
which proof
matters.*''
woman under
if
Acknowledg'^"*'
&
4 Will.
of
IV.
c.
74
: proved,
in
the
deed
1st of
memorandum
acknowledgment
ledgment {d), the filing of which was the deed were executed on or after the
1883, by a
essential
1st of
{e)
if
January,
memorandum
purporting
deed and
by a person
/")
(6)1 Davidson. Prec. Conv. 610 and n., 4th ed. 520, oth ed. 1 Key & Elphinstone, Prec. Conv. 2-50. 8th ed. above 262, 4th ed.
: ;
(rf)
as.
as.
8488
Stats. 3 4
;
c.
c.
74, 92.
45
& 46
Ex.
39,
^^[c) Flower V.
'
Hartopp, 6 Beav. Justin, 2 Dr. & Sm. 129 and see Sug. V. & P. 26; 1 Dart, V. & P. 153, 154, 5th ed. 174, 175, 6th ed. 170, 7th ed., and Chap. VI., below.
^-
^^'^''dcock,
476;
Curlififf V.
;
(/) Stat. 45
s.
&
46 Vict.
c.
7,
see Sta-
w.
10
146
Act
of Parlia-
OF THE VENDOR
Acf of Parh'nment.
OBLIGATION TO SHOW
public Act needs no proof,
{(j).
ment.
private
Act
is
to be printed
by the King's
or
by a copy
ment Roll
Award
ment.
of
ii).
Award
of enfranchisement.
If
made under
tlie
the Copy-
enfranchise-
Copyhold
Commissioners
directed to be
{h).
made under the Copyhold Act, same way or by a copy of the entry
If
manor
{!).
made of the award in the court rolls of the The Copyhold Act, 1894 (m), repealed, with{n)
which
made awards provable by such evidence in courts of But similar evidence of awards of enfranchisement made under the Act of 1894 (o) would appear to be receivable by conveyancers on a sale.
justice.
(g) .542.
R. V. Sutton, 4M..
Stat. 8
&
S. 532,
(A)
(i)
&9 Vict.
c. 113, s. 3.
Taylor on Evidence,
ii.
vol.
and
1368, see
Coventry,
;
Convevancers'
Evi-
Burt. Comp. pi. 482 dence, 81 above, p. 122. After the year 1882, the (/.-)
Copyhold
stvled the
Commissioners
were
Land Commissioners,
and on the 12th Aug-ust, 1889, their powers and duties were transferred to the Board of Agriculture
c.
;
stats.
45
38,
s.
48
52
&
s. 2.
(?)
See
s.
;
stats.
;
15
c.
s.
c. 46, 100. (w) Stat. 15 & 16 Vict. c. 51, 8. 49. (o) Under this Act, 57 & 58 Vict. c. 46, 8. 10 (1), (5), enfranchise8.
'
51,
94, 22.
ment
is
firmed by the Board of Agriculture, who are to send a copy of the confirmed award sealed or stamped with the seal of the Board to the lord, and the lord is to " cause the ^ opy to be entered in the court rolls of the manor." Under stat. 52 & 53 Vict. c. 30, s. every document piu-port7, ing to be an order, licence, or other instrument issued by the Board of Agriculture, and to be sealed with the seal of the Board, authenticated by the signature of the president or some member of the Board, or tlie secretary or some person authorized by the president to act on behalf of the secretary, or purporting to be signed by a secretary, or any person authorized by the president to act on behalf of the secretary, shall be received in evidence and be deemed to be such order, licence or instrument, vrithout further proof unless the contrary is shown.
A GOOD
TI'l'LE
AND
ITS DISCHARGE.
1*7
Award
as to the
inclosure of
common
lands
made Awaxd
of
under an Act incorporating the Inclosure Consolidation Act, 1801, or other special Inclosure Act. Proved by a
if
copy or extract signed by the proper officer of the Court, the Award were enrolled in one of the Courts of "Westminster, or, if the Award were enrolled with the
clerk of the peace for the county in
by
copy(;j).
Award
as to inclosure of
common
Board
of
i'**'^-
{q),
or
by
a copy or extract
same
to be a
(r).
Bankruptcy, proceedings
the same
in.
manner as other proceedings in Courts (q.r.), also by copies certified as required by the various and Bankruptcy Acts {s). Under the present Bankruptcy Act,
a receiving order or an adjudication of bankruptcy
also conclusively
is
pointment of a trustee
Loudon Gazette containing a notice thereof (/) the apis proved by the certificate of
{u)
;
appointment
at a statutory
note
s.
styled the Inclosure ComEngland and for rais-sioners Wales; after 1882 they were styled the Lund Commissioners; and on the 12th Aujfust, 1889, their powers and duties were transferred to the Board of Agriculture; stats. 8 & 9 Vict. c. 118, 8. 2 ; 45 & 46 Vict. c. 38, s. 48 52 & 53 Vict. c. 30, s. 2. See
first
;
to p. 146, above. Stat. S & 9 Vict. c. 118. ss. 2, 146. Stats. 46 & 47 Vict. c. 52, (.) ss. 134, 137 33 Vict. c. 71, 32 ss. 107109; 24 25 Vict, c. 134, ss. 203 sq. 12 & 13 Vict.
{k)
(>)
;
&
;
&
c.
IV.
a.
s.
106, ss. 232 sq.; 1 &- 2 Will, c. 56, s. 29 ; 6 Geo. IV. c. 16, 97. [t) Stat. 46 & 47 Vict. c. 52. 132. (m) Sect. 54 (4).
10(2)
148
by
a person describing
is
signed
(^).
On
sales, office
Copyholds.
Copi/hoMs, assurances
rolls of
of.
coui't
and so permits
by examined copies
(c)
,
{h)
or
the steward
ledging their
the
title {d)
According to the
common
mode
of proof
was
at
unless the
copy
and came
But
Act, 1851
{g),
by
are
by the
officer to
the originals
steward.
entrusted,
that
is,
as
On
on the court
signed by
require
is
any proof
the
steward's
handwriting
{//),
by
Stat. 133.
46
&
47 Vict.
;
c. 52,
(d)
13th ed.
1
{y)
Sug. V.
V.
ed.
&
(z)
Dart,
(e)
Above,
1
361, 6th
(/)
Taylor, Evidence, 1433, 1438, 5th ed. {a) Doed. Bennington v. Hall, 16 East, 208. {b) Doe d. Caivthorn v. Mee, 4 Doe d. Burrows v. B. & Ad. 617 844; Breeze Freeman, 12M. V. Hawker, 14 Sim. 350. (c) 1 Scriv. Cop. 590, 3rd ed.
;
375, 484, 21st ed. p. 116. Scriv. Cop. 591, 3rd ed. Cop. 39, n., 4th ed.
;
&
c.
Aid.
99,
Stat. 14
;
&
15 Vict.
&W.
Taylor, Evidence, 1437, above, p. 122. 1438, 5th ed. [h) Su?. V. & P. 417 1 Dart, V. & P. 310, 311, 5th ed. 351, 6th ed. 346, 347, 7th ed.
14
;
ITS
DISCHAKGH.
149
(/).
vendor of copy-
bound to procure proper copies of court roll signed by the steward for verification of the abstract he cannot require the vendor to go and compare the abstract with the original rolls (/r) but, under the Conveyancing Act, 1881 (/), the purchaser will be obliged to pay the expense of obtaining such copies, if
holds
is
as a rule
As
;
a Courts, pro^^^
provable in litigation
(1)
by production
;
^gso
of the original, which is usually inconvenient or (2) by an exemplification, or its equivalent or (3) by an examined copy (m). As we have seen (m), a copy made by an officer of the Court bound hy law to mahe it is
equivalent to an exemplification
copies
rised
Office copies,
made by an officer of the Court who is authoby rule of Court hut not required hy law to make
common law
().
equivalent to an exemcause, in
which
of
all
the proceeding
occm-red
But
office
copies
filed
writs,
records,
pleadings and
documents
in the
High Court
same extent as the original (o). Besides the above modes of proof, there are various particular cases in
which the proceedings of Courts are by Statute provable
in
litigation
(p).
Act
()
41,
1 Dart, P. 311, oth ed. 3.52, 6th ed. 347, 7th ed., where it is submitted that the vendor will dis-
(^j
V.
&
(n)
Taylor, Evidence, ^i
1378
1391, othed.; Stephen, Evidence, Art. 78 (o) R. S. C. 1883, Order 37, rule 4. [p, Taylor, Evidence, 5 1391 sq 1440, oth ed. Stephen, Evidence, Art. 79 above, p. 122. {q) Stat. 46 & 47 Vict. c. 52, s. 134.
, ;
;
150
lunacy
(r)
are
now
provable in this
(.s),
And
the pro-
ceedings of courts of
The
{u)
On
sales,
how-
Crown grauts.
seal,
manual
are
copies copies
also
{i/),
examined by certified
(z).
it
But on
sales, if
coming,
own expense
we have
is
seen
{c),
and proof
Missing
of execution or signature
any such document, which ought to be produced, be missing, its destruction or loss must be proved, either by evidence of actual destruction, or by
quired.
If
{r)
(s)
s.
Stat. .53 Vict. c. 5, s. 144. Stat. 14 & lo Vict. c. 99, 14 ; above, p. 122.
lor,
(;)
Dart, V.
;
{t)
361,6th ed.
p. 122.
, \
App.
Taylor, Evi(u) See below; deuce, 1337, 1338, 1377, 5th ed. 1 Dart, {x) Sug. V. & P. 417 V. & P. 318, 5th ed. 361, 6th Davidson, Prec. Con v. 1 ed. 459, 5th ed. 652, 4th ed. Tay(y) 2 Black. Comm. 346
;
; ;
(")
(*)
^^^"'^^ P"
\u
P. 431 1 Dart, P. 316, 5th ed. 359, 6th 7th ed. 354, 1 Davidson, Prec. Conv. 531, 4th ed.
.Sc
Sug. V.
^-
&
;
ed.
[c)
Above,
p. 116.
161
without result
where
If
its
it is
deposited.
secondary evidence
may
(e),
:
be given of
its
contents
(d),
proved to be correct
quent instrument
the
(_/')
any document required by Statute to be enrolled, as deeds of bargain and sale of any estate of inheritance in lands (/), conveyances to charitable uses {!:) and
disentailing assurances
(/),
But where
it
is
the
office
with a
memorandum
of the
by the proper
officer,
and
it
is
his
is
common law
;
Hart
;
v.
Hart,
Hare.
Fitzwalter Peerage, 10 CI. & Fin. 94f>, 952-3 Green v. Bailey, 15 Sim. 542; Iticfiardti v. Lewis, 11 C. B. 1035 R. v. Safron Hi!/, 1 E. & B. 93 Moiilton v. Eflnioiids, 1 De G. F. & J. 24G, 251 Taylor. Evidence, 398, 399, 5th ed. Dart, 1 Sujr. V. & P. 437, 438 V. & P. 142. 312, 5th ed. 159, 353, 6th ed. 155, 349, 7th ed. I Davidson, Prec. Conv. 551,
;
; ; ; ;
M. & W. 102 Taylor, Evidence, 495, 5th ed. Stephen, Evidence, Art. 70. (J) Above, p. 141; Alexander v. Crosby, 1 J. & L. 066. {g) Bryant v. Busk, 4 Russ. 1 see also the authorities cited in note (rf), above. Execution may be presumed after along lapse of time MohHoh v. Edmonds, 1 De G. F. & J. 246.
Ross, 7
;
; ;
4th ed. (r) In litigation, when secondary J e .\ i r J a docuevidence of the contents of mentis admitted, there is no qucstion whether any particular kind of secondarj' evidence is better than another, and recourse may be had at once to oral evidence Loe d. Gilbert v. of the contents
i.
:
Hart, 1 Hare, 1 (/,) ji^rt v. Taylor, Evidence, \ 127, 5th ed. .>7 xj i\ Stat. a*, ic VIII. c. 16. 27 Hen. xryrr ()
^'
t.
Stat. 51 & 52 Vict. c. 42, s- 4, replaciDg: 9 Geo. II. c. 36, an<l amended by 54 & 55 Vict, c. 73.
(^'O
(/)
Stat. 3
S:
4 Will.
IV.
c. 74,
a.
41.
152
without proof of
official
character (m).
This
is
by a Statute
enrolled in
Office
and conveyances to charitable uses (o). And of 1849 {p) it was provided that all deeds the Petty Bag Office or in the Enrolment
(which
include
in
Chancery
conveyances to
and disentailing assurances) should be endorsed with a certificate of enrolment under the seal of the office, and that such certificate should be sufficient prima facie evidence of the enrolment, and the
charitable uses
time thereof.
ment Department
by any
statute or
ferred to the
any of the Courts whose jurisdiction has been transHigh Court of Justice and certificates
;
presumed to have issued from the Central and may be received in evidence without fiu-ther
(q)
proof of authenticity
Exchange
order of'
or
qf\
(;),
of the order
under the
seal of the
Commissioners or the
Board
order
of
Agriculture,
(s).
(ot)
Boc
v. Lloyd, 1
See stats. 8
&
12
9 Vict.
o.
US,
ss.
147, 150; 9
&
Taylor, Evidence.
V.
1462,
ss.
911
4,
10
11
Lloyd, ubi sup. [p] Stat. 12 & 13 Vict. c. 109, ss. 12, 18, repealed with extengive savings (see Sayer.s v. Collycr,
Re B., 1906. 28 Ch. D. 103, 107 1 Ch. 730) by 56 & ^7 Vict. c. 54.
;
R.
S.
C.
Vict. c. 99, 12 & 13 Vict. c. 83, ss 7, 11 15 & 16 Vict. c. 79, ss. 31, 32; 17 & 18 Vict. c. 97, s. 5 20 & 21 Vict. c. 31, ss. 411 22 & 23 Vict. c. 43, ss. 10, 11 39 & 40 Vict. c. 56, s. 33. (s) See above, p. 147, n. {q).
88.
6;
& &
ss.
13,
14
(partition)
;;
ITS DISCHARGE.
the inFine,
153
proved
it
(1)
is,
made recording
(f)
the transaction
and which
(2) by an exemplification examined {u) copy (3) by an (4) as a record under the charge of the Master of the Rolls (.r) Conveyancers
(//).
made
15th
of
May,
loss,
1841
:proved,
recital or
^y^^'"-
by the
(s)
evi- Pedigree
is
bom
of
certain
is,
parents
of
baptism
a
{n),
that
{h).
certified
extract
fi'om
birth,
But a
(r/).
certificate of
which
is
certified
is
extract
register of births
{<),
equally good
certificate Age.
no exact evidence of a child's age, beyond that the child was bom before the date of the
of baptism affords
certificate
:
may
{e).
look
at the
Burt. Comp. pi. 487. Taylor, EviSee below dence, ^ 1338, 1377, 5th ed. Sug. (y) Burt. Comp. pi. 489 V. & P. 414; 1 Dart, V. & P. 356, 6th od. 352, 315, 5th ed. 7th ed.
(it)
oth ed. iiob, 6th ed. [a) Coventry, Conveyancers' Evidence, 278 Sug. V. & P. 415; 1 Dart, V. & P. 346, 347, 5th ed. 392, 6th ed. 386, 7th
; ;
;
[x)
ed.
[b)
See
Taylor, Evidence,
A:
^
7
Established by stat. 6
(s)
Stat. 4
&
5 Vict.
e.
21,
s. 2.
Will. IV. c. 86, amended 7 Will. IV. & 1 Vict. c. and 37 & 38 Vict. c. 88.
by
22.
This Act was repealed by stat. 37 & 38 Vict. c. 96. but with such
extensive .savings that the rule enacted by s. 2 seems to be preserved, see Hat/rrs v. Collyr, 28 Ch. D. 103, 107: Re R.', 1906, 1 Ch. 730; Dart, V. & P. 314,
,rf) Above, pp. 139, u. {d), and 154,n.(/). below: 1 Dart. V. A: P. 346, 347, 5th ed. 392, 6th ed. 386, 7th ed. ^r) Re Ttirmr, 29 Ch. D. 985, 991-2; Taylor, Evidence, 1577,
;
^s
5th ed.
154
however,
well
as
is
stated therein as
Marriage.
of
of
birth (/).
Marriage
is
regularly proved
by a
certificate of
marriage
;
and
(r/).
And
it is
doubtful
whether a purchaser would be compelled to accept a certificate of death as evidence of that fact, unless good
reason were given for not producing a certificate of
burial
(A).
that
when
the facts
must be accompanied
by
named
in
the certificates
but
it
is
be not
apparent on
the
face
of
the
certificate
(/.)
evidence
and
extracts
now
(/)
138.
iJ.
V.
R. 85;
Re
()
u.
(y),
Conveyancer.s' Coventry, (ff) Evidence, 278 Sug. V. & P. 415; 1 Dart, V. & P. 346, 347, 386, 7th 5th ed. 392, 6th ed. 1 Davidson, Prec. Conv. ed. 553, 4th ed. (A) 1 Dart, V. & P. 347, oth ed. 392, 6th ed. 386, 7th ed. In proceedings to obtain payment of money out of Court, if it bo sought to prove death by a certificate of death and affidavit of identity, the Court will I'equirj proof of burial as well JUielci/ v. Shephard, W. N. 1873, p. 150 There are pre21 W. R. 782. vious conflicting decisions; Leach V. Leach, 8 Jur. 211; contra, FarkinsoH v. Francis, 15 Sim. 160.
;
; ;
6th ed. Seton on Judgments, 154, 6th ed. But at law such certificates may be put iu evidence without proof of identity, the question of identity being for the jury Hubbard v. Lees, L. R. I
;
Ex.
255, 257.
[k) Coventry, Conveyancers' and see Sug. Evidence, 278 V. & P. 417. From what is said in 1 Dart, V. & P. 346, 5th ed. 392, 6th ed. 386, 7th ed., and 1 Davidson. Prec. Conv. 553, 4th ed., 460, 5th ed., one would gather that evidence of identity was usually required bat it is submitted that on sales the practice is as above stated, 1 Dart, (!) Sug. V. & P. 418 V. & P. 346, 347, 5th ed. 392, 6th ed. 386, 7th ed.
;
1^5
As we have
seen (), in the absence of the regular formal evidence of these facts, recourse is had to other means of proof
preferably, of course, to evidence admissible in litigation,
the
family
(o),
but in defaidt
thereof,
to
statutory
Where no
, ,
evidence at
1
all
may
i_
SIS
between
rules
macy
which govern the presumption of marriage, legitior death as between adverse litigants claiming
title of
some property by
inheritance or otherwise, do
not strictly apply as between vendor andpm"chaser {p). In litigation of this kind the contest is whether of the
two parties can show the better right, and if the plaintiff can show a better title than the defendant (or vice vcr.'su), he may be entitled to succeed, notwithstanding that there may be some third pai'ty entitled to take in priority But the title which a vendor of laud to both of them. is bound to show, at least under an open contract, is a
title
is
good against
all
other persons
(q)
The purchaser
(/)
;
fact,
and the
the parties
amended by
(n)
(o)
'11
Taylor, Evidence.
Above,
As
admis-
matters of pedigree, ser Taylor. Evidence, j^^ 571 v/., Stephen, pp. 569 sq., 5th ed. Evidence. Art. 31 1 Dart, V. & P. 336-351, 5th ed. 381-397,
sible in
;
;
6th ed. 376-386, 7th ed. {p) Seo Siig. V. & P. 418, 421, also 404; I Dart, V. & P. 336, 338, 340, 343, 5th ed. 381, 383, 385, 389, 6th ed. 376, 378, 380, 383, 7th ed. (y) See previous note. (>) I Dart, V. & P. 328, 5th ed. 372, 6th ed. 368, 7th ed.
;
;
156
shown
where the title some fact on which And even by the rule of law, its validity depends (.s). where the title depends on some fact, the fact must be
force specific performance of the contract
is
{f).
No
:
doubt
it
is
some
cases a purchaser
is
obliged to accept
what are
sumptions are
drawn from
And
it
is
presumptions of fact
is
that already
namely,
at
law
cannot be required to
No
presump-
tion of death
as between
vendor and
purchaser.
presume any matter which the judge would leave to the As jury to pronounce on the effect of the evidence (.r). regards death especially, where the title to land sold depends upon the fact of a death having occurred, and
no evidence of the death can be procured, no legal presumption arises, in favour of the vendor and as against the purchaser, from the fact that the person, whose
death
is
(/)
ITS DISCHARGE.
157
As between
a
When
man and
arnage.
woman have lived together as and with the reputation man and wife, it is presumed (unless the conand
it
{z)
.
And
where
ceremony took
its
place, the
like
There
Presumption
or patemity.
that
at
of
the
marriage between
parents, no matter
(h)
how
soon after
is
moment of time during those years) and where a person has disappeared and has not been heard of for less than seven years, no presumption of law arises that he has since continued to live Nepean v. Rr PhenPs Doe, 2 M. & W. 894 R. v. Lumley. L. R. 1 C. C. R. 196 Trmt, L. R. 5 Ch. 139 Re Lewes' Trusts, L. R. 6 Ch. 356 Rr Rhodes, Re Aldersey, 1905, 2 Ch. 181 Stephen, Evidence, 36 Ch. D. 586 Art. 99 see also Prudential Assurance Co. v. Edmonds, 2 App. Cas. 487. Also, when two or more persons meet their death in some common calamity (such as a shipwreck or a massacre) there is no presumption of law arising from age or sex that any one of them survived the other or others, neither is there any presiunptiou of law that they died at the same time Underwood v. Wing, 4 De G. M. & G. 633 Wing v. Angrave, 8 H. L. C. 183 Re Alston, 1892, P. 142 Re Beynon, 1901, And there is no presumption of law that a person, who is P. 141. Re Jackmn, 1907. 2 Ch. 354. XSS. the abovedead, left no issue mentioned matters, as to which no presumption of law arises, must be proved positively but the jury or other proper tribunal, to determine questions of fact, may draw an inference (often stN'led a presumption) of fact in respect thereof, if evidence sufficient to warrant such see the cases above cited. inference be submitted So also where a man has disappeared in circumstances which make it likely that he has met his death, an inference of fact may be drawn that he is dead, notwithstanding that a far shorter .space of time than seven years has elapsed since his disappearance Sillick v. Booth, 1 Y. & C. C. C. 117; Re Beiisney's Trusts, L. R. 7 Eq. 498 Hickman v. Upsall, L. R. 20 Eq. lii Matthews, 1898, P. 17 136 Re Alston, ubi sup. cf. Ommaney v. Stilwell, 23 Beav. 328. As to the difference between presiimptions of law and of fact, see Taylor. Evidence. 61, 62, 94-97, 169-171, Stephen, Evidence, Art. 1 and note 1. oth ed.
;
Piers v. Piers, 2 H. L. C. 331, 362-364, 370, 371, 379, 380; Brcadalbane Case, L. R. 1 Sc. Lyle v. App. 182, 199, 200 EUwood, L. R. 19 Eq. 98, 107 Re Shephard, 1904, 1 Ch. 466. (a) See cases cited in previous
(z)
; ;
note
Harrison
4
v.
Corim.,
De G. M. & G.
Wastry
App.
;
Ca**.
Co.
Litt.
244 a
PouUtt
Peerage, 1903,
A. C.
395, 398.
158
may
{c).
(c) Morris v. Davicx, T) CI. & Fin. 163, 21o, 229, n., 251, 252, 260, Saije ^- Srh- Bnrony, 1 H. L. C. 262, 265 H. v. Mansfield, 1 Q. B. 444 507, 511, 512; Maives v. Draeger, 23 Gh. D. 173, 178; Aylesford Peerage, Bo-svUc v.A.-G., 12 P. D. 177 (appeal abandoned, 11 App. Gas. 3, 17 Burnabg v. Baillie, 42 Ch. D. 282, 297, 298. The 1887, W. N. 181) question, whether such intercourse did take place, is one of fact to be proved in the ordinary way and to be decided by the jury or other proper tribunal for pronouncing on questions of fact but clear evidence is required to rebut the presumption of legitimacy the matter is not to be decided on a mere balance of probalailities. And after evidence tending to establish such intercourse (as that the husband aud wife occupied the same bedroom) has been given, then no other evidence is admissible than such as tends to disprove the inference of the intercourse having taken place see the cases above The fact of non-intercourse may be inferred from the conduct cited of the husband or wife, and their statements made at the time or afterwards are admissible in evidence as part of the res gestce and in Btirnahy v. proof of their conduct Aylesford Peerage, 11 App. Gas. 3 Baillie, 42 Ch. D. 282, 291. But neither of them is admissible as a witness, at the trial of the issue of the legitimacy of the child, to state whether the required intercourse took place or not nor is any statement or declaration of either of them with regard to this matter admissible as direct evidence thereof; R. v. Sourton, 5 A. & E. 180; Nottingham Gaardiatis v. Tomkinson, 4 C. P. D. 343 Hatres v. Draeger, 23 Gh. D. 173, 178 Burnabg v. Baillie, 42 Ch. D. 282, 293. In 'the second and fourth of these cases the Court declined to follow a contrary decision in Re Yearwood\s Trusts, 5 Ch. D. 545. This rule however relates only to the proof or disproof of sexual intercourse and wife during their marriage it between husband does not prevent either of them, on the trial of the legitimacy of a child born so soon after marriage that it must necessarily have been begotten before the marriage, from being admitted to give evidence whether such intercourse took place between them before their marriage Poulctt Peerage, 1903, A. G. 395, overruhng Ano)i. v. Anon., 22 Beav. 481, 23 Beav. Evidence of the husband or wife is also admissible in any pro273. ceeding instituted in consequence of adultery with regard to the issue, whether adviltery has taken place or not but not, it appears, on the Stat. 32 & 33 Vict. issue of the legitimacy of any child of the wife's Hetherington v. Hetherington, 12 P. D. 112, 114 Evans v. c. 68, s. 3 Questions of the legitimacy of any natural-bom Evans, 1904, P. 378. British subject domiciled in England or Ireland or claiming any real or personal estate situate in England or of the validity of his marriage or that of his parents or grandparents may be detemuned in proceedings instituted in the Probate Division under the Legitimacy Declaration Act, 1858 (stat. 21 & 22 Vict. c. 93) but any decree so obtained does not prejudice any person unless he has been cited or made a party to the proceedings, or is the heir-at-law or next of kin, or other real or personal representative of or derives title under or through a person so cited or made a party, and such decree will not prejudice any person if subsequently proved to have been obtained by fraud or
;
;
159
man
{(/)
and
it
extends to
liusband's death
by
a sentence of judicial
separation or a separation order (^), the presumption ceases with respect to children born after the expiration
of such time subsequent to the decree, sentence or order
as
is
[h).
in
Proved by a copy certified as true and authentic by the deputy keeper of the records, or one of the assistant record
Master of the Rolls for
tlie
time being
^^"""'^
^*^^-
(/).
oollusion The Court lias uo jurisdiction to determine in such s. 8. proceeding's any question of the heirship of real estate Manuel v. A.-G., 2 P. D. 26o. It may be noted here that uo child born out of wedlock can in any circumstances inherit any real estate in England as heir to and upon the death and intestacy of any person Doe d. liirtivhistle v. Vurdill, o B. & C. 438 2 CI. & Fin. 571 liirtwhisllc F.scallier v. E^callier, 10 App. Cas. Vardtll, 7 CI. & Fin. 895 V. But where a gift is made by will, or (as it .seems) by an 312, 317. inter viro", operating of any real or personal estiite situate instrument in Etigland to the child or children of any person domiciled in some country where the law admits of legitimation per subseqiu-iin matrimonimn, a child so legitimated may take thereunder as a lawfxil child of such AV Andron, 24 Ch. D. per-son Skoftoirc v. Yoxiif/, L. R. 11 Eq. 474 Re Gren's Trusts, 1892, 3 Ch. 88. It has also been held tliat (537 children so legitimated may as children or next of kin succeed on intestacy to personal chattels under the Statute of Distributions (stat. 22" & 23 Car. II. c. 10) Re Goodman's Trusts, 17 Ch. D. 266, James & Cotton, L. !., diss. Lush, L. J., reversing Jessel, M. R. 14 Qitrrr, whether this decision applies in the case of Ch. D. 619. hancnti v. Lawso)/. 41 Ch. D. .see chattels real situate in England Pepin v. Jlnn/hr, 1902, 1 Ch. 24. 394
:
(rf) See cases cited in previous note and in n. {//), below Jfar(/rave v. Hargrnie, 9 Beav. 552. [e) See Co. Litt. 123 b and n. (1, 2); Bac. Abr. Bastardy (A) 1 Black. Comm. 456, 457. (/) See cases cited in note (/<), below; Bac. Abr. Ba.stardy (A), ed. 1832; Evans v. Evans, 1904, Stephen, EviP. 274, 378, 381
; ;
Under
s.
o. c.
39,
(A)
5,
19, s. 4.
112, 114.
(i)
See
Taylor,
Evidence,
160
the seal
Recovery.
Recovery, conrmo))
proved
by an exemplification
or
an examined copy
of the
office extracts (w)
(/)
Conveyancers accepted
Registration.
proved
Act,
by the certificate of registration which it is the registrar's duty to indorse and sign on the regis(o).
tered assurance
Under
is
1884, the
registrar
certificate
p)
Seisin.
Seisin
provable on
sales
by
extracts
tax
or
who were
the
by
by payment
under which possession was had, or any letting followed of rent and a fortiori a sale or mort-
&
2 Vict.
c.
94,
Conveyancers' (?) Coventry, Biirt. Comp. pi. Evidence, 77 Dart, V. & P. 315, 5th 1 490 352, 7th ed. ed. 356, 6th ed. {in) See above. By (w) Sug. V. & P. 414. Stat. 14 Geo. II. c. 20, ss. 4, 5, repealed with extensive savings (see 28 Ch. D. 107) by 30 & 31 Vict. c. 59, where an estate had been purchased and held for twenty years under a title which a recovery was necessary to comthe purchaser and all plete, claiming under him might prove a recovery, of which no record could be found or which appeared not to be regularly entered on record, by production of a deed making a tenant to the Praecipe
; ; ; ;
and declaring the uses of the recovery and executed by a person having a sufficient estate for the purpose and every recovery twenty years old, to which the persons having power to bar the entail were parties, was made
;
valid, if it appeared on the face thereof that there was a tenant to the writ, notwithstanding that the deed for making such tenant were lost or did not appear see Burt. Comp. pi. 682-694.
;
(o) Stats. 7 Anne, c. 20, s. 6 as to Middlesex 47 & 48 Vict c 54, s. 9, as to Yorkshire, replacing 2 & 3 Anne, c. 4, s. <i Anne, c. 62 (c. 35, s. 11, in Ruflthead); 8 Geo. II. c. 6, s. 12 Taylor, Evidence. 1464, 5th ed {p) Stat. 47 & 48 Vict. c. .54.
;
s. 9.
161
held as tenants of
prietary interest
other's
seisin
(.s)
(>),
;
and on
ground
cus-
tody
not
(t).
prima
facie
acceptable
evidence
of
seisin
on a
sale (u).
Will
proved
office
on a
sale
by production
bate or an
and personal
estate, or,
where
have
does
been proved
not
and
be
require to
proved
:
{p)
the
1
original
must of
[q) Burt. Comp. pi. 418-436 Conveyancers' EviCoventry, dence, 27o, 276; Wehomex. Upton, Mo>ilto,i 0.36. .^40, 542 6 M. & W. v. Edmonds, 1 De G. F. & J. 246, Brintow v. Cormican, 3 App. 248
; ;
414;
362,
Cas.
641,
653,
668-670;
Van
Dieman's Zand Cu. v. Tahle Cape Marinr Board, 1906, A. C. 92, 99. The production from the proper
custody, that is, the landlord's, of a lease expired at a time beyond living memory is sufficient evidence of seisin, witliout proof of enjoyment thereunder Clarksnu
;
6th ed. At 358, 7th ed. common law, the probate copy of a will of personalty was conclusive evidence of the contents of the will Allen v. Ditndas, 3 T. R. 125 but to prove a devise of real estate, production of the original will (whether proved or not) was required. The probate of a will is now admissible as eWdence of a devise of real estate under the conditions specified in stat. 20 &
;
;
V. Woodhoiise,
(r)
()
.5
T. R. 412. n.
Coullhred,
Above, Doe d.
p. 140.
Ihtniel v.
7
V.
A.
;
&
E.
23.i.
239
Ihe d. W^hh
.')14 .')th
W.
\
497, 618,
(/)
c. 77, ss. 62, 64, 65; Evidence, 1565a, b, Barroclongh v. and C, 5th ed. Greenhough, L. R. 2 Q. B. 612. there was no (v) Originally jurisdiction to grant probate of a will dealing only with real estate; 1 Wms. Exors. pt. i. bk. iv. ch. ii. In the Goods \ 9, p. 389, 7th ed. In the of Tomlinmn, 6 P. D. 209
21 Vict.
Taylor,
131 1 Dart, V. & P. 334, 5th ed. 383. 7th ed. above, 379, 6th ed. p. 104.
(m)
; ;
Hubbark, Evidence,
&
61 Vict.
c.
1,
probate
may
be
grants
65, in
respect of real estate only where the testator has died on or after the 1st January, 1898.
W.
11
162
As
it
was not the practice on sales to require proof of the due signature and attestation of any will of real estate
forming part of the
title
:
been signed and attested as required by law (b) were presumed to have been made with the proper formalities
(c).
all
wills,
be executed in the
same manner
and attested
(s)
(d)
(a)
{b)
Sug. V. & P. 414. Above, pp. 116 119. See Wms. Real Prop. 245,
2l8t ed.
Stat. 7 Will. IV. & 1 Vict. see Wins. Pers. Prop. 26, s. 9 438, IGth ed. {e) As to th evidence required on probate, see 1 Wms. Exors. pt. i. bk. iv. ch. ii. 3; Wms. Pers. Prop. 449, 450, 16th ed.
(d)
c.
163
CHAPTER
V.
shown
The
first
is
of Duty of con-
to peruse adv^sin^^the purchaser the abstract of title with reference to the contract.
and then
And
good
title
according to
contract, that
is,
such a
title
on the purchaser's
riglits as
defined
by law.
He
has to
on
all points,
what he contracted
to sell (a) If a freehold in fee were conveyancer sold, the must see that the purchaser will get both the legal and equitable estate in fee simple,
free
from
all
if
any, subject to
If copyholds were bought, the purchaser's adviser must ascertain that his client will be duly admitted tenant on the rolls of
winch he contracted
Above,
11(2)
164
must take
term offered by the abstract corresponds at all points with that promised by the contract the purchaser, as
;
we have
seen
(b),
than those usually inserted in the kind of lease purchased, unless the existence
of
examined on behalf
should be
title for
its
It should
what show
by law
or settled
by
special
good
;
title,
it
according
root of title
and continue
and
it
vendor can convey or cause to be conveyed to the purchaser the whole estate contracted for in the land sold.
Vendor need not show the whole estate
to be vested in himself, if
But
it is
it
is
not necessary
sufficient if it
he have the
right to procure its conveyance.
may
obtain
by
acts of
(
which the
/"),
the right to
to
and
if
complete, and
to be dealt with
title for
the
all
other persons
(b)
(c)
p. 101, n.
(i).
[cI)
(e)
sq. sq.
(/)
Brondwood,
22
Ch. 637.
. ;;
165
contracted to
if
buy
{g)
Thus
of course sufficient
him
to
sold.
So
if
the
vendor
is
entitled in
(h).
convey as he will
to mortgages, the
title
And
if
shown a good
And
as
it
appears to
merely
it,
the
if
that
is
on such
payment
of
(/)
equity, that a
notice of his
Here we may notice that the general rule mortgagor must give six months' intention to pay off the mortgage {k), is no
is
mortgagor
entitled to
pay
to the
mortgagee
(/)
in
considered as immediately
But
it
is
((/)
Towiixeiid
ic
;
V. C/itiiiiperiioicn,
Y.
&
P. 281-286, 5th
sq.,
Townscnd v. Champernoivn, Savory v. Und/'rJ. 449 wood, 23 L. T. O. S. 141 Sug. V. & P. 425 1 Dart, V. & P.
(i)
1
Y.
&
6th ed.
ed.
283, 284, 5th ed. 323, 324, 6th cd. 319, 320, 7th ed. (X) Wms. Real Prop. 561, 2l8t ed.
; ;
(l)
Johnson
v.
Evans,
W. N.
Ch. 611.
1889, p. 95.
166
not to be
In such
not a matter
as
the mortgagee
term (w).
Distinction
and
it.
pi'oving
The reader must bear in mind the distinction between showing a good title on the abstract and showing a good title in the sense of completely discharging the That vendor's obligati6nto show or make a good title. is a matter depending on proof, not mere statement of title, and is not accomplished until an abstract showing
a good
title
proper evidence
title is
shown on the
abstract,
of mortgages exceeding the amount of the purchasemoney, the vendor cannot of course make a good title if he be unable to pay off such mortgages or procure
A
acts
good
title
then
is
shown on the
is,
abstract, if
it
may by
doing
which become
imme-
6
1
1
&
;
See Southby
207,
mut,
;
My.
above, 212, 213 pp. 115 sq. In actions for specific performance of contracts for sale of land the usual inquiry directed us to title is whether a good title can be made to the property sold,
Cr.
&
and
if so,
when
it
was
fii'st
shown
The inquiry when 2226, 6th ed. a good title was hrst shown relates to the time when it was first shown upon the face of the abstract but the inquiry, whether a good title can be made, means whether the vendor can prove a good title by the usual Parr v. Lovcqruve, 4 evidence Drew. 170; 4 Jui-. N. S. 600; Sug. V. & P. 424, 426 see however Hdlkett V. Dudley, 1907, 1 Ch. 590, 606, where Farr v. Loveyrove was not cited, and Parker, J., appears to have overlooked this distinction.
; ; ;
167
a
all
the
estate
sold
{u)
And where
abstract
if
good
title
shown on the
it
such right
But
it is
Good
title
not
any part of the estate contracted for estate out^^ be outstanding in some person, whom the vendor has sttrndingin one, whom , , no right to direct to convey, and the vendor cannot the vendor procure such right without the other's consent. In ^0^^"!^* such case a good title in the vendor is not shown, convey. This may be illustrated, not only by the example already given of land subject to a mortgage not to be paid off during a certain term, but also by the
,
,
instances of lands subject to dower, or a jointure rent[q) or restrictive covenants (r), or of lands, under which the mines and minerals are not the vendor's (-s),
charge
number
which
is
A fortiori,
it
to the title,
where
in
legal or
equitable,
fact that the
to
dii-ect.
Nor
is
the case
altered
by the
vendor
concun-ence
of
such
it
;
third person,
and the
is
latter is
willing to give
so
under no
(o)
See
note
{y}
to
p.
16o,
above,
Dart, V. k, P. 284, 5th ed. 320, 7th ed. see 6th ed. Xoble v. Eduardc.i, 6 Ch. D. 378 Betlamu v. Drbeii/iiini, 1891, 1 Ch.
(jo)
324,
..,-*'
i\
perty sold was subject to a restrict! ve stipulation sis to light, and a drain, which was a sewer vested in the local authority, ran under the land. u n i. ,or., (s) liellamy Debenhnm,
, \
v.
1891,
... ,
...
[.
Ch. il2
Madd.
(>)
366. rhillips V. Caldcleiigh, L. R. 4 Q. B. lo'J ; Pemsrl v. Tucker, 1907, 2 Ch. 191, where the pro-
Co,itraci,
lie
{()
Weston
v. 'Savage,
10 Ch.
D.
736.
168
direction
t^
(?/).
{x)
,
is
n
very instructive.
^
sale.
It appeared
that the trust for sale did not arise until after the death
who was
still
living
on
this objection
Land
Acts.
him
it
objection thereto.
The
court pointed
make no
title,
having no immediate right to convey, and that the proposed conveyance could only be effectually secured
by a new
contract
made with
life
an
arrangement, into which the vendors had no right to require the purchaser to enter.
Purchaser
repudiate the contract if he
It appears
however that if the purchaser propose to shown on the ground that the whole
of the estate contracted for in the land
gome part ^
.
sold
is
whom
the vendor
on such must immediately repudiate the If he require the vendor to remove the
insist
if
objection
or persons entitled, or
() Lewin v. Guest, 1 Russ. 325 Forrerv. Nash, 35 Beav. 167, 171 Brewer v. Broaduood, '2'2 Ch. D. 105; Lee v. Soames, 36 W. R. 884 cf Re Baker and Schiio)i''s Contract, 1907, 1 Ch. 238, where a trustee sold as the authorised agent of the beneficiaries.
;
; ; .
is entitled,
the day
{x)
Dudley,
1907,
Hoqgart v. 1 Russ. & My. 293, 295; Forrer v. Nash, 35 Beav. 167, Weston v. Savage, 10 Ch. D. 171 Brewer v. Broadwood, 22 736 Ch. D. 105, 109: Lee v. Soames, 36 W. R. S84 Ualkctt v. Dudley, 1907, 1 Ch. 590, 596; and see below, p. 185, n. [l).
; ;
;
1<59
any
proposal
tion,
made by
he may lose his right to insist on the objection and may find himself obliged to perform the contract. For if the pui'chaser show himself willing to go on with the contract, the vendor may get in the outstanding interests, though they should amount to the whole title, and he will then be in a position to enforce the
specific
And
if
in such
it
will
make no
if
title
by
For
the purchaser
has continued
it
to
will
specific
performance,
{a)
if
title at
the
hearing
or even
title
is
when
quiry as to
contract
certified (b).
the
contain
the
vendor to rescind
on an un-
welcome
the view
requisition,
and the
justified
of
him
in repudiating
the
damages
((*)
We
title RtHiuisitious
manner
in
which
eontents^and
((/)
Any
Ru8s.
&
Salisbur!/ v.
Hatcher,
580, 581, 4th ed. 2 Dart, V. & P. 1058-1060, 5th cd. 1178-llSO, 6th od. 1065- 1068, 7th ed. and .see Miinr/l v. Goodi/cn; 1 De G. F. & J. 432 Hallrtt v. Dudley, 1907, 1 Ch. 590, 597-600.
; ;
C. C. 54. Simond., 1 Y. & Fry, 8p. Perf. C. C. C. 608 1366-9, pp. 607, 608, 3rd ed.
E,,ston V.
;
.J^l ^^^^'
(rf)
i^O
must insist on being furnislied showing a complete chain of the conveyances or other documents dealing with the legal estate in the property purchased from the time of
adviser
The purchaser's
an
with
abstract
commencement
sale.
of title
down
whenever the abstract gives him notice of any equitable estate or interest in the premises, he must requii'e the title to such estate or interest to be abstracted ((^), and must see that the same has been ultimately got in or released or will be conveyed to the
purchaser
:
And
unnecessary,
his further
upon an ordinary
It
is
duty
is
conveyances
it really has in law the which it purports to have. Thus he must consider whether the conveying parties have due capacity to convey the estate assured if so, whether they have used an instrument proper and words apt to carry out their intention and then whether the instrument is duly
effect
And
if
he
(as
its rectification.
constantly happens)
to
him
to exercise his
own judgment
as to the
words actually used. He ought not to with a mere statement of the effect of any rest satisfied for the very purpose of material clause or document
of the
;
is
And
if
he accept
informed of the exact words used and judge of their effect himself, he is really laying a duty, which he ought
(tf)
171
Owing
to the unskilled
in
What clauses ought to be abstracted in full and what may be proj^erly passed over with a mere statement has
been considered above
pointing out.
(,/').
We
will
we have been
deed
is
now
proviso
the
for redemption.
And
such abstracting
is
constantly
comment
or with
remark that
usual form.
it is
presumed that this proviso is in the That however is exactly the point on
opinion
is
which counsel's
reconveyance
is
desired.
proviso
for
which
effectively
is
is
All these
title,
mortgagee
.
mortgagor
therefore
appear
on
the
abstract (g)
The
to A. B., a
ill
proviso
(/) Pp. 112-114. Of course mortgages are usually redeemable ou pnymeut of principal and interest by tlie original mortgagor to the original
((/)
mortgagee,
is
when reconveyance to bf made to the mortgagor according to his former estate. But, since jiersons Tiot named as parties to indentures liave been allowed to take benefits thereunder
"ilst
fee on payment by A. to purchaser acquiriug title under these deeds would take with notice of the equities both of C. and D. This example is of course an extreme case and the rule no doubt is that a mortgagor's equitable estate in the mortgaged lands shall not be altered by the tenns of a proviso for redemption without a clear
;
(see
ed.),
:i
Wms.
Real
I'rop. loG,
prevent
mortgage between A. borrower and B. lender that ou iwyment of principal and interest by A. to C, B. shall reconvey to D. in fee. In such case, if there were a subsequent reconveyance by B.
expression of an intention in that behalf [Iiiiie.s v. Juck.wn, Ki Vcs. l{.5() Co. Litt. 208 a, n. (1); stdnsfield v. HoUion, ii Jur. N. S. 1334; Jlastiiiyisy: Ast/ti/ZMBnAV. 260; Jte Betton's Trust Estates^ L. R. 12 Eq. 553; Re ]ii/ion\i SettU'inoit, 1891, 3 Ch. 474) but such an intention may be clearly
;
:
; ;
172
words used, of
abstract,
its
in
these
respects
(/^).
And
to his client.
Estate of grantee to
uses.
of a pitfall,
which
;
The consequence
of this omission
(/.),
statute or
life of
the
Uses declared of
of
course,
and
expressed in the proviso (see 16 Ves. 370, 371), and any variation in the limitation thereby made from the mortgagor's former
estate raises a //ucstion, whether any alteration was intended
Prec. Conv. vol. ii. An pp. 38-43, 4th ed. unusual proviso for redemption occurred in Williams v. Moryan, 1906, 1 Ch. 804.
Davidson,
pt.
ii.
{h)
See
ed.,
Prest.
Abst.
149,
'2nd
previously common, as it was the regular practice to limit estates to all grantees and their fieira. The mistake has generally arisen where use has been made of the statutory limitation to a grantee in fee simple ; and the draftsman has forgotten that it is equally necessary to limit the lands to the grantee to uses in fee simple as to assure by apt words an estate of inheritance to cestui que use intended to take the benefit of the conveyance. (A) Wms. Real Prop. 112, 21st ed. [1) Ibid. 173-176, 21st ed. {m) Dyer, 186 a Jenkins v. Young, Cro. Car. 230 Meredith V. Joans, ibid. 244 Sug. Pow. Williams on Settle149, 8th ed. ments, 7 Re Hunter and Hew; ; ;
whom
lett's
Contract, 1907,
Ch. 46.
173
under the
estate of
uses, the
inheritance
It
is
I'V'ntitv.
on
the
to
see
that
the
vendor
discharges
his obligation of
documents
proceeds,
abstracted
{a).
The
conveyancer
must
and
Where the
title
or partially fail to
comprised in the
that the purchaser
The
identity
deeds
is
the most
perfect title
proves nothing.
expense of
it, if
p)
It
is
for
abstracted, to
note
all facts
material to the
stated on or apjiear-
ing from
the abstract,
and
to require
them
to be
proved
(/)
Ahovp, pp.
P. 413.
33,
fi5
Sns:. ^
()
f).5,
72.
V.
&
174
What
.
this is has
been
remark
title
owing
to the rule
evidence of
a convenient
(r)
it is
form
any kind
required
such evidence.
his
fact)
at
own
is
expense."
As we have
ak-eady
pointed out
that
(), it
often material to a
not happened.
title to
prove
and the
eases, call
Another matter
the abstract
is
to be attended to
on the perusal of
When-
lands sold,
it
gave
rise to
manner
and
if so,
The
subject of the
(/).
more
stamps.
mark on
the
abstract what stamps are impressed on the various title deeds but the purchaser's solicitor must ascertain this
:
(?),
in tlie
margin
of the abstract
what
Above, pp. V-M v/. Above, pp. 45, 136. Above, p. 132.
[t) See the chapter on the Death Duties in the second volume.
(m)
Above, p. 143.
175
advising on the
title,
that
must be
ascer-
whether the abstracted documents are duly stamped. If any document, which ought to be stamped,
tained
be unstamped or
which, as
insufficiently stamped,
it
is
the
vendor
;
to be properly
stamped
we have
seen,
he
bound
to
do at his own
expense
(.r)
Inquiries
the production of some particular piece of evidence to propTrtv^ol/ complete the title, it is generally desii'able for the purchaser's advisers to
make
Thus
it is
if
an
estate be sold
not
(2),
inquiry should be
made
for if
it
be omitted,
and, as
(a)
we
(C),
below,
titlo.
for
11
may
Re Alms Corn
7''>0.
C/iariti/, I'.IOl,
Ch.
176
And
(e),
in every case
is
it
should be asked
any easement or any rentcharge, or to any quitrent or other incident of tenure {(/) and what outgoings there are in respect of the property sold. Land tax and tithe rentcharge, being general liabilities to which all lands are regularly subject, need not be expressly mentioned on a contract to sell land it is understood
whether the property sold
other right
or to
subject to
liabilities,
And
it is
property tax.
If
by the
contract
is
a different matter.
Quit
rents,
being
performance
(./').
and
amount
is
substantial
of
;
as
the
existence
considerable
mentioned in the particulars on the sale of houses held Another inquiry useful for a long term of years {//).
to be
made
is
is
subject to
{b)
Ifei/wood
;
V.
Ch. D. 357 Nottingham Patrnt Brick and Tile Co. v. Butler, 16 Q. B. D. 778 above, p. 73, n. (if). (f) See Fcmne/ v. Tucker, 1907, above, p. 167, n. (/). 2 Ch. 191 [d) Onerous incidents, such as heriots, are sometimes attached to the tenure of fieeholds; see Copeniake v. Hoper, 1907, 1 Ch. 366, reversed, 1908, 2 Ch. 10; Wms. Real Prop. 58, and n. {/>),
;
must then prove that the land is, as alleged, free from such liasee ibid. (/) Esdailr v. Stephenson, 1 S. S. 122; Sug. V. & P. 312; 2 Dart, V. & P. 1078, 5th ed. 1205, 6th ed. 1093, 7th ed. see above, p. 43. {(/) I'ortnmn v. Mill, 1 Russ. & My. C96 Be Great Northern Bail. Co. and Sanderson, 25 Ch. D.
bility
;
&
478, n.
(e)
(i),
21st ed.
Sug. V.
:
&P.
322;
;
Dart,
788; Sug. V.
p. 167.
(h)
&
P. 313;
above,
398, 399. If 6th ed. 393, 394, 7th ed. land be sold tree of l^nd tax or
V.
&
D.
588,
177
disappeared.
And
(/)
rentcharges
may now
be created
its
amending Acts
ments,
not
for a ver}'
exclusively
affecting
be liable to charges created under the Agricultural Holdings Act, 1x8-3 or 190S (A-).
Agricultural land
also
may
may
arise
or the Private
Works
Act, 1892
(y?).
House property
wall notice
or the
London may be affected by a party under the London Building Act, 1894 (o)
in
;
owner thereof may incur liability owing to a " dangerous structure " notice and an order consequent thereon under the same Act and the London Building
Act, 1898
{])),
nuisance
under
the
Public
Health
(London)
(r).
Act,
elseall
1891
{q).
And
similar liability
may
be incurred
In
(k)
1910,
(o)
Oh.
88. 29-32, repealed and replaced by 8 Edw. VII. c. 28, sx. lo-19,
335,
a.s
to
49.
& 39 Vict. c. 55, (l) Stat. 38 866 88.150,257. (m) Stat. 55 & 56 Vict. c. 57. (m) Midgley v. Coppock, 4 Ex. D. 309; Re liettesHinth ami Richrr,
37 Ch. D. 535; Stock v. Meakin, Re Allen and 1900, 1 Ch. 683 Driscoir.s Contract, 1904, 2 Ch. Camberucll Corpn. v. Dixon, 226
;
50 Sol. J. 611. (p) lie Highett and Bird's Contract, 1902, 2 Ch. 214: C. A., 1903, 1 Ch. 287; explaibed in Re Alien and DriscolVs Contract, 1904, 2 Ch. 231.
criticiism iu
[q)
Ch.
231.
[r)
s.s.
Stat.
94-104,
IfiO,
11 Vict. c.
w.
12
178
made whether
any demand
sold or its
which
may
owner to any such charge or liability (s) Such charges or liabilities, if attaching on the property sold or becoming payable before the time for completion, come under the head of outgoings which the vendor And with regard .to charges, ought to discharge (;^)
.
have the property sold free from all incumbrances, except those, if any, subject to which he It is also useful to ask, on buying a agreed to buy ()
entitled
to
.
if the walls are party walls, and as any suburban property, if any adjoining street or road has been taken over by the local authority.
to
Vendor bound
^
relevant^^ questions.
The general
nature
is
bound
to
answer
all
:
relevant
{x)
but the
Re Ford mid
shown
in the case of It
Re Ford and
already mentioned.
knowledge of the vendor or his solicitor, any settlement, deed, fact, omission, or any incumbrance affecting the
property not disclosed by the abstract
the Court of Appeal held to be not so
tion as a searching interrogatory.
?
This question
pointed out
(z),
there
is
clear
distinction
shown on
is fully proved and at all points complete, and interrogating the vendor whether he knows of any matter of title besides those stated on the abstract.
(s)
Taylor''
Contract, 1900, 2 Ch. 625; below, Ch. XII. Sect. 2. (t) See cases cited in notes [l),
Ch. XI. Sect. 1. {u) Above, pp. 41, 94. {x) Above, p. 135. [y) 10 Ch. D. 365. (z) Above, p. 135, n. (/).
179
may
acquire a good
title
objectionable.
But
it
is
thought that
the decision in
Up Ford mid
than
this,
from the
obligation
to the issue
between
title,
tlie parties,
which
is,
which he has
s/ioini
Wlien the
his opinion
abstract
is
laid before
and writes
on
title
on the
;
title
of the ease
answered, a good
liave
the
title
At
be made.
The
subject
(p).
of Searches,
As we have
purchaser's
seen [d)
it is
for
requisitions
on or objections to the
^''" makino:
reqiusition.-i
essence of the
contract,
requisitions or objections so
any
shall be
The time
delivery of
so limited
only begins
abstract
(f)
.
to
perfect
But
the
abstract
delivered
be
in
(n)
(A)
(c)
Above, p. 110. See above, p. 16G. See below, Ch. XII. Sect.
(li)
Above,
Above,
p. 62.
2.
(e)
p. 63.
12(2)
180
on the face of it, the purchaser may take this objection at any time, notwithstanding any such stipulation as the above, and although the day
all
Wat\.
Thus
in
Want
sell
two persons entered into a contract to land, stipulating that all objections and requisitions
considered
as waived.
it
The}^
appeared that
and
and they
apparently
The
purchaser,
after
the
fourteen
days had
life, it
concurrence
And
it
a good
abstract
Ite
title,
and
it
tlie
delivered
tliis
by them
that
to
Tanqneray-
perform
obligation.
(),
^L^ZT"''^
and Landau
and
make
title as
executors and
under the power of sale implied by the testator's debts being charged on liis After the time so limited had expired real estate (/>) the purchaser took the objection that the words of the
a
will
.
v.
Fihe, 34 L. J.
Jiosenherff
;
(/;)
,.^
^
Above,
p. 168.
v.
Fryce- Jones
'
20 Ch. D. 465.
V. Willuuns, 1902, 2
[g)
Ch. 517.
(/>)
L. R. 8 Ex. 175.
ed.
181
both by Kay,
J.,
of
"went
In other words,
was an objection that the vendors had failed on the own abstract to show any title at all. It also appears that objection to anything, which is a matter
face of their
of
title
(/),
may
well be
made
on
title
title
abstract shows a
he
may
For, as
we have
doing
seen
{/>i),
a vendor
shown an acceptable
that
title, if it
certain acts, which he can perform and independently of others' consent, he immediately
on
will
of the
But by
that
for
his
own showing
acts.
except
com^se
he do such
he
the
(^/).
It is
therefore a matter
of
shall
perform
to
them
and
it
is
unnecessary
purchaser
But
it
is
of
the
take any objection to the manner and within the time prescribed by
to
show
title
(o).
And
it is
demand
for the
V.
23 Ch. D. 320, 327. See above, p. 168, as to the danger of waiting before taking objection to the title. \p) 1 Dart, V. & P. 429. 5th ed. 494, 6th ed. 50S, 7th ed.
tract,
(o)
;
;
182
title,
the purchaser
sending in gone by, on any objection thereto, which he might otherwise have taken (q).
insist,
cannot
the
time limited
for
requisitions
is
What
sitions
requi-
should
be
made and
The conveyancer should, as a rule, be guided, in making requisitions on title, by the countenance he
would expect
his contention to receive
insisted on.
He
should therefore
(.s)
,
and
for
will
bound to concede. There are, of course, when such requests may be properly made, be answered out of courtesy and on making
;
it is
legitimate to ask
what
it
is
by the contract), although the vendor be not in strictness bound But if any requisition be met with a to comply. refusal, then the purchaser should not insist upon it, if
(unless the requisition be plainly prohibited
by the
"Where the vendor may
rescind.
Court.
common
stipulation allow-
on any requisition which the former is unwilling remove or comply with (t), extra care must be exercised in selecting the requisitions which are to be pressed and a conveyancer acting on behalf of a
insists
to
on points essential
to the title.
This
is
especially the
See above, p. 168, as to requiring the concurrence of any person, whose interest is not redeemable without his consent. Willinmx, rryce-Jones v. (q) As to the limits 1902, 2 Ch. 517.
Above,
1
p. 36.
ed.
&
;
[l]
Above,
p. 64.
183
is
in the old
rescind,
an unwelcome requisition,
For,, as
().
we have
seen
(x),
Courts
are
now
inclined
to
allow
a vendor to
it,
and not
arbitrarily or
and
so long as the
for
rescinding
(//),
he
is
not
And
if
the
he has
the
vendor
may
rescind
any opportunity
of retracting,
and the
tract
latter
cannot recover his rights under the conobjection after he has received
by abandoning the
{(().
Where
purchaser
unwelcome
is
on), the
an even worse
(b)
as
this
gives
first
the
rescinding on the
on the requisi-
{('). As we have seen {d), such conditions are now frequently drawn so as to allow the piu'chaser to with-
draw the
and when
this
Davidsim,
;
Prec.
Couv.
(a)
Duddell v. Simpson, L. R.
;
564. 614, 4th ed. 469. 522, oth ed. I Ke)' & Elphinstone, Prcc. Couv. 233, 234, 2iid ed. (a:) See above, p. 64, aud cases cited in note () thereto. (y) See lie Jackson and Hadeti's Contract, 1906, 1 Ch. 412, 420. Re Starr lioukett Bdr,. Soc. (.-) and Sibun\. Contract, 42 Ch. 6. 375.
:
Dames ^
j^^, Sf,.,. j^owkeft Bdg. Socy. (j,^ a Sibun\s Contract, 42 Ch. D. 375 / n^i .,,: t.
,
/-,
two previous
{d)
notes.
64, 72.
Above, pp.
184
is
no reason
is
why
requisitions,
which
Where the
if
stipulation
may
on any requisition, which the vendor is, on the ground of expense or any other reasonable ground, unwilling to comply with, the vendor is not entitled to rescind unless there is some such ground for his refusal' In any case, a to comply with the requisition [e).
insist
notice to rescind expressed to be given " without prejudice " is null and void ( /).
Where
the
who has no
title
damages
legal
But
paying the purchaser's expenses as this doctrine was not applied where
sold in
good
faith,
requisiinsisted
on
appears to
own
abstract
{//).
And
removed an which the Court afterwards held to be unabstract only showed title to an equitable interest in an underlease (see above, pp. 101, n. (i), 164). It should be noted that the purchaser did not at once repudiate the contract on this ground he negotiated, requiring the objection to be removed and so treated the contract as still subsisting see above, pp. 168, 169. The Court moreover treated the objection as relating to a matter of conveyance, not of title. See also HcppemtaU v. Hose, 33 W. R. 30.
;
{e)
lie
tract,
1897,
p. 90.
(/) S. C.
Deiffhton
and Man-is'x Contract, 1898, 1 Ch. 458, and Me Jackson and H.aden'' s Contract, 1905, 1 Ch. 603,607; 1906, 1 Ch. 412,419, see above, p. 169. 423, 425 Beicjhton and Harris's (li) Re Contract, 1898, 1 Ch. 458. The vendor had sold a lease, and the
;
185
and
pay the For when the vendor contract, and the purchaser
how
by the
contract itself ?
It is held that,
title
of land fails to
show a good
thereto, he
from the duty of performing his part of the agreement and precludes the vendor himself from enforcing any
stipulation in his
own favour
therein contained.
is
The
as
is
annulled
him
to
(/).
The proper
vendor
title is
and
it is
sub-
mitted that
a good
is
when
title
it,
the pur-
chaser
entitled both at
rescind the contract, and need not wait for the day fixed
for completion
(()
(/).
Besides,
CL.
may
be doubted whether
;
haacK
V. Towell, 1898, 2
St.
285.
[k)
1
Dnke uf
Albans
;
\. Shore,
Seaward v. Bl. 270, 278 Willock, h East, 198, 202; SonU^ and V. Drake, b B. & Ad. 992
H.
see above, pp. 32, n. {b), 180, 181 HoUhnl/ L. Q. R. xix. 168-171 v. Seacombr, 1906, 1 Ch. 426, 434 below. Chap. XVIII. 2
:
XIX.
1.
Sarage, 10 Ch. D. 736, which wa.s an action by a purcha.ser as plaintiff to enforce actively his right of reseinsion and to recover his deposit, and was expressly decided from a common law Brewery. Broad tvood, 22 Ch. D. point of view (see 10 Ch. D. 741) 105, 109, where the purchaser's right of roscissiou was allowed as a
(/)
Westmi
V.
186
good defence to the vendor's aotion for damages for breach of the contract, and it was laid down that the purchaser's right of immediate repudiation is not confined to cases where the time fixed for completion Lee v. Huaincs, 156 W. R. 884, where is of the essence of the contract the purchaser sought, as plaintiff, to enforce his right to rescind and recover his deposit and expenses. The vendor's obligation to show a good title at the time of the delivery of tlie abstract is also illustrated by the case of Want v. StalUbrasx, L. R. 8 Ex. 175, above, p. 180, where the vendor's utter failure to show any title at all upon the face
;
of the abstract was held to be such a breach of contract as discharged the purchaser from the whole agreement, including a stipulation that he must send in his requisitions or objections within a specified time It is respectfully submitted that the theory see L. Q. R. xix. 172. put forward by Parker, J., in Ealkett v. 'jJiidky, 1907, 1 Ch. ofiQ, 596 (in which none of the above cases was cited), is erroneous. The learned judge there maintained that the purchaser's right to repudiate the contract at once upon the vendor's failure to show a good title, without waiting for the day fixed for completion, is merely an equitable right affecting the equitable remedy by way of specific performance and is solely attributable to the doctrine of want of mutuality. If that were so, the purchaser could not plead his right so to rescind the contract as a defence to the vendor's action for damages for breach of the contract for the doctrine of want of mutuality has no place in English law, except as a defence to an action for specific performance Besides, to take active proceedings as 3. see below, Ciiap. XIX. plaintiff in su(^h a case, a purchaser must have a leyal right of rescission, though the proceedings in which he can so assert this right owe their origin to the Court of Chancery's concurrent equitable jurisdicParker, J., also said (1907, 1 Ch. tion see below. Chap. XIX. ^ 1. 596) that he did not see why, in principle, a vendor, who has sold land, which does not belong to him, but to which he acquires a title before the day fixed for completion, should not be able to recover damages from the purchaser then refusing to complete. But it is respectfully submitted that the learned judge altogether failed to appreciate the true nature of the vendor's obligation to show a good have seen that in the same case he overlooked the difference title. between ahoivuiy title upon the face of the abstract delivered and proving title by production of the proper evidence; above, p. 166, n. (). Both of these obligations ought properly to be perf oi jued by the vendor as it is not until the title is well before the day fixed for completion proved that the purchaser can safely accept it, and before such acceptsee below, ance he cannot safely prepare the draft conveyance Chap. XII. 1 XIX. 2. At common laAv too time was of the essence so that it cannot be correct that at law of the contract in all respects the vendor performs the contract, though he shows no title on delivery of the abstract, if he can get it in just before the day fixed for comOn the contrary, at common law the vendor was bound to pletion. have shown and verified a good title and to be ready to convey on that day above, pp. 58, 59. It is submitted that the authorities above cited prove that the vendor's failure to show a good title on the face of his own abstract at the time of its delivery is at law such a breach of contract as discharges the purchaser from the duty of performing It is not of course suggested that his part of the agreement for sale. a purchaser claiming to rescind the contract at once for a breach of
;
;
\^
We
187
vendor to rescind
that,
It has been definitely decided WTiere the (/). where the vendor has knowingly or recklessly knowino-w (though without intention to defraud) made some "^' recklessly
I
sold, so that
'
he
_
is
"'"^i*'?'"-
sentation.
sell,
he
is
not entitled
misrepresentation or to enforce
performance
with compensation
(w).
on a requisition or objection as to title only, mil not be enabled to rescind if the purvendor the
insistence
kind uaimot plead want uf mutuality as a defence to the vendor's All that is maintained is that the action for specific performance. purchaser's right to rescind in such a case really rests on the common law principle that the vendor's obligation to show a good title at the time of the delivery of the abstract is a stipulation of which the performance is a condition precedent to the purchaser's liability under the contract see below, Chap. XIV. 1 XVIII. j 2. The vendor cannot successfully sue on the contract at law because of his default in performing this condition and he will not be relieved in equity by being idlowed to pursue the equitable remedy of specific performance, except where the vendor's breach is so trifling that the case is considered in equity to be a proper subject for specific performance with compensation at the vendor's suit (see above, p. 4;J, and below, Chap. XII. \ 4), or unlrs.i the purchaser by his conduct in continuing negotiations for removing the objection he ha.s taken elects to treat the contract as still subsisting above, pp. 16<S, 169.
this
; ;
to matter of
conveyance.
(/)
See liowinati
588.
v.
llylaud, 8
the vendors
Ch.
I).
()
Re J(ickxon
1906,
1
(Did Madefies
Con-
ful misrepresentation;
/t.^^^/Uv
^ ^~] eiCi\..%H^
V
Ch. 412, of which case it is submitted that the statement in the text, rather than the headnote in the Law Reports, gives the exact point; see the remarks made in the judgments
tract,
Scacombc
ib. 426,
to wrongful misrepresentation, see below, Chap. XIV. j I and as to the purchaser's right to specific performance with com-
showing that
pensation, see above, pp. 43, 44, 65, 66; below, Chap. XII. 4.
<f
188
a matter of
(o)
.
But
it
p)
The
rescind, notwithstanding
any negotiation or
is
litigation
(r).
therefore no
And
the vendor
is
performance or to enforce the contract at law, and whether by action or vendor and purchaser summons {t)
:
final
in
any
such proceedings
[ti).
own
come on
to be
heard
{x).
Waiver
of objections or
requisitions.
A
(o)
purchaser
requisitiou
lie
may of course waive any objection or which he has taken or made as to title or
2 Ch. 102
2
;
Oh. D. 851
165.
{l})
;
1 Dart. V. & P. 160, 5th Davidson, Prec. Conv. 564, 614, 4th ed. Deujhton and Harris'' ((/) lie Contract, 1898, 1 Oh. 458. (r) Above, p. 72. () Duddell v. SiiHpso)i, L. R. '1 1 Davidson, Prec. Ch. 102 Conv. 564, 4th ed. 470, 5th ed. 1 Dart, V. & P. 161, oth ed.
ed.
Ch. 285. But the condition does not oust the jurisdiction of the Court to order the vendor to pay the costs of any such proceedings lie Spindler and Mcar'' Contract, 1901, 1 Ch. 908.
;
(m)
ReArhih and
1
Class's Contract,
1891,
Ch. 601.
183, 184, 6th ed. ; 177, 7th ed. [t) Hay V. Smithies, 22 Beav.
510
;'
Buddell v. Simpson, L. R.
Warde v. Dickson, 5 Jur. [x) N. S. 698 Graij v. FowUr, L. R. 8 Ex. 249 and see the case cited in the previous note, where the original summons was taken out by the vendor.
;
;
1^9
or
either
express
The
express waiver
:
may be observed
the abstract
is
tliat
title
though shown
b}'-
any objection not disclosed by the abstract {a). Whether the waiver of any objection is to be implied from the purchaser's acts is a question of fact to be determined by the consideraverification of the abstract {z), or of
ti'^tn
of
all
the
(h).
The
acts
is
which a prudent purchaser does not usually perform until a good title has been duly proved (r) like entry into possession, or payment of the whole or part of the
;
purchase
if
money
(d).
With regard
to taking possession,
And
so
it
is if
to require a
go into possession without prejudice to his right good title (,/). But if tlie purchaser take
under an
is
(^x])ress
provision in
an abstract of
title
v.
:
Sudd,
De
T.
c)
Abi)ve, p. 46.
Sujr.
V.
;
&
342
.')th
sq.
;
;
ed.
7th ed.
[z)
{d} See the cases cited in the following notes Ilai/don v. Hell. Beav. 337.
; I
SoKthhii V. Hutt,
Qj.
;,Q-
My. '
<k
(<?)
/inBuon
\'
V.
^ ^/ Astle'j,
nr Mer.
'^
^^^^
^I^^^", *''''""''
J:^'""'''"
(A)
Jitiiroiif/hs
1(58.
V.
Oaklfii,
Swanst. 169,
190
objections to title
{g)
(A),
though not
of other objections
Waiver
of objection
from the purchaser's conduct, though he were in possession when he bought, or took possession before completion under an express provision
also
may
be
implied
in the
good
title
as
if
any objection
as to
and
them, making-
or
money
{k),
title (/).
must be considered,
evidence of waiver.
so that
by no means conclusive
is,
The question
Such no evidence of waiver if accompanied by insistence on the objection. Thus where negotiations as to title were continued after the purchaser had both taken possession and acted as owner it was held that no
acts therefore are
waiver of objections to
title
could be implied
{ni).
Long
may
also be
evidence of
waiver
Purchaser
desiring to
{n).
go on where
the abstract
Where the abstract shows an objection to the title which would justify the purchaser in rescinding the
contract, but he desires to complete the sale, if possible.
not of objections,, [g) But which are matter of conveyance
(above, p. 16i), as that the vendor shall release the property from mortgages Re Gloaq and MiU<r''s Contract, 23 Ch. D. 320, 327.
;
shows an
objection to the title.
{k) See Fleetwood v. Green, 15 Ves. 594 Dixon v. Astley, 1 Mer. 133; Margravine of Anxpaeh v.
;
Xoel,
(l)
tract,
[h)
Burnell v. Brown,
168
Bown
v.
W.
631, 637.
()
Turquand
v.
Rhodes, 37 L.
Pegg v.
TVixdeii,
16
Beav.
J. Ch. 830.
239.
191
him
he
is
his deposit
willing to
in the contract
requisitions accord-
thought that
common condition, made prove im welcome (o). The purchaser must, however, bear in mind that in taking
any
requisition so
this
course
of
if
down
to the date of
(^j),
and he pre-
But
in
and
his anxiety
great to
make
(o)
184
It"
187.
after
1(>9,
See below, Chap. XIX. 2. thi.s date the parties iiesfotiate but fail to arrive at au
(ju)
the purchaser cauuot of coui-ae recover his exjjonses of sucli .sub.sequent uegotiiition.
192
CHAPTER
VI.
We
first,
will
now
turn
oiu'
points,
which constantly
on
title.
And
The
statiitory
limitations.
obligation to sliow a good title. We will begin by remarking that the enactment substituting forty years
for sixty, in the absence of stipulation to the contrary,
as the
time of commencement of
title {a)
appears to
law on this point rather than to introduce into open contracts a new term depending for its efficacy on the contracting parties' consent. So that
alter the rule of
where a vendor shows forty years' title, he is considered to show title for the full period required by law, and
the purchaser's rights are not regarded as being limited
by
title
special
stipulation
(A).
But
the
other
statutory
good
effect.
Thus the
enactment in the Vendor and Purchaser Act, 1874 (r), removing the necessity of showing the freeholder's title on the grant or assignment of a lease, has been held to have no greater force than a special stipulation in the contract to the same effect, and so not to exempt the grantee or assignee of the lease from receiving constructive notice of the lessor's title (''/). And, as we shall see,
(a)
s.
1
;
c.
78,
tract,
(r)
{b)
See
;
lie
Marsh
and
;
Earl
s.
1891, 2 Ch. 109, 117, 118. Stat. 37 Sc 38 Vict. c. 78, 2 (rule 1) ; above, pp. 100 102^
(rf)
Granville,
p. 101
Tatman
v.
Harland, 17 Ch.
D.
353, 359.
193
1881
{e),
less
any leasehold
the
title to
and relieving a vendor showing make the enfranchisement, receive the same
reversion,
special
construction as
stipulations
in
similar terms.
The
commencement
of title
is,
as
we
commence with
some instrument of more recent date. But whether the period for which title has to be shown be defined by the general rule or by special stipulation, the vendor's obligation
is
by
sect. 3, sub-sect.
3 of the Con-
{(/).
which
it is
Sect. 3 (3) of
any abstract, or coj)y, of any deed, will, document dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract
production, or
or other
Act^i88i!'^^
make any
objection,
will, or
or
docu-
ment, or the
that
prior
title
is
recited,
lie
covenanted to be produced, or
assume,
unless
noticed
and
shall
the
contrary
in tlio abstracted
instruments,
of
any deed,
will,
or
other document,
(e)
Stat.
;
8.
3 (1, 2)
c. 41.
w.
13
1^4
are correct,
and give
document so recited, and that every document so recited was duly executed hy all necessary parties, and perfected, if and as required, hy fine, recovery, acknowledgment, inrolment or otherwise."
The
or
on the expression of the intention of the parties (h) And it is enacted (/) that nothing in this section shall
be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations
similar to the provisions of this section or
specific
performance
of
the
contract
'Court.
by the
effect,
The
statutory
same
in
noticed the
manner
which
are construed in
We
will
now show
the
effect
of
above provisions
The
The
-g
first
observation to be
j^q
qualification of ^
_
the
made is that this enactment main rule that the vendor that is, that he must prove his
_
sold.
title for
may
be evidence of a good
Sect. 3, sub-s. 9. Sect. 3, sub-s. 11.
If therefore the
(/()
261, 272
,,,
(i)
.,
16 Q. B. D. 778.
'
and
'
PP*
D.
(/)
Above, pp.
95, 96.
195
tive,
shown in accordance with the agreement be defecas where it discloses incumbrances irremovable
otlier persons'
without
consent
(in),
the purchaser
is
not
commencement
is
of
v.
title.
for
this
PhillipH
Cald-
l^inUips v.
In that
case,
and paid a
deposit.
title
The 5th
the abstract of
commence
commencement
17th of
April,
of the
By
1860,
and Beckett in
and con-
ditions contained in
The
plaintiff
made
this requi-
2nd
of
and conMarch,
first
any manner
defendants
made answer,
"
The
condition
After some
was held that he was had contracted to pm-chase a freehold house, which must mean a freehold free from all incumbrances and the abstract delivered only showed a title to a freehold house incumbered by certain covenants. And it was held
to recover his deposit.
it
And
entitled to recover
it.
For the
plaintiff
(w) Above, p.
le.i.
(w)
L. R. 4 Q. B.
I;i9.
13
(2)
196
the
5tli
condition
of
sale
of time for
could require a
title to
be shown
from incum-
it
the
title
should commence.
this case
was an action
at
Again, in
Tile Co.
Tile
Butler.
of
should commence with an indenture dated the 20th May, 1868, and incorporating the above enactment,
to
and further providing that the property was sold subject any matter or thing affecting the same, whether
disclosed
solicitor
at
the
The
vendor's
covenants
by a
title
He
thereupon refused to
specific
performance of
he himself had bought without notice of the restrictive covenants, and so could give the purchaser an unincumbered
title.
The vendor
looking, after
It
he
said,
by
his
creating them.
Above, pp.
and the
[o)
37, 38.
15 Q. B. D. 261
16 Q. B. D. 778.
197
in the
in the contract,
and
so could
tlie
(q).
was disputable, and Courts of Equity depending on proof of facts, which may be immediately disputed and so land the purchaser in
a purchaser,
titles
regard
litigation, as too
purchaser.
The
:
in both Courts
by
whicli he
was induced
the contract
Another case illustrating the effect of the above enactment and depending on the same principle as the case last cited is Re Marsh and Earl Granvilh' [r). It was
should commence with a deed
less
Re Marsh and
^''''"'
old.
It
was
lield in
summons taken
was
title
justified in refusing to
73, n.
{t),
IT-'i,
170.
()
24 Ch. D.
11.
198
earlier
good
title as
defined
by law must be
fair
and
explicit, or the
vendor
And
the Court
mencement
old, the
purchaser
is
entitled to
root of title
As we have
the root of
seen
this
to
when he agrees to show title for the by law. In all other respects,
v.
Caldclengh and
whenever it is stipulated that title shall commence with an instrument of a particular date, whether that date be or be not less than forty years before the contract. And whenever such a deed fails in any of the requisites
of a
good root
of title
{t),
the purchaser
is
entitled to
;
call for
is
and he
on
is
whole estate contracted to be conveyed in the lands sold throughout the entire period of forty years or such less time as may be agreed on.
to
title
For show
as
by we have seen
to the
tlie
He
estate at the
must therefore prove title to the whole of such beginning and thenceforward until the end Thus on the sale of freeholds he must of such period. prove a seisin in fee free from incumbrances at the commencement of and thi'oughout the number of years
(.v)
Above, p. 109.
[t)
Above,
p. 106.
[x)
Above, p. 107.
199
title
and he
(r)
If a vendor of his
own
dis-
de^fg^fof title,
on for commencement of
discover a defect in the
title,
so
title,
the latter
may
insist
on
such defect as a bar to specific performance, notwithstanding the provisions of the above enactment
(a?).
Any
now Re
Banister,
^'
upon the sale of a farm by order of the Court, a condition was made requiring the purchaser to assume that E. B. was seised of and entitled to the entire property sold in fee simple in possession, free from incumbrances, in 1835 and up to and at her death, stating that it was not known and could not be explained how E. B. acquired the property, and expressly stipulating that no
other
into.
title
^'*"f
It
than as above should be required or inquired was shown that it was within the knowledge
was not
fi'om
incumbrances in 1835,
perfect
and how E.
as
B.
held to have
good
inasmuch
he
known
to him,
had upon
which the condition had been drawn by one of the conveyancing counsel of the Court. But it was held that,
the statement
(t)
Sellick
V. Trevor.
M. &
D.
\-^)
Smith
12
v.
Robuison,
131
;
13 Ch.
W.
722.
148.
(y)
{)
WndiUn
Ch. D.
v.
see also
V.
Jlolft;
L. R. 9
Earmtt
50.
Baker. L. R. 20 Eq.
Q. B. 515.
200
knowledge of the
make the conby a misrepresentation for he was entitled to presume that what was so stated was true. It was considered therefore that the vendor could not oblige the
purchaser to take a
title
as limited
by the
condition,
and the purchaser might decline specific performance unless the vendor would show a good title irrespective of the condition. But it was declared that the purchaser, having bought under such a condition, was entitled to require a good holding title only and not a good
marketable
Construction of express
stipulations
title.
The reader
above enactment
construed
before the
Conveyancing
Act, 1881.
is
In arriving at such
showing or answering any requisition as to the title prior to some specified time(s), or whether they bound the purchaser to refrain altogether from investigating
of
such prior
title
and
so obliged
him
shown without
vendor (r/).
objection, even
though a ground of
of Noitingliam
Butler
{b)
made by
sect.
3,
sub-sect 3, of the
refrain
Conveyancing Act (c) does not bind the j)urchaser to from investigating the earlier title in other
(s)
Shepherd
v.
;
Keatky,
:
C.
v.
M. &
R.
117
iJarliuriton
v.
Hamilton, Kay, 550 Waddell v. Wolfe, L. R. 9 Q. B. 515. V. Bentley, 5 De G. Hume () & Sm. 520; Waddell v. Wolfe,
{h)
It)
Q. B. D. 778; above,
p. 196.
(c)
Above,
p. 193.
201
be made,
if
intended
to be prechided.
ever, that this
The reader
will
as well as inquiry
earKer
title
and
it
may
They
certainly do
title,
which
(r),
was known
to the
And,
as
we have
seen
is
arising out
But
if
a good
title
were shown by
title
was agreed to
on the vendor's part (./"), it appears that a purchaser would not be allowed to rely upon an objection barred by the letter of the above enactment in proceedings to
recover his deposit
(</).
And
is
if
title
when he
not
sold,
the case
and and
is
it
must not be assumed, without argument, that in such circumstances the purchaser would not be precluded by the above enactment from resisting specific performance,
if
(//).
(rf)
Nottinghiiiii Patent
(Jo.
Tilr
\. Butler,
Above
i).
I'.io.
Xottingliam. S;c. Co. v. liutlty. The positiou there taken by the writer with regard to defects known to *^^ vendor (p. i)8o, last sentence) '" J"tifi<?d by the judgment of the C. A. in this case 16Q.B. D. 786, 789. As to the position of a vendor selling honestly and in
:
good
and
faith
without knowledge
title,
<if
writer's
p.
T):}!,
argument
in his
Convey-
a defect in his
see
Re
Tf^oods
ancing Statutes,
Appendix
Ch.
'^'2
Special stipu^^
tftle*^
"
obligation of
to
showing
accept any
and
if
such
stipulations be fair
and
purchaser
title
he
be enforced by the
Court in granting
suit (/).
Thus purchasers have been ordered to perform S[)ecifically contracts obliging them to take such title as Such a stipulation precludes the vendors had [k). objection to the vendor's title, but does not relieve him of the obligation of abstracting and verifying it (k). But a stipulation that the vendor shall not be required to show any title, whether to the whole or to any part of the lands sold, is undoubtedly valid, and exempts him from the necessity of abstracting or otherwise proving his title (/). As we have seen {/n), however, the last-mentioned stipulation alone would not preclude
objection to the title on account of a defect discovered
but
if
On
leading authority
is
Hu))U'
V. Bcntlei/ {ii),
(o).
for
666.
Freme v. Wright, 4 Madd. Keysc v. Haydeu, 20 L. T. O. S. 244 Hume v. Pocock, L. R. See also WUmot 1 Ch. 379, 385. V. Wilkinson, 6 B. & C. 506; Tweed v. Mills, L. R. 1 C. P. 39 1 Dart. V. & Sug. V. & P. 337 168-170, P. 150, 151, 5th ed.
{k)
;
364
163-165, Tth ed. 1 Davidson, Prec. Conv. 544, 4tli ed. Fry, Sp. Perf. 1323, p. 591, 3rd ed. p. 565, 4th ed. Soiithby v. Hutt, 2 My. See (/) & Cr. 207, 212, 213. {m) Above, p. 200.
6th ed.
^S
()
Jur.
(o)
5 De 109.
G.
& Sm.
520; 16
(/>)
Above, p. 166, n.
().
203
as
which had been granted by a canal company, was \oid, it appeared from the Acts of Parliament incorporating
the
company
that the
leases.
to acquire
land or grant
may
the
shown without objection or inquiry and that amounted to such a stipulation and precluded the purchaser from looking into the lessor's title for any purpose. And the purchaser's objection was disallowed. As we have already noted (</) when it is
title
of title
known
to the vendor,
him
to
do
so
must clearly call his attention to the incumbrance, to which he is to submit otherwise he will not be bound
:
The
(/)
cases to
Act
of LS81
also
which we have referred upon 8 (-i) of the Conveyancing illustrate the effect given at law and
sect.
title.
Here we ma}^
^
_
may a purchaser
notice title ^?*^ that a good
title
''
any written
stipula-
cannot
"^''
show a good
but
tract
is
title is not an express term of the contract, merely implied, as in the case of an open con-
(.s), it is open to him to prove tliat the purchaser bought with notice (though given by word of mouth only) that a good title could not be made, either wholly or partially and the vendor will then be exonerated from showing title to the extent indicated by such
;
(q)
Above, pp.
73. u.
(/),
176,
(r)
(.-i)
197.
.(/.
204
OF STIPULATIONS LIMITING THE OBLIGATION But where the vendor has expressly conshow a good title, he is not permitted to modify the terms of his written agreement by giving oral evidence of any such notice {u).
notice
(f).
tracted to
which we have before referred (.r), in the position of a purchaser under a special contract as to specific performanoe, and title when he is resisting specific performance in equity when seeking and when he is seeking to recover his deposit at law. In to recover
position when resisting
Difference in purchaser's
We
will
now
difference, to
deposit.
Bed
v.
Hamand {}/),
Sest V.
Hamand.
should
been done by the company to enable them to sell the land as surplus land, and that the deposit should be
forfeited
if
terms of the
agreement.
The purchaser
;
discovered
from other sources that some of the adjoining owners had not waived their right of pre-emption and insisted on this objection to the title (s). The vendors thereupon claimed the deposit as forfeited and it was held by the
;
as
they had in
But
if
in this
it
had sued
Mer.
;
{t)
Ogilvie v. Foljdinbe, 3
;
(It)
Caio V. Thuiiipnun, 9 Q. B.
88.
Me Glomj and Miller'' 53, 64 Contract, 23 Ch. D. 320, 327 ElllH V. Rogers, 29 Ch. D. 661, 666, 671, 672; Fry, Sp. Perf. 377, p. 172, 3rd ed. pp. 161, It appears that the 162, 4th ed. case of Re Highett and JSird's (!ontravt, 1903, 1 Ch. 287 (as to which see below, Chap. X. 2), is not to he taken as conflicting with this rule see Romer, L. J., Re Allen and DriscoW s Contract, 1904, 2 Oh. 226, 231.
; ^S ;
{z) Under sect. 128 of the Lands Clauses Act, 1845 (Stat. 8 & 9 Vict. c. 18), before superfluous land can be sold by a railway company, it must be offered to the ortnerof the lands from which
it was originally severed, and in default of this, to the owners of the adjoining lands.
205
showing
title
;
tliat
least a
good holding
for the
knew
to be false,
had made a misrepresentation sufficient to preclude them from enforcing specific performance according So in Nottingham to the letter of the contract {a).
and Tile Co. v. Bidler {li), we have seen was bouglit subject to the condition that it that land was sold subject to any matter or thing affecting the same, whether disclosed at the time of sale or not, and it was held that, the land being subject to restrictive covenants known to the vendor but not disclosed at the time of sale, the vendor could not enforce specific performance but it was intimated that the purchaser
Pafriif Uriel;
:
would not have been able to recover his deposit, if he had not bought on the faith of the vendor's solicitor's representation that the land was free from such coveAgain, in Re Dan's to Caret/ (c) property was nants. sold as " leasehold business premises " under conditions
that the
title
Re Davis
"'^'^'
to
made
in
in-
No
formation as to the
contents of
of inspecting
sale
given
and no opportunity
discovered
after
The purchaser
lease
the
that
the
contained
covenants
prohibiting the
tenant
from carrying on
in a
any trade or business on the premises. Stirling, J., vendor and purchaser summons taken out by the purchaser, held that, regard being had to the
sale
of
the property as
business
premises, the
pur-
(d),
and
so the
Be
ton, 12
(A)
p. 196.
(c)
(rf)
206
the
deposit,
pointing
out that
Best
v.
Human d
showed that the right to recover a deposit at law was not governed by the same considerations as
the right to resist specific performance in equity.
He
if
Re National
Prorinciaf Bank of Eve/ land and Marf<h.
In Re National Proriucial Bank of England and Mamh {/), land was sold under the condition that the title should commence with a conveyance dated in 1869, and the prior title
so advised, for the return of his deposit.
to.
The
will
1869 derived
insisted
title
under a
life estate
The purchaser
on
this
objection,
and
summons
North,
J.,
might have
independent investigation of and all objection to the and the purchaser had not therefore earlier title (g)
,
Re Scott and
Alvarezes
Contract.
Finally, in
Be
Scott
{//),
sold under a condition that the purchaser should make no objection or requisition in respect of the intermediate title between the underlease and an assignment thereof in 1891, but should assume that such assignment vested in the assignees a good title for the residue of the term.
The
who
on such
title.
The vendor's
{e)
Above, p. 204.
I
{g)
Above,
1895,
1
p. 202.
(/) 1895,
Ch. 190.
(h)
Oh. 596
Ch. 603.
207
that, as the
title,
shown without
J.,
but
The Lords
from the stringent condition into which he had entered, it was not enough to show that the title was suspicious,
but he must prove
it
to
be bad
and
as
it
was made
to
After
this,
the purchaser
and that
several docu-
title
vendor,
and he declined to complete the purchase. The who was not in any way implicated in the
made
in the
summons,
on the ground of the subsequent discovery of fresh Kekewicli, J., not only dismissed the material facts.
vendor's action for specific performance, but ordered
to return the deposit.
him
But, on the case being again taken to the Cf)urt of Appeal, it was considered that at
strictly
which he had chosen to enter, and could not therefore recover bis deposit, as there had been no breach of contract by the vendor. But it was declared that the specific performance of the contract in equity depended
judg-
vendor
See above,
p.
19'..
208
title
would
The
chaser's
right
to
recover
his
deposit,
where he has
title shall
commence
commence
with some
specified
with a particular
old
(/r),
instrument
less
is
and
it
title.
What
is
is
the
title shall
the nature
not specified
commence with a
title
other than
(/).
is
it
be the root of
title,
or have they
merely stipulated
title,
good title ? {ni) It is submitted that the latter is the true meaning of the condition, and that it does not exonerate the vendor from the obligation of proving title to the whole estate contracted to be sold at the beginning as well as at the end of the period for which Thus if the deed mentioned in title is to be shown (>?). the condition should turn out to be merely a lease for
years, or the conveyance of
an equity of redemption,
call
entitled to
it is
for further
evidence of
title (o).
And
For
(fc)
61.
c.
(?)
s.
3 (3)
41,
(m) See above, pp. 95 98. () See above, pp. 108, 109. (o) Above, pp. 198, 199.
209
commencement
which the statutory stipulation precludes him demanding What he would really be requirfrom {p).
of title
ing
is
proof of the
by that deed.
It
is
would
proof
deposit
if
the earlier title {q). If this view be vendor would not be entitled to retain the he refused to furnish the evidence required.
distinction
in-
commence,
is
plainly
were agreed that the title should commence with an Indenture of such a date, "beins' a
if
it
Thus
mortgages therein recited," there would be good ground to contend tliat the purchaser agreed to accept that deed as the root of title. Again, a difference is to be observed in cases like Re Marsh and Earl GranviUe (r),
certain
where
it
is
agreed
tliat
the
title shall
commence with a
title
specified deed,
to the
but
it
is
objected to for
as because it is a voluntary conveyIn that case the purchaser did not abide by the
;
and
deposit.
vendor's action
performance.
And
the
above, p.
Caldcleugh,
(r)
19.5.
24Ch.D.
11
above, p. 197.
w.
14
210
the
title shall
is
less
than forty
is
years old
entitled to
a convey-
applicable only in
not in an
As
previously recomcontract
mended
(t),
purchasers
buying by private
to guarantee the
to
commence,
to
be a good root of
Purchaser under usual
condition as
to identity
title.
Again,
it
may
he
title
deeds
fail,
either wholly or
relate.
It appears
to
bought how-
condition (n)
as
evidence of
it
from the necessity of giving evidence of identity independent of the title-deeds. And if the deeds themselves fail to show identity, it does not appear that the If so, he vendor performs his contract at law (r).
cannot claim to retain the deposit.
Course to adopt in
The proper
course
for
the
purchaser's
counsel to
making
requisitions.
instance, to
show such a
title
and furnish
all
show
at his
own
suit.
And
(*)
()
{v)
{()
Above,
p. S9.
note
(b)
211
by
their diplomatic
If
be
And
draw
any evidence
to
which
specific
the vendor
would have
produce to obtain
suit,
As we have
seen
(r)
him
It has been
shown
(//)
truth assum^^t^
fact.
some
the vendor
know
the statement
made
to be untrue.
But
if
the
it is
fully binding
do not
the
title
assumption required
If a
is
intended to cover
(s)
limiting his
Position of
buyinff'^imd
he will of course
lecjal
adverse to the vendor's interest, which might have been against discovered by a complete investigation of the title. Persons
.
But
from the
claiming'
or interests
in
land
are rights
directly enforceable
it
vendor,
may come
()
and
[x)
it is
to enforce
Above, p. 88. Above, pp. 199, 200. Snndbach nnd Edmnndiz) Re Mw'jt Contract, 1891, 1 Ch. 99; Blaiberg v. Keevm, IPOfi, 2 Ch.
(y)
See
181,
Wms.
.'571,
Real Prop.
;
2, 3,
65,
2l8t ed.
below,
2 (Assignment by
14(2)
212
Purchaser not
title
has con^
different and if the purchaser obtain the legal estate from the vendor without notice of such estates or But a interests he will not he hound thereby [a). purchaser, who buys under conditions limiting his right
;
^^ investigate the
_
title,
all
dLTvSd b7
inquiry.
title for
ihe period
required to be shown
is
by law
{h)
For it
is
bound
to inquire
and he
is
If a purchaser
under
restrictive
conditions
were
would
subject to
incumbrancer of his right by a sale under conditions prohibiting inquiry into title and a purchaser under
;
and
to
pay a diminished
(a)
(i)
price in consequence
104
;
(c).
See last note. Worthington v. iforgan, 16 Sim. 547; Pi'to \. Hammond, 30 Wihon v. Hart, L. R. Beav. 495 Carter v. Williams, Ch. 463 1 L. R. 9 Eq. 678; Patman v. Harland, 17 Ch. D. 353; Ee Cox and Neve^s Contract, 1891, 2 Ch. 109, 117, 118; C. A., Re Nishet and Potts' Contract, 1906, 1 Ch. 386, 404, 408, 410 (but as to the decision in this case, see the
; ;
below, Chap. VIII. ^ 1. See the cases cited in the previous note. Fry, J., appears
(c)
to have lost sight of these priuciples in holding in Kcttleivell v. JVatson, 21 Gh. D. 685, 708, that
persons
who purchased
very small
writer's criticism in 51 Sol. J. 141, 155); Perham v. Kempster, see also 1907, 1 Ch. 373, 379 Oliver v. Hinton, 1899, 2 Ch. 264
;
Berwick Walker
Y. Price, l^(}b,\
v.
Linom,
1907,
pieces of land without investigating the title, were not aifected with constructive notice of an equitable incumbrance, which the usual investigation of title would have disclosed. There was no appeal from his decision on this but his views do not point appear to have been accepted by the C. A. See 26 Ch. D. 501, 508.
:
213
CHAPTER
VII.
OF DEVOLUTION ON DEATH.
Devolution
is
of lands
on death
before
is
a fact of
title
which
Devolution
before 1898.
constantly
brought
the
conveyancer.
it
As
is
giving a short
1st of
We will begin by summary of the law in force before the January, 1898, when the Land Transfer Act,
took
effect.
1897
(a),
The
first
who
For
be
Dower and
^^^"
on a former
may
still
all
It
be remembered that, at
common
dower was paramount to every alienation by the husband, whether in his lifetime or by will, of any lands on which but that in modern times the the claim had attached wife's claim was generally prevented from attaching by the assurance of lands on a purchase to uses to bar dower {c). The dower of women married after the
:
&
61
Vict. c. 65;
s.
14.
{c)
See
Wms.
Stat. 3
&
4 Will.
rV.
c.
105.
nq.,
214
OP DEVOLUTION ON DEATH.
1st of January, 1884, is governed by the Dower Act (d). This statute deprives the widow of dower out of any
husband has absolutely disposed in (e) and postpones her right to by dower to all partial estates and interests and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts and engagements to
land, of which her
his lifetime or will
;
which
(./").
It enables
effect
dower by of dower out of any land, in which her husband has devised any
by
and
it
widow
estate or
interest
for
a contrary
intention
be declared by
will
(/).
The general
dower out of lands, which her husband has suffered to descend and even out of such lands her right to dower
;
may
be
barred, restricted
or postponed
(A-)
But
it
in advising on
title,
that on
tail,
his
widow may
still
be
{d)
[c)
Stat. 3
& 4 Will.
IV.
c.
105.
to
freebench
;
Smith v. Adams,
;
Sect. 4.
(/) Sect. 5. The opinion has been expressed that, not-withstanding the above words, the
widow's dower
is
paramount
to
the claims of her late husband's creditors, who have not in his lifetime obtained a charge on his lauds; Romilly, M.R., Spi/er v. Wood, 20 Beav. 621 I>/att,
;
V.-C,
361.
Jones V. Jones, 4
K. &
J.
5 De G. M. & G. 18 Beav. 499 712 so Lord Romilly's dictum was peculiarly gratuitous. Jones V. Jones was the ease of a mortgage by the husband. It is submitted that, according to the ordinary meaning of the words used in the Act, a man's lands are by stat. 3 & 4 Will. IV. c. 104, made " subject or liable " to his debts after his death, notwithstanding that his creditors have no charge thereon.
{g)
Sects G,
Sect. 8. Sect. 9.
7.
(A)
{i)
(/.)
and it had case of freebench been previously decided that the Dowsr Act has no application
See
Wms.
OF DEVOLUTION ON DEATH.
Curtesy at common law was of course an estate commencing in the wife's lifetime on the birth of issue that might inherit (/). But as regards estates of inheritance
held on trust for the wife's separate use or held
as her separate property
Curtesy,
215
by her
under the Married Women's the husband Property Act, 1882, has no right to possession or receipt of the rents and profits during his wife's
and he can only claim an estate by the curtesy, by the birth of issue, on the wife's death and intestacy and not in case she has disposed of the estate in her lifetime or by will {m).
lifetime,
if
entitled
Succession to
after death before 1898.
who was
according to
its
nature
An
if it
by
last
purchaser
In case
the person last entitled thereto (p) but if there were no such heir, it escheated to the lord of the fee, and usually
:
to the
Crown, in default
.
of
of the present
work
person last entitled (r) but the conveyancer may be reminded of the interest given by the Intestates' Estates
:
(/)
See
Wms.
316, 318; Cooper v. Macdonald, 7 Ch. D. 288; Hoi)e V. Hope, 1892, 2 Ch. 336. -, , ^\xT T, r. -. () Wms. Iteal Prop. /4-/b.
,
descended according to the common law niles to the heir of the person last seised; Wms. Real Prop. 86, 227, 228, 2l8t od.
/ u i; . . . (^) This waa by ^'Utue of Stat. 22 23 Vict. c. 35, ss. 19. 20, passed 13th August, 1859 Wms. Real Prop. 236, 2Ist od. j,., ,, ro i
n
mu-
.*.-
That
is,
of
cgiu-se,
under
the Inht'ritance Act, 1833, rogulating the succession on deaths occurring after the year 1833. On deaths before 1834, lands
>
^^>
(;)
^^^'^-
^^^^^
'^'^^
Real
216
Act, 1890
OF DEVOLUTION ON DEATH.
(.s),
to the
widow
any
not
man dying
Estates
tail.
September, 1890,
tail, if
Estates
formam
doiii (u).
And
regulated
by
:
the
custom
Estates pur
autre
vie.
{x)
but
and in the last- mentioned event they became distributable in the same manner as
executors or administrators
personalty
Copyholds.
(//).
or tail
Copyholds held beneficially in customary fee simple may by special custom be subject to the widow's
the
freebench or
husband's curtesy
(s).
Subject to
any surrender
but
Stat. 53
&
64 Vict.
c.
29
c. 20,
Re Twigg's Estate, 1892, 1 Ch. 579 Re Charrietr, 1896, 1 Ch. 912; Re Heath, 19U7, 2 Ch. 270; Wms. Real Prop. 233, 328,
see
;
2 let ed.
Wms.
and the Statute of Frauds see Wms. Real Prop. 132, 133, 21st ed. Re Inman, 1903, I Ch. 241. {z) Wms. Real Prop. 495, 496, 2l8t ed. That is, since stat. 55 [a] Geo. III. c. 192, passed 12th July, 1815 see Wms. Real Prop. 486, 487, 21st ed.
; ;
(y)
That
is,
of course, under
6
the provisions of the Wills Act, replacing those of stat. 14 Geo. II.
OF DEVOLUTION ON DEATH.
succeed to them as heir
directly
;
217
estate
on the ancestor's death, though he is not completely tenant as regards the lord until admittance (c). And it appears that, even when copyholds are devised
by will, the estate descends to the customary heir, pending the devisee's admittance {d). Copyholds given to the tenant and the heirs of his body in a manor, where there is no custom to entail, being held for an
estate similar to
common
but
if
not
devised,
Copy-
is
will, if
(./')
entail
be so
vie are
devisable
tlie
the grantee,
heirs
:
him and
(h).
trators
Leaseholds.
upon the deceased tenant's executors or administrators and were applicable And the executors or in payment of his debts (/). administrators, or any one of them (,/), always had the
As
chattels
too,
they devolved
(c)
Wms.
Real Prop.
451),
476,
(i
2l8t ed.
(d) Garlaml v. Mead, L. R. but see Davidson's Q. B. 441
;
surrender, they might be barred by a surrender to the use of the Carr d. Duffwrl/ v. tenant's will Singer, 2 Ves. sen. 603; Moore v. Moore, ib. 596, 602 I Scriy. Cop.
;
71.3rded.
Scriv. Cop.
(J'J,
3rd ed.
;
(^)
See
Wms.
*"^-
Kowden v. Maltxter, Cro. Car. 42 Wms. Real Prop. 471, 21st cd.
(/) See Stat. 3
c.
&
74.
it
ss.
40,
r)0
4 Will. Bef..rc
IV.
this
/^'f"
Act,
where
entails
Simpaon
609.
v.
Gutteridge,
Madd.
218
OF DEVOLUTION ON DKATH.
same powers
sell
and
for
or mortgage the
same
to raise
money
so might payment
or, if
of
funeral
or
necessaiy, legacies.
By
such
free
a sale or
mortgage the
claims of
;
leaseholds
are conveyed
from
in
all
the
and
no way concerned to see to the application of the purchase money, or to inquire for what purpose the sale or mortgage is made (/).
Leaseholds,
theless
if
specifically bequeathed,
devolve never-
and do
given,
is
they vest in the legatee at once, without the necessity Leaseholds are of any formal conveyance to him (w).
also
distributable
as
other
chattels
upon
{n).
intestacy
There
is,
however, this difference between leaseholds and other Personal chattels devolve on death according goods
:
to the
where
Equitable
an equitable estate in
the legal
land corresponded in general with that of estate, which was the subject of the equity.
Thus the
succession after death to the estate of a cfufKi que trud under a simple trust or of a mortgagor of freeholds,
[k)
67.'
Ch. 251.
()
;
(/)
Wins.
:
Exors.
;
946 sq., 7th ed. Re Venn and Furze's Ch. D. 561 Contract, 1894, 2 Ch. 101. Exors. 679, 1372, (;h) Wms. 7th ed. Wms. Pers. Prop. 443,
;
932-943, Re Whistler, 35
ed.
Wms. Real Prop. 21, 21st Wins. Pers. Prop. 479 sq.,
16th ed.
(o) Wins. Pers. Prop. 439-441. Freke v. Lord Car479, IGth ed. iery, L. R. 16 Eq. 461; Duncan Pepin v. Lawson, 41 Ch. D. 394 v. Brui/erc, 1902, 1 Ch. 24.
: ;
16th ed.
Re
Culrerliomc,
1896,
OF DEVOLUTION ON DEATH.
coj^yliolds or leaseholds,
^1^
rules
(
/>).
that under
widow
This exception was removed by the Dower Act in the case of wives married after the 1st of January, 1834 (r) but such dower was placed under the control of the husband equally with dower out of legal
:
estates
(s)
Estateb held
i^n
way
upon
nioAo-aKo
manner
as if he
were the
owner
equity of redemption.
passed therefore to
In
all
way
of
by the testator upon an}' trust or by mortgage and this devise was usually made to
;
the persons
executors
(?().
When
or
frequently arose,
The
imder a general devise, unless a contrary intention could be collected from the expressions used in the will, or from the objects of the devise (r).
estates did pass
The
trust
was
{p) Lewiu on Truflts, 670, 6th lOOf), 10th cd. Wms. Real ed. Prop. 181. 191, 490, 552, 2l8t. ed. 1908, 1 655. Uuilsoii, Ch. Jte (q) Win.s. Real Prop. 32:j. {>) Stat. 8 & I Will. IV. c. 105,
; ;
Wms.
4
8.
2;
"Wms.
Real
Prop.
327,
2l8t ed.
Davidson, Prec. Conv. 9, ed (j) Lord liraubroke v. Inskip, 8 Ves. 417 1 "Janii. Wills, 693 sq., 4th ed. 647 sq., 5th ed.
()
58, 4th
220
Act, 1874
trustee
(s)
OF DEVOLUTION ON DEATH.
enacting that upon the death of a bare any corporeal or incorporeal hereditament, of which he was seised in fee simple, should vest in his This enactment was legal personal representative.
{y),
,
{a), after having been from the 7th of August, 1874, until the 31st of The same Act provided {a) that, December, 1875. upon the death of a bare trustee intestate, any corporeal or incorporeal hereditament, of which he was seised in
Mortgaged
es a es.
When
real
estate held in
mortgagee's
necessary, on
death
to
his
devisee
any transfer
mortgaged
in
the
land,
and that
his
legal
By the Vendor
and Purchaser Act, 1874 (r), the legal personal representative of a mortgagee of a freehold estate, or of a copyhold estate to which the mortgagee should have
&
Re Uucwra, 29 Ch. D. 693 He Cunninghaiu and Frayling, 1891, '2 Ch. 5fi7 Wms. Real Prop,
; ;
[ij)
!s.
,').
Stat.
37
38 Vict.
c. 78,
(z)
Different
opinions
liave
& 39 Vict. c. 87, 48, repealed by 44 & 4o Vict, c. 41, s. 30 (2, 3), as to cases of death after the 31st December,
s.
1881.
{h)
Davidson,
pt.
ii.
vol.
ii.
& 38 Vict. c. 78, passed 7th August, 1874, and repealed by 44 & 45 Vict, c. 41, s. 30(2, 3), as to cases of death after the 3l8t December,
s.
1881.
OF DEVOLUTION ON DEATH.
been admitted, might, on payment of all sums secured by the mortgage, convey or surrender the mortgaged estate, whether the mortgage were in form an assurance
subject to redemption, or an assurance
it
221
upon
trust.
But
was held that this enactment did not give the legal
(r/).
So the law continued until the end of the year 1881. Devolution of On the death after that year of any sole trustee or held iu trust mortgagee of real estate, the succession is regulated by aftpr^mi^^ the 30th section of the Conveyancing Act of 1881 [e), " Where an estate or interest of providing as follows
:
any tenements or hereditaments, corporeal or incorporeal, is vested on any trust or by way of mortgage in any person solely, the same shall on his death, notwithstanding any testamentary disposition, devolve to and become vested in his legal personal representatives or representative from time to time (/), in like manner as if tlie same were a chattel real vesting in them or him and accordingly all the like powers, for one only of
;
and
and otherwise
the
same,
shall
all
and
obligations, as
if
him
and
for the
and assigns
witliin the
(rf)
14 Ch.
[c]
Re Spradheri/ s D. 514.
44
Martgngi',
c.
fjenoral,
Stat.
&
4.')
Vict.
U,
oeutor..*
I
\H94,
8.
30.
Ch. 707
cf.
below, p. 232.
222
OF DEVOLUTION ON DEATH.
and powers."
This enactment was held to apply to
(g)
:
Copyholds.
now
(/),
provided that
it
EoUs
of
by way
of mortgage.
As
is
copyhold lands are usually admitted tenants thereof, On the death of a but mortgagees are not(./).
mortgagee of copyholds, who has not been admitted tenant on the rolls, it appears that his estate will still
devolve on his executors or administrators.
Liability of
^
"
Before 1898, freeholds in fee were liable to be applied iu payment of the tenant's debts after his death either ))ecause, in the case of specialty debts, he had bound his
had by will devised his real estate in trust for or charged with payment of his debts, or under Statute 3 & 4 Will. IV. c. 104 making real estate equitable assets for the payment of the
heir to their payment, or because he
(k).
Copyholds in fee
debts either
were
by
(/).
Estates
tail in
freehold or copy-
(excepting certain
Crown
time a judgment had affected the lands, or he had been adjudged bankrupt (;;?). Life estates are of course not
liable to
by
Estates
jij?/r
aufre vie
devised,
c.
if
Re Hughes,
;
W. N.
1884,
s.
(J)
Stat.
57
&
58 Vict.
46,
p. 53 G42.
(A)
H(dl
V.
Bromley, 35 Ch. D.
88.
[j]
Wms.
Real
Prop.
565,
21st ed.
s.
51 Vict. c. 73, 16tb September, see Re Milh' Trmh, 37 1887 Ch. D. 312; 40 Ch. D. 14.
Stat.
4G,
50 passed
&
{k)
[I)
[ni]
Ibid. 280284. Ibid. 474. Ibid. 289, 290, 475. () Ibid. 290, 475.
OF DEVOLUTION ON DEATH.
either
223
by
mentioned statute
and
if
Frauds
in this respect
(o).
And
When
remedy
ment
was obliged
when
if
would be decreed,
the debt
{q).
necessary, to raise
money
to
pay
And
real
c.
estate
(/).
104
an express charge of debts on of o & 4 Will. IV. Where the heir was specially bound or the
or of the
statute
assets
lands were
made
by the
statute, the
(v)
;
debts were
if
so that
the lands
were
insti-
{f),
if
he
had
money
{n).
was
charged from
all
it
testator,
c.
Vi.t. (o) Stat. 7 Will. IV. & 1 Real Prop. 26, S8. 3, G 132, 133, 473, 474, 2l8t 6(1. (p) Ibid. 2:13.
;
Wms.
{q)
pd. cd.
(r)
Wms. Real Prop. 284, Wms. Real Assets, 16. Wms. Real Prop. 284,
Re Moon, 1907,
.Spach-miin
v.
21st
21st
Sim. 2.')3 Richardson v. Horton, 7 Beav. 112 Kiudcrleij v. Jeriix, 22 Beav. 1, 2> Sug. V. \- P. (;.i5 6.i7 Frice v. Price, 3;') Ch. D. 297; lie Atkinson, 1908, 2 Ch. 307 ; Worlhinf/ton 4- Co., Ltd. v. Abbott, 1910, 1 Ch. 58S, .591
;
rjOQ.
()
Ch.
;i04.
(m)
Jones v. Xoi/cs,
4 .Tiir.
N.
S.
(t)
Timbrel/,
1033.
224
trust to
OF DEVOLUTION ON DEATH.
pay debts and
of a charge of debts,
payment
devisee
from the nature of such a trust was exonerated from the duty of seeing
money
And
a mort-
But was in the same position as a purchaser (.r). an order had been made for the general administhe deceased
debtor's estate, in
/is
tration of
creditor's
pendens
(//),
the heir
devised
to
him
free
from the
creditors'
claim
(s).
Whether
creditors'
he
as
could
so dispose
of
such
lands after
instituted
and duly
order for
registered
pendens, but
before an
made
therein,
depended on the
an intention to enforce payment of the debts out of the lands descended or devised, and the heir or devisee
were made a party thereto, a purchaser or mortgagee from him would be bound thereby unless the circumstances were such that the purchaser or mortgagee was entitled to suppose that the sale or mortgage was made to raise money to pay the debts, as where the lands were devised charged with debts to one who was also The case of a trust or power appointed executor {a) to sell for payment of debts would appear to be similar although after an order for administration, the trustees must exercise their powers under the direction of the Court {b). So an executor, in exercise of his general
;
.
{v)
Sug. V.
Wms. Real
(z)
660
6-2.
Ball V. Harris, 4
My. &
Cr.
;
Eland v. Eland, ib. 420 British Mutual Investment Co. v. Smart, L. R. 10 Ch. 567 Price v.
264
; ;
(y) See Wms. Real Prop. 293, 294, 2 let ed. (s) See Price v. Price, 35 Ch. D. 297(a) Ibid. and see Corser v.
;
Cartwright, L. R. 7 H. L. 731. (*) Lewin on Trusts, 391, 392, 515. 6th ed. 515, 733, 734,
;
lOthed.
OF DEVOLUTION ON DEATH.
power
to alien his testator's assets,
225
may
well dispose of
made
(c).
Executors
by
;
any
any
ference {d)
estate, as
and, as
we have
seen
(e),
a will of real
require probate.
We
have
noticed (/) the exceptions created by statute in the case of estates pur autre vie undevised, where there was no
special occupant,
and
of estates held
on trust or by way
expressly
of mortgage.
But
of course a
man might
power and such devises were commonly made whenever a testator desired that any of his real estate should be sold or applied in payment of his debts. And in certain cases a power for a man's Power for executors to sell his real estate would be implied. Thus sell'relTe.state if by will lands were directed to be sold, without saying might be ^^ by what persons the sale was to be made, it would be ""^ implied that the executors should have the power of selling the lands, if the proceeds of sale would be distributable b}^ the executors, as where the sale was directed to be made for the purpose of paying debts or legacies or the testator had created a mixed fund composed of the proceeds of sale of such lands and of
of
disposing
of
his
lands
personalty
(r/).
And
of
the
last
century
(c)
it
that a
mere
testa;
Neevesv. Bitrragc, 14 Q. B.
504.
(rf)
Wms.
See
;
Sug. Pow. 118, 8th ed. 1 Exors. 655, 7th ed. Wms.
;
Real Assets,
(A)
53-0.5, 77 sq.
Above,
p. 161.
w.
15
226
OF DEVOLUTION ON DEATH.
mentary charge
of debts
on
power
(i).
paid
Statutory powers.
(k).
move the
difficulties
./
In 1859, statutory provision was made to rethen attendant on the sale of lands
of debts. Lord St. charged by will with the payment i o ^ Leonards' Act (/) provides {/ii) that where, by any will
any and
sum
of
money,
and
sum
of
money
or mortgage
testator,
who
any
time being
named
in his will
(if
(i)
337
653.
(/)
Sug.
P. 662, n. "Wms. Real Assets, 81 sq.; Lewin on Trusts, 402 sq., 6th ed. 526 sq., 10th ed. {k) Above, p. 223. 22 & 23 Vict. c. 35, {I) Stat. passed 13th August, 1859.
V.
&
{m) Sect. 14. The powers thus conferred extend to all persons in whom the estate devised shall for the time being be vested by survivorship, descent, or devise, and to any persons appointed to succeed to the trusteeship, either under any power in the will, or by the Court; sect. 15.
OF DEVOLUTION ON DEATH.
same power of raising the same moneys as
vested in the trustees
(>?).
227
is
before
And
purchasers or mort-
But these any sale or mortgage made or to be made in pursuance of any will coming into operation before the passing of the Act nor are they to extend to a devise to any person in fee or in tail or for the testator's whole estate and interest
in exercise thereof
(o)
.
to prejudice or affect
(p).
conveyancing opinion
{q).
And
it
in a sub-
was held
who was an executor, could certainly dispose of the lands fi'eed from the charge, Lord Caii-ns observed that diffenot executor
(/)
.
to
have had no hesitation in pronouncing for the old conveyancing opinion (s) in this case, namely, that the
charge of debts enabled the devisee to give a
to its application
receijjt for
And
:
this
conclusion on principle
{</)
/
K: i. 1 being i, be vested.
(o)
(/j)
Corser v. Cartwnqht, Li. K. j rril toi tot The decision 731, 737. ' ., j r n t. 1" this case was followed in lie ,, ,,, .,,-,, ., . Ilcmo,,, 190S, 2 Oh. 3.^6.
(')
. i
t>
- tr
'
t W. L.
See
Ito
Wilson,
W
(t)
2 Times L. 612.
R. 443; 34
W.
R.
Wms.
ed.
15(2)
228
OF DEVOLUTION ON DEATH.
dictum, and recommended him, in cases not covered by
Lord
St.
payment
when
executors
bound
until
{x).
to inquire
whether
An
course
had no
and an ad-
any real estate devised to the executors of the will, and could not exercise any power which the testator had either expressly or impliedly (y/) given to his
executors with respect to his real estate
(s).
Nor can
an administrator cum fcdamoito annexo exercise the powers given to executors by Lord St. Leonards' Act to sell or mortgage the testator's real estate to pay
debts or legacies
[a).
The Land
Transfer Act,
1897.
is
By the Land
(J),
where
real estate
shall,
on his death
and become vested in his personal representatives or representative from time to time as if
disposition, devolve to
{u) 2 Dart, V. & P. 618-621, 5th ed. 697-700, 6th ed. ; 639642, 7th ed. {x) lie Tanqueray- Willaume and Landau, 20 Ch. D. 465. This rule is not applicable in the case of an executor selling leaseholds and the purchaser is entitled, unless he have actual notice that no debts remain unpaid, to presume that such a sale is rightly
;
tator's
death Ee Whistler, 35 Ch. D. 561 Re Venn and Furze's Contract, 1894, 2 Ch. 101; Re VerrelPs Contract, 1903, 1 Ch. 65. (/) Above, pp. 225, 226. \z) Y. B. 15Hen. VIL fos. 11, 12, i^l. 22, translated Sug. Pow. 893, 895, 8th ed. {a) Re Clay and Tetley, 16 Ch.
;
;
D.
8. 1
3
[b)
above, p. 226.
Stat. 60
&
61 Vict.
25.
c.
65,
(1).
{c)
Sects.
1 (5),
OF DEVOLUTION ON DEATH.
it
229
This
enactment applies to any real estate over which a person executes by will a general power of appointment, as if
it
But the expres{(/). " " land of copyinclude not here real estate does sion
were real estate vested in him
act
an admission or any
customary tenant
tration
(e).
by the lord
title of
of the
manor
is
Probate and
adminis-
may
although there
no personal estate
(,/').
,.
ii
I.
!.
and
payment
of costs
rights, duties,
and
j
"^^^J^*^^
were a chattel
it
real vesting in
them some
or
him
(//),
save that
Sect. 1 (4). Where a per(/) Sect. 1 (3). Bon dies possessed of real estate, the Court shall in granting letters of administration, have regard to tho rights and interests of persons
(e)
interested in his real estate, and his beir at law, if not one of the next of kin, shall be ct^ually entitled to the grant with the next of kin sect. 2 (4). {(/) Sect. 2 (1).
;
(A)
Sic.
230
tatives,
Liability of real estate to
OF DEVOLUTION ON DEATH.
without the authority of the Court, to
(/).
sell
or
were personal
contained
which
real
and personal
debts,
now
payment
of funeral
Personal
representatives' assent to devise of
real estate.
At any time
owner
of
any land,
may make
any such
charge
and on such assent or conveyance, subject to a charge for all moneys (if any) which the j)ersonal repre;
any
acts
owner
failed
of
any land,
if
may,
if it
thinks
(i)
Sect. 2 (2).
(/^)
Sect. 2(3),--
{I)
Sect. 3
(1).^.
OF DEVOLUTION ON DEATH,
the land either solely
representatives
It
is
{nt)
231
the personal
or
jointly with
make an
exliaustive Effect
of the
Act but its most important results may be indicated. The first of these is to assimilate the
devolution of the legal estate in freehold lands held in
fee to that of a chattel real (),
comment on
and
to
subject such
common
law, though
(o).
Sect. 3 (2).
:
There is this distinction, Pending the appointhowever ment of an administrator, the chattels of a person dyiny intes()
the testator from the will, not from the Court in which the will is proved. And the Act provides
that real estate shall vest in the legal personal representatives in the same manner as chattels real vest in them, and applies to real estate the law with respect to dealing with chattels real before probate. Chattels real vest in the executors appointed by their owner's will immediately on his death and the executors can dispose of them before probate Grat/sbrook v. Fox, Plowd. 275, 281 Ifensloe's Case, 9 Rep. 38a Trou/iei/ V. Clark, 5 B. & A. 744 Brazier v. Hwhon, 8 Sim. 67. And it has since been decided that the law is now the sanje with
; ; ;
; ;
tate vested formerly in the ordinary, and afterwards in the judge of the Court of Probate and now appear to vest in the judges of the High Court of Juslice who have succeeded to the jurisdiction of tlie judges of the Probate Court Stats. 21 & 22 Vict. c. 9o, s. 19 .36 & 37 Vict. c. G6, ss. 1 1, 12, 16, 31, 34 Plnmi/ v. Iltoit, 6 Ch. D. 98 Wms." Pers. Prop. 475, 16th ed. but the fi'eehold estates in fee simple of a person d^'ing
; ;
intestate appear stdl to vest in the heir pending the appointIn ment of an administrator. John V. Juhii, 1898, 2 Ch. 573, 576, North,.!., held that since the commencement of the Land Transfer Act, 1897, real estaie di-iisid tn n man\s executorx descends to the heir pending probate of the will. But this appears to have been an Where e.xecutors are oversight. appointed, they derive their authority and right to represent
(o)
regard to real estate Re Pawley and London and Provinc'tal Bank, But were this 1900, 1 Ch. 58. not so, it does not appear that real estate devixcd would descend
;
to
the
When
title to the real estate relates back to the intestate's death lie Pri/se, 1904, P. 301, 305.
;
appointed, his
See
1.
Re
BettH, 1907, 2
2.
Jonc, 1902, 1 Ch. 92 He Vickerstaf, 1906, 1 Ch 762; Ch. 149. The order is as follows The general personal estate not expressly or impliedly exempted. Lands expressly devised to pay debts, whether the inheritance or a term carved out of it, be so limited.
Jie
;
:
53^
OF DEVOLUTION ON DKATH.
Then
at
same powers
have
;
p)
but
And
it
them immediately on his death so that if any one of them do not prove the will and do not renounce probate,
the others cannot dispose of the real estate without his
Where, however, the testator appoints general executors and also special executors (as of his
concurrence
[q)
.
sell
England vests in his general executors only, who can and convey the same without the concurrence of
3.
Estates which descend to the heir, whether acquired before or after the making of the will; see Ee Pullen, 1910,
1 Ch. 564. Real or personal property devised or bequeathed, either to the heir or a stranger, charged with debts, and disposed Re Salt, 1895, 2 Ch. 203 of, subject to such charge Re Roberts, 1902, 2 Ch. 834; Re Eempster, 1906, 1 Ch. 446 Re Balls, 1909, 1 Ch. 791, 794.
; ;
;
4.
5. 6.
and
specific or residuary,
7.
whether in
terras
Real and personal property over which the testator had a general power of appointment, and which he has appointed, either by his will or by deed, in favour of a
volunteer.
;
Wms. Real Prop. 282-285, See 2 Jarm. Wills, 622, 4th ed. 21st ed. The Act does not give to an executor or administrator any JFilliams, Re real estate 1904, 1 Ch. 52. right of retainer out of may be disclaimed by deed or (p) See above, pp. 217. 218, conduct, as well as by matter of 228, n. (x). record Re Birchall, u'/ii sup. But ((/) Re Pairleij and London and it should be noted that an executor Frovincial Bank, 1900, 1 Ch. 58. cannot renounce probate by matRenunciation of probate by one ter in pais; 1 Wms. Exors. 281, appointed executor is eqiuvalent 7th ed. Since, therefore, an exeto a disclaimer of any interest cutor, who has not proved, cannot conf erred on him by the appointdisclaim the office by deed or ment in the testator's estate, real conduct, it appears that he canor personal see Lone/ v. Si/mes, Re not so disclaim the estate in the 3 Hagg. 771, 774, 778 Re testator's realty vested in him as Birchall, 40 Ch. D. 436, 439 incident to that office. Fisher and Ilaslctt, 13 L. R. Ir. 546. As a rule, a trust estate
; ;
; ;
;
OF DEVOLUTION ON DEATH.
the special executors
{>).
233
it
equally
whether
a specific bequest
is sufficient
of personalty.
And
to
But where
Having regard
Act
to
and the right of the heir or devisee require a transfer oi the same (v), and the above-men{/(),
tioned decision
the question
is
(u;).
must
all
join in a conveyance
Where
the
liable to
have previously issued the usual statutory advertisements for creditors, the charge does not extend to debts of which they had no notice at the time of conveyance {z)
.
(r)
Ee
Cohen's
Council,
Above, p. 232, n. (q). In the case of a chattel, real or personal, asseut may be
(w)
(x)
vise of lands as
specific,
Me
1
Fix, 1901,
W. N.
165
Kemp
1905,
591, deciding that necessary where the assent is given in writing not above, p. 218. \xnder seal u) See sect. 3(1), above, p. 230.
K. B.
is
express or implied, and the assent of one of several executors is sufficient, even though he be himself the legatee; Toinison v. r(cAr//, 3 B. & A. 31, 40; Cole x. Miles, 10 Hare, 179; 2 Wms. Exors. 948, 1374-1378, 7th ed. In the absence of any decision, it cannot safely be assumed that this is now the law with regard
eithei*
no stamp
to realty,
y)
Above, p. 229.
See above, p. 230. Can/ and Pott's Contract, 1901, 2 Ch. 463. See Wms. Pers. Prop. 458, 16th ed.
(y)
(;)
lie
234
OF DEVOLUTION ON DEATH.
altered
is
not
Act.
Such
interest
may
therefore be
It
is
interpretation.
but as they
made
liable to the
It
is is
(c).
This seems to
If this be
is
estate as
so,
may
be effectually devised by
tail,
But pending
the deci-
difiiculty is raised
by the
estates tail.
They
hands
of the
donee
as such,
;
hands of the heir in tail after his ancestor's death, with debts due from the ancestor to the Crown by judgment, recognizance, obligation or other specialty, although the heir
statute, in the
{e), and also with and debts, if any, due to the Crown from the ancestor as an accountant to the Crown whose yearly or total receipts exceeded three hundred pounds (/'). Why
shall not
all arrears
Above, pp. 213216. As to the origin and meaning of the term "real estate," see Wms. Real Prop. 8, 25-29,
()
{b)
Stat. 38 Hen. VIII. c. 39, 52 (s. 73 in RuiShead) Chitty on the Prerogative of the Crown,
{e)
s.
299.
see (/) Stat. 13 Eliz. c. 4 25 Geo. III. c. 35 ; Chitty, Prerogative, 294, 295.^ ;
;
184, 548, 21st ed. above, p. 228. (c) Sect. 1 (1) \d) Above, pp. 214, 216.
;
OF DEVOLUTION OX dp:ath.
then,
It
235
in the
may
tail vest
his
debts, according
?
to the
It
is
probable, how-
ever, that
consider
that
no sutHcient
tail
intention
one on which
.
text- writer s
would be scarcely safe to act uijon a mi A opinion, ihe Act seems to apply to all
it
. .
real estate, to
for his
own
benefit in equity,
.
devise
by
As
regards copyholds,
it is
clear Copyholds,
rolls
own
But
it
has been
Equitable
decided that an eqidtable estate in fee in copyholds eopy^yids passes to the legal personal representatives under the
Act
(<)
judicially expressed
Land
excepting copyholds and customary freeholds from being included in " real estate " in cases where an admission
or
any
act
by the lord
is
title of
i'i(dom<trij
are to
be
who
is
the actual
Upon
this Eqaitublo
<^-^**^t<'
of
unadmitted
sun-enderee.
fee of
holds
(/)
passes on
{g) ville
{k)
Above,
p.
"J^t).
2 Ch. 583,
{h)
(i)
Above, pp.
217.
Re
Soiinrril/c
Contract, 1903, 2
{I) See 1 Scriv. Cop. 172, 173, 262, 361, 3rd ed. 1 Wat. Cop. llSaudu. (1), 4th ed. Elton ou Copyholds, 70.
;
236
Keal estate
the Crown.
OF DEVOLUTION ON DEATH.
It has been held that the
Crown
is
Land Transfer
solicitor to the
Treasury,
as
nominee
of the
Crown, where
Crown upon
this decision
intestacy (w).
But
it
common
and
tenant's
person.
Lands
.
payment
of the deceased
These are reasons for holding that lands liable to escheat to a mesne lord will vest under the above-mentioned Act in the executors of any will the tenant may have made, though relating to personal estate only, or in his administrator, if he die wholly It seems that a purchaser of real estate from intestate. an executor or administrator professing to sell under
debts
(o)
this
Crown,
i.e.,
that there
is
an
heir or a devisee.
In the
Goods of Hartley,
(o) Evans v. Brown, 5 Beav. 114; Hughes v. Welh, 9 Hare, 749; Beah v. Symonds, 16 Beav.
()
1899, P. 40.
()
21st ed.
406.
237
CHAPTER
VIII.
Of Notice
of Trusts.
2.
Of Sales by
Trustees.
In order to call attention to every point which may possibly come before a conveyancer for his consideration in advising on title, it would be necessary to give an exhaustive account of the whole of the English law of real property and chattels real. To this the present work makes no pretension, the writer's chief aim being to set forth the main principles of the law relating to sales of land. There are, however, various points arising on particular titles which are of sufficiently frequent occurrence to call for special mention and it
;
is
now proposed
We
will begin in
and sales by trustees. Next, we will treat of titles depending on the exercise of a power, especially the power of sale given by the Settled Land Acts and then
;
we
will
shortly
consider
a variety of
miscellaneous
special subjects.
I. Of Notice
{a),
of Trusts.
Notice
*
^'^^^^^
We
adviser
have
seen
that
obtains
notice
(a)
from
Above, p. 170.
238
some legal estate or interest in the property sold holds the same upon some trust (b) or subject to some equity, he must see that title is properly deduced through or from all persons beneficially entitled under
the trust or equity, unless the circumstances be such
that a good
title
can be
made without
the concurrence
power
fretitle.
When
it is
the
when mortgages are made to and it has been the regular practice, whenever a mortgage is held by trustees, to represent in the mortgage deed that they are jointly entitled in equity and also, when such a mortgage as well as at law (c) has had to be transferred to give effect to an appointment of new trustees, to frame recitals in the deed of transfer which shall not disclose the trust. Thus, if John and Thomas are trustees who have invested part of their trust money on mortgage, and Thomas wishes to retire from the trust, Charles being appointed in his
This
is
trustees
place, Charles is duly appointed a trustee in the usual way, and then a separate deed is executed between the three whereby, after a recital that the principal money and interest now owing upon the security have become
and are the property in equity of John and Charles, John and Thomas assign the mortgage debt and convey the mortgaged lands to John and Charles (rf) It has
.
notice that the (/)) Note that legal owner holds in trust issufficient to put the purchaser iipon inquiry, although the name of the cestui que trust or the purposes of the trust be not disclosed by the notice Bank of Montreal v. Su-eeny, 12 App. Cas. 617, 621, 622 Perham v. Kcmpster, 1907, I Ch. 373, 380.
; ;
(c) This was done, before 1882, by the joint-account clause then usual, and has since been usually accomplished by the operation of sect. 61 of the Conveyancing Ac t of 1881 Wms. Real Prop. 569,
;
'21st
.
ed.
ii.
See Davidson, Pree. Conv.pt. ii. pp. 51-53, 805, 806, 4th ed. 2 Key & Elph. Prec.
(d)
vol.
239
may and
without inquiry
and abstain from inquiries whieh, if answered, would oust their client from the position of a purchaser for value obtaining tlie legal estate in good faith without notice of any trust. The acceptance of such statements
seems to rest on the presumption that
all
things have
who have ( been parties to deeds which have conferred on them an absolute title at law to some land or mortgage money,
been rightly done
/').
Thus,
if
A. and
B.,
money belongs
them
is
acknowledgment
as rightly
And
he
is
not bound to
trust admitted
refrain
from making
any further iuquiiy in the matter, such as whether the by A. and B. in C.'s favour is declared by any document. He is, it is conceived, justified in
4th ed. 224, 22;'), a deed of this kind is abstracted as part of a vendor's title, the purchaser's advisers must of course see that it is duly stamped. Such a trans'243,
;
Conv. 242,
8th ed.
Where
with an adjudication stamp of 10. the purchaser cannot require it to be further stamped see stat. oi
;
oo Vict. c. 39, s. 12 (5, 6 a); it is thuug-ht that he is not thereby affected with notice of
&
and
fer, if
.
made between
/vf//rw stamp requires an but J f n; J i.as a transfer made for ettectuatiuir .1, i ^ e ^ the appomtment ot a new trustee not ro<pure a hijrher it would stamp than lO.v. ; see stat. 54 & 55 Vict. c. 89, s. 62, and First Schodule. tit. Mortcrajre 10 Kdw. VII. s. Davidson. 74 c. 8, (6); Prec. Conv. vol. iv. pp. 609. 610. 3rd ed. If the mort^aife monev should exceed 2.000// and the stamp be 10... only, the vendor sho,.ld be required to have the deed duly stamped with the
;
beneficiaries.
any
i
trust.
\
>.
Kariiian and Uxhndae. ,, ^, t^ -,'' ( 0., 24 Ch. D. 720. a ' , ., ^ very strong instance, as the recital
[e)
^
lie
j,
tt
--,
rr
^'f"-
Jiaii.
.
'
^^^ '^'^^* compelled the ^^>'J Purchaser to accept was not made appeared ^'v"';''t\ ""^TT but was *'. be absolutely entitled '^"/'^l an executnx to whom I ,^^^^]? ^ad been ^"r' ^^'^^'V^'"
:x
f^on on
f^''"f"*",'"
A.,-
D.
671, 675.
240
alleged trust.
Where
the legal
on the
the purchaser
suspicion of
not entitled to
object to
it
on the mere
.
It
is,
money on
and after In that case the purchaser has notice of the trusts declared by the document, and must have regard to them he is no longer entitled or bound to accept as correct any statement by A. and B.
;
On
entitled to require
such
and
it is
upon the
it
trusts
by a particular deed
of settlement,
should be
are
mortgage money when repaid (/ ) And where land has been conveyed to several persons jointly in fee, and it is disclosed that they are trustees of some settlement, a purchaser from them must find out whether they are duly appointed trustees and were empowered to invest their trust funds in the purchase of land and
McQueen
; ;
{g)
(/;)
(0 See S. C.
.SALES
BY TRUSTEES.
can give
if
it
241
empowered
to
sell
the
land and
;
good
money
and
appear that
must require the concurrence of all persons beneficially entitled, and should not accept the title if this cannot be obtained or some beneficiary be under an insurmountable disability.
Where
joint tenants without disclosing the fact that they are disclosure^ trustees, circumstances may occur which will place the oi a trust
,..,..
,,
,.,,
title
on behali
if it
1.
IP unavoidable,
awkward dilemma.
Thus,
appear on the face of the abstract that several persons were seised of lands in fee (not by way of mortgage),
mav
of course
and
if
estate
death
But
if
this
only answer that can be given will be that no duty became payable, because the deceased person was not This, however, is tantamount beneficially entitled (/). and after such an to notice tliat he was a trustee
;
title
concurrence
of
the
persons beneficially
if
{ni).
On
no requisition as
duty should be made, and the happen not to be trustees, and the duty had not been satisfied, the purchaser would take And the property subject to the charge of duty (n).
to succession or estate
may
c
arise, as
(A)
IG
&
A:
17 Vict.
.30,
c. .51, 8.
.)7
&
JS Viot. 17
SH. 1,
{I)
2 (1).
See
Stat..
;
1<>
Vict
c. 30,
c. 51, 8. 2
s.
57
&
.58
Vict.
2 (3).
(w) See 2 Dart, V. & P. 594, Vim, 7th ed. 660, 6th ed. above, p. 238. n. lb). (w) See Stats. 16 & 17 Vict, c. ol, s. 42 57 & 58 Vict. c. .30, a. 9 (1).
,5th
;
ed.
W.
16
242
of
the
mortgagees
the law
is different.
personal property
on the
does
successors'
and
it
whom
the property
(that is, the mortgage debt and the charge on the mortgaged lands) might become vested by alienation after the succession had become an interest in possesIt appears, sion would be accountable for the duty (o) therefore, to be unnecessary for any person proposing to take from the survivors a transfer or release of the mortgage to inquire respecting the payment of such succession duty {p). But in the case of the estate duty which would be payable if the mortgagees were beneficially entitled, it is at least a question whether persons in whom the mortgage should become vested by the alienation of the surviving mortgagees would not be accountable for the duty, and whether the property (which would not have passed to the deceased person's executor) would not be charged therewith ('). And if a person taking a transfer from such surviving mortgagees would be so accountable, or the duty be a charge on the mortgage debt, it seems that he ought to ascertain whether the duty has been discharged before he pays them the money owing on the security and it is easy to put a case in which omission to make this inquiry might lead
.
(o)
See Stat. 16
44,
&
7 Vict. c.
.51,
8S. 42,
Prec. Conv. {p) Davidson, vol. ii. pt. ii. pp. 52, 53, 4th ed. ;
but see
ed.
;
2 Dart, V. & P. 594, 5th 1230, 7th ed. 669, 6th ed. See Stat. 57 & 58 Vict. [q) It may be c. 30, ss. 8 (4), 9 (1). doubted whether sect. 8 (4), ac;
cordiug- to the strict grammatical construction of the words used, makes a person accountable in whom the property shall become vested by alienation made after the death, which gives rise to the liability to duty but in Hanson's Death Duties, 174, 4th ed. (197, 5th ed.), it is asserted that it does.
:
243
fatlier
and
the invest-
ment with the view of the survivor becoming solely entitlf^d, and the father died first could any person
safely take a transfer of
duty be indeed a charge on the property which passed on the father's death, then the mortgage debt and the mortgagee's estate in the mortgaged lands would appear to be as effectually
if
For
charged therewitli as
if
made
had
notice.
And
it
is
proposed to take
joint
survivor of two mortgagees appearing to be beneficially entitled. For if the estate duty which became payable on the
or
of the
is,
reconveyance by the
death of one
proper! 1/ (that
in title
dut}',
does not
vest in
them
unpaid)
and
it
a title
is
the property had become vested by There seems to be no doubt that where deduced through joint tenants appearing on
(/).
whom
See Stat. 57 A: 58 Vict. c. 30, above, p. 242, n. (7). Where lands have been mortffag'ed to two persons joi-itly, the
(r)
8.
(4)
mortjfaffor and his successors in title are not accountable under the same sub-section, as l)ein>f "tnisfees or otf-er persons in whom any interest in the property is vested."' for any estate
Xortfurii Assurnnce Co., 9 Ch. D. 80. But if a debtor have notice of a chai-fre created on the
v.
how
can he
of
16(2)
244
tlieir
own
benefit,
perfectly safe
treat
all
death duties
which
if
At
the same
it
payment
duty on the death of one of several joint mortgagees, unless there is good reason (as there would be in the case above put of a joint investment by father and
son) to
may
not
be trustees.
to
The only
seems
really very
is
exceedingly great.
Whenever
it
is
proposed to
sell
land under a
title
(.s),
it is
make a
as to
conditions or contract
of sale that
no inquiry
shall
any
estate
{t).
duty that
may
such death
Where
mortgage,
it
may have become payable on the death of one of them on the ground that they are likely to have been trustees on the contrary, regard is had to the fact that omission
:
to inquire as to the
payment of estate or succession duty on the death of one of them would leave the purchaser with an unsatisfied charge on the face of his title,
()
of the commenceof that part of the Finance Act, 1894, which imposes estate
The date
duty
s.
Stat. 57
&
58 Vict.
c.
30,
ment
24.
(t)
dition, see
I'.V
TRUSTEES.
245
title (u).
It
is
said,
is
of
any
is
Notice of a
document
fications
:
notice of
how far
notice
only applicable as a rule subject to the following qualiIf a purchaser of any land haAC notice of some document, which must necessarily affect, or is stated to affect, the title to the land, then he ought to inquire as to its contents and if he omit to prosecute
;
of its contents,
this
inquiry,
notice
of
its
contents and of
contents.
any equitable interest disclosed by its And if the document must necessarily affect
its
the
title,
contents
(if
he have
But
if
the document
title,
may
title,
or
may
ask,
whether
not, he
and be
is
in the absence of
any reason
for
and
if
he omit to peruse
its
contents
or of
(.r).
As
Theoretically, omission to the like inquiry with respect to estate duty pnyable on the death of a joint mortgagee leaves the title equally open to objecbut. as we have seen (above, tion pp. 'J41, 242;, before the Finance Act, 1894, when succession duty only was payable, there was no necessity to make the inquiry, and the ditfereuce arising under that Act with respect to estate
()
make
of redemption under the Statute of Limitatious, have become owners of the whole estate in the lauds and uot merely of a char're
survivors' estate in the lands, ho that inquirj' as to the payment thereof could no longer be safely dispensed with see Kf Loveridgc, 1904, 1 Ch. 518. Jotien v. Smith, 1 Ph. 244, (j-) Potman v. Hnrlatid, 253, 254 Lloyd's 17 Oh. D. 353, 356, 357
;
;
acquired a
title
Bmikiny Co. v. Jones, 29 Ch. D. Eiujlish and Scolfisli 221, 230; Mercantile Invvstment Co. v. Brun-
246
however,
it
is
production of
a document, of
some Jognl estate or interest adverse to the vendor's title, and the purchaser would take subject to this, whether he had
because the document
disclose
may may
or
may
not affect
document or
not.
Notice, actual
'
may
be
tive.
actual
or
constructive.
is
imputed
to
and the notice which is imputed where he or his agent has not made such inquiry or investigation as ought to have been made. The law with respect to notice is now contained in the following section of the Conveyancing Act, 1882 (2)
to a person
:
3,
sub-sect.
of
1.
piu-chaser
()
shall nut
be prejudicially
by notice
any instrument,
(ii)
would have come to his knowledge, if such inquiries and inspections had been made as ought reasonably to have been made by him or In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge
It is within his
own knowledge,
or
such, or
to the
knowledge
of his solicitor,
other agent.
section shall not
Suh-sect.
2.
This
Q.
Co.,
ton,
1892,
2
^-c.
B.
1,
700
lie
Valletort,
Ltd.,
1903, 2
Stat.
45
&
46 Vict.
c.
39,
s. 3.
()
By sect.
1 (2) (ii)
"purchaser" includes
TlilJTKES.
247
any obligation to perform or observe, any coveuaut, any instrument under and such which his title is derived, mediately or immediately liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted. Sub-sect. 3. A i>urchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted.
condition, provision, or restriction contained in
;
This section applies to purchases made either before commencement of this Act save that, where an action is pending at the commencement of this Act {b), the rights of the
Sub-sect. 4.
or after the
.-.ffected
by
this section
Sub-sect.
(i)
no more than a statement of the previously existing law(^). But sub-sect. 1 (ii) of the above section has
made
Before this
agent should be affected with notice in the same transaction in which the question of notice to the principal arose
(r/).
But
where
one
trausaction
was
closely
it
was
was present
to the
mind
was
in another transac-
This
his
above section.
Thus, where
A.
first
his
and was also the solicitor of the trustees of the and this mortgage was afterwards transferred to C. and then to L)., B. acting as C.'s and D.'s solicitor and
;
{h}
Dec. 18S2;
(f)
(2).
liailtyw.linnies, 1894, 1 Ch. 3o li'rrwu'lc ^- Co. v. Prior, 1905, 1 Ch. 632, (33!) see Jvvm v. Smith, 1 Hare, 43, I Ph. 244 Wihon V. Unrt, L. R. 1 Ch. 43 Carter v. U'i/liiims, L. R. 9 Eq. b78 Ratdiffv v. Barnard, L. R.
2/J,
; ;
:
(> Ch. 652 Agm Jiank v. Barry, ratmau v. L. R. 7 H. L. i:r> KrttleHarhiml, 17 Ch. D. :i.')3 uril v. Wittnoii, 21 Ch. D. 08.'). {d) Sug. V. & P. 757. Rothurll, 1 (r) Harqreaves v. Keen. 154. 159 Sug. V. & P. 757 see the cases stated below,
; : ;
pp. 250253.
248
same property to E., when B. acted as A.'s and E.'s and E. was the first to give actual notice of his charge to the trustees, who had no personal knowledge of the previous mortgage: it was held that E. was not aifected with notice of the previous mortgage by reason of B. having acted as his solicitor, and E.'s
solicitor
;
(./).
^he
,
is
afPected
by notice
"
/
to his
j.i
tif th*
ground
in his
to transact
cipal.
his business
own
in fact, as
which
He must therefore accept this rejDresentation of himself by another, which is the consequence of his own act in
employing an agent, as complete for all the purposes of such business, and cannot justly be permitted to sever
the identity of person created by him so as to repudiate
notice or
knowledge given
to or acquired
by the
(It).
agent,
It
is
when
irre-
evidence
(/).
is
not admissible
his
communicate
rule
is,
fraiTd^
The
however,
it
if
and
Re Vallesee below, p. 252 tort, ^-c. Co., Ltd., 1903, 2 Ch. 654, 663.
, \
App.
Cas.
o3l
Blackburn
v.
{,,)
[h)
See Kennedy
699, 719
;
& K.
Haslam, 21 Q. B. D. 144. (*) Fry, J., Kctthwell v. Wat ^J^^ 21 Ch. D. 685, 704-707 Berwick 4- Co. v. Price, 1905 1 Ch. 032, 639, 640.
249
agent's
own fraud
or fraudulent dealing or or
if
some equity
arising thereout
his
(/.),
employment
(/),
as such,
fraud
tlien
the
principal
permitted
to
give
own fraud
to the principal
by a Court
of
Equity.
Some
pre-
Thus
if
it
was decided
A-ct, 1882.
where a
solicitor has
been or
solicitor
innocent of the
so
notwithstanding the
held, that
solicitor's
fraud
().
And
it
was even
solicitor is
where in the
same transaction a
arising out of his
engaged in committing a some equity independent of that fraud as where he is a trustee en-
gaged
his
owu
benefit
any
person
who
is
if
tlie
client
were
that solicitor
it
would
(o).
And
well v.
was considered
Cli.
I).
Ki'Hiiedy y. Green, i
My. &
16
JFatnon, 21
tiSo,
K.
699,
720
Cave
1
v.
Cave,
Oh. D.
V. Price,
(/i
G;59, 64.");
1905,
V.
^hnrpr
lie
707. (m)
()
My. & K.
[o)
35
iSuut/i(imjjlon\s
;
16
3
l\.
Fry,
KcttU-
Eq.
250
is
of the rule
(y^).
solicitor
fraudu-
who was
to
a mortgagee of lease-
him
as
whom he acted as solicitor in the transaction, was held that the latter mortgagee was not affected with constructive notice of the solicitor's fraud on the
But,
it
original mortgagee.
form of the deed of transfer of the mortgage and of the receipt endorsed thereon were sufficient to put a solicitor
innocent of the fraud upon inquiry whether any
money
had been paid on the execution of the transfer, it was considered that the latter mortgagee was affected
through the
Boursot
aiage.
V.
solicitor
from the fact that no money had been paid, notwithSo, where a solicitor, standing the solicitor's fraud {q).
being one of three trustees entitled to certain leasehold
land, the trust not being disclosed on the face of the
title
and assigned the land to a purchaser, solicitor, by forging the signatures of his co-trustees to a letter of authority to sell and to the deed of assignment, and it was considered that the deed was a nullity on their part, but passed the legal
deeds, sold
for
whom
he acted as
with notice
for
it
was
said that
if
(q)
Keiuiedyv. Green, 3
:
My. &
G. M.
K. 699
OF
of
NOTir-F,
251
which
is
known
where
there was no frand, the fact that the solicitor was com-
with
The
had notice of some equity not arising out of his own fraud and the only fraud was in his concealment thereof from his client, is illustrated by the followins: cases A solicitor took a mortgage oi an equity of redemption and submortgaged it. Soon afterwards he and the first mortgagee and the mortgagor joined in a new mortgage of
:
Aiterimnj
v.
the sub-mortgage.
It
and suppressing all mention of was held that the new mortgagee
solicitor,
was
affected,
through the
;
sub-mortgage
notwithstanding that
was fraudulent
an
equitable
Zf>-w/^// v.
"^"^
from him
(.s).
solicitor
entitled
to
interest in land in
"^*'
by deposit
of title deeds
and
letters of
charge, which
were not registered. He afterwards mortgaged the same interest by registered deed to B., for whom he
acted as solicitor in
tlie
transaction.
It
was
to the solicitor's
and
duty the
to
simrpc
v.
Foy.
to the rule
was allowed to prevail in Sharpe v. Foy (u), where a liusV)and and wife mortgaged land, to which the
(>)
BoHinut
V. Saviiyr,
L. K. 2
v.
Eq. 134.
(s)
{t)
G.
M. & G.
Attetbury 4o4
v.
:
irallix,
Do
189.
(m)
L. R. 4 Ch.
3;").
252
common
was subject
for
The same solicitor acted The mortgagors the mortgagors and the mortgagee.
solicitor of the existence of
informed the
but
that
it
the covenant,
was agreed between them that the matter should It was decided the mortgagee was not affected, through the
with notice of the covenant, as the solicitor
to
solicitor,
Cave
V. Cure,
was party
Cave
(.r),
a scheme of fraud.
Again, in Cave
sole trustee
v.
solicitor,
who was
the
of
marriage settlement, wrongfully applied part of the trust funds in the purchase of certain land, which was
to the brother
The
solicitor
owner of the land, and that the mortgage contained absolute covenants for title by the
brother.
The
from other persons on mortgage of the same land. In these circumstances the Court found that the trust
funds were applied in purchase of the land in jDursuance of a scheme of fraud to which the solicitor was a party,
his design
raise
from the
first
money on mortgage
was not
and
it
was held
with
that A.
affected,
through the
solicitor,
ceHtai-qiie-trKufii
(//),
preserves
Conveyancing
Act, 1882,
8. 3.
above mentioned
(z)
But
Taylor v.
drawn with regard to this exception have been greatly modified by the ojieration of subsection (1) (ii) of the same enactment. Thus, in Taylor v. London and Comity Banking Co. (a), one Tasker had
the distinctions
(a;)
(y)
{z)
Above,
()
253
committed
by him
of the
as trustee of the
wards, on the
repre-
and
It
in this business
solicitor.
was argued
for
(6),
Brockman settlement
Sarof/c
(c),
v.
that notice of
Nixon
in
solicitor.
But
it
was held
V. Savac/e
[d)
is
that the
doctrine laid
down
in
Boiir-sof
now
introduced by the
'3rd section of the Conveyancing Act, and that, as knowledge of the appropriation to the Brockman settlement did not come to Tasker as Nixon's solicitor or in the same transaction in which the question of notice arose, Nixon could not be affected
1882
(e)
thereby.
The
principle
of
this
decision appears to
of Atterhnt'!/ v.
For
WoIUh and Bradleij v. Riche^i [/) as well. was the kiiowledge sought
to be
imputed
action in
of notice arose.
As
is
affected
by notice Vendor
or
,'^.'tTn^'*^pur-
'hjisor's or
mortgageo's
solicitor.
(A)
{c)
1901,
-2
Ch.
24-2.
(rf)
L. R. 2 Kq.
1.34:
;ilK)ve.
Above,
p. 246.
p. 250.
254
or be
is
(/^).
the vendor
it
to the pur-
The purchaser
What
inquiries
It
ought a purchaser to
Act,
1882
(/),
a purchaser will
make ?
knowledge
inspections
had been made by the one or the other as The question to have been made. then arises, what inquiries and inspections ought reasonably to be made ? The answer to this appears to be such inquiries and inspections as are usually made by a prudent purchaser buying under an open contract (m) for, as we have seen (ii), a purchaser buying under special conditions limiting his
ought reasonably
: ;
title is
which he
if
And
it
make
reasonable
will be affected
1
436
(in)
Wilson v. Kart, L. R.
;
Ch.
17
463, 467
Patman
\.
Ear land,
; ;
R.
v. Watnon, 21 (/() Ketthwell Ch. D. 6So. V. I'emherton, 3 De (j) Eapin G. & J. 547, 554; Kettlewell \ Watson, 21 Ch. D. 6.t5. iji) See the cases cited in the three preceding notes and above,
Ch. D. 353, 355-358 Oliver v. Hinton, 1899,2 Ch. 264 Berwick 19o5, V. Price, Co. 1 Ch. 632, % 638 Perham v. lumpster, 1907, 1 Ch. 373, 379 see also Molyneiix V. Hawtrey, 1903, 2 K. B. 487.
;
(w)
Taylor
258.
pp. 250253.
{I]
Bankmy
1901,
Ch.
231,
Above,
p. 246.
205
would have
omission to
make
fraudulent
negligence.
motive,
but
was simply
owing
to
gross
Olirer v.
good faith through an agent, who was not a solicitor, and required no abstract of title nor production of the title deeds, and the deeds were in the possession of an
was lield that the purchaser, to had been conveyed, took the same with coustructive notice of and subject to the Where, charge created by the deposit of the deeds {o) however, a purchaser makes due inquiry for the title
equitable mortgagee,
it
whom
the legal
estate
is
equity arising
he
and of the
faith witli-
in
good
all
Where
bought
is
that
gui^^ect^to'*
charges or
them
all.
two partners of property formerly belonging to them and a third partner since retired as tenants in common, and the retiring partner had by
mortgage from
deed conveyed his share in the property to the continuing partners " subject to all charges and mortgages
affecting the same,"
and
this
Hinlon, 1S99. J (o) Ulher v. Ch. 264 aud ee liirwick \ Co. V. /Vitr, IflO.i, 1 Ch. G.32; WalLnV. Llnom, 1907, 2 Ch. 104.
;
L. R. G Ch. (152; A(irii Barry, L. R. 7 H. L. Northern Count' fs of England Fire Insurance Co. v. Ifiii/j/j. 2<) Ch. D. 42 He Ingliariiard,
Jiank v.
\Zh,
1,57;
{p) Hewittv.Loosemorey^'RaxG, 449,4,58; a,nd nee Hunt v. IJlinen, Maidife v. 2 Df G. F. & J. ;57.S
;
/mm,
1.S93,
Jfoli/neux
v.
Se<^
also
2
190.3,
K. B.
487.
256
SALi:S
BY TRUSTEES.
commas, and
the
iu inverted
property and
believing
that
was the ease or whether there were any other mortgages or charges, it was held that the mortgagee was affected with notice of a third equitable charge which existed on So, where lands were mortgaged the property (q) subject to land tax and tithe rentcharge and " to all other payments and outgoings, ecclesiastical or civil, charged upon or payable out of the said lands," and the mortgagee made no inquiry what other payments and outgoings there were to which the lands were subject, it was decided that he had constructive notice
incumbrances,
.
thereon in equity
(r).
2. Of
Srf/cH h//
Trufifee^.
The
first
observation to be
is
to sales
^^^ trustees
sell
without the
the persons
()
.
who
but
an instrument to execute the will of f.estui-que-frnst. The latter may sell as he will, and the trustee is bound
convey at his bidding (?'). But the trustee cannot bind any beneficiary by contract with or conveyance to any purchaser who has notice of the trust although
to
:
{q)
que-trusts
in writing autho-
47.
(r)
Re Alms Corn
''iO.
Charity, 1901,
Ch.
.
rised the trustee to sell, and were bound at law by the contract as undisclosed principals see above,
;
(.v) Leev. Soames, 36 W. R. 884; cf Re Raker and Selmon's Contract, 1907, 1 Ch. 238, where the cestui-
p. 160,
and
u. [u]
below, Chap,
XIX.
(t)
2.
^'-'^
of
the
maj
To
of
enable trustees to
their
sell
lands without
the concurrence
power
to that effect
an express must be inserted in the instrument or the lauds must be vested in them
catui-que-trusts
upon a
When
for or
creator
they must not, for example, be exercised before the time at which
arise
(.r).
it
has been
declared
trusts for
sale or
one for
life,
and
on trust for
the trust
sale,
for or
power
his consent
(s).
and concurrence
collected
(//),
But
from the whole of the instrument creating the same, and may in some case be ascertained at the
sacrifice of
therein contained.
one for
soon
death,
as
it
life,
and
Mills v. ^"9>nore.
conveniently
might be
after
the
testator's
was held that the will in effect created a trust for sale immediately exercisable with the consent of the tenant for life (). So a devise on trust to sell with
Wins. Real Prop. 186, 187,
v. liaber,
(m)
21st
eil.
cd.
8 {x) See Johtmtone Beav. 233 Sug. Pow. 266, 8th Farwell on Powers, 147,
;
;
cases with the concurrence of all the bonefi<!iaries, if siii Jnris^ or tlie tenant for life may sell uuder the Settled Land Acts see above,
;
2nd ed.
Moahy v. Hide, 17 Q. B. JFdHtv. Stallibrass,!,. R. 8 Jir Bryant and BarEx. 175 ninghani's Contract, 44 Ch. D. 218 Rr ffrnd's Trustees mid Macdonald, 45 Ch. D. 310. sale may of course be made in such
(y)
pp. 168, 180. {z) Blackloiv v. Laws, 2 Hare, 40; Johnstone v. Baber, S Beav.
9\;
233;
644,
Goslinff
;
v..
Carter,
Coll.
w.
17
258
all
testator's
make
being considered to
(b).
trust
time of sale
trustees for
(c),
sale if such
[d).
But
immediate sale, who postpone sale indefinitely without good reason, will be accountable for any loss thereby caused to the trust estate {e).
Acceleration
of time for exercising a power or
trust.
When
when
power
or portions, it appears that, as such charges are a burden on the remainderman, the time for exercising the power cannot be accelerated by the surrender to any tenant for
life of
life
own; he must
entitled
wait,
before he can well exercise the power, until the time has
arrived
in pos-
power
of sale
and
Pearce v. Gardner, 10 Hare, see also Cw/'v. Hall, 1 Jur. N. S. 972, where a will confen-ed a power to postpone sales, but not for a longer period than ten years from the testator's death.
(J)
;
287
Tickers v. Scott, 3
{d)
Morris
v.
Morris,
Jur.
N.
S. 802.
(e)
{c)
Buxton
V.
Buxton,
My. &
93; Maraden v. Kent, 5 Ch. D. 598. For the purpose of determining the respective rights of tenant for life and remainderman, one year is considered to be the time within which such a trust might reasonably have been
Cr. 80,
1 Jur. N. S. 972 Robinson, 24 Beav. 86 Fry v. Fry, 27 Beav. 144. See Re Davidson, 11 Ch. D. 341, 348, on the question how far concurrence in the postponement of a sale directed to be made with all convenient speed may amount to an election by the beneficiaries to take the property in specie.
;
exercised
Farrij v.
n^arrini/ton,
259
may
life
surrender of a prior
Where
lands are
vestel in trustees on
his death
and
is
after
on trust for
sale, so
power of
trust or
power
the
When
by deed on
after
and
to hold the
persons successively
and
their
is
common
it is
made
and
life at
is
In such
exercised
cases there
sell
should proceed to
if
the sale be
life
lifetime of
any
tenant for
or within
beneficiaries entitled
the
capital
of
the purchase
(/).
entitled in possession
ceeds
of sale
have vested in
Beav.
(/) Tnull
V. Ti/sson, 21
137; Su^'. Puw. 270, i71,8tlicd. I'^arwoU ou Powers, 152, 2ud ed.
{ff) (/jj
Conv. 506, 4th ed. 497, 8th ed. {/,) See 1 Dart, V. & P. 59,
;
oth ed.
(/)
Above,
lie
p. 257.
-^W'
US;
dunald, 45 Ch. D. ;510. :< Davidson. Prec. Conv. () Williani.s on Settle858, 3rd ed.
;
284; Re Twicdie and Miles, 27 Ch. D. 315; Jie Douglas and Poivrirx Contract, 1902, 2 Ch. 296, 313; Re HorsnaUI. 11)09, I Ch. 631, 635.
menis, 125
Prec.
17
(2)
260
in specie,
so,
it
(;;?).
If
upon a
election
property.
The same
question of
by the
may
by
will
If a trust for
sale
be
declared
by a
money made by
Trusts
declared
made by deed
{n).
pay
money
;
pay the
testator's debts
or debts
and
legacies
and
in all
for
the trustees to
(o).
Re
Horsnaill.
invariably inserted
Such a
power remains
sion
and where the whole of certain lands are devised on trust for sale with power at their discretion to postpone the sale, and the proceeds of sale are bequeathed in definite shares, each share being given in trust for one for life with remainder to his or her
;
to trustees
more
of the
all
possession [p).
Trusts created
by
pay the
testator s
{in) Crabtree v. Bramble, 3 Atk. 680 Dcivies v. Asliford, 15 Sim. 31uilmc v. i(/ff, 1 Ch. D. 42 385; Jte Gordon, 6 Ch. D. 531 11 Ch. D. 341; Davidson, lie Solder v. Lofts, cited lie Lewis, and see Jte 30 Ch. D. 654, 656 Douglas and Powell's Contract, Re Grimthorpe, 1902, 2 Ch. 296 1908, 2 Ch. 675. (h) See 1 Dart, V. & P. 59,
; ;
; ; ;
5th ed.
and cases
above.
(o)
nn.
7,
Key K
Elph.
;
Conv. 781, 782, 788, 4th 745, 746, 752, 8th ed. Davidson's Concise Precedents, 566, 575, 18th ed. {p) R". Horsnaill, 1909, 1 Ch. 631, 635.
Prec.
ed.
;
261
appear to
(
fall
within the
rule
already
men-
q)
estate charged
with debts
{>)
namely,
after
that
if
the sale
by be made
within
twenty years
is
the
testator's
death, the
purchaser
testator's debts
remain unpaid.
if
any
if
money
pay debts
but of course
but
to
depends on
ments.
executors
y
Here it may be noted that the powers given to Executors' by the Land Transfer Act, 1897 (.s),of selling ^^rthV^^
T
1
their testator's real estate to satisf \' his debts appear to Land
be
governed by
the
i 1
same
"
rules
as
were
Transfer Act,
1397.
previously
applicable to sales
by executors
holds
{t)
by executors
sume that the sale is rightly made, and need not inquire whether any of the testator's debts remain unpaid. In
regard to
tlie
Lord
St.
But
it
appears
tliat
{q) ()
()
(x).
{t)
n. {x).
c.
8.
Go,
(m)
Amtey,
De
G. M.
&
G. 635, 654.
262
1?Y
TRUSTEES.
may
Rule
a"-ainst
power
perpetuities in
future time
uecessarily
connection
with trusts
in
and powers 01
for
sale.
by the
-^
sale
arising immediately,
....
is
But
a trust for
and
lands to be sold,
(z).
And
it is
must be exercised within the time given by the rule against perpetuities (a) Such powers are therefore exercisable within the period so allowed, though not, as a rule, after the settlement has come to an end by the
.
estate
in
fee
simple in
remainder or reversion or other the absolute interest in But such powers may remain the property settled (b).
exercisable after absolute interests have vested in possession, if such
not
(z) See above, pp. 259, n. (l), 260, n. {m). Daveron, 1893, 3 Ch. (/) He 421 GoodivvY. Edmunds, ib. 455 Re Appleby, 1903, 1 Ch. .565 cf. Re Bavieii and Kent's Contrctcf, 1910, W. N. 104. [z) Biggs v. Peacock, 22 Ch. D. Re Twcedie mid Miles, 27 284
;
Jarm. Wills, 291, 4th ed. 261, 5th ed. 1 Dart, V. & P. 68. 69, Farwell on 6th ed. 69, 7th ed. Powers, 111, 2nd ed.
; ;
and Ch.
Perkins, 4 Sim. 135 Boyce v. Hanning, 2 Cr. & J. Waring \. Coventry, I My. & 334 K. 249 IVood v. White, 4 My. &
; ; ;
Wolley V. Jenkins, 23 Beav. Jur. N. S. 321; Taite v. 26 Beav. 525 Re Sirinstead, Brown^s Settlement, L. R. 10 Eq. 349; Sug. Pow. 859-862, 8th ed. 3 Davidson, Prec. Conv. 570-577, 3rd ed. Farwell on Powers, 32,
(b)
;
53
33,
2nd
ed.
263
several persons
of sale
is
as tenants in
given
power
is
If pro-
would be void
(c/)
;
but
if
some
of the beneficiaries
Where
power
of the
of sale,
and an order
administra-
for the administration of the trust, they cannot properly *^"^ ^^ ^^^
Court
((?)
The
a trust for or
perty to
tlie
of ^^
gaie*^^*^^
in the
manner most
chase
money and
;
dispose of
it
the trusts
mode
of sale
/),
and
generally to take
all
man
of
own
(c) Re Cotton''s Trustees and the School Hoard for London, 19 Ch.B. 624; Rf Sitdchy and lUiws S; Co., 1894, 1 Ch. 33t Re Jump, 1903,
;
(e)
Lewin on
ed.
;
6th
493,
Ch. D. 297;
R.,
1
1
1909,
(/) Jessel,
802, 815.
M.
Re Cooper 4 Ch. D.
264
any misdescription in the particulars or contract of the property, which they are entrusted to sell (^\ for if by their negligence in this respect the trust estate should suffer any loss, it appears that they would be liable Under the Trustee Act, 1893 (k), to make it good (/). where a trust for sale or a power of sale of property is vested in a trustee by any instrument coming into operation after the year IbSl, and in the absence of any exto avoid
any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence
any other person in
selling all or
fit,
with
power to vary any contract for sale, and to buy in at any auction or to rescind any contract for sale and to These re-sell, without being answerable for any loss. powers are similar to those which were generally inserted in instruments made before the year 1882 and
creating trusts for or powers of sale
{/)
;
much
Speight V. Gaunt, 22 Ch. D. App. Cas. 1 see also Falkner v. Equitable Reversionary 4 Drew. 352. Society, {h) See above, p. 70. (i) See White v. Cuddon, 8 CI. & Fin. 766, 788, 789, 793. 798. It is thought that trustees for sale are justified in stipulating either that no compensation shall be allowed for errors of description (which seems best for them) or that compensation shall be allowed, and that on either side, for such errors, as it does not appear that either of these conditious is depreciatory see Hill V, i?''/.'^(v/, 17 Ves. 395; Croiiipton V. Melbourne, 5 Sim. 353; Ilobson V. Bell, 2 Beav. 17, 19, 23 ; Dunn
{ff)
121,
4th ed. 255, n. [g), 8th. ed. above, pp. 65, 66 below, Chap. XII., 4. (A) Stat. 56 & 57 Vict. c. 53, s. 13, replacing 44 & 45 Vict.
n.
;
c. 41, s. 35.
{I) Like powers were given by Lord Cranworth's Act to tnistees having an express power of sale over any hereditaments by virtue
of an instrument executed on or after the 28th Aug. 1860 Stat, 23 & 24 Vict. c. 145, ss. 1, 2, 34 but these powers were not usually relied on in practice Davidson, Prec. Conv. vol. iii. 557, 565, n. {/<), 858, 1013-1018, 3rd ed. vol. iv. 33, n. (A), 4th ed.
; ;
;
265
of
independently
of
rules
equity (m).
And
which should regulate their action in In both cases Courts the absence of express aiithority. of Equity exact a strict adherence to the duties of Thus it was hpld that trustees, trustees for sale ().
same
principles
pxpres<5ly
sale as
empowered to make such special conditions they might think fit, were no more at liberty
sale,
title,
of to
make
deprc-iatory conditions of
unless strictly
who had no
trustees,
And
the
if
depreciasale
made on a
sale
by
the
Court would
restrain
at
(in) Thus, iu the abseuce of any restriction as to the mode of sale, trustees for sale mig-ht sell the trust property either all together
join
or in lots, and I'ither by public auction or private contract Sug'. V. & P. GO, 01 Le win on Trusts, 383, 384, 6th ed., o07-511, Uth
;
;
such
might
be reasonable and necessary iu Hobson v. the state of their title Falkuer v. Belt, 2 Beav. 17
;
Equitable licversiotiary
Society,
Lewin on Trusts, but they might not depreciate the trust property by unnecessary conditions of sale Dance V. Goldiiiy/iuiii, L. R. 8 Ch. 9()2. They might conciu- with other persons iu selling the trust property together with other propi rty, if such a mode of sale were clearly advantageous tothecestuiDrew. 352
;
and the trustees took due precautions t'> ascertain that they would receive a proper proportion of the purchase money, and were careful to receive the
que-tniyts,
money themselves
not
;
but otlierwise Rede v. Oakcs, 4 De G. J. & Itc (Joopcr and Alien to S. 505 Harlech, 4 Ch. D. 802, 814-821.
;
with the owners of prior charges in selling the whole property free from incumbrances, or they might sell the particular interest only, which had been vested iu them on trust for sale, whicliever course would be likely to be most advantageous to their cestui-que-trnnts ; see 4 Ch. D. 817. Trustees were justified in fixing a reserved price on a sale by auction, and they might buy in at that price Re Peyton'' s Settlement, 30 Beav. 252 Sug. V. & P. 62 but if, after buying iu they made undue delay in effecting a sale, they were answerable for any loss occasioned therein' Taylor v. Tabrum, 6 Sim. 281. It appears also that trustees might vary or rescind any contract for sale, if such a course clearly appeared to be for the advantage of their cestni-qnctrnsts ; Falkner v. Equitable Reversionary Society, 4 Drew. 352 Lewin on Trusts, 384, 6th ed., 510, 11th ed. (w) Dance v. Goldingham, L. R. 8 Ch 902. 907, n., 909, 910; Ihnin V. Flood, 25 Ch. D. 629, 634, 28 Ch. D. 586. 591, 592.
;
266
any
cesfni-que-frKnf (o),
or
the purchaser
might resist the specific performance of the contract (p). In this particular instance, however, the legislature has interposed and with regard to sales made after the 24th of December, 1888, it is now enacted as follows (q)
;
:
.sale made by a trustee shall be impeached by any beneupon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby ren-
(1.)
No
ficiary
dered inadequate.
(2.)
No
sale
made by
conveyance, be impeached as against the purchaser iipon the ground that any of the conditions subject to which the sale was made may
have been unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. (3.) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground
aforesaid.
Trustees are, moreover, expressly empowered to sell subject to any of the stipulations implied in contracts
by
the
virtue of the
(r),
or
Conveyancing Act,
Subject
still
to
these
exercise
upon
mentioned statutory powers (t) in a reasonable manner, and with an eye to obtaining the best advantage they
can for their cestiti-que-tnids
Trustees for
sale
{u).
It
^
is
tor
important to note, with regard to the exercise of " is, as ^^, power of sale, that the term " sale
^
strict
sense of conveyance
m con.
(o)
Dance
v. Goldivfjham,
L. R.
s.
(r)
Stat.
8 Ch. 902.
15,
(s)
[p) Rede v. Oakes, 4 De G. J. Dunn v. Flood, 25 Ch. S. 505 D. 629, 28 Ch. D. 586. {q) Stat. 56 & 67 Vict. c. 53, replacing 51 & 52 Vict. s. 14,
c. 78, s. 3.
&
Stat. 44
&
45 Vict.
c.
41,
s.
66.
(t)
(m)
(;).
c. 59, 8. 3.
267
Trustees acting
accept
for
their
They must
of
for
example,
in
consideration
receiving
a rentcharge
(//),
power
specially autho(s).
them
to
For
trustees
are
bound
strictly to
authorities, with
invested
and they cannot, as a rule, obtain any enlargement of their authority by an application to the Court (a). So, also, a conveyance by way of exchange
;
them
or partition
is
power
of sale
(h).
But
who
are autho-
money on
real securities,
may
well
purchase
money on mortgage
{x) Above, p. 1; Stirling, J., Payne v. Cork Co., Ltd., 1900, 1 Oh. 308, 314 see also Re A. B., 1899, W. N. 233; and cf. Re Ware, 1892, i Ch. 344. (y) Read v. Shaw, Sug. Pow.
;
some emergency which can only be met by taking some coiu-se of action not expressly authorised and in such
trust there arises
;
cases,
Court
may
and,
if
it
thinks
fit,
ibid. 864 cf lie 8th ed. Ware, 1892, 1 Ch. 344; Farwell on Powers, 5.59, 2ud ed. (s) See Re Morgan, 24 Ch. D. %o\. 114,115. In Re Jackson, J. 573, it was held that trustees empowered to sell a testator's real estate, " upon such terms and
9.t3,
;
will sanction the performance by the trustees of acts of this kind see the two last cases cited and Re Wells, 1903, 1 Ch. 848. {b) M' Queen v. Farqiihar, 11
; ;
manner
conditions and generally in such as they could du if absolute owners thereof," were at liberty to sell either wholly or partly in consideration of a fee
rent.
Ves. 467 Sug. Pow. 857, 858, 8th ed. But where there is a power of sale and investment of the proceeds in the purchase of other hereditaments, it appears that an exchange or a partition
;
may
.sale
farm
(ff)
J/ocmow, 1901, 1 Ch. 701; Re Nctr, 1901, 2 Ch. 534, 644. 545; AV ToKemachc, 1903, Ch. 457, 955. This rule is, 1 however, subject to an exception, where owing to circumstances unforeseen by the author of the
See
i?r
severalty;
Sug.
Pow.
858,
8th ed.
As
tion under exchange, see Re Frith and Osborne, 3 Ch. D. 618. ;<) Observe the terms of the
268
Whether a
trubt for or power of sale
authorizes a
mortsfaure.
power of sale created for the purpose of an out-and-out conversion of lands into money But if does not authorize a mortgage of the lands (d) the intention of the author of the trust or power were
effecting
.
simply to
facilitate
of
money
mortgage made under the trust power may be supported as a conditional sale (e). Whether a A trust or power to mortgage lands does not authorize trust or power a sale of them (/). Upon this ground it has been held to mortgage authorizes a that a power to mortgage lands does not authorize a sale, or a but in later mortgage of them with power of sale (g) mortgage with power cases this rule has been abandoned in favour of the of sale. doctrine that a power of sale is an usual and a necessary incident of a mortgage, and may therefore properly be inserted in a mortgage made under a trust or power to
to satisfy the charge, a or
;
mortgage
holds
is
(h).
rize a lease of
way
of
But where
v.
lease-
coutract for sale under the Settled Laud Acts sanctioned by the
[g)
Clarke
26.
Royal Pano^Jticon,
Drew.
(A)
House
W.
of Lords iu Bruce v. Alli-sburj. 1892, A. C. 356, 357 and see Thurlow v. Mackeson, L. R. 4 Q. B. 97 Bettyes v. Maynard, 31 Re Hothain, 1902, R. 461 Such a contract may 2 Ch. 575. be enforced specifically Slarkey V. Barton, 1909, 1 Ch. 284.
; ; ;
;
Beav. Beav.
{(i)
Haldoihi/
;
V.
Spofforth.
Beav. 390 Sirouc/hill v. Anntey, 1 De G. M. & G. 635 Page v. Cooper. 16 Beav. 396; Bevaynes v. liohinsou, 24 Beav. 86. {e) See Stroughill v. Anntey, 1 De G. M. & G. 465 Page v. Cooper, 16 Beav. 400; Sug. Pow. Lewin on Trusts, 425, 8th ed.
;
Longman, 24 v. Cook v. Dawson, 29 Re Chaicner''s 123, 128 Farwell Will, L. R. 8 Eq. 569 on Powers, 447-450, 2nd ed. v. Jackson, 8 Sim. (*) Evans 217. An executor or administrator, however, where the assets include leaseholds, miay grant an underlease if such a mode of disposition be beneficial to the estate, but not otherwise, and the title of the underlessee is dependent on the underlease being beneficial Wms. Exors. 939, Keating v. Keating, 940, 7th ed. Havkett v. LI. & G. ;;. Sug. 133
Bridges
27,
29
497, 11th ed. (/j Drake v. Whit more, 5 De Cook v. Dawson, 29 G. & S. 619 Beav. 123.
377, 6th ed.
;
;
M'Na.mara, LI. & G. t. Plunk. 283 Oceanic Steam Navigation Co. V. Sutherberry, 16 Ch. D. 236,
;
243.
269
way
of underlease
that
is,
of*
underlease,
day
lump sum
of
money
osteite
;
if
such a course
for this
method
of
essentially a transfer in
is,
consideration of
by way of underlease is regarded as mere machinery for making the conveyance to the
purchaser
(/).
Thus
if
sell
may
(/),
they
may
well sell
80 also
if
such trustees
may
by way
it
of underlease at
an apportioned rent
of underlease in
is
And
be justified in
selling leaseholds
by way
any circum-
stances
in
expedient in the
trust, are
not entitled to
(/;),
and Ch. 684, overruling He Walker and Oak.s/inft's C.ntrart, 190], 2 Ch. 383; and see Jie Wehb, 18!t7. 1 Ch. 144, 149 above, pp. 1, 207. (/) Above, p. 264. Jie Judd and Poland and ())
(A)
Judd and
Fo/arid
1
Ske/cher\i Contract,
1906,
() Jir IVeblt, 1897, 1 Ch. 144, a^-proyed, Jie Jitdd and Pofand and NkeMirr\s Contract, 1906, 1 Ch. 684, 600. 691.
(o)
See note
(/t).
above.
;
(p) Cholielii\. I'ajlon, 3 Biug. C. nom. 207, S Biug." 4S .S. Cockerrll v. Cholmileu, 10 B. & C.
.564, 3 Ru9,s. .56'),
1
1
see
R.
& M.
418,
above,
2,
p.
82
;
ut
end
CI.
&
Fin. 60.
270
thereunder
an exception or reservation any minerals, or of the minerals separately from the rest of the land, and in each case either with or without rights and powers of and incidental to the working,
to sell land, of the land with
of
getting or carrying
away
of the minerals.
And when
may make
agree to
sell
at a price to be fixed
by valuation
for
what
{ii).
On
these grounds
it
usual stipulations
;
(x) as
to taking
timber at a valuation
sell
the whole
reason-
The same
(q) BucliUy v. Howell, 29 Beav. 546. See 3 Davidson, Prec. Conv. 295. 3rd ed. Dart, V. & P. 68, 1184, 5th ed. 76, 1296, 6th ed. 77, 1117, 1134, 7th ed. (>) Stat. 56 & 57 Vict. c. 53, s. 44, amended by 57 & 58 Vict. c. 10, s. 4, and extending to dispositions by way of exchange, partition or enfranchigement by trustee or other person authorized so to dispose of land. (s) Stat. 25 & 26 Vict. c. lOS. \t) Stat. 56 & 57 Vict. c. 53, 8. 44 (2), amended by 57 & 58 Vict. c. 10, s. 4. [u) Fcfers v. Lewes ^- East Grinstead Si/. Co., 16 Ch.D. 703, 713, Be Wilton's 18 Ch.D. 429, 437 Settled Estates, 1907, 1 Ch. 50, 55; 1 Dart, V. & P. 79, 5th ed. 90, 6th ed. 89, 7th ed.
; ;
<'i
Davidson, Prec. Conv. 522, In Re 434, 5th ed. Lleivdlin, 37 Ch. D 317, a tenant for life without impeachment of waste selling under the Settled Laud Acts sold the settled land by auction with a stipulation that the purchaser should paj' for the timber at a valuation to be made The vendor iu the usual way. claimed to have the amount of It this valuation paid to him. was decided that he was not entitled to this. But no suggestion
[y) 1
4th ed.,
was m.ade that the sale was invalid as an exercise of the statutory power on the ground th.it the price of the timber was to be ascertained by valuation.
result of
the
But
in
Re
1
TFiltoti's Settled
{x)
71.
Estates,
1907,
Ch.
50,
55, it
271
But a
stipulashall
on a
fixed
by
trustees
that
the
purchaser
pay a
able
sum
is,
as that
be objectionwhole property
(;:).
by the
trustees themselves
is
-11
A
J.
Option of
P'lrchase.
must not be forgotten, in considering a title de- What persons, ^ pending on the exercise by trustees of a trust for or Q^^i^al*!truspower of sale, that the capacity to exercise the trust or tees, can exercise a power is not necessarily co-incident with the devolution trust for
It
sale
competent to execute
;
on
whom
and in
ingly
whom
is
{b).
Thus
power
exercised
originally
entrusted
the
question
follows
was
life
laid down that a tenant for selling under the Settled Land Acts ought not to soil at a
(b)
price to
else.
(s)
be fixed by somebody
Coc/icre/l V. C/iohiirlri/,
"
See
\0
B.
&
(a)
C. 564, 571.
Claij V.
Riijford, 5
;
De G. &
Sm.
Wade, 16 Ves. 27, 46, 47 Rr Crionhn and Meux's Contract, 1909, 1 Ch. 690, 695, 696; and see the cases cited below, pp. 273, 274, and Er Biinnio/ nd Smith, 1897, 2 Ch. 351, 356, 359, 360. It does not appear that this rule was intende<l to bo inipuirncd by the remarks of Farwell, J., in Re Smith, 1904, I Ch. 139, 142.
Cole v.
;
272
As
an
to trusts
powers
or powers
coupled -with
intereut.
vivors or survivor of
same may be exercised by the surthem for the time being, unless a
(c)
And
if
one or more
may
New
trustees,
be exercised by the other trustees or trustee [d). Every new trustee duly appointed under the statutory power whether conferred by Lord Cranto appoint trustees
the Conveyancing Act of 1881 (/), or has the same powers, authothe Trustee Act, 1893 {g)
worth's Act
ie),
and discretions, and may in all respects act as if been originally appointed a trustee, and so can had he
rities
been properly vested in him. Any new trustee duly appointed under an- express power has equal authority
trusts to created by instruments coming into operation after the 31st Dec. 1881 Stat. 56 & 67 Vict. c. 53, s. 22, replacing 44 & 45 Vict. c. 41, But with respect to trusts 8. 38.
((?
So
enacted
as
constituted
after or
Lewin on Trusts, 40 Ch. D. 436 176, 177, 6th ed., 211, 212, 10th It must not be forgotten ed.
;
that,
as executor,
and
or powers coupled with an interest, these enactments did no more than declare the previous law; Co. Litt. 113a; Warbnrton
Watson Handy s, 14 Sim. 622 V. Pearson, 2 Ex. 581, 594; Lane Hare, 188; 11 Bebenham, V. Lewin on Trusts, 230, 509, 510,
V.
;
Re 6th ed., 288, 738, 11th ed. Bacon, 1907, 1 Ch. 475. {d) Co. Litt. 113a; Jenk. Cent. Crewe v. Dicken, 4 Ves. 97, 44 100 Granville Y. McJSfeile, 7 Hare, It is now settled that dis156. claimer of the estate, as well as of the office, of a trustee may be made by conduct only and need not be evidenced by matter of record or by deed ; e Birchail,
;
Lewin on Trusts, 220, Re Gordon, 6 Ch. D. As to the effect of a 531, 534. disclaimer by all the trustees or
claimer 1 1th ed.
; ;
the only trustee, see Mallott v. Wihon, 1903, 2 Ch. 494; below,
p. 276, andnn. [%), {k). (e) Stat. 23 & 24 Vict.
s.
'
c.
146,
41,
53,
27.
(/) Stat. 44
31
iff)
&
45 Vict.
57 Vict.
c.
s.
(5).
Stat. 56
(3).
&
c.
s.
10
273
Trustees
the court.
succeedinsr to ^^le estate on the death of ^ sol or 1^8*
And
is
now
(?').
we
i.
are con-
ii
same
surviving
trustee,
exercisable
to the legal
(/>)
Thus, where
same,
it
the heir
(?),
or according to
According
before the
to the
old
Conveyancing Act of was vested in trustees in fee on trust for or with power of sale, to provide expressly that the trust or power should be
commencement
1881
{])), it
(A)
Such
authority was
ex-
pressly conferred in the old comnion form of power to appoint new trustees: but if not expressly couferrtd, it would be implied from the very fact that the creator of the trust expressly authorii-ed the appointment of new trustees; Lewin on Trusts, 507, 6th ed. 734, Uth ed. 57 Vict. c. 53, () Stat. 5(5 iV: s. 37, roplacinir 44 & 45 Vict. c. 41, 8. 33, and 23 & 24 Vict. Before the enactc. 145, s. 27. ment last cited, new trustees appointed by the Court and not by virtue of an express power to appoint new tiustccs ciiuld uot, as a general rule, exercise arbidiscretionary trary or spcriiil powfrs confetred upon the origiual trustees, uule.NS such powers
:
should have been expressly or impliedly extended to the trustees Fordijcf v. for the time being Bridgcx, 2 Ph. 497,510; Xewman v. jrariier, 1 Sun. N. S. 457 TSartlei/ v. Bnrtleii, 3 Drew. 3S4 Byam v. Byam, 19 Beav. 58.
;
Above, p. 271, and n. (i). Above, p. 219. (;) Mortimer y. Ireland, 11 Jur. Lewin on Trusts, 202, 6th 721
(/)
{I)
ed.
(w)
(o) Be luff Mi/ niid Bonk, 6(C., Re Crunden and 13 L. R. Ir. 326 Mettx's Contract, 1909, 1 Ch. 690. But distingui.h the cases mentioncd iu note (r), p. 274, Ix'low. 45 Vict. c. 41, Stat. 44 />; which came into operatinu after s. 1 (2). the 31st Dec. 1881
..i'
w.
18
274
by the
and
in
vivor
(q)
or surviving
But if he took the legal estate (r). where lands were vested in trustees in fee on trust that they or the survivors or survivor of them or the heirs of such survivor should sell the same, and the surviving trustee devised the trust estate, it was held that the
devisee, not
Devisee.
being authorized
make
good
title
on a
(s).
And
(f).
in such a
case, it
may
trust, for
Where
by the author
(?^).
was held
where lands were devised to trustees and their heirs on trust for sale, it must be taken that the testator intended to annex the trust to
by
Jt^ssel,
M.
R., that
and he
Subsequently, howCooke
V.
(q)
(.)
Crawford, 13 Sim.
vol. iii. pp. 858, p. 333, 4th ed. vol. iv. p. 32, and 1271, 3rd ed.
91
S.
JFilson v. Btnnett, 5
;
De
G.
475
[t)
;
Stevens v. Austen, 3 E.
& &
E. 685.
ed.
See Lewin on Trusts, 202, 6th ed. So the heir of the last surviving trustee could sell under a limitation to trustees and their for sale " or "to heirs on trust or that the trustee for the sell time beins: should sell; Ee Morton and Halktt, 15 Ch. D. 143, 145, 149 Re Cunningham andFrayling, 1891, 2 Ch. 567.
(r)
'
'
'
'
Lewin on Trusts, 202, 6th 251, 252, 11th ed. v. Wolstenhoh)ie, 7 (u) Titley Beav. 425 Sail v. Mai/, 3 K. & J. 585. [x) OooJce v. Crawjord, 13 Sim.
;
91.
(y)
Osborne
to Rotvlett,
13 Ch.
D.
774.
275
Baggallay and James, L. JJ., stated that they were not prepared to concur in this view (2), and
J.,
Stirling,
upon a purchaser a
V.
It
M.
R.,
Be
Oxhoriip fo
RoicMf
(c),
in
so far as
{(I),
it
conflicts
can no longer be
seen
(e).
As we have
1881 (/) took
Conveyaming Act
of
effect,
real estate
of inheritance vested in a sole trustee devolves, notwith- t^ustee^^^^ standing any testamentary disposition, upon his legal
manner
as
if
the same
were a chattel real vested in them, and they are to be deemed in law his heirs and assigns within the meaning
of all trusts
and powers.
trustee
we are
discussing in all
estate
trust or
personal
representatives
the
trusts or
new
trustees in
place of the
deceased trustees,
will
and
of
thenceforward the
persons to
new
trustees
(//).
be the ))roper
lands have Failure
sale,
Where
and
estate to trustee.
326.
{>')
"
{/) Stat. 44 & 45 Vict. c. 41, 8.30. Re TFaidanis, 1908, 1 {(/) See Ch. 123; Re Routkdge's Trusts, 1909, 1 Ch. 280; Re I'rundcn and Meux\i Contract, 1909, 1 Ch. 6<}0. above, p. 274, and 698, 699 note (r).
;
Trn.sts,
1909,
(e)
18(2)
276
disclaimer, then,
mencement of the Land Transfer Act, 1897, his heir, and otherwise his personal representatives, would take the legal estate subject to the trusts declared by the
will
(?),
(k)
sale
given to
It
should be
by a
sole
^"^
may
arise
as to the persons
theVresent
^^^-
or
power
where lands vested in a sole trustee in fee upon such a trust or with such a power have been
of sale,
devised
persons than
of
by him (under the present law) to other his executors. The Conveyancing Act 1881 (m) does not expressly take away the power
real estate
of devising
held in trust
it
merely prodisposi-
any testamentary
like
same
shall vest
on the
manner
as if the
same were a
a
Now, when
man
by
virtue of their
it
notwithstanding that he
;
may
have bequeathed
specifically
(w).
And
he
if
man
be
upon
trust,
may
neverthe-
executors
{o)
And
should he do
(i) rut V. Pelham, Freem. Ch. 134; SonleifY. Cloekmakers'' Co., 1 Bro. C. C.'Sl. v. Flujht, 4 De G. {}:) Robaon J. & S. 608. 613; Farwell on
{m) Stat. 44
s.
&
7
4.')
Vict.
c.
41,
30.
(w)
(o)
Above,
p.
218.
See Stat.
Will
IV.
&
Lewin on
27/
them in the first instance by virtue of their and they would, but for the specific devise, be the proper persons to execute the trust. Thus, where leaseexecutor-'i
trusts,
(without further words), upon certain and the survivor of the two trustees devised all estates vested in him on any trust to A. and B. upon the same trusts on which he held the same, and appointed
A., B.
and
C. his executors,
it
and that since by the bequest the testator from those persons who ought otherwise to have been the trustees, the appointment of new trustees was necessary {p). It seems, therefore, that where real estate of inheritance vested in a sole trustee for sale or with power of sale has been devised by him to other persons than his executors, then, if under the old law the trust or powers could not have
cise
the trusts
legal estate
And
still
if
the terms
a purchaser
title
under a purdevisees in
by the
and powers,
it
would
money should
be paid.
to require the
appointment of new
trustees.
(p) Jif Burtt,
1
Drew. ;U9.
278
Power
without an
interest.
given to trustees
the power of
sTich as
Land
effect,
even
more
Survivorship
of powers
strict that
by the donor
of
It is
now provided
(/),
with respect to
given to trustees.
more executors
the
or trustees
may
them
Survivorship
of bare
for
powers.
General rule.
I.
The general
it
rule
is
that,
when a
bare power
is
one of them,
survivors
Powers given
to executors.
(s)
a bare power was given to two or more words might be used, which showed an intention that the power should be annexed to the office of executor and, in such a case, after the death of any
II.
When
executors,
When
(//),
therefore, a
man by
them
such without
naming them
or designating
(a?),
"his executors hereinafter named " that the power was annexed to the
[q] Townsend A. 608.
(r)
it
was held
office
of executor
v.
TVihmi,
B.
c.
&
233
De
;
Pow. 128
Stat. 56
&
67 Vict.
53,
s. 22, apparently extended to executors by s. 50, and replacing 44 & 45 Vict. c. 41, s. 38. () Co. Litt. 112b, 113a; Sug. Montejiore v. Pow. 126, 128 Broun, 7 H. L. C. 241. {t) Brasseyv. Chalmers, 16 Beav.
;
1891, 2 Ch. 261. {u) Jenk. Cent. 43, case 83. (x) Brasi,ey v. Chalmers, 4 Ue G. M. & G. 528, following Houell V. Barnes, Cro. Car. 382; Crawford V. Forshaw, 1891, 2 Ch. 261 contra. Lock v. Loggin, 1 And. 145.
;
279
rule
(//).
Powers of executors, whicli arose by implication Powers to the office, and might be exer- inipii(S,tion cised after the death of any executor, by the surviving ^*^III.
of law,
were annexed
of
executor
(s).
given to two or more Powers given and the words used in the instrument creating * trustees, the trust showed that the power was intended to be annexed to the office of trustee and not to be conferred upon the donees as individuals, it appears that, after
trustees,
the death of one, the survivor or survivors could execute the power ().
But
if
V. It
is
said that,
if
more persons, by a
after the death
class designation
and not by
their
^*^
'
my
of
trustees," " to
my
sons,"
any
127, I'iS (y) See Sug. Pow. Jonk. Cent. 43, caHe 83; Hargrave's note (2) toCo. Litt. 113a;
the decision
g-iven to
'2
Cli.
V.
266-269. (j) Dyer, 371b. case 3; Forbes Feacock, 11 M. & W. 630, 639
;
" the undersigned trustees" could, under the old law, be exercised by trustees appointed by the Court; see above, p. 273, n. () Jie Smit/i, 1904, Ch. 139.
;
Totvmenciy. JrHsoii, 1 B. & A. 608 see Hall v. Dewe, Jac. 189; He Bacon, 1907, 1 Ch. 475, 478.
{b)
;
280
tlie
plural
number remains
It
is
(r)
This
a doubtful proposition
man
submitted that if gave a power to his " trustees " without desig(d).
Release and
disclaimer of powers.
Under
to
(/'),
a person
whom any
is
or not,
given
may by deed release or contract not to And under the Conveyancing Act,
1882
{g),
or not,
may
any power, whether coupled with an interest be disclaimed by deed, after which the
but the power
may
the
in
the
others,
of
the persons to
whom
With
respect to
interest, these
enactments did
But a no more than declare the previous law (/?). power simply collateral could not formerly be extinguished or suspended by release or any other means {i).
Sug. Pow. 128 Lee\. rinCro. Eliz. 26; Co. Litt.
;
(c)
cent,
113a.
{d)
De
by MaUus,
Marshall, 19
V.-C,
Jefferya
;
v.
R. 95 Farwell on Powers, 456, 2nd ed. [e) See Re Smith, 1904, 1 Ch.
139 (/) Stat. 44 & 46 Vict. c. 41, s. 52 (1), applying (by sub-s. 2) to powers created either before or after the commencement of the Act. {g) Stat. 45 & 46 Vict. c. 39,
s. 6 (1, 2), applying (by sub-s. 3) to powers created either before or after the commencement of the
W.
Act.
(A)
other than a power simply colmight always release or contract not to exercise it Sug. Pew. 82 aq. ; West v. Bernnj, 1 Smith v. Death, 5 R. & M. 431 Madd. 371 Horner v. Swann, T. & R. 430 Hurst v. Hurst, 16 Beav. 372 Isaac v. Hughes, L. R. And if a power 9 Eq. 191. coupled with an estate or interest were given to any person, he might disclaiiu the estate and thus render himself incapable of Sug. Pow. exercising the power Hawkins v. Kemp, 3 East. 50 410,437; Xiclosonv. Wordsworth, 1 Sw. 365, 369, 370 Adams v. Taunton, 5 Madd. 435. (i) Sug. Pow. 49, 893 West v. Berney, 1 R. & M. 431, 434.
lateral
: ;
; ;
The donee
of
any power
power simply
collateral is
281
And
it
where a bare power had been given to two or more persons and one of them had afPected to disclaim the power, the power could not, as
formerlj ineffectual
a
rule,
(/).
And
be well exercised by
of
them
But
in the case of a
sell
will to
of the
{fn)
power
alone.
And
annexed
by implication
an executor who of law or by renounced probate could not exercise the power (o) but the executors or executor who proved might well do
the testator's direction (),
;
so
it
(/>).
Release of
a"breach^of'
ti'is*^-
would be
duty to
exercise,
themselves of their
by any new trustee duly appointed of a bare power given to any trustee or trustees is the same as governs the exercise by a new
The law
as to the exercise
trustee of a
Exerei.-se of a
newfrultees.^
With ^J ^^7 others power coupled with an interest (s) after the \ exercise by any other person than a new death of the respect to trustee duly appointed of a bare power given to a
/ the
.1
'^^^^f'
()
(o)
Above,
Keates
p. 279.
v.
the
subjecit- matter
of
the
power, oriven to a person who has not any interest therein at the time of the creation of the
power
and takes no interest therein under the instrument conferring the power; see Sug. Pow.
{k)
(/)
47, 48.
126;
see
Hen, VIII.
c. 4.
Burton, 14 Ves. 434; A.-G. v. Fletcher, o L. J. (N. S.) Ch. 75 see Farwell on Powers, 95-98, 2nd ed. Crawford v. Forshaw, 1891, [p; 2 Ch. 261, 266, 267. TTeller v. Ker, L. R. 1 Sc. [q) App. 11; Re Dunne's Trmts, 1 L. R. Ir. 516 Sunt v. Patthuioti, ;54 W. R. 561. (r) 7?<- ^yr<-, 49 L. T. N. S. 259. (i) Above, p. 272 see Hall v. Bewes, Jac. 189.
;
;
282
is,
of course,
no succession to
can only be
any
for
estate
if
in
at
exercised,
by some person expressly designated purpose the by the donor of the power, as where the
among
the persons to
whom
the power
is
given
Trustees exerconfCTredb^^a settlement for
(f).
m the Settled
Land
Acts.
provided for
In the case of a purchase fi'om trustees exercising a power of sale, the conveyancer advising the purchaser must have regard to the provisions of the Settled Land Act, 1882 (w), which make the consent of the tenant for |^g under a settlement necessary to the exercise by the trustees of the settlement or any other person of any power conferred by the settlement and exercisable for any purpose provided for in the Act. He must consider, therefore, whether the instrument conferring the power
'
'^
is,
meaning
of the
Act
{x)
And
(if
if
interests
this
has not been done) sufficiently to show whether there is a tenant for life, or a person having the powers of a
tenant for
life,
entitled in possession
;
under the
settle-
2nd
s.
45 & 46 Vict. c. 38, 56, sub-s. 2, enacting that in case of a conflict between the provisions of a settlement and the provisions of this Act, relative to
()
ed. Stat.
trustees of the settlement or other person of any power conferred by the settlement exercisable for any purpose provided for in this Act. [x) See stats. 45 & 46 Vict, c. 38, s. 2 53 & 54 Vict. c. 69, He Ailesburn and Iveagh, s. 4
; ;
tenant for
life
Re Mtmdij and 1893, 2 Ch. 345 Roper^s Contract, 1899, 1 Ch. 275 Talbot v. Scarisbrick, 1908. 1 Ch. 812, 819, deciding that a private Act of Parliament, which simply conferred powers upon the trustees of a settled estate, but did not alter or afPect the limitations of the property, was not one of the instruments constituting the settlement and see next chapter.
; ;
283
And
if
disclosed, the
power
by
the
as
an
exercise of
power
(s)
life is so
required,
by the settlement and exercisable any purpose provided for in the Act. It must not
and therefore extends to any group of instruments forming what is termed a compound settlement (//). The piu-poses provided for in the Act are, of course, principally the sale of settled land and the application of the purchase-money in manner therein provided, the exchange and partition of settled land and the leasing and any thereof for the terms specified in the Act (0) express powers conferred by the settlement for any of these purposes, upon any person or persons other tlian
;
life,
by the Act
life,
as
if
he should have
authorized them to
sell
may
vaHd
(y)
88.
{c)
and
45
it
See
stat.
& 46 Vict.
139
/.
c. 3S,
Estates,
.
ss. 3, 6,
(r)
24
Ch.
D.
129,
lie
Jte
Clitheroc Entute, 28
Ch. 378; 31
88.
Cb. D. 135;
Atherlon, 1891,
& 46 Vict. c. 38, 56(1), 57; Lo>i.sdaU'\. Lout her, 1900, 2 0b. 687.
W.
N.
85.
^84
for
in
this
Act "
life
(f/),
so as to
make
power given to by mortgage or sale the consent of the tenant for life would not be necessary, on the ground that the trustees would have a title paramount to that of the tenant for life, and he could not prevent the raising of the charges. But with regard to a power conferred by the settlement to raise charges by sale, it must be remembered that the Settled
gested
/')
that to
the exercise of
trustees for
raising charges
Land
life
Act, 1882
{(/),
under the power thereby conferred in the discharge any incumbrances affecting the inheritance of the settled land or other the whole estate, which is the subject of the settlement. So that if the charges to be raised should come within the definition of such incumbrances, their raising by sale would appear to be a purpose provided for in the Act and it is thought that in such case it would not be safe to rely on an exercise of the express power of sale without the tenant-for- life's consent. As regards a power for trustees to raise charges by mortgage, prior to the Settled Land Act, 1890, a tenant for life had no general power to mortof
;
gage the
money
to dis-
{d)
See
sect.
56
(2),
above,
p. 282.
and
n.
(ti).
(f) This statement assumes that by the exercise of the express power bomething will be done which the tenant for life could not do under his statutory power. But if by the exercise of a larger power than that conferred by the Act it were proposed to do something which could be done under the statutory power, as if under a power for trustees to grant building leases for any term not
exceeding 120 years it were proposed to grant a building lease tor 99 years on the same cou-
by the statutory power, the case is different and the consent of the tenant for life would appear to be nefessary.
ditions as are authorized
:
&
46 Vict.
c.
38,
s.
285
so that
a purpose provided
The Act of by the Settled Land A.,-t, 1882. 1890 (h), however, empowered the tenant for life to
settled land for the
mortgage the
i)urpose of raising
money
this
to discharge
an incumbrance thereon.
And
as
Act and the previous Settled Land Acts are to be read and construed together as one Act (/), it seems
that the raising of
money by mortgage
to discharge
incumbrances
is
now
and consequently that an express power for this purpose conferred on trustees by the settlement is no longer well
exercisable without the consent of the tenant for
life.
Where
power, but an imperative trust exercisable for some purpose provided for in the Act,
it
not
required
{k)
By the Settled Land Act, 1881 (/), where two or where two or more persons together constitute the tenant for life for more persons
the purposes of the Settled
Land
A<;t,
withstanding
of all
of the settlement, or
conferred
by any other person, of any power by the settlement and exen-isalde for any
for in
cas(^
t(
purpose provided
that Act.
By
of
1882
(;/), if
in
any
beneficially entitled
settled
land as
for other
tenants in
common,
A:
or as
joint tenants, or
(/i)
Stat, Sect.
o.'?
r)4
Vict.
c. (J9, 8.
(/)
Stat.
(2).
47
&
48 Vict.
c.
18,
11.
(i)
{/i)
-2.
(ill)
Stat.
(2)
;
See
646.
Tai/lnr
v.
I'oncia,
Ih
s.
o6
(m)
c.
38,
(m).
Ch.
Sect. 2 (5),
2i^6
In
any such
case, therefore,
by the trustees of the any other person, of any power conferred by the settlement and exercisable for any purpose
consent to the
exercise
now
settlement, or
Where
some
to a
donee for
for
life
was given
premises,
it
trustees
the
the
was questionable whether the consent of the tenants for life of the settled shares was necessary to the exercise by the trustees of their power of sale over the entirety. For the power of sale conferred by the Settled Land Acts would embrace the settled shares only, and it was only as regards these shares that the land would be the subject of a settlement within the meaning of those Acts so that the power to sell the entirety might be considered to be not a power conferred by the settlement and exercisable for a purpose provided for in the Acts, but a power altogether paramount to the settlement. But in a ease (o) where a
;
testator
gave one-fifth part of his estate to each of his four daughters for life with remainder over, and gave
daughter absolutely, and empowered trustees to sell the whole of his estate, Kekewich, J., held that there was a
express power of sale and the by the Settled Land Acts, because the sale of the entirety would deprive the tenants for life of the settled shares of their statutory power to sell them and that the consent of the tenants for life was therefore necessary to the exercise by the trustees of And he further decided their express power of sale.
conflict
between
this
power
of sale given
(o)
Re Ofibomc and
Ch.
33.5.
287
tenant for
life
witliin the
meaning
of
of the Settled
Land
1884
It
(q)
must not be forgotten that, when land is settled eitlier by deed or will on trust for sale and investment
and the lands are not immediately sold, become payable on the death of an}^ one of those persons, and will, it appears, become a On a purchase, therefore, from charge on the land. the trustees for sale under such a settlement, the purin succession,
estate
of the purchase- money for the benefit of various persons " trust for
duty
will
chaser, if
1st
he have notice of the death on or after the August, 1894, of any person so interested in the
all
estate dut}-,
which
If trust
money be improperly
is
Sale of land
of land,
it
CS
t^'"***-
'"
of
investment at the earliest favourable opportunity, and invest the proceeds in some manner authorized by the
The trustee is empowered to sell the land, and can make a good title thereto and convey the same without the
trust.
unless
(.s)
{p)
M.
Stat,.
4.')
&
K; Vict.
o. ;{8,
(.v)
Jte
-i'i
Patten
mxi
Edtmnton
& 48 Vict. c. 18, 6 (2). (r) Stat. 57 & SS Vict. c. 30, 88. 1,2, 9(1), 24; see the chapter on the Death Duties in the second
s.
Tolume.
L. J. Ch. 787; Power v. Banks, 1901, 2 Ch. 487, 496; Me Jenkins and RandaWs Contract, 1903. 2 Ch. 362 see above, p. 200; Dart, V. & P. 610-612, .ith ed. 687-689, 6th ed. 629630, 7th ed.
;
; ;
Union,
288
Trustees'
receipts.
have in
was bound to same was duly applied pursuant to the unless exempted fi*om that obligation by the
(f).
Under
of
(),
any
any money,
perty or
It
may
be noted that
this
In such a case the money must be paid or other property assigned over to
all
the trustees,
who should
all
(ir).
According
to
the
investing trust
money
Lloyd V. Baldwin, 1 Ves. 173 Sug. V. & P. 657 sq. ; Lewin on Trusts, 394 si/., 6th ed.
(t)
sen.
payable to them but this provision applied only in the case of instruments executed on or after
:
530
s.
sq.,
nth
ed.
[a)
0. 41, s. 36, and applying to trusts created either before or after the commencement of the Act. Also by stat. 22 & 23 Vict, c. 23. the receipt of a trustee for any purchase or mortgage money payable to him is a good discharge, unless a contrary intention be expressly declared by the
instrument creating the trust. Lord Cranworth's Act, stat. 23 & 24 Vict. c. 145, s. 29, provided that trustees' receipts should be good discharges for auj' vioney
the 2Sth Aug. 1860, and was repealed by stat. 44 & 45 Vict, c. 41, s. 71. After the passing of Lord Cranworth's Act, however, the old practice of inserting in every instrumeut creating a trust a receipt claiise, in terms similar to those of the present statutory provision, was discontinued 3 Davidson, Prec. Conv. 222-226, 719, n., 3rd ed. (.r^ Hall V. Franck, 11 Beav. 519 Webb v. Led.sam, 1 K. & J. 385 Margetts v. Perks, 12 W. R. Lee v. San key, L. R. 15 Eq. 517 204 3 Davidson, Prec. Conv. 223, u., 3rd ed.
; ; : ; :
289
title (y).
might be modified
Thus
if,
considering
it
And
now been
considerably relaxed
by
statute.
Trustees
{a).
This exonerates
than forty years
Trustees are also
are unexpired,
less
title (^).'
buying under the conditions imported into contracts for sale by the Conveyancing Act of 1881 {(), when the period, for which title is by law required to be shown, is not curtailed by special stipulation. And it is now provided by the Trustee Act,
189^5 (d), that a trustee shall not be chargeable with
than the
title
which a purchaser
is,
in the absence
in the opinion
if
ed.
Lewin on Trusts,
;
579, Ilthed.
1
for that section altered the rule of law, and made a forty years'
title
titl(>
(;)
ed.
Dart. V. & P. 89, 90, otli 99, 100, Gth ed. 97, 98,
;
7th ed.
53, 8. 15, replacing 37 & 38 Vict. c. 78, s. 3 see above, pp. IJ, 99, 192. Trustees punhasinji' need not, of course, exclude the operation of the first section of the
(a)
.57
Stat. 56
&
Vict.
c.
(c)
s.
s.
c.
See above, pp. 96, 99. Stat. 44 & 45 Vict. c. 41, 66 see above, pp. 4"2, 45, 99. 56 & 57 Vict. e. 53, (</) Stat. 8 (3), replacing 51 & 52 Vict, 59, s. 4 (3).
[h)
;
w.
19
290
that to which trustees are now obliged and they should be careful, in buying lands with trust money, not to bind themselves by any condition of sale which will preclude them from requiring
standard so set
is
to
conform
(e)
such a
or
title as
Trustees directed
by the express terms of the instrument creating the trust to purchase any hereditaments with less than a marketable title but this scarcely allows them to adopt a lower standard than that now set by the Trustee Act,
;
1893 (/).
What
kind of Trustees authorized to purchase land to be held on property trust for persons entitled in succession, as tenant for life should be
bought
persons
by-
and remainderman in
property they buy
is
fee,
trustees for
of a nature to confer
upon
all
the
entitled successively.
persons so entitled their due share of the benefit to be derived from the purchase.
immediate
letui-n
in
way
of
income to the
(e) See lie Theobald, 19 Times L. R. 536. (/) See Davidson, Prec. Conv. vol. iv. vol. iii. 250, 722, 3rd ed. 1 Dart, V. & P. 90, 55. 3rd ed. 5th ed. 100, 6th ed 98, 7th 2 Kev & Elph. Prec. Conv. ed.
; ;
;
vestigation of the lessor's title iu money on the security of leasehold hereditaments or otherwise to lend on any security with less than a marketable title see the authorities last cited. And
lending
528,
may
be
mentioned
money on
a mortgage of lands were bound equally as on a purchase to invest on the security of prt>perty with and a good marketable title there were not the same reasons in the case of an investment on mortgage for relaxiug the stringency of the rule. It has longbeen the regular conveyancing practice expressly to authorize trustees to dispense -with the in;
the above-quoted enactment (sect. 8 (3) of the Trustee Act, 1893J applies equally in tbe case of trustees lending money on the secm-ity of anj" property as in that of a purchase and by .sect. 8 (2) of the same Act a trustee lending money ou the security of any leasehold property shall not be chargeable with breach of trust only upon the ground that in making such loan he dispensed wholly or partially with the production or investigation of the
;
now
lessor's title.
291
and
is
same advantage
to the
remainderman
They should
wasting, or
may
to
which no rent
is
an advowson
its
(g)
Even
being liable to
fire {h)
invest in the purchase of " lands or hereditaments of an estate in fee simple in possession " were entitled to buy
(/).
Each
to the
Thus, where
is
life
and the profits equitably distributed between tenant for and remainderman under the powers given by the Settled Land Act, 1882 (/).
Trustees selling land under a trust for or power of Valuation ou
sale should, as a rule, obtain a valuation of the
property
tees selling or
from a competent professional surveyor acting for them independently and in nowise concerned on behalf of any
Lewin on
;
purchasing,
iff)
6th ed.
(A)
582,
."iSS.
43!),
ed.
Lewin on Trusts,
.582,
138, 6th
ed.
Uth
ed.
Re rn/fii'.'< Sttt/nnfiit Tnat. L. R. 7 h^q. 4 63; aud see lie Theobald, 19 Times L. R. 536.
(i)
Lewin ou Trusts, 4:59, 6th 582, Uth ed. 46 Vict c. 38, (/) Stat. 4.5 & ss. 6, 9-11. See Jief/ot v. Littler, 1874, p. 1.56; 22 W. R. 8.36; 30 L. T. N. S. 861.
(k)
;
W.N.
19(2)
292
them
as to the
sum
to be
by
auction.
And
trustees
thej'^
propose to
buy(m).
trustees
may
occur in which
judgment, as
be
juris,
proposed to them.
siii
to
obtain
their sanction
price
be
taken,
paid or fixed.
Where
title
power
assume,
may
nothing appear
and he need not any e\idence as to this [n). But if it appear that the property was sold at an undervalue, or the trust or power was otherwise improperly exercised, the case is diiferent and the
;
title
(o).
{m) Lewin on Trusts, 375, 37G, 436, 6th ed.; 495, 578, 11th ed. 1 Dart, V. & P. 79, 5th ed. 90, 6th ed. above, 89, 7th ed. As to the valuation p. 263. which ought to be obtained by trustees proposing to invest trust money on a mortgage of lands, see Stat. 56 & 57 Vict. c. 53, s. 8.
; ;
;
() See Borcll v. Bann, 2 Hare, 440, 449-452; Wure v. Egmunt, 4 De G. M. & G. 460, 471-474 Hurrell v. Littlejohn, 1904, 1 Ch. 689; above, p. 117. (o) See A.-G. v. Pargeter, 6 Beav. 150 Ei-r v. Dunganuon, 1 Dru. & War. 509, 542 f^terens v. Austen, 3 E. & E. 685.
; ;
293
CHAPTER
IX.
Where
''
the
title
depends
it
on
the
the
exercise
of
Title depend
exercise of
of
power of appointment,
.
is
duty of the
crmT
appointment.
The general
rule
conditions prescribed
power must be
distinction is
stantial,
strictly
observed
and
in this respect
no
sub-
the power
execution,
number
is
of witnesses
to be
instrument
rule
is
required
And
the
any instrument showing an intention to exercise the power, but not exactly complying with the terms and conditions imposed by the donor of the jiower, is void altogether as an exercise of the power (/>).
that
() JlnwkiHs V. Kemp, 3 East, 410, 440, Ilolmen 7. Coghill, 7 Ves. 499, o06; Reid v. Shcrgold, 10 Ves. 370; Maijuribanks v. HovPtiden, Dniry, 1 1 Siig. 1
;
in the case of powers of leasing by the Leases Acts, 1849 and 1850
A: 13 Vict. c. 26; 13 & 14 Vict. c. 17), under which an attempted exercise of a power of leiising, which is invalid at law for want of strict compliance with
(stats. 12
Pow. 206
on
.5^.,
8th ed.
Farwell
;
Wms.
Powers, 128 '/., 2ud cd. Real Prop. 384 /., 2l8ted. liarrHlo (6) See previous note This V. Toung, 1900, 2 Ch. 339. rule is modified in equity, though uot at law, by tlie (iuit,ible doctrines mentioned below as to Sliding the defective execution of powers and is further modified
;
the terms of the power, may be considered in equity as a contract for the grant of a valid lease under the power, and leases prematurely granted in exercise of a power are made valid if the lessor's estate endure imtil the time when the lease might have
294
however,
wills
executing
manner
;
wills {d)
but
if
and
may have
required some
or
other form
of execution
solemnity.
been well granted Wms. Real Prop. 39'i, ;i93, 21st ed. [c) Stat. 7 Will. IV. & 1 Vict.
:
c. 26, s.
10.
{d)
strictly
all wills
land well
exercising powers to dispose of in Englnnd, leasehold as as freehold or copyhold, whether the testator were domiciled in England or elsewhere
;
power, althongh they do not comply with the requirements of the Wills Act I)' Huart v. Harkties.s, 34 Beav. 324 Ee Price, 1900, 1 Ch. 442; Barrettow. Young, 1900, 2 Ch. 339; Re Walker,
; ;
1908,
Ch.
lie
560.
Cf.
and
;
dis-
see Hurra ti v. Champcrnowne, 1901, 2 Ir. 230 Pepin v. Bruylre, and also in the 1902, 1 Ch. 24 case of all wills exercising an English power to dispose of personal chattels, and made in England by persons domiciled in England (whether British subjects or aliens). By an English
;
B^ Este\s Settlement Trusts, 1903, 1 Ch. 898 Pe Scholejield, 1905, 1 Ch.408, settled, 1907. 1 Ch. 664. As to the wills of British subjects exercising a power over personal chattels and not complying with the Wills Act but admissible to probate as wills
solely by virtue of Lord Kingsdown's Act (stat. 24 & 25 Vict, c. 114, s. 1), see Pe Kirwan's Trusts, 25 Ch. D. 373 Hummel v. Hummel, 1898, 1 Ch. 642; Pe
;
tinguish
power
Price, 1900,
and to confer a power exercisable accordinar to the rules of English law. Wills exercising English powers to dispose of personal chattels are valid, as an exercise of the power, if executed in accordance with the requirements of the Wills Act, whatever be the testator's domicile and although (where he is domiciled out of England) the will is invalid by the law of the place of his domiBelclder^ 190;*, wills made by persons domiciled out of England (whether aliens or British subjects), exercising powers to dispose of personal chattels, complying the formalities (if
cile
;
Murphy
v.
A. C. 446.
But
Dicey, Conflict of Laws, 691-696, 821 S(f., 2nd ed. It has been decided in Ireland that a power to dispose of the jiroceeds of sale of land settled on trust for sale is for the purpo^es of the doctrine here discussed a power to dispose of land Murray v. Champernotvne, ubi sup. But it seems questionable whether this is correct, as an interest in the proceeds of sale of land settled on trust for sale is for all other purposes treated in English law as personalty see Forbes v. Steven, L. R. 10 Eq. 178 A.-G. V. Hubbuck, 13 Q. B. D. 275; A.-G. v. Johnson, 1907,
;
;
2
is
K. B.
&85.
mth
any) required by the terms of the power, and otherwise executed iji accordance with the law of the
applicable to a beneficial interest in a definite sum of money directed to be raised out of land, such as a portion.
295
of
And
under Lord
St.
Leonards' Act
(e)
powers
may
by a deed executed in the presence of and attested by two or more witnesses, in the manner in which deeds are ordinarily executed and
sequently to the Act,
attested,
may have
required to be executed by
it is
not
by a deed attested by one witness only or unattested (./"). Such a defect of execution is not aided by Lord St. Leonards' Act. And it is expressly provided
(r/)
to defeat any direction in the instrument creating the power that the consent of any person shall be necessary to a valid execution, or that any act shall be performed, in order to give validity to any appointment having no relation to the mode of executing and attesting the inNothing contained in the Act shall prevent strument. the donee of a power from exercising it conformably to
oi'
otherwise than
by an
instru(A).
the power, or
purpose
(/)
and
(e)
8.
& 23 Vi<;t. c. 35, passed 13th Aug. 1S69. Pow. 207, 8th ed. Su^. (/) 22 & 23 Vict. c. 35, iff) Stat.
Stat. 22
12,
(h) Stat.
s.
22
&
23 Vict.
c.
35,
12.
(i)
;
8.
12.
Sug. Pow. .')33-')3ti, Sth ed. Farwell on Power.s, 327, 2nd ed. and see Charlton v. Charlton, 1906, 2 Ch. 523.
296
But
such relief
is
number
of witnesses, or execution
power to appoint by deed (/). And equity will not uphold an act which will defeat what the person creating the power has declared, by expression or
by
will of a
No
by deed
of a
power
to appoint
by
will (n), or
by
will of a
power
to appoint
by
deed to be executed before a happened in the lifetime of the person purporting to It must not be forgotten that appoint by will(o).
specified event,
which
where a power
exercised
defectively,
but
so
that
remains outstanding in the person entitled in default of appointment, and must be got in if it be desii'ed to make
title
(p)
Where
special
ment.
power of appointment, such as a power to appoint amongst a limited class of persons (the appointor's children, for instance), the conveyancer must,
of course, see that the
those persons
or one of
Fraudulent
execution.
appointment is made in favour of who are objects of the power {q\ or some them (r). And he must further ascertain
Sug. Pow. 512, Sth ed. Sug. Pow. 548 sq., 558, 559, 560, 8th ed. Farwell on Powers, 330, 2nd ed. (w) Rolt, L. J., Cooper v. Martin, L. R. 3 Ch. 47, 58; Sug.
(A)
{I)
;
Pow.
(n)
10
Ves.
370.
(o)
ip) Sug. Pow. 532, 8th ed. Farwell on Powers, 327, 2nd ed. (q) See Sug. Pow. 498 sq., 652 xq., 664 sq., 8th ed. Farwell on Powers, 298 sq., 486 sq., 2nd ed. (r) As to exclusive appointments, see Farwell on Powers, Wms. Pers. 362 sq., 2nd ed. Prop. 369, 16th ed.
; ; ;
Cooper
297
powers
as
where an appointment
is
made
ostensibly for
ment,
if
may
be void in
title
so that
where a
may
Another point
to be borne in
mind
appointment amongst a limited class of persons is the question whether the appointment infringes any of the established rules with respect to remoteness of limitation. In such cases, the validity of
exercise of powers of
b}'
the
power depends on the result of the inquiry whether they would have been valid if inserted in tlie instrument which created the power. And in investigating Exercise of this point, the conveyancer must not forget that, as the Powers to law now stands, powers given by a marriage settle- amongst un***"'^" ment or any other instrument to appoint estates in land amongst the issue of the marriage or of some specified
living person, cannot well be exercised in such a
way
an
when
the inor
strument took
either a legal
equitable estate in
remainder expectant on a
(?/)
;
life estate
or so that a legal or
an equitable estate appointed in remainder after a life estate appointed to some such unborn child sliall be such
as need not necessarily vest
(if
or so that
()
ed.
See Sag. Pow. 606 ./., 8th Farwell on Power.s, 403 s^.,
ed.
()
Jr/iitbi/
:
v.
Mttclull, 44
Ch.
2nd
(0 See
Sug.
Pow. 606608,
8th ed.
Re Nash, 1910, 1 Ch. 1. [i) Re Front, 48 Ch. D. 246, followed in Rr Ashfurth, 1905, 1 Ch. 535 (as to which case, see
D.
8.)
298
by way
of shifting
by way
of
Atfc(\station
Where an instrument
ment has required that
sealing
powers.
and delivery of a deed or writing) shall be by witnesses, the attestation clause of the instrument exercising the power should be examined
attested
may
vitiate the
On
the
this subject
has laid
down
:
" If a
power requires two or more formalities to be attested, and the attestation clause expressly certifies that one of such formalities has been performed, then the power is
not well executed
{a).
But
if is
must
Mr. Charles Sweet's criticism iii 49 Sill. J. 793, which it is respectfully Mubniitted is well founded) fFhitby V. I OH Luedec/cc, 1906,
;
Taunt. 213, where a power of consent to a sale was required to be exercised by writing under
Wms. Real
Prop. 361;
2nd
ed.
()
and Man, 4 De G. & Sm. 294, In IVright 307 5 Ex. 683, 694. Wakeford, 17 Ves. 454, 4 V.
;
exercising the power only certiwas sealed and delivered in the presence of two witnesses, it was held that the power was not well executed. The like defect in instruments exercising powers executed before the 30th July, 1814, was ciu'ed by Stat. 54 Geo. III. c. 168 but this Act had no prospective opera:
tion.
299
or
if
the attestation
unless
is
general,
is
is
valid,
is,
the
contrary
shown
"(c).
This rule
of
above-mentioned provisions of the Wills Act and Lord St. Leonards' Act(^/), which have greatly diminished its
importance in practice.
title
may be noted here that, whenever an abstract of Inquiry mentions some express power of which the exercise power meuti^^ed in the mijrht affect the property J sold, but no exercise thereof ^ 1
It
I
'
is
(e),
When
property
is
same necessit}" for exact compliance with all the terms and conditions of the power as exists in the case of a power (treated by the act of parties (./) and in default of such compliance any instrument purporting to exercise the power is, as a
the
;
power,
rule, void
{(j).
At
(A) See riuceut v. liinhop of Sodor and Man, 4 De G. & Sm. 294 h Ex. 683, where a pow<^r required to be exercised by will signed and published in the presence of and attested by two or laore witue.sses was held to be well executed by a will purporting to be signed and sealed in the presence of two wituessts, on the ground that sealing in the presence of witnesses jnust uaturally and reasonably be considered to be a publication of the will Smith v. AdkinK, L. R. 14 Eq. 402. where a power to bi; exercised by any instrument in writing signed, sealed and delivered in the presence of two or more witnesses was held to be well executed by a will stated ill the attestation clause to be signed, sealed, published and acknowledged to be the last will of the donee of the power; this
;
Witness.
Charles Ball,
Ball."
Eliz.
Ball,
(rf)
Anu
Above, pp. 294, 295. Above, p. 113. /) Above, p. 293. {p) Darirs v. Diiviea, 38 Ch. D. 499; Mogridge v. (Uapp, 1892, 3 Sutherland v. Ch. 382, 398 Sutherland, 1893. 3 Ch. 169; Chandler v. Bradlei/, 1897. I Ch. 31.5 Re Ifandinan and Ifileos'-s Contract, 1902, Ch. 599 Boi/ce v. Edbrooke, 1902, 1 Ch. 836.
(')
(
; ;
300
Sales under
that given
LandVcts.
Acts, 1882
to
1890.
When
power
title is
means
to
which the attention of the purchaser's counsel should be principally directed are the following In the first
:
place he
or
to
must
be conveyed
settled
is
land
(A),
person
who has
life
exercised or
to exercise the
a tenant for
life
tenant for
He
must next inquire whether such property comprises the principal mansion-house on the settled land and the pleasure grounds and park and lands usually occupied therewith or any part of the same, and if so, he must see that the assurance of that part of the property was or shall
be made with the consent of the trustees of the settlement
under an order of the Court as required by the Land Act, 1890 (k). Thirdly, he must assure himself that the purchase money was or shall be paid to
or
Settled
'i'he Leases Ar;ts, 1849 and 1850, apply to an intended exercise of a statutory as well as to an
uuder the Acts for easement, which the owners of the before mentioned
changed
another
see oo
1-
sub in/-\ ii ^ 1 J s. 10 (i), this Act land includes " ,, , T^ incorporeal hereditaments, also an undivided share in land. In Re Brulhertoii's EstaU, 1908, W. N. 56, 98 L.T. 547, it was considered by the C. A. that an easement incident to settled land, as the
^
J 2 (1 4,
^
bee
stat.
J.
4o
A-
o &
46 Vict.
Ti By
.^
-tT-
J.
c.
38,
1f>^ o 10), 3.
J.
^
s.
,
2,
servient tenement were entitled to exercise over the settled land. See Shep. Touch. 292, that a u^. e u v be ^.v. the object right oi way may P x. o^ t n K. t? ocn or an exchange 260, 24 L. (J,. /on oco 262 ock 266. and n. (3), '
<-
>
See stat. 45 & 46 Vict. c. 38, *^- '^ (57), 58. (k) Stat. 53 & 54 Vict. c. 69, s. 10, replacing 45 k. 46 Vict,
()
dominant tenement, and exercisable over other land might well be sold under the ^Settled Laud Acts to the owners of the servient tenement although the Court appeared to entertain a doubt
;
15 nee Pease v. Courtney, 1904, 2 Ch. 503; Gilbeij v. Rush, 1906, 1 Ch. 11 Re Wythes' Settled Estates, 1908, 1 Ch. 593. For the principles by which the Court is guided in exercising the jurisdiction so conferred, see Re Ailesburifs Settled Estates, 1892, 1 Ch. Bruce v. Ailesbury, 1892, 506 A. C. 356.
c. 38, s.
;
;
301
This
is
essenb}'
the Acts
and even where the settled land is subject to some incumbrance, which is prior to the settlement, and of which the amount exceeds the whole price, the purchase
money cannot properly be paid to the incumbranon a sale under the Acts unless the trustees concur in the conveyance to direct such payment (//). Fourthl}-,
cer
he must be
which
this
title
is
alleged or required to be
made under
(o)
statutory
by the tenant
necessary parties,
is
any.
He
must
is
power which
duty of the tenant for life, in exercising the statutory power, as trustee for idl parties entitled under the settle-
ment
(p).
As is
well
known, a tenant for life intending As to giving power is required to give one J^jpjj^gjj ^aie
his intention to the trustees
good
(r).
faith
therefore unnecessary,
when
title is
alleged or pro-
any inquiry whetlier notice has been duly given to the And it is improper to make any such inquiry for if the purchaser ask this question and be informed
{I)
See
2
stats.
(8),
c. 38, 88.
45 & 38 40;
46 Vict.
.53
s.
53;
Siithcrlaiid v. iSittherlinid,
&
.')4
Vict.
() 8.
c. 69, s.
16.
Stat. 45
&
46 Vict.
c. 38,
22(1).
Stat. 45
&
46 Vict,
c,
38,
8.
315 R, Ilandman and JFilcox's ContraH. 1902, 1 Ch. 599. [q) Stats. 45 & 46 Vict. c. 3,S, s. 45 47 & 48 Vict. c. 18, s. 5. (r) Stat. 45 & 46 Vict. o. 38, 8. 45 (3).
1897,
1
;
1893. 3 Bradley,
Ch.
169;
ChaudUr
Ch.
v.
& 46 Vict. c.
38,
s .
302
some
irregularity, he
may
undoubtpdly afforded
(.s).
those
who
it is
abstain from
inquiiy
It
has been
held that
making a
that
Land Acts
life
even though
;
there be no
and
As
it
good
is
title if trustees
to
whether completed
^^'^
(?/)
is
not consell
trust
the settlement
of sale.*^
he
is
with the questiou, whether there are an}^ trustees of the settlement in existence at the time when the statutory
power
is
money
arising
from a
sale
thereunder shall be paid either to the trustees of the settlement or into Court, at the option of the tenant for
life
is
(
w)
and
it is
Land
title,
purchase
money
to
consideration of such
be paid into Court and conveying in but trustees must payment (//)
;
first be duly appointed, and then the sale can be comIt appears, however, that if the purchaser, pleted.
See Marlborovqh v. Snrtoris, Ch. D. 616, 623: Hat tin y. IfuKseH, 38 Ch. D. ;vi4, 344.
()
s.
22
[x)
(1).
32
Hntten
w Jius.sili,
'38
Gh.T>.
It)
MarlboroKf///
v.
Sarforix, 32
Ch D.
[u)
616.
334, 345; Re Fisher and Grazebrook's Contract, 1898, 2 Ch. 660. {y) He Fisher mid Grazebrook'
Contract, 1898, 2 Ch. 660; and see Hughes v. Funagaii, 30 L. R.
Ir.
Gh.B.
c. 38,
334.
(w) Stat. 45
46 Viot.
HI.
303
and
pay the
in
purchase
money
into Court in
good
title
(s).
good
by a couvej^anee
consideration of such
that, if
payment
It seems therefore
on a sale under the Settled Land Acts it appear from the abstract that trustees of the settlement were
duly constituted or appointed, a purchaser directed to
pay
his purchase
money
still
remain in existence.
But
if it
safely
must require trustees and cannot Court and accept a conveyseeing that such appoint-
first
Where
the vendor's
sale
title
given
by the Settled Land Acts whereon the purchase money was paid into Court, and it appears from the abstract
that there were no trustees of the settlement in existence
at the time
when
by convey-
it
wdl have
to be considered
whether a good
title
can be
made on
for
life,
supposing
none
lease
[a).
life under the Settled Land Acts in the absence of any trustees, wln^re no capital
made by
a tenant for
the
lease,
that
the
S.
C,
()
Ch. 599.
304
faith
of the irregularity
{b). is
But
that due
;
may
be given to them
exonerated and lessees and purchasers are from the obligation of inquiring as to the giving of Where, however, any capital money such notice {c).
expressly
has to be paid by a lessee or purchaser, the case is difand there is not the same statutory absoluferent (d)
;
from the duty of inquiring into the existence of But even on a sale of settled land, the trustrustees. tees have no active duty to perform, if the tenant for
tion
life desire
money
Court.
in
And
good faith with a tenant for life shall, as against all parties entitled under the settlement, be conclusively
taken to have complied with
all
and it is presumed generally that everything is rightly done until the contrary be shown (/'), it seems that in this case also it would be presumed that the purchaser from the tenant for life acted in good faith and if nothing without notice of the irregularity {g) appeared to rebut this presumption, the title would be
Act
(e),
unimpeachable.
"Who are
the'pmTSes
of the Settled
In ascertaining who are the trustees for the purposes Land Acts of any given settlement, it should be borne in mind that such trustees must be
0* ^hc Settled
either
(1)
the
persons
who
are
(i)
Mogridge
v.
Olapp, 1892, 3
(*)
Stat.
45
&
46 Vict.
o.
38,
CSi. 382.
(c)
8- ^4-
Above,
p. 301.
v.
(d)
Mogridge
Clapp, 1892, 3
Ch. 400.
(/) Above, p. 118. [g) See Mogridge \. Cfapp, 1892, 3 Ch. 382.
305
sale of the
power power of
of consent to or approval of
sale (A)
;
or (2)
if
there
settle-
ment
Acts
to
(/)
;
by the Court
to
Acts
(k)
or (4)
if
of the Acts of
any
above-mentioned
tliree classes,
(if
any)
who
any other land comprised in the settlement and subject to the same limitations as the land to be sold, or with power of consent to or approval of the or (5) if there be no exercise of such a power of sale (/)
;
who
sale, or
power of
to
or not {m).
Each
of these classes
must be taken
{k)
(/)
Sect. 38.
See
lie
Moore, 1906,
Ch.
have
no
789.
Stat. 53 & 54 Vict. c. 69, s. 16. As to cases affected by this amendment of the law, see Ite Bronii^s If'Ul, '11 Ch. D. 179 Wheehcright v. fFalkcr, 23 Ch. D.
[>)
;
tioued, are not trustees thereof for the purposes of the Acts unless they come within classes (4) or (5)
introduced by
tlie
amending Act
;
oil^^.lO\see jr/i,i/uriff/itv.jra/kei;
23 Ch. D. 752. 761 lie Morgan, 24 Ch. D. 114; lie Canir.s Settled Estates, 1899, Re 1 Ch. 324 Conirs Settled Estates, 1905, 1 Ch. But trustees with a power 712. of sale exercisable with the consent of the tenant for life are trustees for the purposes of the Acts Constable v. Constable, 32 Ch. D. 233. {%) Stat. 45 & 46 Vict. c. 38,
;
752, 761; lie Home's Settled Extatr, 39 Ch. D. 84. When lands are limited to trustees in fee in trust for one of them for life and after his death on tru.'^t for sale or for others with power of sale, it has been lield that all the trustees, including the tenant for life, are the trustees for the purposes of the Settled Land Acts Re Jackson's Settled Estate, 1902, 1 Ch. 258.
;
s.
2 (8).
w.
20
306
new
trustees as
It has been
ing
new
of the Settled
Land
by the
Deposit on
sale
As
above stated
(o), it
is
by
to stipulate for
payment
made by a
under the Settled Land Acts, the purchaser must see that the deposit is duly paid to the
tenant for
life selling
may
require, before he
his
purchase money.
he
is
unless the
to the trustees or
statutory
power
As
power
to the of
With regard
to
all
the estate,
which
title
Land
been or
Avill
the Settled
Land
empowers the tenant for life to convey by deed any land sold under the power of sale conferred by the Act for the estate or interest which is the subject
Act, 1882
(r),
Stat. 56 & ^1 Vict. c. 53, 47, replacing 53 & 54 Vict. c. 69, s. 17, passed to amend the law laid down in 7iV WUcock, 34 Ch. D. 508. (o) Above, p. 57.
()
s.
conveyance is given in the hectiou with regard to land exchanged, partitioned, leased mortgHged or charged in exercise of the powers conferred by the. Act, and also with regard to ease-;
of
same
[p)
(q) (r)
s,
&
46 Vict.
c.
powers.
20.
307
shall
estates, interests
subject
to
and
the exception
(i.)
All estates,
settlement
;
to the
estates, interests
and (ii.) all such other (if any) and charges as have been conveyed or
money
deed
and
(iii.)
all leases
and grants
at fee-farm
rents or otherwise,
and alfgrants
of easements, rights of
common,
made
for value in
money
or
by any
for
by the tenant for life, by any trustees him or them, under the settlement, or imder any
of his predecessors in title, or
otherwise binding on
life.
the
The Act
number
hind, or
contains
(.s)
is
"the
terra settlement,
extending
to
of instruments
any
estate or interest
way
And
interpretation.
Thus, in Re AilcHlmry and Tveagh{t), Re Aiksbm-y by deeds dated in 1796 and "'"^ ^'-'^o''-
and
deed of
joint
IS-'i?
power
()
Stat. 45
&
46 Vict.
38,
8.
(1).
{t)
20
(2)
308
life,
first
male.
to
Ernest's
first
remainder to his
eldest son
life,
George John's
first
male.
George John died leaving Thomas his eldest son, and in 1885 Thomas's estate tail was barred and the lands
were re-settled to the use of Ernest for
of his former
estate,
life
in restoration
life.
Land Acts
to
Lord Iveagh.
And
it
was held
by
and
consequently that
Be Mundy
^
Hoper's Contract
{x).
Co truer
John
for
life,
remainder to uses
mainder
fi'om
younger children, remainder to Francis for life, with powers of jointuring and charging portions for younger children and limiting a term to secure such portions, remainder to Francis's first son in tail male. In 1865
Francis appointed a jointure rentcharge to Louisa his
wife, charged the lands with portions for his
younger
children,
Land
{x)
309
John
died,
who
might
of
Sophy (two
eldest
and Francis's
life
son,
should be in restoration
former
life
estate.
Land
estate
alive,
and
It
by the Court of Appeal, that the deeds of 1861, 1865 and 1889 together constituted the settlement within the meaning of the Settled Land Acts, and that the tenant for life was accordingly emwas
held, however,
from his younger children's portions charged in 1865 under the powers given by the deed of 1861 and it was considered that this result was effected by the intention of the Acts, and that it was immaterial that Francis's life estate under the deed of 1861 was not expressed to be restored to him by the re-settlement of 1889. These cases establish that when lands have been limited to various beneficiaries successively by a series of family settlements or re-settlements, and there is still subsisting in the lands any estate or interest (though it be no more than a rentcharge or a charge of portions) limited to a beneficiary by any deed of settlement earlier than that which conferred the
powered to convey the
wife
Louisa's
settled lands discharged
jointure
and
his
ment together
of the Settled
sell
Land
life
can
estates
earlier
310
way
of settlement,
ment
by
way
Assignments
of or charges
on a
sense of the
word
{z).
The
on the life
estate in
has been further extended by the Settled Land Act, 1H90 (n), providing that every instrument whereby a
tenant for
or
life,
consideration
of
marriage
or by
way
of
family arrangement.
any family arrangement, not being a security for payment of money advanced, makes an assignment of or creates a charge upon his estate or interest under the settlement, is to be deemed one of the instruments creating the settlement, and not an instrument vesting in any person any right as assignee for value within the meaning or operation of sect. 50 of the
by way
of
Actof 1882(^).
Thecompound
settlement.
When, however, a settlement for Settled Land Acts was first held to
series of
be constituted by a
who
for
any
by any of the deeds were only trustees The diffiof the family settlement made by that deed. Trustees of culty was solved by the appointment by the Coiut of settleSr''^ trustees for the purposes of the Acts of the compound settlement (as it was called) constituted by the series of
trustees appointed
Wiinborne and {>/) See also He Browne's Contract, 1904, 1 Ch. Re Fhillimore'' s Estate, 1904, 537 Re Marshall's Settle2 Ch. 460 ment, 1905, 2 Ch. 325.
; ;
the passing of that Act, unless inconsistent with the nature or terms of the disposition. See Re Ailcsburif\s iScttled (/>) Re Estates, 69 L. T. N. S. 493
;
(2)
Above, pp.
Stat. 53
is
c. 69, & to apply and have ettect with respect to every disposition before as well as after (a)
s.
266. 54 Vict.
1,
4,
which
Settled Estates, 1897,' Ch. 149 Re Dii Cane and Nettlefold's Contract, 1>S98, 2 Ch. 96,
Titbits'
;
108-110.
is
mi
It
is
accordingly necessary,
exercise
of
whenever
a
title
is
made through an
by a tenant
persons
the
compound
settlement, for
tlie
who
are alleged to be
compound settlement
care
{d).
In regard to
the
must be taken
to distinguish
cases
where a tenant
convey the
is
really selling
by a compound and
tlie
life
Where
these powers
money
{e).
The
original deed
tlie
Acts
ment over
(,/')
or the re-settlement of
any
estate limited
AUesbxrii mul lieiKjh^ (f) lie 1893, 2 Ch. 340, ';3o8, 3o9 R, Mundy and Jtopcr's Contract, 1899, '27"), 298. 1 Ch. Settled (rf) See Jie Speiuri\i Estatfx, 1903, I Ch. "5 Jtc Co>d/\s Scttlrd Kxtalrn, 190."), 1 Ch. 712.
'
Keck and lliirt^s Contract, 1898, Ch. 617; Re Da Caitc and Nvltlefohrx Contract, 1898, 2 Ch. approved Rr Mumtij and 96, Roper\H (hntract, 18ii9, 1 Ch. 27o,
()')
It''
1
;J96.
bits'
149, which at fir.st occasioned great difficulty to the profession, must now be taken as having' decided no more than that it is within the jurisdiction of the Court to treat a deed of settlement followed by deeds exercising powers contained therein as together constituting a compound settlement and to appoint trustees of such compound settlement accordingly. (/) Wheelwright v. Walker, 23
Ch. D.
7.')2.
312
tenant for
Where
and in
tail
and
Land
and afterwards a disentailing assurance has been executed with the conciu-rence of the tenant for life and
a re-settlement
the tenant for
made
life
not be destroyed
(/?),
statutory power of
as
tenant for
under the
made by the first deed and require the purchase money to be paid to the trustees for the purposes of the Settled Land Acts appointed by or under that
settlement
deed.
And
he
may
do
this,
although he subsequently
life
estate,
and even
if
his
;
old life
were extinguished by the re-settlement since the powers conferred by the Acts are incapable of assign-
ment
is
or release
(/).
It follows that,
not expressed to be restored, and the powers given by the original settlement are not expressly preserved, the
life
tenant for
and
convey all the estate thereby limited, including that and upon such a sale dealt with by the re- settlement the trustees of the original settlement will be enabled to
;
As we
have seen
this
and re-settlement of kind, any person who has taken a life estate under
(/.),
after a settlement
(g)
Re
{i)
Re Wimborne an^
1904,
1
Broivne's
Contract,
&ee Re Miindy and Roper'' s Contract, 1899, 1 Ch. 275, 296, 297; below, pp. 318, 324. Above, p. 309. (/,)
''^1''^
sell
as tenant for
under the compound settlement (consisting of the original settlement and the re-settlement taken together)
and convey all the estate limited by and still subsisting under such compound settlement but in such a case trustees of the compound settlement must be duly
;
money
(/).
It has
ment and
may
be
Land
settlement and
re-settlement
may
.
together be treated as a
compound
life
settlement ( m)
tenant for
life
purport to
sell
and convey
as tenant for
under the
to
made by the
tenant for
life will
onl}- operate
ment
and
if
on such a
sale
any
estate or interest
still
sub-
As above
decisions
is
stated,
the
principle
governing
these Principle
is
to
that
life
in
determining whether a
series of
,
man
1
1
undervXit
settlement one is tenant
for
life.
tenant for
under a
instruments constii
tutiug a so-called
settlement he
Settled
is
compound
tenant for
life for
is
Land
not whether he
is
(/)
See
Jie
Contract,
1899,
{in,
lie
Du Caiuuud
1898,
2
Xettlefold's
Contract,
Ch.
96
He
296,
298;
He
Extates, 1903,
Ch. lb.
814
life estate of
his
to be
had
solely to the
and the
tained
theii* validity,
power
Re CormcaiUs
West and
3funro\s
Contract.
(>?).
ever, appears to
in the case of
tiYfct (o),
//NPi'ii
ot
Re
Corntml/i.s
whicli
-If
be
these
By virtue of
made by
will lands
life,
with remainder to
was limited to issue thereout to the use of C, A.'s wife. A. and B., by a disentailing assurance duly enrolled, granted the lands to X. and Y. and their heirs, to such uses as A. and B. should jointly appoint and by a deed of re-settlement A. and B., in exercise of this power, appointed the lands to such uses as they should by deed
;
Land
Acts.
A. afterwards
life
contracted to
sell
selling
tenant for
life
money being paid to the trustees appointed thereby, and C, the jointress, concurring in the conveyance to release her jointure. The purchaser obpurchase
jected to the title so offered on the ground that the will
n) See lie Ailesbicn/andlrcaffh, 1893, 2 Ch. 345; He Mimdi/ and lioper's Contract, 1899, 1 Ch. 276,
293
297.
1903, 2 Ch. 150; 72 L. J.
(o)
Ch. 499.
315
upheld
this objection
A.'s old life estate under the will had been restored to
statutory
power
of
sale
compound
settlement created
by the
so
will
{/>).
In
it
judge professed
Roper^s Contract
that his decision
to
(q)
is
Re
Jliuidy and
but
is
respectfully submitted
manifestly
wrong
{>).
common
ment
life
with remainder in
again limiting a
life estate
Cuit-
1904, 1 Ch. 6;i7, 542. Above, p. 308. (r) The Court of Appeal in M'ltidi/^s riixi udopteil the view of eminent real property lawyers that the words ' in restoration of his former life estate" have no real conveyancing value except as an expresr-ion uf intention that the express power.-s appendant to
tract,
tlemeut given in Davidson, Pree. Conv. iii. 1030, 10:<!), 1059, 1060, where after limiting the first life estate to A. in restoration of his former estate, the powers of leas ing and of consent to the exercise of the power of sale are given to ' every person herehii math' tenant
for
life"
(when
in
possession)
may
well be asked,
TFif<t\i ruse
how
in
C'or)iirii//is
that estate shall not be destroyed Sug. Pciw. 71, 8th ed. Davidson, Prec. Conv. iii. o9b, 3rd ed. 199, 1 Ch. 294. And the opinion of conveyancers certainly was that where upon a re-settlement a life estate was limited to a man in restoration of his former life was tenant for life estate, he under the new settlement as well as the old see the form of re-set;
have
ac(juii-ed
could B. a rentcharge in
priority to A.'s life estate unless A.'s estate had been entirely
taken away from and then given back to him But if the deed of re-settlement did indeed restore to A. that life estate with which he had pri'viously parted, how can it be reasonably denied he was tenant for life under the re-settlement ?
'r
316
him
Acts.
the
Land
First,
whether his
life
to
him
tenant for
money being paid to trustees for the purposes of the Settled Land Acts duly appointed under the old settlement.
the
Secondly, he
may
sell
compound settlement
constituted
and the re-settlement together and convey the whole estate limited by and still subsisting under such compound settlement but then trustees of the compound and, unless all settlement must first be appointed persons beneficially interested be sui Juris and concur in making the appointment (.s), this can only be done
: ;
by the Court
the
principles
{a),
(t).
Thirdly,
it
is
submitted that, on
Moper'/i
laid
down
sell
in
Bp Mnndi/ and
Contract
he
may
under the
re-settlement alone,
when
ment may
money but
;
in that case
he can only convey the estate which was the subject of This is certainly so where his life the re-settlement.
estate estate
was not limited to him in restoration of (x) and should be so, although his
;
his
former
life estate
estate.
But
in
raised
so
by the
decision in
Wesfs
title as
case
{;/)
and
sale
accept the
alone,
if
upon a
under the
relife
had been
estate.
(s)
Settled
trustees of
a compound
settle-
Ch. 502, deciding that tenant for life and tenant in tail in remainder of land free from incumbrances can, when together appoint disentailing,
Estates, 1906, 2
ment.
{t)
Me
1
Spencer'' s
Settled Estates,
1903,
{u) {x)
(y)
314.
{m).
31'
re- settlement Sale by tenant ,. ,, for life derivand the tenant possession derives iiis estate ing his estate *'' *^ ^' solely from the re-settlement and never had the estate
Where
and
,.
alone,
make
title as
exercising
settle-
life
sell
under
compound settlement
(z)
or under
the re-settlement
As
already stated
(a)
life is
empowered T^^
excep-
to sell
all estates or
:
or to arise thereunder
to
but this
.
Estates, &c.
priority to
settle-
power
.
is
subject
.
three
express qualifications
.
or leaving
*^^*-
first is
These
may
to
made
previously to the settlement, and also by charges which a statutory priority is given, such as estate duty (/;) or rentcharges created under the Improvement of Land Act, 1864 {c). And where there has been a settlement
followed
by a
re- settlement
or
re-settle-
and the vendor purpoi-ts to sell as tenant for life under the re- settlement or the last re-settlement alone, then, as we have seen (d), that rements,
settlement will be the settlement for the purposes of
the Acts, and
any estate or interest still subsisting, which has been created by or under some instrument of
earlier date
interest
having priority
than that re-settlement, will be an estate or to " the settlement " {r). The
(c)
{z)
Stat. 27
&
;
28 Vict.
c.
114
313.
Above, p. 306. Stat. 57 & ;)8 Vict. c. 30, (1) ; see the chapter on the Death Duties in the second
(a\
(b)
49
sq., .59
8.
(rf)
(e)
volume.
tract,
Above, p. 312. lie Mttndu and Roper^s Con1899, 1 Ch. 275, 289, 290.
nis
Estates, &c.
conveyed or
created for securing
and charges
securing
as
money
actually
raised.
money
whereby the tenant for life exercises his power of conveyance. The word other seems to relate here to the so that estates mentioned in the first exception
;
is
as
lie
Dickin and
actually raised.
now been
judicially
KehalV s
Contract.
the Settled
Land
Act, 1882
money
And
it
has
estates, interests
and charges
subsist-
under the settlement and conveyed or created money actually raised include only such mortgages or charges as have been made in pursuance of some power or trust for the purpose either expressly contained in the settlement or' annexed by law to some and that estate or interest conferred by the settlement
for securing
;
do not extend to
under the
settlement.
and created in exercise of the right of alienation In particular, it has been incident to his ownership.
to him,
mainderman
of his estate.
mortgage made by the tenant for life or any remainderof his estate under the settlement, or, where the tenant for life is also the ultimate remainderman in fee
man
made by him
it
And
is
held
&
46 Vict.
c.
38
319
long
[h)
{g), so
by
sect.
50
any mortgagee of his own life estate, is enabled under sect. 20 to convey the settled land to the purchaser discharged from the estate of the mortgagee or mortffaffees and the charge or charges so created " and that the purchaser cannot require the mortgagee or
:
.
Purchaser
require the concurrence of such ^ gagees.
c*iinot
(/).
It follows
from
tenant for
jJiainderman
i" fee.
one for
life
demanded
on a
sale
by the tenant
for life
Aforfion, the tenant for life can convey the Mortgages ^^ .*^f ^' from any mortgfaffe made by J any J mamdermau T remainderman alone of his estate or interest under the alone, settlement, if the charge were created solely in exercise
required.
settled land discharged "
*^
_
ownership and
& 46 Vict. c. 38. See below, p. 322. () Rt Dickin and KehalVs Contract (Swinfen Eady, J.), 190S, Prior to this Ch. 213, 221. 1 decision, the writer's opinion was
{g)
Stat. 4o
(A)
that,
327,330-334: but he expressed the view that the Court would strive to overcome the difficulty raised. These pa.ssages are omitted from the present edition, because it is not likely that the
above-cited decision (which is a most beneficent ruling for conveyancing practice) will be upset. It is respectfully submitted that the best justification for the docision seems to be found in the learned judge's observations (ly08, I Oh. 218) that if the second exception above mentioned should extend to mortgages by beneficiaries for life or in remainder of their estates under the settlement, that would go far to render any sale under the Settled Land Acts impossible, and that mortgages by the remaiuderman should be governed by the same rule as alisolute assurances of the remainderman's estate (as to which see above, On pp. 311, u. (/), 312, n. (</)). this ground the decision has been approved by the C. A. Re Davies and Kent's Contract, H10, 2 Ch. 36, 53 sq.
;
320
and
fall
under the Settled Land Acts are those limited or created by mortgages made to secure sums of money actually
raised under
some
trust or
power contained
remainder
life
in the settle-
and charge
a capital
sum
for his
own
or
money by mortgage
to all the
making improvements, or for equality of The second exception also includes all estates or interests created in exercise of any power given by the Settled Land Acts (k) or any other statute for the tenant for life or any other person entitled under or by virtue of the settlement to mortgage
exchange or partition.
or charge the settled land
(/).
And
is
whenever
it
appears,
upon a
sale
made by
Land
Purchaser
subject to
any
estates
must require
the concurrence of all, interests to him (m). The second exception includes whose charges only estates or interests conveyed or created for securing fall within the second money, that is, by way of mortgage or charge, and does exception
settled
c. 38, ss.
c.
45 & 46 Vict, 53 & 54 Vict, see above, p. 285. 69, s. 11 [I) Swinfen Eady, J., Me Dickin
{k)
Ch.
18,
;
47;
213, 221. {m) See Re Mnndy and Roper'' Contract, 1899, 1 Ch. 275, 289.
321
Land Acts
or
(ii).
And
in
all
charges, terms or
by
contained
or
the
put in use
thereunder
may
way
(o).
The
third
for life
empowered by the
Settled
Land Acts
to
{^.^^^
^he
convey {p), appears to be confined to leases and grants made by the tenant for life, or his predecessors or the
settlement trustees in exercise of some power or trust
for the purpose contained in the settlement or of
life-tenant's
conveyance.
some
statutory power
q)
With regard
incident to
his
to dispositions
made by a tenant
,
of his life estate in exercise of the right of alienation tenant for life
ownership
i
(r)
the Settled
Land
i.
Act,
1
fu ^^?*ht
1882
.
(s),
tenant tor
and
are not capable ot assignment or release, ownership. do not pass to a person as being, by operation of law
life,
ii>Tj> iiie
iir
and remain
by the tenant for life after and notwithany assignment, by operation of law or otherstanding
wise, of his estate or interest
also
is
void
But
of
an
any
value of the
^^* estate,
the estate or
that case the
and
in
() See Wheelictit/ht v. Walker, 23 Ch. D. 752: above, p. 311 Re Dickin and KehalVs Contract,
1908,
(o)
Above, p. HOT. See above, p. 318. p. 318; Wms. Real Prop. 118, 2Isted. () Stat. 45 & 46 Vict. c. 38.
(p)
()
[q)
Above,
s.
96, 108; Be Mundi/ and Roper's Contract, 1899, 1 Ch. 275, 290.
[t)
w.
21
322
actually in
making
of leases thereof
by the tenant
fine,
for
life,
made
at
and in other respects are in conformity with this In this enactment "assignment" includes assignment by way of mortgage, and any partial or qualified assignment, and any charge or incumbrance, and " assignee has a meaning corresponding with that Morto-a,?es by of assignment (.r). It is clear from this enactment that, where a tenant for life has mortgaged his life estate, he Mfe^of his"^ life estate. cannot make a valid title on a sale of the settled land under the (Settled Land Acts without the consent of But as we have seen, it every such mortgagee (//).
Act
{21).
''
if
life
obtain the
of the settled land under the Settled Land Acts, he can convey the land discharged from such mortgages and the purchaser cannot require the mortgagees to concur It is thought, however, in the conveyance to him iz).
is
mortgagee to the
be absolute
and not revocable, and shall be manifested as such by some writing signed by him or his authorised agent, and duly stamped as an agreement {a) for the giving
;
by
is
{b).
It
operation and to acts done before or after the commencement of the Act.
(?/)
Re
Cardiyan
Curzon-Hoive, 40 Ch. D. 338, S. C, 41 Ch. D. 375. Re Dickin and KelmWs Contract, 1908, 1 Ch. 213 ; above, p. 319. (a) See above, p. 28, n. [e). 29 Car. II. c. 3; (*) Stat. above, p. 3. The element of cousideration appears to be present
v.
340, 341
(z)
323
by
ownership
the
is
meaning
but until
it
is
life
The
effect of
exactly the
same
in the case of
,
mortgages of the
,
the consent
.
only of an absolute assignee for value of the life estate (and not his concurrence in the conveyance) being
necessary to enable the tenant for
settled land discharged
It
life
to
convey the
estate (d).
assignments Assignments
made (whether
absolutely or
by way
of
by
estate in consideration of
iTiRmft^^G or
way of any family aiTangement are by the Settled Land Act, 1890 (e), excepted from the operation of
sect.
by way
of
arrangement
enabled,
by the exercise of veyance under this Act, to convey the settled land discharged from the estate or interest of any person Thus where entitled under an assignment of this kind. there has been a settlement followed by a re-settlement limiting a life estate to the same person who was tenant for life under the original settlement (whether in restoration of his former life estate or not), and he desires
.
and the tenant for life is his power of sale and con;
Settlement
gttlement limiting rentpriority to tt>e original
life estate.
to sell
life
whom
by
way
of
as
it is
(rf)
[i-)
322.
accorded ou the terms of the mortgugoe's charge being transferred to the veudor's interest in the purchase money.
s.
53 & 54 Vict. c. (ill, 4 above, p. 310. (/) See above, pp. 307 317.
;
21(2)
324
former
life
estate.
For
instance, if
tail)
or
by way
estate,
it
will
And
life-tenant's
and
conveyance in exercise of
his
settlement
the purchase
money can
;
safely be paid to
Land Acts
of
{g).
and
trustees
the
It
apj)ointed
Release of the
where the tenant for life has made a gratuitous assignment of his life estate, he can nevertheless sell and convey the settled land freed from the It has been assignee's estate, without his consent {h). held that if a tenant for life assign or release an
undivided share of the land he holds to the remainder-
man,
so as to effect a
merger
{i).
land
And
Land Acts
man
land
original settlement or
still
some re-settlement)
[g)
See above,
[b).
p. 310,
aud cases
Vict.
1
c.
38,
s.
cited in n.
{h) This seems to be the case, notwithstanding that by such an assignment the tenant for life has parted vrith the possession or
Ch. 275, 296, 297 Re Barlow's Contract, 1903, 1 Ch. 382, 384 (in
it is presumed that the release was made for value) Re TFinihorne and Browne'' s Con;
receipt of the rents and profits of the settled land, and has so ceased to come within the definition of a tenant for life in stat. 45 & 46
tract, 190-J. 1
(i)
Re Barlow's
1903,
Ch. 382.
325
appears) where he has released his life estate to a remainderman in fee simple, but some rentcharge or charge of portions remains subsisting under the original But where no interest or charge remains settlement subsisting or exercisable under the original settlement, it is a question whether the tenant for life would retain his statutory powers after the release by him to a
(/)
.
remainderman
Another
1882 (m),
is
effect of sect.
powers do not pass to his trustee in bankruptcy but remain exercisable by him and it is thought that the trustee cannot be said to be an assignee for
his statutory
;
It
is
also submitted
that a purchaser from the trustee of the bankrupt's life estate is not " an assignee for value of the estate or
interest of the tenant for life " within the
sub-sect.
meaning
of
of this enactment
(ii),
which seems
to be
the
life
life
estate
by the
(o)
.
direct
himself
Where
-^^ct
of
bankfor
^^^'
contract for the sale of the settled land has been signed tenant
by the tenant for life, the subsequent commission by him of an act of bankruptcy, whether followed or not by an adjudication of bankruptcy, can be no bar to his
effectual completion of the sale
!^
^^'.'"
completion.
Settled
(k)
Land
Broione's 1904, 1 Ch. 537 see above, p. 3J4 P/iilliinore's llr Estate, 1904, 2 Ch. 400; Jte MayshalVs Settktnent, 1905, 2 Ch. 325.
Contract,
;
:
Re Wimborne and
Above, Above,
p. ill. p. 321.
(/)
Contract,
iCh.
275, 296,
297.
(o) If this were not so, then the rights of a purchaser for value from a srratuitous assignee of the life-tonant's estate could nut bo affected without his consent. But it is submitted that this is not the law.
326
For the trustee and any purchaser from him estate would take the vendor's property subject to all equities affecting it, and to the right of the purchaser from the tenant for life to have his contract specifically performed, and the purchase money is
life estate.
of
the
life
for
the purposes
if
,
of
the Acts
or
,
into
Court
Acts by a bankrupt
tenant tor
life.
committed an act oi bankruptcy or been adjudicated afterwards sell the settled land under the bankrupt, ^
'
p) y\
(
And
a tenant for
o
^
,
,
life,
,
who has
i-
already
.
Settled
Land
by the Acts,
if
the
life estate
has
by decision that the power of the and convey is altogether paramount to the rights of his trustee in bankruptcy and any purchaser of the life estate from the trustee, it appears advisable for a purchaser of the settled land from a tenant for life, who has committed an act of bankruptcy or been adjudicated bankrupt, to ascertain, before paying his purchase money, either that no bankruptcy proceedings have been taken or no adjudication made (in either of which cases the vendor would clearly have full power to convey), or that no sale of the life estate has been made
Until
it is
established
tenant for
life to sell
by the
trustee.
it
And
is
if
life estate,
tenant for
life
before
paying his purchase money, that the purchaser of the life estate does not claim to be entitled to keep hold
of the settled land while the life estate endm'es but will
(r/).
(p) See
Chap. XI.,
^'-"^
Where
a debtor's
...
life estate is
^
a composition or sciieme oi
L arrangement approved -L by
takinar the
jjfg estate
any adju-
under a
or scheme of
(r)
it is
estate directly
^i^^ank^^
te
from the tenant for life for the trustee acquires the life estate, not by mere operation of law, but by the debtor's own act and agreement under a contract sanctioned by the Court and in consideration of the
creditors
proceedings,
relinquishing
their right
to
proceed to
an
adjudication of
fact to be in the
bankruptcy.
The
trustee appears in
same position
as a trustee
under a deed
And
thought that in
by a
sale subsequently
made by
As
life is
the sub-
tioned
(s),
and with the exceptions above menand cannot displace the rights of his assignees
it
is
of the highest
under the Settled Land Acts to ascertain, first, that the estate or interest which is the subject of the settlement
is
sold; and,
estate, interest,
which
chaser of the life estate should so yield up possession to the purchaser from the tenant for life, that would bo equivalent to a surrender by operation of law of the life estate in the settled land see Wms. Real. Prop. 100, and
;
See
s.
stat.
53
&
54
"Vict,
71,
(,v)
(ifi,
17); see
Wms.
3'^8
With regard
settlor
whether the
sold.
entitled to the
And
if
whole estate in fee simple or other interest this were the case, the tenant for life under
by an exercise of his statutory power of sale, even though the settlor did not dispose of his whole interest by the settlement. For the Settled Land Act, 1882 {it),
provides that an estate or interest in remainder or reversion not disposed of
to
for
the purposes of the Act, an estate or interest coming to the settlor or heir under or by vii'tue of the settlement,
and comprised
interests
In
or
there
are
any
estates
coming within the exceptions out of a tenantfor-life's statutory power of conveyance, a purchaser from him should inquire, first, whether there are still subsisting in or upon the lands sold any estates,
interests, or charges
secondly, whether
any
upon the lands sold have been conveyed or created for thirdly, whether any securing money actuallj^ raised such leases or grants as are mentioned in the third exception (;r) have been made of the lands sold or any
;
part thereof or
any
interest
life
therein
and, fourthly,
made any assignment qualified or by way partial, for value, whether absolute, As the conveyance or of charge, of his life estate.
whether the tenant for
has
creation of such an
estate, interest, or charge, or the
making
au assignment
it
an event which,
if
took place,
Stat.
;
45
&
46 Vict.
c. 38,
Contract, 1907,
{x)
2 (2)
329
may
be afforded as to
by a statutory declaration by the vendor that he has not made and does not know of any such estate, interest, charge, lease, or grant, and by solicitors, who have acted for the vendor and his
the subjects of this inquiry
predecessors, that they
know
title
.
title (s)
submitted
the
making
is
of these inquiries
Ro Ford and
Sect.
20 of the Settled
Land
life selling
under that Act a general or an unlimited power of conveyance, but only gives
certain exceptions
{b).
him
It is
the
onu>i lies
he
far
is
case, and that bound to answer the above-mentioned inquiries as as his knowledge is concerned. The practice, more-
Practice as to
over,
on
sales
is
to abstract
\^
settlcmeut
down
to the estate or on
to
sales
under
have Land
it is
Acts,
and
is
by no means conclusive
good
title.
The
pur-
chaser
is
assigned,
mortgaged or charged
any
way, and that no charge or power of charging given by the settlement has been actually put in use or exercised
(y)
(z)
(a)
Above, pp. 132134. See above, pp. 132 134. above. 10 Ch. D. 365
p. 178.
(A)
306,
3(17
317
sq.
330
power
for if
any one
title
by himself alone
itself affords
(c)
And the
no information on these points. For instance, a term on trust to raise portions for younger children is generally limited in and a remainder after their parent's life estate {d)
;
portion
lifetime,
is
and he
mortgage
to secure, either
estate, the
by
his covenant or
interest
his life
portions term.
Here
it
and third exceptions above mentioned from the lifetenant's power of conveyance prevent him from con-
Land
veying the settled land, on a sale under the Settled Acts, discharged from any estates or interests
and con-
veyed or created after the contract for sale but before the Thus where since date of the deed of conveyance (./'). the contract but before the conveyance some estate,
interest or charge has
some
trust or
(g)
power
settlement
for securing
money then
actually raised,
power
made, for value under some express or statutory (A), the tenant for life cannot convey the settled
See
above,
pp.
164
168,
vol.
ii.
part
ii.
460
467,
and
318
sq.
Conv. Prec. Davidson, (d) Williams vol. iii. 272, 3rd ed.
;
(/) Above, pp. 306, 307, 317. Above, pp. 318, 320, 321. (ff)
(h)
on Settlements,
(e)
219.
331
to him.
It follows
(?)
ought to he repeated by
deed
of
and an
before
the
is
execution
the
conveyance.
is
But
it
not
mortgages
or
other assign-
ments for value made by the tenant for life of his own life estate under the settlement. It is now decided
that
any
estates or interests
fall
mortgages do not
referred to,
has power to
sell
and
tenant for
life
has
either absolutely
(k). Where a made no assignment of his life estate, or by way of charge, at the time of
Land
Acts,
it
of
liis
own
life estate.
And
it is
by conveyance has
assignee
for
priority, not
quent mortgagee or
value of
the
life
(i)
(k)
(/)
The
Settled
Land
Act,
1882, gives to tenants for life express power to sell the settled land, and to contract to make any such sale, and enacts tliat
every such contract shall be euforeeable against every successor in title for the time being of the tenant for life; stat. 4.') & 46
Vict. c. 38, ss. 3, 31 (1, 2). sale of laud is made when a binding contract for sale is entered
332
As
to seeing
from a tenant
of duty
is
The
tenant for
life
bound, as a
money,
as other persons
{)>)
;
are on
whom
and he cannot
tion
to
(o).
at a price to be fixed
by
arbitra-
Sales
also
required
be
made
at
best price
that can
be reason-
ably obtained (p) and the tenant for life, in exercising any power under the Acts, is required to have
all parties
entitled
and
is
in the
position
duties
and
is
those parties
But
it
enacted that, on
a sale under
the powers
life shall, as
have
itjto
Act the
sale
was made
valid
and
below,
Chap.
XI.
1.
And
&
46 Vict.
c.
38,
rights given by statute must be recognised and enforced by all Courts, whether of legal or equitable jurisdiction, even though they may confer or create interests unknown or foreign to the previous law see Lord Advocate V. Jl/orai/, 1905, A. C. 531.
;
As
to the duties
{/)
Above,
p. 301.
See above, p. 267. For exceptions see stats. 45 & 46 Vict. 53 & 54 Vict, c. 38, 8S. 10, 16 Housing of the Workc. 69, s. 9 ing Classes Act, 1890 (stat. 53 & 54 Vict. c. 70), s. 74.
(w)
;
(o)
Jie
1
Ch. 50, 55, in which rase, however, a private Act of Parliament had been obtained confirming a contract by a tenant for life to sell at a valuation, and it was held that by virtue of the private
1907,
see above, the purchase money may, at the direction of the tenant for life, be invested in real securities, he niay well agree, on exercising his statutory power of sale, to leave a proper proportion of the piu-chase money on mortgage; see above, p. 367, and n. (e): but in such case the trustees of the settlement are not bound to make the investment at the direction of the tenant for life, unltss they are satisfied that that direction has been given upon a proper investigation of the title and a proper report as to the value of the proposed security
sale,
pp.
263
sq.
As
Ee Hotham, 1902,
2 Ch. 575.
333
and
to
have complied
witli all
{>).
And
this
enactment
title of
a purchaser, against
whom
duced,
resold
at
a large
increase
who has
notice of
some imThus,
to
life.
sale
reserve
any adthe
vantage
the
life
personally
statutory power and the vendor's conveyance will be void as an assurance under the Settled Land Acts (t). For example, the payment of a commission to the tenant for life would certainly invalidate the sale (it) so would a stipulation that the purchaser shall
detriment of
would and would go on his death to his executors or administrators, and not to the persons entitled under the settlement. A stipulathereof, as the benefit of such a lease
estate,
any part
by a tenant
^
for life
under the
all
Settled
Land Acts
pay
the
vendor's costs
and expenses
and incident
for
out of his
own
of the purchase
money
or otherwise out of
.
tlie
capital
But the
case is different
Sect. 51, also extending, in person dealiug in good faith witli the tenant for life, to the ease of an exchange,
favour of a
purtitiou,
lease,
V.
moi'tgage
or
charge. () Uurrcll
1
Littkjohn, 1904,
1893, 3 Ch. 169 Chandler v. Bradley, 1897, 1 Ch. 315 Re Handwun and Wilcox^s Contract, 1902, 1 Ch. 599. {u) Chandlery. Bradley, nh\sm^. {x) See Re Smith's Settled Estates, 1891, 3 Ch. 65; Smithy. Lancaster, 1894, 3 Ch. 439.
;
334
mortgagees of the
the tenant for
vendor's
life
life
estate {y).
In
this case
would be stipulating
for
an
advantage to him-
self at
by the amount of by the vendor personally which the purchaser contracts to discharge and the sale would appear to be void. As we have seen (s), where the purchaser has notice of some non-compliance with the conditions of the Acts other tban those which forbid
chase
is
money
obviously decreased
costs payable
the tenant
for life
to profit
at
the remainderman's
expense,
it
protection
by the enactment
It
purchaser, an infirm
life
piu-chaser or lessee, who had notice of some which made void the attempted exercise of the And further, it appears that if, statutory power (a).
by a
fact,
on a purported exercise by a tenant for life of some power given to him by the Settled Land Acts, he do not comply in all respects with the conditions prescribed by the Acts, any conveyance thereby made is altogether void and not merely voidable, and does not
pass the legal estate in the land
[b)
;
save only
when
See
Cardigan
I).
v.
Howe, 41 Ch.
375
CurzonRe Sir
Robert PeeVs Settled Estates, 1910, 1 Ch. 389. [z) Above, p. 302. (a) Re Handnian and Wilcox^s Contract, 1902, 1 Ch. 599. (A) See Chitty, J., Cardigan v. CMrswz-jHoMY, 30 Ch. D. 531, 540
;
Co'^aa^ Contract,
In Re Handman 1'j09, 2 Ch. 69. and Wilcox's Contract, 1902, 1 Ch. as an open it was treated 599,
question whether a lease granted under the Acts by a tenant for life to one who knew that the best rent was not reserved was void or voidable: but it is submitted that this view was mistaken, the rule as to the execution of statutory as well as express powers being that, in default of compliance with the terms of a power, any purported exercise thereof is void see above, pp. 293, 299.
335
by the
enact-
ment under
discussion.
Where
the
title
Title depend-
gagee of a power of
implied in the
exercise of a
mortgage deed, the piu-chaser's counsel must satisfy himself that the power of sale has become so exercisable
that a
mortgagee's
obtain
the
estate
by the express terms of mortgage deeds, the common form was first to give the mortgagee a general authority to sell at any time after the payment of the principal money secured had become due (c), and then to provide, particularly, that the power of sale should not be executed unless and until default should have been made in payment of the money secured at the appointed time, and the mortgagee should have given notice to pay off, and default should have been made in payment for a specified time (d) after such notice, or unless or until some interest should have fallen into arrear for a given period (r). But in every well-drawn mortgage deed an elaborate clause was inserted exconferred
((-)
after
Usually six months. Usually three months. (/) Davidson, Proc. Couv. vol.
pt.
ii.
the particular cases has happened, in which a sale is authorised, 07ivhclhtr defmiH hax been made in payment of ami pruwipal or interest
xecured />;/ tlie mortijat/e deed at the time appointed for payment thereof or tvhether any money remains on the security of the mortyaye deed, or as to the necessity or expediency of the stipulations subject to which the sale shall have been
ii.
6G
kq.,
79,
^508
310,
4th ed. The form there given provides that, upon any cale purporting to bo made in pursuance of the mortgagee's power of sale, the purchaser shall not bo bound to see or inquire whether any of
made, or otherwise as
to the pro-
336
On
in the
common
abstain from
requisitions as to any matter on which he is exonerated from the duty of inquiry for if through his own inquiries or otherwise he obtain notice
;
making
of
thereto,
see,
some irregularity in the sale, he must have regard and will no longer be protected {g). He must
however, that sufficient time has elapsed since the
become properly exercisable (A) but if this appear to be the case, he need make no further inquiry (i). If a power of sale expressly given by a mortgage deed
;
priety or regularity of the sale and that, notwithstanding any impropriety or irregularity whatsoever in the sale, the same shall, as regards the safety and protection of the purchaser, be deemed to be within the power and be valid and effectual accordingly, and the remedy of the mortgagor in respect of any breach of the provisions of the mortgage deed conferriug the power of sale or any imprupiiety or irregularity whatsoever in the sale shall be in damages only. Where a mortgage deed contained a similar clause, omitting the w^ords in
;
italics, it
was held that a purchaser buying in good faith on a sale purporting to be made in exercise of the mortgagee's power of sale was not bound to inquire
whether any money remained owing upon the security of the mortgage deed, and would be
protected
date of the mortgage deed; but it was provided that the mortgagee should not execute the power of sale unless and until default should have been made in payment at the time appointed of some principal money or interest secured, and the mortgagee should have given notice to pay off, (otd default should have been made in payment for three months after such notice and it was held that a purchaser from the mortgagee purporting to exercise his power of sale seven mouths after the date of the mortgage deed had notice ipso facto that the sale was irregular for the power could not possibly have become exercisable until three months had expired after the mortgage money had become payable, that is, uutil nine months after the date of the
;
mortgage deed.
The
sale
was
the
money
off at
Ch. D. 600.
therefore set aside on the mortgagor's application, the Court being of opinion that the purchaser was not relieved by a clause for his protection in commonf orm,
& Sm.
273,
even though
it
exonerated him
v. Garfit, 38 Ch. D. where mortgage money was made payable and a power of sale given six months after the
33;
must ascertain not only that the event has occurred in which the power was made exercisable, but also that The power of sale the mortgag-e is still subsisting: U')incorporated by the Conveyancing Act of 1881 in mortgage deeds made after that year (/), and since generally relied on in practice, gives to the mortgagee a power of sale when the mortgage money has become
due, but provides (m) that he shall not exercise such
Title under
pg^gj. of saie.
power unless and until (I) notice requiring pavment of the mortgage money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the mortgage money or of part thereof for three months after such service () or (2) some interest under the mortgage is in arrear and unpaid for two months after becoming due or (3) there has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor or of some person concurring in making the mortgage to be observed or performed, other than and besides a
;
money or
interest
This follows
is
the old
conveyancing form,
made
is
exercisable at an earlier
but
tlie
p)
lie
Edtvards to
Green,
c.
58
41,
months
notice.
(o)
19.
Sect. 20.
See Barker v. Iliuigworth, 2 Ch. 20, deciding that, where a notice had been served requiring payment of the principal money secured at the expiratiou of three calendar months from the date of the notice and warning that in default nf such papiient the mortgaget; would proceed to sell, the nu)rtgagee
(w)
1908,
professed exercise of the power of sale conferred by this Act the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irrogubut any person larly exercised damnified by an imauthoriscd or exercise of irregular improper or
;
338
The Act
power of
sale
and
it
does not
expressly exempt the purchaser from the duty of inquiring, before conveyance, whether the sale has been
properly made.
If,
therefore,
the
piu'chaser
make
inquiry, before accepting the title, whether any case has arisen to authorise the exercise of the power of sale,
will
It
appears,
from making
such inquiries
sufficient
(s),
time has elapsed for the power to have become Where a mortgage deed is properly exercisable {t).
executed in the usual form, providing for repayment of
the
interest, six
the earliest
eight
Waiver
of
of the deed
It appears,
by the
interest being
^^^^ ^^^^^ ^ mortgagee's power of sale has become r^9"tnction"on^ the exercise of generally exercisable that is, after the mortgage money
(.)
the mortgagor or
his successors in
may
striction
imposed on the exercise of the power and in such case the mortgagee can make a good title on an But such waiver, to exercise of the powers of sale {y).
be effectual, must be given by
the i50wer shall have his remedy in damages against the person exercising the power.
[q)
(?)
all
persons interested in
Hand Ch ''30
(s)
Above, p. 335, and n. (/). Life Interest, %c. Corpn. v. in Hand, #c. Socy., 1898, 2
BaUc;/ v. Barnes, 1894, 1 Ch. 25. Be Tfioinpson {/) Above, p. 336 ci?!d Holt, 44 Ch. D. 492, 499. () Wms. Real Prop. 549, 630, 21st ed.
;
(x) [y)
Above,
p. 337.
S.'
C, 1898,
Ch.
238;
Holt, 44
339
thus, if the
his
mortgagor have
alone
is
made
his
a second mortgage,
waiver
in-
And where a mortgagee, selling under power of sale, asserts that he can make a good title by means of such waiver, the purchaser is entitled and ought to require him to prove that the alleged waiver has been given by all persons interested in the equity of redemption, and at his own expense to procure all such persons to concur in the conveyance in order to confirm the sale. Where one has bought land from a mort- Conveyance ^^ gagee selling under the statutory power of sale, the pur- l.o^^.,^^^
sufficient (z).
i 1
^he statutory
sale.
power of sale conferred upon him by and Law of Property Act, 1881 protects a purchaser taking under a in professed exercise of the power
;
the Conveyancing
as this
Act only
which
it
conveyance made
of
sale
confers
().
As
the
IT selling
11'
is
mortgagor's concurrence
i.
i-'ii
i.
concurrence
power to have become properly exercisable {h Where the power of sale is express, the mortgagee can convey
to the purchaser such estate as
"VVl)at estate
canonv^v^^^
by the
joint operation of
but
if
this
of course, entitled to
and may require the concurrence of all other necessary parties {<). A mortgagee selling under the power of sale given by the Conveyancing Act of 1881 is enabled to convey the property sold by deed
(z) 'i7;5.
;54().
u.
;
344
(a)
[b)
Above,
Clay
p. 337,
and
V.
iS/tarpe,
n. ( p). 18 Ves.
(e)
Cordiy v. Morqan, ibid. Sug. V. k P. 396," 14th ed. See above, pp. 164 166.
;
22
(2)
340
and
the mortgage
((/).
who has
an exercise of the statutory power of sale (fi), or a mortgagee of leaseholds by way of underlease to convey
Copyholds.
((^ )
that, in
deed is otherwise sufficient in that behalf in law or by custom. When, therefore, a mortgage of copyholds has been made in the form now usual, by a deed of covenant to surrender incorporating the statutory power of sale, followed by a conditional siu'render
uul^^ss the
mortgagee under
(r/),
his
either procure
(/).
The same
holds
course
is
necessary
when
a mortgagee of copysale
{i).
sells
Title under
may
have been or
1881,
may
be well
the year
notwithstanding the
(/).
(d)
8.
Stat. 44
(1).
&
45 Vict.
c.
41,
21
{e)
7982, 4th
Hoclson and Hoicch' Contract, 35 Ch. D. 668. (/) See Re De'ujhton and liarris' Contract, 1898, I'Ch. 458 above, p. 184, and n. (//).
;
Me
{g)
Wms.
;
21st ed.
vol.
ii.
PS.
11(/;
pt.
113
&q.,
4th ed.
&
45 Vict,
41,
341
protpction
to
purchasers
when
sale has
been
effected in
powers thereby
conferred (m)
when
a con-
veyance has been made in professed exercise of the power of sale which it provided (ii). Lord Cranworth's Conveyance
Act (o), however, empowered a mortgagee exercising the sellh^^ imder power of sale thereby conferred to convey or vest the Lord Cran"
11
i.1
J.
worth
Act.
and
dispose of,
which the mortgagor had power to and so enabled a mortgagee of leaseholds by demise to convey the original term (^j), and a mortgagee who had obtained an equitable charge only on freeThe Act holds to assure the legal estate therein {q)
interest therein
.
in the purchaser
by a mortgagee
sell
so
that
if
the mortgagee
he must
made
way
(/).
sale,
does Mortgagee
spelling uuder (s). not stand in a fiduciary relation to his mortgagor o D / power or sale His only obligations are to observe the terms of the bound only to
power and
sell
to act in
good faith
{t).
He
is
bound
to
^
f;iith"
and to take reasonable steps to obtain a and for this reason and because his authority is to sell and not to make himself full owner of the mortgaged property, he cannot sell to himself or to a
fairly,
proper price
8.
71
Contract,
19W. R.
694.
[q)
Contract, 40
(r)
()
c.
145,
Re Solomon and Meagher's Ch. D. 5u8. Above, p. 340. Warner v. Jacob, 20 Ch. D.
Kennedy v. De Trajf'ord, 1 Ch. 762; 1897. A. C. Natt v. Eaxtoii, 1899, 1 Ch. 1900, 1 Ch. 29.
13.
220.
{t)
(n) Above, p. 337, and n. {p). Note the diitVronce in the Ian-
i89G,
guage.
(o)
Sect. 15.
180 873
342
any
scheme for getting the property into his own hands under the guise of sale {u) but he may proceed to a forced sale for the purpose of paying the mortgage
;
debt
(.!').
He
sale
need not
sell
by
of
auction,
unless
of
mode
of
by the terms
his
two mortgagors, who were tenants in common, amount owing for principal, interest and
to
the bulk of the purchase money being allowed remain on mortgage, when it appeared that the mortgagee had acted in perfect good faith, having
it would be unlikely to realise having advertised in vain for owing, and amount the On the other private contract (s). by another purchaser hand, a sale by the transferee of a mortgage, imme-
Bailr.y v.
Barnes.
sum paid
was
for
set
and the persons entitled to the equity of redemption, when it was shown that the transferee of the mortgage had been a mere nominee of the piu'chaser and there had been no bo)td The piu-chaser, howfide exercise of the power of sale. property and resold the mortgaged the having ever, the commencement prior of the to redemption equity of sale to and the purchaser aside the her, proceedings to set
between the parties to
this sale
mortgage
after
Grazebrook, 3 v. (m) Downes Robertson v. Korris, 1 Mer. 200 4 Jur. N. S. 155, 443 Giff. 421
; ;
National
United,
Bank of
Co., 4
Australasia v.
;
App. Gas. 391 Martinson v. Clowes, 21 Ch. D. Bod857, aff. 1885, W. N. 41 son V. Deam, 1903, 2 Ch. 647 see below, Chap. XVII.
^-c.
;
180, 185.
{z)
Kennedy
v.
Be
Trafford, ubi
sup.
343
at the time of
any imperfection
make inquiiy
as to the validity
was decided that he was entitled to tack the equity of redemption which he had purchased to the legal estate acquu-ed by him under the transfer of the mortgage, and so exclude the equity of the persons originally entitled to redeem to set aside the prior sale (a) A mortgagee may well exercise his power of sale, notwithstanding that he has been in possession of the mortgaged property for a length of time sufficient to bar the mortgagor's equity of redempand this is also tion under the Statutes of Limitation the case where the mortgage has been made, not in the form now usual of a conveyance with power of sale, but It in the form of a conveyance on trust for sale (/>), appears too that a mortgagee may well exercise his power of sale after he has obtained an order for foreclosure absolute (c) and his right to exercise this power is not affected by the mere commencement of proceed-
and
it
Sale
by mort-
fofsess^on
^^fter
mort-
barred,
Sale after
absolute^^
Sale pending
redTtn'j^tion"'^
ings either
by himself
to obtain foreclosure, or
.
by the
proceedings.
mortgagor for redemption {d) But when the mortgagee has obtained an order for foreclosure ni.si, giving tlie
mortgagor the usual time within which to redeem, or the mortgagor has obtained the common order for redemption {e), the mortgagee may not exercise his
power of
sale
(a)
Ch.
1903,
(rf)
25.
R.
213;
1903,
I'r)
S/treiis
v.
Theatres,
Ltd.,
1 Ch. 857, 861. See 3 Seton on Judirnient, 1895, 1926, Gth ed.
344
The power
it
is,
the mortgagee do
good
title
must
still
no order suspending in effect the exercise of the mortgagee's power of sale has been made or is
see that
subsisting (g)
Sale by the
A mortgagee entitled
of sale
(//)
mortgagee's
attorney.
may
well do so
He Doivson
and Jenkins's
Contract.
principal
mortgage or a special authority to power of sale in respect of some A power to sell any particular mortgaged property (?')
of
by way
is
property,
is
power
And
all
though
moneys
due
" a person for the time being entitled to receive and give a discharge for the mortgage money " within the
meaning
of 1881
Conveyancing Act
(/),
and
so enable
him
to exercise a mortgagee's
Theatres, Ltd.,
2.
(k)
Re Dowson and
Jenkinses
c.
41,
Above,
C. A.,
p. 337.
kins's Contract,
224, 225.
authorising any person so entitled to exercise the power of sale conferred on mortgagees by that Act.
345
for these
The
sale
powers of
worded
When
1
property
is
1
of
has
become entitled
A'j.1
under a decree oi
loreclosure property.
i"
foreclosed
(A-),
p. 344.
Wms.
Real
Prop.
557,
(o) See Campbell x. Holylaiid, 7 Ch. D. 166 1 Dart, V. & P. 468, 6th ed. 478, 7th ed.
;
346
CHAPTEE
X.
OF PARTICULAR TITLES.
^
^
1.
2. Sale of
3.
Sale of Copyholds. Leaseholds. Sale of lands in a Register County or Compulsory Registration District.
^ ^
4. 5.
Voluntary Conveyances.
Sale
of
6. 7. 8. 9.
Remainders, Mines, Roads, Rivers, &c. Sale of purely Incorporeal Hereditaments. Sale of Charity Lands.
^ ^
Sale of Partnership Property. Sale by Order of the Court. 10. Sale of an Equity of Redemption. IL Sale of Licensed Property. 12. Land subject to Restrictive Covenants. 13. Investigation of Title in view of
Mortgage.
^ 1.
8alc of Copyholdn.
Copyliulds.
On
of special stipulation,
whole legal and equitable estate vested in him as in the In copyholds, however, what case of freeholds {ii).
estate
is
the tenancy
manor
of
which they are held, for the customary estate comprised and what the vendor has to in the contract for sale prove is that he can confer this right. He will have
;
[n)
Above, p. 163; Re
Wilson'' s
avd
Stevens's Contract,
1894,3 Ch.
546, 549.
OF PARTICULAR TITLES.
discharged his obligation
if
-547
is
tliat
is
upon that tenant It must be borne in mind, however, that if there is no tenant upon the rolls, and the vendor cannot by appointment give
that he (the vendor)
entitled to call
to surrender to the use of the purchaser {0).
must, at his
own
mitted
who
And
all
fines
[c).
due
to the lord in
For example, if A., a tenant of copyholds in customary fee, devise them to B. and C. on trust for sale, and these devisees after A.'s death sell them to D., B. aud C. cannot at once give D. the right to be admitted, but must themselves
consequence of such admittance
first
after
which they
as will give
if
him the
But
power
(as distinct
if
from a A. had
trust) for
B. and C. to
sell his
copyholds, or
made by
then,
if
B. and
(J.
were to
for
sell to
had
seized
qi(oi(sq<-
want
of a tenant,
D. would be
It
((/).
must be
Above, pp. 164166. See Bradktj v. Muulou, 16 Beav. 294; ruramoir v. GrtrnWhifrslade, 1 Sm. & GiflF. 541 Icy V. Tai/lor, 35 L. T. N. b. 187
{b)
(c)
;
AV Thames
[1908]
(</)
1
Tiorncl,
Ch. 493.
ic
G/asuv. Iiir/iardi>on,'MIiire,
69S, 2
v.
mkan,
De G. M. 3 B. &
G.
(i.iS
;
7,'.
S.
201
6ag.
; ;
3-18
OP PARTICULAR TITLES.
remembered that the lord is entitled to exact the fine due by the custom on every change in the tenancy of lands held of him by copy of court roll. Thus, if A.,
tenant of copyholds in customary
fee,
die intestate
heir,
and then
C. sell
we have
But
seen, procure
himtitle
namely,
as B.'s
own admission
heir
(e)
The
lord
is
any
fine
by reason
any equitable estate or interest in lands holden of him by copy he is only concerned with the changes in the legal tenancy upon the com-t rolls (/). So that if A., tenant of copyholds, sell them to B. and surrender to B.'s use, and B., without being admitted, sell the lands to C, and C, remaining unadmitted, sell to D., there is no need for
of the devolution of
;
rolls, to
and upon the execution of such surrender D. will be entitled to be admitted on payment of a single fine. If A. had died, his heir or devisee (//) would have to be
admitted at C.'s expense in order to surrender to D. but the only fine payable by C. would be that incurred
by the admission
V. & P. 562 Conv. vol. ii.
4th
Davidson, Prec.
i.
;
pt.
& S. 805 1 Scriv. Cop. 383, 405, 3rd ed. JIall v. Bromley, 35 Ch. D. (/)
Foster, 3 B.
;
Wms.
{e)
Real Prop. 494, 21st ed. Morse v. Faulkner, I Anst. Morris v. Clarkson, 3 11, 13; Swanst. 558, 563, 566; Watson, B., Garland v. Alston, 3 H. & N. Londesborough v. 390, 393, 395
;
642.
See above, pp. 216, 217, (</) 221,222. {h) 1 Scriv. Cop. 404, 3rd ed. Garland v. Alston, 3 H. & N. 393 Sail v. Bromley, ubi sup.
;
OF PARTICULAR TITLES.
and surrender cop^^holds to the use of B. and his heirs and B. die intestate before being admitted, then under the Land Transfer Act, 1897 (i), B.'s equit^ able estate in the land would vest in his administrator, who would thus liave the right to be admitted (/.). It
If A. sell
,
,
349
Fines on
after the
^^^^^ ?* ^^
unadmitted
surrenderee.
is
a double fine
(/).
But
until
as
A. remains the
one
else
is
tenant
{k),
on the
rolls
some
and his heirs, it appears that B.'s administrator might call upon A. to surrender to his use, and might well claim t be admitted under this surrender on payment of a single
admitted
trustee for B.
)
and would be a
Rne{m).
And
if
B.'s administrator,
(;/), it
& 61 Vict. c. 65, above, pp. 228, 229, 23o. Payne v. Barker, O. [k) See Bridjr. 18. 2125, 33 Doe d. Tofield V. Tofifhl, 11 East, 246, 250 1 Wat. Cop. 307 andn. (2), 4th ed. Wms. Real Prop. 485, 21 St ed. (/) In 1 Wat. Cop. 364, n. H), and 1 Scriv. Cop. 404, 405, 3rd ed., the opinion is expressed that the heir of an unadmitted surrenderee is entitled to be admitted on payment of a sinjrle and this opinion appears to fine be fortified bv the rule laid down in Jrall V. liromley, 35 Ch. D. 642. Mr. Elton, however, asserted that if the surrenderee die before admittance his heir must
(i)
Stat. 60
;
in
8. 1 (1)
the heir must pay a double fine. These conditions are not fulfilled in the ease of the heir of an unadmitted surrenderee since the lord could not have compelled the ancestor to come in and be admitted, the tenancy continuing to be full in the person of the surrenderor. It is thought that the case of the heir of an unadmitted surrenderee is distinguishable from that of an heir claiming a copyhold tenement by descent after the death and intestacy of an unadmitted heir of an admitted tenant, who also died intestate see above, pp. 348,
;
;
and
from
Elton on Copyholds, 169 (182, 2nd ed.) but the authorities cited (in the 2nd ed. only) contain nolhiug- to support this view. In Garland v.
fines
; :
pay two
3 H. & N. 390. 395, B., said that, if tlio heir entitled only on the yround that the ancestor was entitled to be and the lord could admitted, have compelled the ancestor to come
Alston,
Watson,
is
the decision in Hall v. Bromley, ubi sup. But of course if the administrator took and obtained admittance upon a surrender to him from A. his legal title would date from that surrender only and would not relate back to the surrender from A. to B. see Wms. Real Prop. 485, 2lsted. (w) See above, pp. 230, 233.
;
350
OF PARTICULAR TITLES.
be entitled to be admitted, and no
in respect of the conveyance
fine will
be payable
to
Devise by an unadmitted
surrenderee.
the heir
(o).
But
if
appears
Act,
Land Transfer
testator
was entitled
to be
admitted
to
any
if
real estate
and might,
he had been
admitted thereto,
of his will,
liave
and
shall not
be
such
stamp duties, fees, fine and sums of money as would have been payable in respect of the admittance of the
testator thereto
and
entitled or claiming
% 2.
Sale of Leaseholds.
Leaseholds.
The
He
must
lease
or
the contract.
assignment to
by The purchaser is entitled to require the him of a lease from the freeholder unless
().
And
it
is
now
s.
settled that,
Hall v. Bromley, 35 {o) See Ch. D. 652. ip) See above, pp. 2282:50,
233, 235. Stat. {q)
7
Vict.
(r)
c.
26,
Londesborotigh
V. Foster, 3
B.
&
S. 805.
Will.
IV.
&
(sj
Above,
p. 101, n.
().
OF PARTICULAR TITLES.
notwithstanding the general rule that notice of a docu-
^^^
ment
is
notice of
is
its
contents
(f),
a purchaser of leaseif
hold land
the covenants
contained in
lease are
than those usually inserted in leases of like character to that purchased, unless the existence of such covenants
through his having been afforded an opportunity of So we have inspecting the contents of the lease {ii).
seen that the existence of a considerable ground rent
not mentioned in the particulars on the sale of houses held for a long term of years may be an objection to
the
title
(.r)
.
A
sale
stipulation
is
frequently
made on
the
sale of leaseholds
duced at the
by auction that the lease will be proand may be inspected at the office of
deemed
to have full notice of the contents of the lease, whether he avail himself of the opportunity of inspection A piu-chaser of leaseholds buying under or not (//).
anything contained in the lease (s) unless, indeed, an actual misrepresentation has been made by the vendor,
;
When
is
that
years determinable
by re-entry
for
non-payment
be accepted:
lie
shall
Midgk;/ v. S.nith, 18!).{, W.N. 120; ReWltitrai)dSmith\s MoliiContract, 1896, 1 Ch. 637 nrux V. Hawtri-n, 1903, 2 K. B. 487 see also Xouai/le v. Fliyht, 7 Rr Davis to Cavei), 40 Beav. 521 above, p. 205. This Ch. D. 601 is so even though tlii' contract provide that the voudor's title
523
1 Key & Elph Prec. Conv. 270, 4th ed. 259, u. (r), 8th ed. {z) See Laicriev. Lcen, 14 Ch. D. 249, 252, 257. (a) See Van v. Curpe, 3 My. & K. 269 Flight v. Barton, ib. 282 above, p. 199.
(y)
352
condition of
OF PARTICULAR TITLES.
or breach of covenant
ascertain that
^^^
(/>), it
is,
of course, important to
not determnied.
payment
of rent
sale
At the
present
by the following
{e)
Act
of 1881
Where
land sold
is
held
by
lease
was duly granted and on production of payment due for rent under the
;
chase,
all
he
This provision
is
less
to accept
/').
The stipulation
been performed, and does not preclude him from objecting to the title on the ground that a cause of forfei-
[b]
Wms.
1
(e)
Stat. 44
&
45 Vict.
c.
41,
21st ed.
Davidson, Prec. Conv. rolmer \. Goren, 2b 536, 4tlied. L. J. Ch. 841. {d) 1 Davidson, Prec. Conv. 537, 624, 048 and u. {y), 4th ed.
{()
;
App.
42.
32 14 Cas. 19, 30
33, 3739,
OF PARTICULAR TITLES.
hire has occurred,
if it
353
is
of
which have occun-ed and been brought to his notice before the rent became due (//) but it is not a waiver on account of breaches of which he had no notice (/), or subsequent breaches {k). Pro:
^
receip "of rent,
is
But
stipulation must,
on production of the
money
in
evidence of the
(/).
We
have seen
(in)
that
if
man buy
either oral or written but not contained in the contract holdTwith*^" that a good title cannot or will not be made, notice of a for sale, '
'
breach of
(ff)
[1]
Re Moody and
Yates' Contract,
tract,
Ch. 287.
(A)
Bridges
;
v.
Beav. 27, 30
Jacoh v.
Ewart
502,
Frgrv, 1901,
.S'. 511 C, nam. Fryer v. Ewart, 1902, A. C. 187; Mnlthews v. Smallwood, 1910, 1 Ch. 777. 786 sq. {k) See .Vartfi v. Curteys, Cro. Eliz. 528; 3 Rep. Go a; Price v. Woruood. 4 H. & N. .512.
28 Ch. D. 661; 30 Ch. D. 344. In this case there was a covenant to finish a house within six months to the satisfaction of the lessor's surveyor, and it was held that the surveyor'scertificate to this effect was a part of the vendor's title. and that the expense of procuring the .same was therefore not payable by the purchaser under sect. 3 (6) of the Conveyancing Act of 1881 see above, pp. 33,
;
10.5,
121, 136.
[m\
Above, p. 203.
w.
23
354
covenant that the
will not be
OF PARTICULAR TITLES.
vendor
is
title
to the
extent indicated
expressly
title.
remedied.
show a good
by the vendor, he
is
a good
The
rule in question,
though perfectly well established, was, however, unaccountably overlooked both by the vendor's counsel,
by Swinfen Eady,
Jie
and by the Court of Appeal in Bird's Contract [n) In that case the purchaser bought under an open contract a leasehold house, which was obviously out of repair, and
J.,
the case of
Re Highett and
Before
the title was accepted, the vendor was served with a " dangerous structure " notice from the London County
down
or render secure a
The
to
do the
the
the
vendor
till
after
acceptance of the
title.
The
vendor,
(o), took out a vendor and purchaser summons for a declaration that
[n)
(o)
1902,
'2
Ch. 214
1903,
Ch. 287.
Above, p. 352.
OF PARTICULAR TITLES.
he had shown a good
title, and that the expense of complying with the police court order was an outgoing {p) which ought to he borne by the purchaser.
855
The
vendor's counsel mainly contended that this expense had not ripened into a charge or liability until after
the proper time for completion (p), and that under the Conveyancing Act, 1881 {q), production of the last
receipt
was conclusive evidence of perfonnance of the It was held (and in this respect, no doubt, rightly) that under the statutory stipulation
covenant to repair.
is
such production
focio
of
peris
as
conclusive where
he has
It was, however,
repair had bound to defray complying with the notice and order
this reason
this liability
and the Courts declined to consider at wliat time became a charge. But it is submitted that this decision cannot be supported on the ground
so
assigned for
it.
The Courts
case,
rested
their
judg-
ment
V.
Wheeler
That
assunipsif
by
a purchaser, in
sold
and that the purchaser knew that the property was out of repair. It was considered that the plea
was bad, but Parke, B., particularly mentioned that there was an express contract to make a good title.
This accords with the rule stated above
{p) See above, p. oO. and below, Chap. XI. {q) Above, p. 362.
{>)
()
(),
As
364.
already
M.
ic
W.
Pp. 203,
3.54.
23
(2)
356
OF PARTICULAR TITLES.
mentioned, this rule was not brought to the notice of
either Court in
Re Highett and
BircVs
Coniract, nor
it
is esta-
No
contracl3 for
the sale
vendor
no
liability to forfeiture
may
may
is
be contemplated
induced to accept
submitted that the
to
to
Lord
(.r),
in a subsequent case
that
Re
title
and
an
was not
to be taken
is
as
not an express
by
tlie
title.
To
avoid
all question,
above
criticised,
repairing lease
expressl}^ in
should
shall be
deemed
state
and
they
are.
And
employ an express stipulation, such as was generally used before the Conveyancing Act, making production
of the last receipt for rent eoncluHire evidence of the
(0 Above, p. 352.
\u)
{x)
See 7
M. & W.
366, 367.
tract,
231.
OF PAKTICULAK JITLES.
performance of
all
^57
if
though
In default of
this last
would have
of the receipt,
his agent.
if
Where land
held by underlease
is
because he
is underlease,
on the ground of
liability to
Where
the under-
and the superior lease are both determinable by re-entry for non-payment of rent and breach of covenant, it is of course material to the title to show
lease sold
that
no cause of forfeiture of either has occurred. head lease includes other lands than those
it is
important to ascertain
through omission to comply with the head covenants relating to such other lands (a).
the
lessee's
Under
the
Conveyancing
that
Act
of
1881
(b),
provision
similar to
considered above
is
implied, in
made
by under-
bound
(y)
(z)
cited in n. {u) thereto; Hi/rle v. Warden, 3 Ex. D. 72. (a) See Deirtirv. Gvodiiiiiii, \9U1, 1 K. B. 612 1908, 1 K. B. 94 1909, A. C. 72, deciding that, in case of such a forfeiture, the
; ;
Stat.
44
&
4.t
Vict.
c.
41,
underlesisee has
no remedy against
s.
358
last
OF PARTICULAR TITLES.
payment due
for rent
what
is
required
is
(c).
Where
the
receipt
for
an action to recover possesground of breach of covenant was held that the purchaser must accept, as
covenants in the superior lease
affidavit
and
belief,
As
already mentioned,
is
and conditions
of
agent
(e).
When
(c)
subject to
Li.
a
J.
lie
Miggbis
Mini/er to Thompxon, b\
1888,
W.
N.
172.
Ch. 42.
(e)
OF PARTICULAR TITLES.
covenant not to assign without the landlord's licence (/), the vendor is bound to procure such licence at his own
expense, and
if
359
assignable
landlord's
^^J^^^e-
he
fail to
do
this,
shown a good title and will have broken the contract {g). But it appears that the procuring of the necessary
licence is at first to be treated as a matter of conveyance
(/?),
on the ground of the absence of any licence assign, if the vendor procure such licence before the
fixed for completion {Pf.
day
bound
and
if
he do
fail to
and the
licence be refused,
{h).
he will be discharged
If,
(/) See Wms. Real Prop. 508, 509, 515, 21st ed. By stat. 55 & 56 Vict. 0. 13, s. 3, agreements in leases against assigning or underlotting without licence shall, unless the lease contain an express provision to the contrary, be deemed to be subject to a proviso that no fine shall be payable for
It has been held enactment does not make the payment of such a fine an illegal payment so that if a fine be voluntarily paid, it cannot
such licence.
that
this
premises without the Bates v. Donaldson, 1896, Jenkins v. Price, ubi sup. But he has no right of action against the lessor to recover damages for unreasonably refusing the licence Trcloar v. Bigge, L. R. 9 Ex. 151 Sear v. House Property, if-c. Society, 16 Ch. D. 387. He may, however, bring an action against the lessor for a declaration that he is entitled to assign without licence Young v. yls/iley Gardens, ^r.. 1903, 2
licence
2
:
demised
Q. B. 241
be recovered back.
But
if
the
except on payment of a fine, the may lawfully as.sign or underlet without the licence see ll'diU V. Joinings, 1906, 2 K. B. 11 Jenkins v. Price, 1907, 2 Ch. 229, 233, 234, reversed on other grounds, 1908, 1 Ch. 10 Andrew v. liridtfmnn, 1908, 1 596. So if a lease contain a covenant not to assign without the lessor's licence, such licence not to be unreasonably withheld, and the lessor do unreasonably refu.se his licence to assign, the lessee may lawfully assign the
lessee
; ;
Ch. 112. This casewas not cited in Jenkins v. Price, ubi sup., where Swinfen Ea4y, J., considered that the lessee ought not to have the costs of bringing such an action. But this ruling was fol-
lowed by Eve,
Levy, 1910,
(ff)
J.,
in
Evans
v.
Ch. 453.
Fothergill,
Bain
158.
v.
L. R. 7
H. L.
{h)
(j)
KB.
Monro
v.
Tat/lor, 3
;
Mac.
fc
G. 713. 714, 722 Ellis v. Rogers, 29 Ch. D. 661 Day v. Singleton, 1899, 2 Ch. 320. 327; and see Smith V. Butler, 1900. 1 Q. B. 694. (/) Lehmann v. McArthur, L. B.
^
;
360
OF PARTICULAR TITLES.
fulfil this
and
con-
general
rule (m).
Whenever
leaseholds
should be stated
{>/),
is
and
it
or
If
the
the vendor
would have
and as
title, it is
Leaseholds subject
may
'he
sold
way
of underlease
or
ment
in equity only
But
{i)
if
In Uk!/ v. SiHgleton, 1899, 2 Ch. 320, 327, 328, there are dicta to the apparent effect that the vendor would in such case be liable at law for breach of the contract; but it is subluitted that they must be read as referring to an open contract to In that case sell such leaseholds. the sale was expressly made sM^yeci
the lancllord''s coHnent to the This, it transference of the lease. submitted, would clearly it is
to
Jjai/ v. t^iiiyhdou,
[m)
Above,
p.
;57.
() See above, p. 351. (o) See 1 Davidson, Prec. Couv. 562, 5th ed. Davidson's Concise
;
&
Elph. Prec.
absolve the vendor from breach of the contract at law. if he tried his best but failed to obtain the necessary consent.
{q) Crusoe d. Blencowe v. Bugby, 2 W. Bl. 766; Church \. Brown, 15 Ves. 258, 265. () Gentle v. Faulkner, 1900, 2 Q. B. 267. See also Horsey Ettate, Limited \. ISteiyer, 1899, 2 Q. B. 79 Grove v. Portal, 1902, 1 Ch. 727.
;
OF PARTICULAR TITLES.
to carry out the sale in either of these ways,
361 he must
make an
bound
to accept the
same
as a
due
lessee not to assign without no^tobcT^^'^ the lessor's licence, which is not to be unreasonably unreasonably
by the
sell them under an open conand the landlord refuse to consent to the proposed assignment on grounds which are apparently unreason-
tract,
able,
it
by accepting
(.s)
;
lessor's
consent
for the
(;*),
and would be at liberty to prove this in an action brought by himself to enforce his right of re-entry for breach of the covenant. The title would therefore be too doubtful for a Court of Equity to force upon an unwilling pm-reason for refusing
it
chaser
{u).
and subject
to Sale of part
^
fease^for years,
demised land,
the assignee
is liable
whole
although
if
him
liable to
liability to
him
and the
()
lessor
(//).
if
an assignee
But of course the vendor would have a good title to assign after he had obtaiuea, in an action
against his landlord, a deolaration of his right to assign without the landlord's consent. (<) See and consider Re Spark's Lra.te, 190,'), 1 Ch. 4o6 Jndim V. Price, 1907, 2 Ch. 229, j-cversed, 1908, ICh. 10; Willmott
;
London Road Gar Co., 1910, 1 Ch. T-'i-i. Re Marshall and Halt's <,'ov(<) tract, 1900, 2 Ch. 202. Curtis v. Hpitti/, (.c) 1 Bing. N. C. T^e, 760 Hyde v. Jfarden, 3 Ex. D. 72, 76 see VVms. Real Prop. 67, 336, 2l8t ed. Hare v. Calor, Cowp. 766 (;/) Stevenson v. Lawbard, 2 'Eaat, n't r); Sallsv. Battersbt/, l9lO,2K.B.l5b.
;
;
362
OF PAETICULAR TITLES.
of part of land let on lease
by the
lease
under threat of
right of confnhution to
pay the whole rent reserved distress, he cannot assert a such payment against an under-
common
is
liability (3).
It
He
has paid
off
of
and
demised land, the lease remains determinable as to the whole of the demised premises on any breach of covenant; so that the lessor could re-enter upon the assignee
for breach of covenant
by the
the land
at a rent
If, therefore,
and subject to lessee's covenants and a proviso for re-entry on breach of covenant sell part of the land leased to him, and represent that the property sold is held at a rent less than that which he has to pay for the whole of the land, the purchaser could object to the title on the ground that the laud sold is charged with the whole of the rent, and is subject to forfeiture for breach of covenant committed in respect of the rest of It follows that on a sale of part the land leased {d). only of land held on lease for years, special stipulation
{)
Johnson
v.
Wild, 44 Ch. D.
146.
See above, p. 361, n. [x). This view of the question seems to have escaped the notice
[a] \h)
Hyde v. Warden, 3 Ex. D. Bewar v. Goodman, 1909, A. C. 72; above, p. 357, and
(c)
72, 76
n.
[a).
of the learned counsel for the plaintiff and of the Court in Johnson V. Wild, ubi sup.
{d)
Hyde
81
v.
;
Warden, 3 Ex. D.
Tildes
v.
OF PARTICULAR TITLES.
must be made precluding objection to the title on these grounds, and providing for apportionment of the rent as between the vendor and the purchaser (e) As already
.
363
Sale of lease-
mentioned,
when
leasehold property
is
sold in lots,
it is
an assignment of the
underleases either
lease,
shall accept
vendor
(_/')
Where
leaseholds
for
Sale of
it
Renewable
leaseholds,
appears that, in the absence of stipulation to the contrary, the purchaser is entitled to will obtain, not
be satisfied that he
renew it for ever. He is in fact buying, not merely the term, but an equitable interest in the fee simple as well {h). It is thought therefore that, where the first lease was granted less than forty
effective right to
yeai's
is
not pre-
1874
(/),
title to
and may require the production, not only of the first and the subtitle
sequent
title
to
the
See above, p. 81. 1 Dart, V. If) Above, p. 82 & P. 132, .5th ed. 148, Cth ed. 866 1 Davidson, Prec. Conv. 545, ibid. 632, n., 699701, 4th ed. 453, 529. n., 563566, 5th ed. 1 Key & Elph. Prec. Conv. 293, and n. {d), 8th ed. Davidson's Concise Precedents. 116, and n. (*), 17th ed.
(c)
; ; ;
their expiration for ever are hold to be valid and either not to be ob1 i J i r noxious i to or to be excepted out of .J the rule against perpetuities, and may be specificaliy enforced see
.11
Ross
V.
i.
Griffith, ib. 314; Sweet Anderson, 2 Bro. P. C. 256 Igguldcn v. May, 9 Ves. 325, 334 S. C, 7 East, 237, 242 245 Hare v. Surges, 4 K. & J. 45, 57 Pollock v. Booth, Ir. 9 Eq. 229 Jessel, M. R., Lottdo,, South Western Ry. Co. v. Gomm, 20 Ch. D. 562, 579 Swinburne v. Milhurn, 9 App. Cas. 844, 850, 853, 855 42 Sol. J. 629, 630 (by the author) Gray, Rule against Perpetuities, \j 230, 230a, 2nd ed. ../is a t i -mr> (h) See Jessel, M. R. Moore v.
v.
:
Fcudredv.
,\-
r^, , Cleneh,
'
.-
, '
>
'
(i)
Stat. 37
1
;
&
38 Vict.
c.
78.
Worsop,
Bro. P. C. 281
s. 2, r.
above, p. 99.
364
OF PARTICULAR TITLES.
freehold from the granting of the
first
Where
was granted more than forty years before the contract, it is thought that not more than forty years' title under the leases and the covenant to renew them could be required to be shown, and that such enjoyment would have to be accepted as prima facie evidence that the right of renewal was effectually conferred (./). But it is conceived that the purchaser would
lease
be entitled to require proof of some covenant for perpetual renewal entered into forty years at least before
the sale
;
and that
if
and not on new covenants to that effect contained in the renewed leases, he would have the right to call for an abstract and production of the instrument containing
the original covenant
(/).
In cases of
this
kind, the
renewed
and where
title
which
can be
was
entitled to the
surrendered.
For
if
was a trustee of his and consequently of his interest in the renewed lease, the purchaser would take with It appears from this that any notice of such trust (/)
to give notice that the surrenderor interest therein,
.
of a prior lease
is
not in
itself
a good root of
title (/).
The vendor
of leaseholds,
(/) Seeabove, pp. 94 97, 100; Davidson, Prec. Conv. 534, 4th Sug. V. & P. 443, 5th ed. ed.
1
;
;
V.
&
P. 369
;
369. 370.
See above, pp. 9498, 100. See Coppin v. Fernijhoiigh, Hodgkinson v. 2 Bro. C. C. 291
{k)
(/)
;
Dart, V. & P. 291, 327, 7th .5th ed. 332, 6th ed. Davidson, Prec. Conv. 1 ed. ed. above, 696, n. (/), 4th pp. 237 sq. 108. {m) See above, pp. 106
;
'
OF PARTICULAR TITLES.
perpetually or for some definite period, should protect
365
(><).
And
it
is
smTender of a former
make
being required to
law,
The reader will remember that under the present when the purposes of long terms of years created for secui'ing the payment of money charged on land
satisfied,
Satisfied
^*^""'*-
have been
made
to
and thereupon cease and determine under the Satisfied Terms Act of 1845 [p). Whenever any land sold has been subject to such a
or construction of law
term,
it is
to ascertain that
became
utterl}' extinct
and
if
the
for
which
title
down
to that date
Proviso for
cesser.
() See 1 David^oll, Prec. Conv. 1 Key & 696, n. (/), 4th ed. Elph. Prec. Conv. 2.S4. 4th ed. 290, 8th ed. Eucyclopjedia of Forms and Precedents, xii. 344. (o) See authorities cited in last
; ;
;
that
the
title
shall
commence
see
stat.
with the
new
lease;
44 & 4.5 Vict. c. 41, s. 3 (3); above, pp. 108. n. {o), 193 xr/..
209.
iPi otat. 8 & 9 Vict. c. 112. xxr d , , ., . ,, Real Prop. 413421, 2 -,,\ ^ j ,oi.u -o< j 13th ed. i)34 o4o, 21st ed.
-
o^
j.
<>
f>
i'-
ever, that
m A
It appears, how.... J 1 be oxiHessly stated ^ . jfthe contract or conditions ot sale that the lease sold was granted in consideration of the surrender of a prior lease, it would be sufficient to stipulate
>.
Ti
.,
if It
.
..
s.
Wms.
;
id
'
(q)
See
Z//fc
v.
Yarborough,
John. 70, 74, 77, 78; Sug. V. & P. 616 sq. ; 1 Dart. V. & P. 289, Sth ed. 329, 6th ed. 326, 7th ed.
; ;
366
trustees of
Mersrer.
OF PARTICULAR TITLES.
the term have been duly reimbursed
(r)
it
;
all
their costs
and expenses
person entitled at law in reversion immediately expectant on the term to the freehold or some leasehold
estate in the land
demised
(^).
No
merger
will take
place
if
and not
Trustees of a term should surrender it themselves.
law, or
if
Whenever
is
in the
term
Cesser under
Satisfied
Terms Act.
may have a lien on the which would prevent it from becoming extinct as a satisfied term (x). With respect to the cesser under the Satisfied Terms Act of 1845 of terms becoming satisfied after that year (//), it is to
and the
costs,
trustees
for
their
become satisfied and attendant on the inheritance. A term does not become so satisfied and attendant unless the beneficial interest in the whole charge secm-ed by the term and the beneficial interest in the entire freehold estate affected by the term are united in one person, or so long as there remains any useful purpose beneficial to the owner of the term and consistent with
(r) See 3 Davidson, Prec. Conv. 1165, 1251, n., 1261, 3rd ed. Robuthum, Cro. (a) Hnqhcs v. Eliz. 302; Sug. V. & P. 619.
(O Co.
Touch. 303
32b
;
Shep.
See Davidson, Prec. Conv. part i. p. 310, n., 4th ed. cf. Davidson, Prec. Conv. vol. v. part ii. p. 178, 3rd ed., where the point as to costs is not mentioned.
[x)
vol.
ii.
Comm.
s.
{ij)
Burton, Comp. 287, 2nd ed.; Sug. V. & P. 617 sq. Whitchurch v. Whit{u) See church, 2 P. W. 326; 9 Mod. Scott V. Fenhoullet, 1 Bro. 124 Roopcr v. Harrison, 2 C. C. 69 K. & J. 86, 110115; Burt. Comp. 287, 2nd ed. Sug. V. & P. 625.
;
2.
Act of
on on the inheritance, and the protection afi^orded by such terms, see Doe v. Price, 16 M. & W. 603 Doe V. ilousdaU, ib. 689 Cottrell V. Hughes, 15 C. B. 532 Plant v.
; ;
Stat. 8 & 9 Vict. c. 112, As to the cesser under that satisfied terms, which were the 31st Dec. 1845, attendant
Taylor, 7
H. & N.
211.
OF PARTICULAR TITLES.
the trusts thereof
(z).
^^'^
And
a term
is
not mtisfied, so as
to cease under the Act, so long as any of the moneys originally secured thereby, including the trustees'
costs
{((),
remain
unpaid,
or
if
any incumbrance,
effectual
would be an
pro-
be outstanding
rules as to
{b).
The
rent
terms becoming
iiPii
satisfied
f
are
not ^Vhether
terms subject
to rent
and
and subiect J
to the
of performance ^
,
nants,
but questions often arise upon titles whether such terms have been extinguished by reason of the
ownership of the term and of the fee simple becoming united in one person as where the termor has purchased
;
extinct
when
'^
^^e
fre^e-
holder.
Under
the Old
la^^ of
such a term merged at law it by any became vested in the tenant of the freehold in But if in his own right and not en autre droit (e). .,..,, ,, -ill such case merger would be prejudicial to any equitable interest in the term, or the owner had expressed the intention of keeping the term alive, the term would be
common law
means
-
merger.
it
Rules of
equity as to merger,
treated in equity as
still
subsisting
(rf)
On
the other
hand a term not merged at law would be treated in equity as attendant on the inheritance if the equitable ownership of the term and the fee simple became united and an intention of extinguishing the term were
Anderson
r'ujnet,
(z)
v.
L. R.
(c)
Black.
8 Ch. 180,
(a)
(/>)
v. Joihh,
13
Sug. V. & P. 617 xq. ; 1 Wms. Exors. 641, 64"2, Wms. Re^l Prop. 251, 7th ed.
Comm.
Q. B. 774; /">vr>v. >/rs.s.'. 17 Jur. 177, reversed on other gnjunds, ib. 703. 4 De G. M. k. G. 495
;
341,
Johnson, 1 Dr. & Sm. 412, 7 Jur. N. S. 1005 (where the dates are given) Anderson v. Hffiiet, L. R. 8 Ch. 180, 1S9 Sug. R. P. Stat. 278-281, 2nd Sug. V. & P. 626 1 Dart, ed. V. & P. 507, 508, 5th ed. 577, 578, 6th ed.
Shaw
V.
[d) See Thorn v. Neumnn, 3 Swanst. 603 Nurse v. Tcrirorth, ib. 008. 618; Fhilips v. FhiUps. 1 P. W. 34.41; Sug. V. & P. 620.621; Chambers v. Kiiigham, 10 Ch. D. 743; also Adams v. Angdl, 5 Ch. D. 034, 645, 646 and cases cited below. \>. 368,
;
n.
{J).
368
Purchase of fee by termor or of term by freeholder.
OF PARTICULAR TITLES.
expressed or implied
j.
(^).
i
Thus
if
^^
"^y
j.i
^'^^
it
-l
i j was considered
shown
(./').
name
where the termor took a conveyance of the fee in the of a trustee for himself and his heirs with a
(^),
and assigns
(//),
from
commencement of the Judicature Acts (/) merger does not take place by operation of law only of any estate, in which the beneficial interest would not be deemed to be merged or extinguished in equity. And since that time, when the owner of the term purSince the
the
term does not merge, if an intention of on foot be shown, notwithstanding that the term and the inheritance be vested at law in the same
keeping
person
it
(,/).
Land
Where
of 1881
land sold
is
and 1882
(/),
is
to
be
Whitchurch v. JFhitchurch, 236 9 Mod. 124 Goodrujht V. Sales, 2 Wils. 329, 331. f) Capel V. Girdlcr, 9 Ves. 509 Sug. V. & P. 625, 626 and see Saxton v. Saxton, 13 Ch. D.
2 P.
stat. 37
S:
38
W.
V.
359,
2
cited.
Liddard, ib. 635 Capital ^ Counties Bank, Ltd. v. Rhodes, Lea v. Thursby, 1903, 1 Ch. 631 Re Gibbon, 1909, 1904, 2 Ch. 57 1 Ch. 367, 373.
; ; ;
571.
(i)
[k)
Stats. 44
s.
&
45 Vict.
c.
Stat. 36
(4),
&
37 Vict.
c.
66,
s.
65,
amended by 45 & 46
11.
41, Vict,
s.
25
which commenced on
c.
39,
OF PARTICULAR TITLES.
of enlargement is not in itself a good root of title
(/),
369
and
the term
down
to the
and produce the instrument which created the term, and so much of
date of the enlargement, that
to abstract
the subsequent
title prior
to the
enlargement as will
And
it
Acts
().
The
vendor's duties in these respects are duly discharged except of course so far as he
is
by
special stipulation in
On
law and
ti-ust
7''^^^
to go ^^^^'
must
{])).
On
the con-
any prior
life
interests)
first
in
the person,
who becomes
;
entitled to the
fee or in
tail,
estate of
inheritance, whether in
in the settled
freeholds
{q)
tail
by purchase
(/)
See
above, pp.
above,
pp.
106108,
97
101,
ed.
vol.
4,
p.
436,
3rd ed.
208210.
(w) Sec
192,
(m)
208210.
See
Williams on Settlements, 223. {p) See He TTalkrr, 1908, 2 Ch. 70o, 712 lie Gibbon, 1909, 1 Ch.
;
Hood &
to this
Challis,
Couv.
sq.,
367, 378.
[q) See Folei/y. BtirueU, 1 Bro. C. C. 274, 4 Bro. P. C. 319; Wms. Pers. Prop. 363, 409. 410, 16th ed.; and authorities cited iu note (o), above.
As
modo
of settle-
ment. see Davidson, Prec. Conv. vol. 3, pp. .599605, 1130, 3rd
w.
24
370
shall devolve
OF PARTICULAR TITLES.
on his death as
if
if
Such
only effective
;
taking by purchase
who becomes
tail, if
he take
by purchase and be of or attain full age, or if he should become entitled thereto by inheritance (whether of full
age or not)
(r).
way do
time.
not,
any
If a
tail,
upon
trusts
to
mentioned proviso
Options to purchase contained in
leases.
(.s)
Sometimes
leases contain
from the
It must be the term or within some shorter period. remembered that covenants of this kind are collateral
How
far options of
leases
fixture
any
purchase
are subject to the rule against
perpetuities.
them
who have
(>)
note
(o),
Sweet's
c-riticism of
;
this decision
such as furniture, pictures, plate and jewels, are governed by the same law when settled on trust to
Re Parker,
1910,
See 2
Conv.
[t)
accompany freeholds see Wms. Pers. Prop. 408410, 16th ed. but see He Chexham's Setfkmcnt, 1909, 2 Ch. 329, and Mr. Charles
; ;
Prec. 744,
1905,
Woodall
;
V.
2 Ch. 257
and
see
an
article
by
OF PARTICULAR TITLES.
contractor's
estate
-371
by
succession
after
death or by
where the
efpect of
would be
which would
(if
by the
rule {k).
by
action
for
damages
in
case
of their
breach
of this
(^).
kind are
against the
The
result is that, to
be perfectly
effective, options to
some period
life
tlie
or lives
and twenty- one years thereafter (s), and this is equally the case where the contract is contained in a lease as where it is not. If therefore the lease be for a term
exceeding twenty- one years and the option be for the
lessee, his
is
only partially
effective.
()
Zondoti
;
^-
South
Western
Ry.
i?y.
Co. V.
Co.
580, nq.
Associafifl
I
I'ortlaitd
Ch.
12,
28 34, case is
in
.Vl
kind are in general or unlimited restraint of alienation, and ought to be treated as void on that account see also another article by the writer on this subject iu 54 Sol. J. 471, 501.
;
1906, 2 Ch. 532. An appeal was entered against this decision, but the case was compromised. The decision in this case is criticised by the writer in 51 Sol. J. 648, 069, where it is respectfully snbmitted that agreements uf tliis
v. {y) South EuKtern Ry. Co. Associated Portland ^r., Ltd., 1910, 1 Ch. 12. 2834. This decision is criticised by the writer in 54 Sol. J. 471, 501.
(z)
See
Wms.
:
24
(2)
372
It
OF PARTICULAR TITLES.
would be
specifically enforceable
it
himself, or (as
appears)
by
lessee's
Where
new
lease to
commence
it
in reversion
must not be forgotten that during this term the tenant has only an interesiie termini, and no term, under the new lease he is not tenant for one term compiled by adding the
of the existing term,
;
new
he will in
by the underlease {h). Terms of years may commence at a future time (c) and no period was defined by the ancient common law within which such terms should be required to take But of late years the question has been effect {d). raised whether terms to commence in futuro are well limited if they may take effect at some time exceeding the period allowed by the rule against perpetuities {e).
reserved
of course be limited to
;
And
ed.
See Smith v. Dai/, 2 M. & 3rd Rep. of Real Pro684 Encycloperty Commrs., 29, 31
(d)
W.
Laws of England, 2nd ed. (by the author). (f) See 1 Sand. Uses, 197, 199, 4th ed. Lewis on Perpetuities, 600, 609, 614; Gray on Perpetuities, ^ 299303, 314, 316, 319, 2nded. (/) See North, J., Dmiii v. Flood, 25 Ch. D. 629 Baggallay, L. J., S.C, 28 Ch. D. 592 Jig HoUis^ Hospital and Hague, 1899, 2 Ch. 540 (these opinions are criticised below. Chap. XII. ^ 3) Farwell, L. J., South Eastern Ry.
paedia of the
xi. 72, 73,
; ;
Go.
V.
Associated Portland
^-c,
OP PARTICULAR TITLES.
that terms limited to
373
time beyond
commence
at a future
3.
in
Yorkshire.
of
course,
have
by and to the construction placed on the Middlesex and the old Yorkshire Registry Acts in Courts of Equity with
the law established
counties,
{y) for
those
He should note, in
if
he should require
still
capable of
{i).
1910,
u.
Ch.
(//));
12,
27 (as to
Wms.
(c),
Real
21st
767776, 9.58965, 6th ed.; 697705, 865872, 7th ed. Brickdale on Registration in
ed.
: ;
Prop.
;
415,
and note
and the writer's article on ed. the Rule against Perpetuities in the Encycloi^aedia of the Laws of England, vol. ii. pp. 72, 73,
2nd
{g)
&
P. 546.
The
ed. Stats.
memorial to be I'egi.stered in Middlesex or Yorkshire of any deed was required to be under the hand and seal of some or one
of the grantors or grantees, his or their heirs, executors or ad-
Anne,
c.
20,
for
Middlesex, of which the register was transferred to the Land Registry Office by 54 & 55 Vict.
c. 0.
64
&
Anne,
c. 4
Anne,
and Kingston-upou-HuU and S Geo. II. All c. C. for the North Riding. the Yorkshire Acts were repealed and replaced by 47 & 48 Vict. c. 54, amended by 48 & 49 Vict,
:
20 (5 Anne, c. 18, in for the West Riding of 6 Anne, c. 62 (c. 35 in for the East Riding
c. 26.
See Wms. Real Prop. 211, 572574, 2l9t ed. 2 Dart, V. i: P. G78 G85, 852857, 5th
(A)
262,
ministrators, guardians or trustees, and to be attested by two witnesses, whereof one should be one of the witnesses to the execution of the deed Sug. V. & P. The Yorkshire Regis729, 730. tries Act. 1884, s. 6, substituted parlies to the deed for f/raiitors or grantees and one or more for two witnesses. In Middlesex, the memorial is now required to be attested by one witness only, such witness, tc/icrc practicable, to be a witne.ss to the execution of the deed stat. 54 & 55 Vict, c. 64, 8. 2, and First Schedule,
:
374
OF PARTICULAR TITLES.
If the omission to register cannot be rectified, the pm-chaser's counsel
must consider whether the circumstances from obtaining an indein estate the property purchased, and he
should
make
With
vivos,
the general
effect of the Middlesex and old Yorkshire Registry Acts was that an unregistered deed or conveyance of lands in either of these counties was voidable at law by
a subsequent registered
deed or conveyance of
the
same lands
deed
to
valuable
consideration {k)
was
not
inoperative
it
passed the
legal estate
by such a
Thus,
if
[l).
deed
first
Land Registry (Middlesex 2 Deeds) Rules, 1892, r. 6 W. N. ISth Feb. 1892. It is suflBcient if a witness to the execution of the deed by the grantee attest the memorial R. v. Registrar for In Middlesex, 21 Q. B. D. 555. default of compliance with these
r.
;
; :
memorandum
in
writing: Suiiiptcrw. Cooper, 2 B. & Ad. 223; or to a vendor's lien arising without express agreeKettlcwdl v. nient in writing Watson, 26 Ch. D. 501, 507 or to the vesting, effected by an adjudication of bankruptcy, of the banki'upt's estate in his trustee: Re Cakott and Elvin^s ConContract, 1898, 2 Ch. 460. sidering these decisions, it would appear that the words above
: ;
deeds and conveyances whereby any hereditaments may be in any way affected at law or inequity"; and it was held that these words extend to a written memorandum of an agreement gis'ing or operating as a charge in equity upon certain lands: Neve -v Pennell, 2 H. & M. 170, 185187 Credland V. Totter, L. R. 10 Ch. 8; but not to the charge created by a deposit of title deeds without
. :
quoted are wide enough to inelude an unsealed memorandum in writing of a contract to sell laud, Brady, Ir. C, Gardiner v. Blesinbut ton, 1 Ir. Ch. Rep. 79, 85 see and consider Inland Revenue Commrs. v. Angus, 23 Q. B. D. 579; Rodger v. Harrison, 1893, The law stated in 1 Q. B. 161. this note now applies to lands in Middlesex only; see below, p. 377,
;
and
n.
(s).
v.
OF PARTICULAR TITLES.
and C. by registered deed granted D. on a sale or mortgage, I), did not thus obtain the legal estate or any priority of interest over B. For when A. granted the lands to C, he had already parted with all his estate therein to B., and A.'s grant to C, being unregistered, could not
for value or not,
375
the
lands
to
If,
however, the
from C. to D., D. would obtain the legal estate, whether he had or had not notice of the conveyance from A. to B. {n) but if he had such notice, i)i equiti/ he would obtain no priority of interest over B., and would be a trustee of his legal estate for B.'s benefit (o). It has been decided by the House of Lords, in a case upon the Irish Registry Act, that in order to avoid an
as that
;
unregistered assurance
it
is
not
necessary that
the
the
T "r.l"^^ ' t' ^t''""^"' J. Ch. 43, 46 L. J. Ch. 48. But if his solicitor or agent had actual notice, such notice would
? L.
Jack d. Rennick v. Arm1 Hud. & B. 727 Furi/ V. Smith, lb. 735 both oases on the Irish Registry Act 2 Dart, V. >Sc P. 80.5, 856, 5th ed. 963, 964, 6th ed. 871, 872, 7th ed. () Dov d. Robinson v. Allsop, 5 B. & A. 142. (0) Le Xevc V. Lc Neve, Amb. 436; 2 White & Tudor L. Eq. As a iide, actual notice of a previous unregistered aasurance was necessary tu deprive a purchaser of the benefit of registratiou: Wyutt v.Bnriall, 19 Ves. 435. He would not lose his priority through not makiug mvestigations or inquiries for unregistered documents Ayra Bank, Limited v. Barry, L. R. 7
()
KtroHff,
be imputed to him: Holland v. Hart, L. R. 6 Ch. 678. Registration of an assurance is not of itself equivalent to notice thereof: Moncock v. Dickins, Amb. 678 He limsell Iloud PKrchasc Moneys, L. R. 12 Eq. 78, 83. But if one search in the register, he is affected with notice of registex-ed assurances Bimhell v. Bit-shell, 1 Sch. & Lef. 90, 103 Ilodyion v. Lean, 2 Sim. it Stu. 221, 225; Procter v. Cooper, 1 Jur. N. S.
;
:
149.
^^,^ ir,irburton v. Lonland, 2 & c. 480, where a woman entitled to a term of years settled
D^^.
it
sissurance,
and
^^
*'''
376
OF PARTICULAR TITLES.
in the same case the English judges,
Wills.
who were called expressed the unanimously in to advise the House, man's lands of a opinion (q) that a secret conveyance by a avoided made by unregistered assurance may be his from registered conveyance from his heii-, or even Wills of lands in Middlesex devisee (r) to a purchaser.
or Yorkshire,
if
testator's death,
not registered within six months of the were voidable by a registered conveyheii' to
a purchaser
(.s)
so that
could not
make
heir's
a good
title
to
(t).
the
concurrence
where such a will has not been registered within due time, an assurance of the land to a purchaser or mortgagee by the devisee, or by
Purchaser Act, 1874
someone deriving
title
under him,
shall, if
registered
assur-
not clear to
what extent
of
this
enactment
of
retrospective.
On
a sale
lands in
Middlesex
will
by the
testator,
devisees
under
an
unregistered
who
died in
1875,
should be
Dow &
C. 495.
it is
Assuming,
presumed,
:
that the wiU was duly registered see Dart, V. & P. 683, 684, 5th 701, 7th ed. ed., 772, 6th ed. The rule Mibsequently laid down
;
his
editors
5th ed., 963, 6th ed. 871, 7th ed.), that a purchaser
855,
a testator dying' or beyond the seas. In case of an impediment to the registration of the will, a memorial of the impediment might be registered and the will might be registered within six months after the removal of the impedi-
the death of
upon
ment.
ss.
1,
See
8,
stats.
;
under an uni-egistered conveyance can only be disturbed by a purchaser from the first grantor or parties taking vmder him by aci in laiv, does not appear to be
quite accurately expressed, as a devisee is the testator's assign. () That is, if the testator died Three years in Great Britain.
2
;
ss. 1, 20,
21
;
&
8 Geo. 2, c. 6, ss. 1, Chadwlck v. Tunur, 34 15, Beav. 634, L. R. 1 Ch. 310. {() 2 Dart, V. & P. 682, 683,
14, 15, 34
16
701,
78,
Stat. 37
&
38 Vict.
c.
OF PARTICULAR TITLES.
title,
377
notwithstanding that
it
the heir,
prevented
The Yorkshire
that
all
liegistries
(as
Act,
1884
in
{>/),
provides Yorkshire
assurances
defined
the
Act)
{z)
AcFIssT
be registered
under
to
the
Act,
and
that
all
assurances
entitled
be
registered
ing
to
the
registration {a),
all
all
priorities
persons
corresponding
priorities,
and no
{x)
Girli)i(j
V.
Giii'uig,
W. N.
c.
.54,
{k),
147, u.
((/),
1886, p. 18.
(y)
Stat. 47
14, as
&
48 Vict.
ss. 4,
amended by 48 & 49
Vict.
[z)
c. 26, s. 4.
Stat. 47 & 48 Vict. c. 54, in this Act, unless the context otherwise requires, the expression asKuraxcr shall include any conveyance, enlargement of term into foe simple, memorandum of charge, deed of consent to the discharge of a trustee, statutory receipt, private Act of Parliament, award or order of the Land Commissioners, order of a Court, certificate of appointment of a trustee in bankruptcy, or affidavit of vesting under any Act of Parliament and the e\s. 3,
;
By
the Act, the charge given by a vendor's lien or a deposit of title deeds is required to be accompanied by a registered memorandum in order to give priority over subsequent registered assurances for valuable consideration. It ha^s been held that a written memorandum of a contract for the sale of laud in Yorkshire, subject to the conditions implied by law that the
sect. 7 of
By
vendor shall show a good title and convey on acceptance of the title, and payment of the price, is not an assurance withiu the meaning of this Act: Rodger \.
Q. B. 161. 49 Vict. c. 2C, s. 3, a caveat in favour of any person may be registered with respect to any lands in Yorkshire by any person claiming to be
JfarrisoH, 1893,
()
1
By Stat.
48
&
pTCH>*\onscv>ivii/)incv
(which
is
con-
fined
to
made by
term into fee ainiplr, itiiiiioranduin of charr/e, stdtutory receipt, anard or order of Laud Commissioners and ord^'r of a Court (which includes writ of execution and adjudication in bankruptcy), are also ehiborately interpreted. The powers (if the I>:iinl Cmimissioners were in 188'.) tran.sfeiTed .-see to the Board of Agricultiure
;
entitled to
any
interest therein
while the eaveat remains an assurance of the lands from the g^ver of the caveat to the
if,
and
in force,
other, his representatives or assigns, be duly registered, such assurance shall have priority as though it had been registered on the date of registration of the
caveat.
ST'S
OF PARTICULAR TITLES.
such person shall lose any such priority merely in consetj[uence of his
structive notice,
Acts
which
it
repealed
inter
{(),
conveyances
doctrine
as
civo>i
law
[d)
to
notice
applied in
the old
Acts
(e).
Under
(./'),
wills of lands in
six
months thereafter
[g)
and
if
But the Act provides (A) for the registration within months after a landholder's death of an affidavit of
intestacy,
six
his
and gives
priority,
which
shall be subsequently
and
shall not
months
Exceptions.
old Yorkshire
{b)
Hee
JJattiijtt\'.
may
be
registered
within
the
2 Ch. 403.
Above, p. 373, n. (;/). Above, p. 374. (e) Above, p. 375. This doctrine remains in force with regard to
(e)
{d)
c.
.',4,
stat.
&
49
n
^
'
*-
^.l
[g) If the will cannot be registercd within six months after the testator's death, notice of the will
(i)
Stats. 7
Anne,
2
c.
&
Anne,
s.
c. 4, s.
35,
29
Geo. II.
c.
tJ,
s.
34.
OF PARTICULAR TITLES.
to
379
Chambers
ChancerJ
(/)
.
of
to the City of
,
London
does
twenty-one years, or any assignment thereof, where accompanied by actual possession from the making of such lease
or assignment
;
the city of
York
and the Act does not apply to land in (ii). It has been held that, under the
it
w^as
not necessary to
an assignment by deed of a pecuniary legacy and that, under charged on land in Yorkshire (o) the Middlesex Registry Act, registration need not
;
be
made
( p)
.
of
conveyance of
of
an
interest
in
the
for
of
proceeds
sale
of
sale
land
devised
in
trust
an objection
when a
is
no one,
who
And pending
supposi-
tion of intestacy
administrator's
dealings
therewith
(.s)
to
of
Stat. 7
Auue,
c.
20,
s.
17.
Sug. V.
18>S8
&
P. 732.
Lauds
to
takeu in
from Middlesex
make up the
anuiin of London remained subject to the jurisdiction of the Middlese.t Registry Stat. 51 & 52 Vict. c. 41, .ss. 40, 96. -. oi i .o 17[m) btat. i, .^.-JSVict. c. 04,
:
v. A/dnt, 29 Ch. D. 7U2. ^Irdenv. Ardm, ubi sup. (?) See 2 Dart, V. k P. (383, -'th ed.; 772, 6th ed.; 702, 7th ed. Besides this reason, thepro('') visions of the Middlesex and old
in
<.P)
i.
to
leaseholds
to
:
the
**
"
(h)
be
This was equally the case with the old Yorkshire Registry
Acts.
VharUsworth, v. (0) Malcolm Keen, 63, doubted in Davidson, Piec. Conv. vol. 2, part 2. p. 219, 4th ed., but approved by Kay, J.,
1
see stjit. the act of the devisee 54 & 55 Vict. c. 64, First Sched. Yorkshire Registries r. 3. The Act, 18S4, s. 6, permit** registration of a will by the executor. (.<) See 1 Wins. Exors. Pt. I.
380
OF PARTICULAR TITLES.
the Registry Acts.
It
may
been assimicases, if
it is
in
most
not
chaser so as to defeat the title of an executor or devisee under an unregistered will. Lands situate within the jurisdiction of the Middlesex Registry, or any of the Yorkshire Registries, become exempt from such jurisdiction
to such lands
and coming
But
so
Land Registry
should after^^'ards be
will again
become subject
to
Lands
in a
Where
^
is
situate in a district in
district
where
reo-istration
which registration
{t)
i-
01
title
l,^
IS
compulsory on
-i^
sale,
it
Above, pp. 228, 231. Title must now be made through the administrator in ca^e
(m)
Yorkshire, if an affidavit of intestacy had been registered (sec above, p. 378) if not, queen
;
of intestacy above, p. 231. But if the existence of a will were not discovered for some years after the testator's death, and the administrator had conveyed to the heir (see above, p. 233) and the heir to a purchaser, both by duly registered deed, it appears that in Middlesex the purchaser's title would prevail over that of the devisee, as in Chddirick v. THviicr, So, also, in L. R. 1 Ch. 310.
:
38 k 39 Vict. c. 87, s. 127 54 & 55 Vict. c. 64, First Sched. 14; Land Transfer Rules, 1908, I. r. 48.
{x)
Stat.
;
(//)
See
9
;
Stat. 38
Fs.
'
8,
Stat.
&
&
61 Vict.
61 Vict.
c.
65,
First Sched.
{<()
Stat. 60
c.
65,
s.
17 (3).
OF PARTICULAR TITLES.
must be remembered that under the Land Transfer Act, 1837 (/>), any conveyance on sale (c) executed on or after the day on which registration of title on sale was made compulsory in that district {(/), does not pass
& 61 Vict. c. 65, Capital Counties Bank, Ltd. v. Uhodcx, 1903, 1 Ch. 631, 654. (c) " Sale " in this enactmout
(b)
381
of title is
on
sale,
Stat.
(1,
GO
;
8.
20
2)
c^-
appears to be confined
strictlj''
to
sale
so
called
(cee
above,
pp.
1,
266),
and not
to extend to
transactions in which other valuable consideration than the payment of a price in money is given for the conveyance of land, such as exchange, partition, mortgage and marriage or family settlement, and of course not to voluntary gifts.
Orders in Council dated the 18th July and 20th Oct. 1898, 28th Nov. 1899. 9th March and 10th Dec. 1901, and 6th March, 1902 (W. N. 23rd July and 29th Oct. 1898, 9th Dec. 1899, 23rd March and 21st Dec. 19ul, and loth March, 1902), registration of title was made compulsory on sale in the following- districts comprising the county and city of London on the dates mentioned below
{d)
:
By
Days
DISTRICTS.
of commencement of Compulsory
Regi.<Jtration.
The
parishes
St.
The
parishes of Shoreditch, Bethnal Green, Mile End Old Town, Wapping, St. George's in the East, Shadwell, Ratcliff, Limehouse, Bow,
1st
March, 1899.
The
Church, South wark, St. George the Martyr, Camberwell, Horsleydown, Lambeth, Bermondsey, Newington, Rotherhithe, St. Olave and St. Thomas, St. Saviour and the detached part of the parish of Streatham situate between the
parishes
of
Christ
parishes of Lambeth and Camberwell parishes of Battersea, Clapham, Putney, Tooting Graveney, Wandsworth, and the remainder of the parish of Streatliam The remainder of the county of London (except the city)
1st
Jan. 1900.
The
Lst
May,
1900.
1st
Nov. 1900.
The
city of
London
It should be noted, however, witli regard to the city of London, that an Order of Council making registration compulsory was actually in force from the 1st until the cud of the .')th day of March, 1902 and it appears that conveyances executed during that time on sale of lands there situate are governed by the law so introduced see the Orders of 10th Dec. 1901, and 6th March, 1902. cited above. As to conveyances executed on or after the 6th March, 1902, it appears that the last-mentioned Order in Council, being in effect the execution of a
:
382
OF PARTICULAR TITLES.
the legal estate in any freehold land situate in that
district to the
he
is
executed on sale
(e)
by
con-
proprietor of land
may
be made
imder the Land Transfer Act, 1875 (/). This provision, however, does not apply in the case of the conveyance
on
sale
of
an incorporeal
hereditament, or
mines and minerals apart from the surface, or an imdivided share in land or freeholds intermixed with and
indistinguishable from lands of other tenure, or corporeal hereditaments parcel of a
manor
;
(g)
in the sale of a
is
manor
{/t).
as such
to render
Lcasoliolds.
such hereditaments
And
is
compulsory, an assign-
power
first
of legislation conferred by statute, would take effect from the instant of that day, and would operate as a revocation of the Tomlinson previous Order: see stat. 60 & 61 Vict. c. 65, s. 20 (1, 3) V. Bulloch, 4 Q. B. D. 230. [c) See last note but one. To be entitled to make (/) Stat. 60 & 61 Vict. c. 65, s. 20 (2). such an application, a person must have contracted to buy, or be entitled at law or in equity to, or be capable of disposing by way of sale of, an estate in fee simple in the land for his own benefit, whether subject to incumbrances or not and if he apply as purchaser the vendor must consent to the application or he must hold the land on trust for sale or be a trustee, mortgagee, or other person having power of sale thereof (including a tenant for life or other person having the power of sale given by the Settled Land Acts), and the persons (if any) whose consent is required to the exercise of the trust or power of or any two or more persons sale must consent to the application must be entitled for their own benefit, conciirrently or successively, or partly in one mode and partly in another, to such estates, rights, or interests in the land as would if vested in one person entitle him to be registered as proprietor: stats. 38 & 39 Vict. c. 87, ss. 5, 68, 69; 60 & 61 Vict. c. 65, ss. 6, 1-1 (1), and First Schedule; Wms. Real Prop. 636, 637, 647, 648, 21st ed. [g) This includes lands held of the manor as copyhold or as customary freehold where the freehold is in the lord, but not lands held of the manor by free tenure Wms. Real Prop. 421, 422, 463 Williams on Seisin, 30. 467, 21st ed. (/() Stat. 60 & 61 Vict. c. 65, s. 24.
;
;
OF PARTICULAR TITLES.
ment on
sale
'383
of a lease or underlease
having at
least
and a
two or more lives, executed after the day on which registration was made compulsory in that district, and capable of registration (/), operates only as an agreement, and does not pass any legal estate to
or more, or for
is
registered as
proprietor of the lease or underlease {k). The expressions " assignment " and " grant of a lease or underlease " here apply to
there
is
conferred or completed a
proprietor of lease-
hold land
may
surrender to
the owner
executed on or after the 1st of January, 1909, and containing a declaration that the term
reversion
(/).
is
to
merge
in such
A
(/)
(j)
See note
below as
what
(1903),
further providing that, where the assignees or lessees shall be the trustees of a settlement for the purposes of the Settled Land Acts, 1882 to 1890, or any of them, nothing in this rule shall prevent the legal estate in the land from passing to the trustees, provided tliat the tenant for life or person having the powers of a tenant for life under the settlement be registered as proprietor of the land comprised in the assignment or lease within one calendar month from the date thereof, or witliin such further time as the registrar shall allow. See Stat. 60 & 61 Vict. c. 6o, s. 6 Wma. Real Prop. 646-648, 21st
r.
09,
such an application are the same as in the case of freehold land (above, p. 382, n. (/), except that for an estate in fee simple there is substituted any leasehold land held under a lease which is either immediately or mediately derived out of land of freehold tenure and is for or determinable on a life or lives or for a term of years of which more than twenty-one are unexpired but a term created for mortgage purposes is not to be deemed a lease witliin the
;
meaning
of these provisions,
and
nothing in the
Land Transfer
Act, 1897, is to render compulsory the registration of the title to a lease having less than forty years to run or two lives yet to fall in stats. 38 & 39 Vict. c. 87, ss. 2, 11 60 & 61 Vict. c. 65,
:
ss.
14.
24,
ed.
(/)
r.
70,
amended by L. T. R.
07; L. T. R. (1908), I. 18,11., III. Wms. Real Prop. 636, 673* 2l8ted.
;
''^'*^4
OF PARTICULAR TITLES.
is
fer
Acts
(?),
so
tliat
the
a
above
terra.
provisions
affect the
grant of such
And
that they do not affect an assignment on sale of a term originally created for mortgage purposes, for the " assignment " mentioned tlierein must confer or complete a title
may
be made, and
is
not entitled to
make such an
application.
Here
it
may
be noticed that the exact scope of the expression " term created for mortgage purposes " is doubtful. It certainly
includes the term created on a mortgage of leaseholds
by demise, but
a term limited
it is
questionable whether
it
extends to
by
trusts
by
sale of
and
profits, or
(>/).
If
district
where
be
deduced
under
or a grant or an assignment of
is affected by the above provisions, it must be ascertained that the purchaser, lessee, or assignee, was duly registered as proprietor of the land, or the legal estate must be required to be got in from the vendor, lessor, or assignor or his representatives, and the title thereto required to be deduced accordingly. And if the land should not have been registered since registration was made compulsory in the district, it must be remembered that the purchaser must himself be registered as
The expense
on
tlie
of
purchaser,
&
61 Vict.
c.
65,
First Schedule.
() See Wms. Real Prop. 632, ^33 and n. (), 21st ed. 45 Sol.
;
J. 357.
OF PARTICULAR TITLES.
in the absence of special stipulation, under the general
principle that the purchaser
380
of It
it is
is
that the
all
vendor must
do
acts
and
in the present
the
legal
estate
reasons,
purchase
money
of the
When
& P. .j(il Dart, P. 707, 5th ed. 798, 6th ed. 714, 7th ed. [p) See beh)w. Chap. XII.. It i.s sub1, 5; Chap. XX. mitted that the case is iiot parallel to that of the coiiveyanco of land in a register county, when the legal estate passes by the deed of above, p. 374. conveyance In L. Q. R. XX. 97, the learned reviewer of the first edition of this book challenged the correctness of the statement in the text, and (compared the case to that of a tenant in tail selling the fee simple, when (he suggested) the duty of enrolling a conveyance made by way of disentailing assurance rests on the purcha.ser. With great respe(^t for this opinion, the aiithor is (constrained to adhere ti> the view al>ovi> exand he submits tliat tlu' pressed case of a sale by a tenant in tail
(o)
:
subsequent
reducing the
V.
&
conveyance as the tenant in tail could make at common law see }Vhit more- Searle v. WhitmorcSrnrlft, 1907, 2 Ch. 332. And even at common law the grantee
;
would take a fee simple defeasible bv the entry of the issue in tail
Doe d. XevUIe v. NiviUe, 7 T. R. 276 Doe d. Gregory v. Whiehelo, 8 T. R. 211, 214; Wms. Real Prop. 108 andn ( ), 2l8t ed. Besides, the fact that the tenant
;
4),
duty of jJi'ocurinff the enrolment (as being an act without which he cannot convey the estate he
has sold iiud so a step in the vendor's title) really lies on the vendor. t>o in the case of the sale of land in a compulsory registration district it is submitted that the registration of the pui'cha.ser is an act without which the vendor cannot convey to the jiurchaser the estate contracted for, and is e<iually a step in the vendor's title to convey what he has contructed to sell
is
different.
The
effect of stat.
.".s.
IT), 41, IV. c. 74, appears to be that the grantee of an estate in fee simple under a disentailing deed exei'uted by the
&
4 Will.
teniiiit in tail obtains th(> legal estate in fee simple on the execution of the deed, subject to a con-
W.
25
'"^^6
OF PARTICULAR TITLES.
pulsory district
the purchase
is sold,
money
shall be paid
on the execution by
him
an equitable estate to the purand that the purchaser shall then complete his
registering
himself.
by
But
to
obtain
this
it
appears necessary to
make
the registration
of
the
title
within
and any
may
Sale of lease-
indefinite
This
is
especially necessary
where
compulsory
diHtrict.
is
held
Forms sale by
Priority notice
of the
special
stipulations appropriate
on the
the
pm^^
Appendix (r). The purchaser of such land may lodge at the Ofiice of Land Registry a priority notice in favour of his application to be registered as
chaser'.s appli-
cation for
first
registration,
...
,,
.
first
after the
.iii lodgment
i
proprietor thereof
e
l^
and
fit,
if
of the notice,
an
made
(see
above,
p.
is
main point
(unlike that of a purchase from a tenant in tail or of land in a register county) the purchaser can only obtain an equitable estate by the conveyance to him by deed of the land sold, and holds therefore, prior to the comtion,
pletion of bis title by registrasubject to all equitable interests (if any) created pre-
own in the property purchased, whether he has notieo of such prior interests or not (see below, 10 of this chapter). It is submitted that he cannot be obliged to part with his purchase money against a conveyance of this kind, unless he be bound bj' express stipulation to do so. [q) See Wms. Real ProjD. all,
viously to his
512,
(r)
21st ed.
OF PARTICULAR TITLES.
and accompanied by the
notice,
it
387
of the
official
acknowledgment
will
made
in
i
the
iij'ii-m
-,
same land which may have been meantime (.s). Where a purchaser of
1
j_
Registered
transfer or
the
make an immediate
p
by way
is
(1903)
(f)
1-11
but a question
if
the purchaser be
(n).
It
who proposes
from such
a
to take a
transfer or charge
purchaser
should
insist
comto be
pleted
and
this
is
especially
made with
The
subject of the
situated in a compulsory
It has
been suggested
(i/)
Land Transfer
tration on sale
Act, 1897
{z),
may
be evaded in this
way
Let
it
be
registration
enactment.
and giving
to the purchaser
power
to
remove him
XX.
at end.
()
(1903),
(x)
(y)
Below, Chap.
95.
(0 Rule 96
XX.
(m)
Wms.
67;i,
^,
Land
;
339.
2nd
.
656, 662,
lUt
cd.
Bnckdal.' & Sheldon, Land Transfer Acts, 396, 397. 2nd ed.
&
61
Vict. c. 65,
.
20
25
(2)
3'S8
OF PARTICULAR TITLES.
from the trusteeship and appoint a new trustee in his
place,
and
shall
Let the purchaser take possession on and afterwards execute a deed removing the vendor from the trusteeship, appointing some nominee of his own trustee in the vendor's place, and vesting the
property sold.
comj)letion
land in the
new
trustee.
Then
let
upon
ingly.
this trustee to
him
accord-
There certainly seems to he good ground for contending that neither the deed appointing the new trustee nor the deed of conveyance from the new
to
trustee
the purchaser
himself
is
" an instrument
when
first
charged
on both
sides
by
performance of
(/).
all
the
obligations
thereby undertaken
But
this plan is
money
against the
.
estate.
It
is
this,
because in that
(if
equitable interests
any)
and
this is
and created previously to his own, equally the case whether he has or has not
(c).
It
is
title is
undivided
shares.
making the
Tlie
Above,
p. 382.
(c)
10 of this chapter.
OF PAKTICULAK TITLK8.
instrument executed on sale whereby a
for first
title to
389
apply
:
registration
is
is
conveyed or wmplctcd
but
an undivided share in land [d). There seems to be no doubt that the conveyance by Conveyance deed on purchase of an undivided share in unregistered )|^ undivided land situate in a compulsory registration district passes '^'^'i^e alone,
tration of the title to
is
not conferred or
to
title
apply for
first
land.
Purt^H'wo
Blackacre, and the other half belong to X., and B. shares from purchase A.'s moiety, it seems clear that a deed of <i'^eront '
. . . .
owners*,
Then suppose
and X. convey
that
it
to
him by
deed,
is
title to this
may
by
virtue whereof
completed in B. a
in respect of
not an undivided
case.
share in land.
But
appear to be the
the
moiety purchased from A. was entirely completed when A. conveyed it to him (e) so that the deed of grant from X. to B. could only complete B.'s title, whicli was
;
con/erred
by the
And
it
moiety could not possibly avoid or impair the legal estate, which B. had already obtained in A.'s moiety. If so, how can it
be necessary for B. to register his
title
to X.'s moiety,
id)
(e)
Above,
See
stat.
p.
;}8'2.
s.
60
id (il
Vict.
c.
Go,
390
therein,
is
expressly enacted
that
nothing
contained in the
share in land
title
Land
an undivided
estate,
to X.'s
it
then
certainly
would he compulsory
to register the
title to
If this reasoning
is
the owner of
(say) nine-
purchases of undivided
shares from the owner of the entirety.
him
And
it
deed of grant of the remaining tenth would only complete B.'s title to be registered as proprietor of that
tenth,
title
in
him any
which he bought under a separate and prior contract. In the absence, however, of any judicial decision on these points, it would hardly be safe to accept a title depending on the conveyance by deed alone of the remaining undivided share or shares to one who was already seised of some undivided share in unregistered
land situate in a compulsory registration
district (h).
Thus
if
would not be
accept his
from him to
title
though the
iff)
s.
24
{h)
c.
65,
in favour of the necessity of registration would be that by the conveyance of the last remaining share the title to apply for registration in respect
The argument
required to pass the legal estate in that share, without depriving of all meaning the proviso that the Act is not to render compulsory the rejiistratiou of the title to an undivided share in land.
it seems impossible to contend that, to effect this result, registration of the title to the whole
For
of the whole property is comBut even if this be adpleted. mitted, it is difficult to see how registration of title cotdd be
Of PARTICULAR TITLES.
purchaser would have to pay the costs of the application
if
'^^1
title.
If in
tenth share were taken to the use of a trustee in fee simple in trust for B., there would be further ground
for contending that the legal estate
for there
merger
by
to registration as beneficial
owner
from
owner
title of
But
in
for a pur-
without a judicial
it
however,
should be held
share last assured passes the legal estate without registration of the
title,
it
would be
difficult
to
maintain Completion
to
P"ti^<?ty
where a contract is by mutual to buy the whole of Blackacre at one price ^ assent completed by the conveyance of one-half on Monday and of the other half on Tuesday. It is true
that there
is
any
buy the by
''
.success^ive
conveyances
^[^."."f^''^'^'*^
in respect of
the whole of
it
Blackacre
is
by the
may
well be
of
completed
by the conveyance
first
But
it
chaser
title to
(/).
(t)
n.
/'),
:i90, n. (A).
\k)
Above,
p. 389.
392
OF PARTICULAR
estate therein, the
riTLES.
Act would (coutrary to its own express words) render compulsory the registration of the title to an undivided share in land (/).
Suggested scheme for avoiding
registration of title in a
If
any purchaser
district
of unregistered land
situate in a
compulsory
to secure
and
to leave
title,
no stone unturned
compulsory
district.
an unimpeachable
:
following plan
be exercised within four weeks after completion to purchase the remaining ro-ooth share for
1/.,
such option
if
exercised to be completed by deed declaring the vendor a trustee for the purchaser and empowering the pur-
chaser to remove
place {m)
grant,
.
trustees in his
Complete the
by deed
of
which should
contain
the terms of
the
After this, exercise the option to buy the option (ii). remaining idVoth share and complete that sale in the
Let the purchaser subsequently manner provided. trustees and vest the i-oVoth share in them, appoint new and let them convey the legal estate therein to him.
This plan would, enable the purchaser to obtain the
legal estate in all but a very small share of the property
of every possible
title
And
it
is
thought that
this plan
would prove
to be effective.
Lands
forming part of Bedford
Level.
Conveyances of lauds forming part of the great level of the Fens called Bedford Level are xalid, although
(/)
389,
390,
last
TBiTuth
share,
and
conse-
u. (/O. {m) See above, pp. 387, 388. (n) The object of this is that it
may appear
title
(o)
tsq.
OF PARTICULAR TITLES.
not registered in the Bedford Level Office, tor
confen-ed by the Bedford Level Act
of such lands
all
'^93
pur-
>$
4.
Voluntanj Conveyances.
Voluntary
^'^^^"^^'y^^^^^^-
by the grantor, of any ments were liable to be defeated {r), before the 29th of June, 1893 (s), by a subsequent conveyance thereof by the grantor {t) for any valuable consideration but this doctrine was not applied to voluntary conveyances in In favour ^^ ^^^ ^' favour of a charity (). And if the grantee under the
;
of
(.r).
Voluntary conveyare
Voluntary
to^''
and
also
of
goods,
voidable
if tondiu"'-
defeat or
creditors,
make
payment
bankruptcy
(//).
And
fraudulent within the meaniuij;of stat. 27 Eliz. c. 4, or be defeated thereunder. {() Not by his heirs or assigns
:
iJoe
d.
Newman
v.
K. Q. B. 723; Lewis & J. 132, 150; unless actually fraudulent see Sug. V. & P. 713; 2 Dart, V. & P. 902, 5th ed. 6th ed. 1021, 931, 7th ed.
:
Rmliaiii, v. Rees, 3
17
()
Rammy
v.
Oilehrltt,
1892,
A. 0. 412.
Ptodqers v. Laiiqham, I Sid. 133; Sug.'V. & P. 719, 720; 2 Dart, V. & P. 901. 5th ed. 1019, Gth ed. 929. 7th ed.
[x)
; :
(;/)
Stat. 13 Eliz. c. 5
Tw;ine'\
Case, 3
1
;
Rep. 81a;
Ridlcr,
Smith, L. C.
;
Richardson
;
v. fi/tia/livood,
552
R'-
Jac. 22 Ch. D. 74
391
Bankruptcy within two or
ten years
thereafter.
OF PAK'TICITLAK TITLES.
voluntar}' eonvejances of
any property
(s),
are voidable
as
if
against
the
the
grantor's
bankruptcy,
the
grantor
;
become
and
the grantor
become
it
(rr)
can be shown that at the time of making the condebts without the
if
But
the grantee
by
of
maker
(/^).
It appears
however
that,
1883
(s),
the disposition
in
purchaser must be
made
before
who executed
ed.
& P. 905-910, oth 10241030, 6th ed. 9:14 Williams on Settle912, 7th ed.
1
Dart, V.
;
ments, 362, 368 see Jie Johnson, 20 Ch. D. 389 lie Bolland. 1902, 2 Ch. 360; Maskehjnc v. Snnth, 1903, 1 K. B. 671. (2) Stat. 46 & 47 Vict. c. r)2, Under the Bankruptcy s. 47Act, 1869 (32 & 33 Vict. c. 71;, s. 91, voluntary conveyances by
;
:
months before the presentation of the bankruptcy petition on which such an order shall be
made
s.
stat
46
;
&
bj'
43,
amended
20
1
traders were similarly voidable. Voluntary conveyances are not so voidable under the Act of 1883 if the grantor die insolvent, but not bankrupt, and his estate be
administered in banki'uptcy after Ex purie Official Rehis death ceiver, re Gould, 19 Q. B. D. 92. () A debtor becomes bankrupt at the exact moment of time when he commits the act of bankruptcy (if only one) on which a receiving order is subsequently made against him, or the lirst of several acts of bankruptcy, which shall be proved to have been
:
Wright, J., Re Reis, K. B. 4f)l, 455 (whose judgment on this point is not Hffected by the overruling of his decision on the main question in the case see S. C, 1904, 2 K. B. 769: 1905, A. C. 442); Fonsfurd, Baker S; Co. v. I'nioii of London ^ Smiths Bank, 1906, 2 Ch. 440; Re Bumpus, 1908, 2 K B. 330 Wms. Pers. Prop. 266269,
c. 71, s.
1904,
16th ed.
[h]
See
Halifax
Joint
Stock
Bankiny Co. \. (ilrdhill, 1891, Ch. 31, as to Stat. 13 Eliz. c. 5 and as to the Bankruptcy Act, 1883, Re Vansittart, 1893, 2 Q. B.
1
;
377
Re
Re
Carter
OF PAKTICULAK TITLES.
hecotnex
395
on a voluntary Voluntary
'^
bankrupt
{().
It
was held
that,
leaseholdr
and performance of
a subse-
id)
ruptcy
{^).
Where
made by
title
is
made under
a voluntary
not
as Proof that a
an objection to the
title ',/).
is,
entitled to require e^ddence that the converame voluntary conveyance was not avoided by a subsequent has not been
(//),
we have
seen
conveyance for valuable consideration, or otherwise though after long continued possession in accordance with the title under tlie voluntary conveyance, it will be presumed that it was not so avoided [1i). Similarly, where title is made under the avoidance prior to the
29th of June,
sideration,
that,
I(S9;i,
of a voluntary
conveyance by a
in
may
is
See the
and the
.')
last
I'live V.
Jenkins,
7m//A,
Ch.
J).
Hiy; Marrixv.
(e)
Ex
/re;/,
Re
Rtdler,
(/) Xoijrs v.
"
r<itr,M,ii,
1891, 3
Ch. 267.
{g)
,/*)
Above,
p. 133.
Mtirs/i <ni(i Earl (irunCh. I). 11, 19. A: P. 1*99, .)th (i) 2 Dart. V. ed. 1033, 1034. 1119, 6th ed. Before the Voluntary 7th ed. Act, 1893 (above, Conveyances p. 393, n. () ), if a man agreed to
Re
nV/e, 24
lands with the intention of defeating a voluntary conveyance thereof previously made by hira, the Couit would not enforce the specific i)erformance of the contract against an unwilling purchaser at the vendor's suit Stnith V. Carland, 2 Mer. 123; Johnson V. Lti/(ird,T. k R. 281: r/aric V. inUott, L. R. 7 Ex. 313 see I'eUr v. Xirholts, L. R. 11 Eq. 391, depending on very peculiar circumstances. But the Court would spei-itically enforce the (contract at suit of the purchaser Hmkle v. Milchrll, 18 Ves. 100 Roaher v. Jf'ifliamn, L. R. 20 Eq.
sell
: ; : ;
210.
3U6
OF PARTICULAR TlTLEy.
entitled to require evidence that
it
consideration,
it
grantee of
may
para-
him
to
mount
Liability tu
bank(/.).
Under
(/),
as
Finance
-^
(190910)
Act,
^
\910 (m),
s
fide
assumed by the grantee under a voluntary conveyance immediately upon the making thereof, and thencefor-
him by
contract or otherwise, or
life interest
if
a
of
or
power
If
however any property taken under such a convej'ance would be so chargeable with estate duty by reason only that it was not, as from the date of the conveyance,
Jie
(/i)
.<
By
sub-8ect.
'2,
thu
enactir.outs
Ch. 776
above,
makiug' gifts /'w<;r (Vivs so chargcable with estate duty are not to
iipply to gifts wliich are made in consideration of marriage, or which are proved to the satisfac-
& 58 Vict. c. 30, see the chapter on the Death Duties in vol. ii. 10 Edw. VII. c. 8, [ni) Stat.
1,2
(1 c)
;
59 (1), substituting the period of three years for that of twelve months (the period originally specified in the Act of 1894) with regard to grantors dying on or after the 30th April, 1909, but not applying to any voluntary conveyance made before the 30th
s.
on of the Inland Revenue Commissioners to have been part of the normal expenditiu'e of the deceased and to have been reasonable, having regard to the amount of his income or to the cu-cuuistances, or which, in the case of any donee, do not exceed in the aggregate 100/. in value or
ti
amount,
OF PARTICTTI.AR TITLES.
rftained to the entire exclusion of the grantor and of
397
any
benefit to
him by
contract or otherwise,
if
it
will not
subsequently,
by
means
wise,
it is
and
of
any
him by
Purchasers of lands
and require
(o)
to
be
satisfied
at least after
(if
making
of the
voluntary conveyance, or
not)
upon the grantee) has been discharged, and also that the conveyance was not attended by any other circumstance which would make the lands chargeable with estate duty {p). Since the
that the estate duty (which falls
many
voluntary con-
made with
Under
10) Act,
1910
{q),
(n) Stat.
3.
10
Edw. VII.
c.
8,
59
(o)
(3).
the conveyance was made before the 30th April, 1908, for one year see last not* but
if
;
Or
one.
{p) See A.-G. v. Earl Grey, 1898, 1 Q. B. 318, 2 Q. B. 534 1900, A. C. 124. (7) Stat. 10 Edw. VII. c. 8, s. 73 (1, 2) (passed 29th April, 1910). This section does not apply to a fonveyance operating as a voluntary disposition of property to a body of persons incorporated by a special Act, if that body is by its Act precluded from dividing
:
any profit among its members and the property conveyed is to be held for the purposes of an open space or for the purposes of
its
a conveyance made for nominal consideration for the purj^ose of securing the repayment of an ;idvance or loan, or made for effectuating the appointmi'iit of a new trustee, or the retirement of a trustee, whether the trust is expressed or implied, or under which no beneficial interest passes in the property conveyed, or made to a binetidary by a trustee or other peisoii in a fiduciary (^apacity uuderany tr\ist, expressed or implied, or a disentailing assurance not limiting any new estate other than an estate in fee simple in the person disentailing the property, .shall not be charged
with duty
under
this
.section,
this .se<:tion
398
OF PARTICULAR TITLES.
they were conveyances on sale
(/-),
must he adjudicated.
55
5.
Sn/f of
Ground
JRent.s,
described
else
as
freehold
or
rents.
nothing
of a building lease
or leasehold
Ground
rent.
usual
lessor's
(u).
The
sion
on the
lease, so as to
be enabled to enforce
the
the
stat.
lessor's
{>)
where the value of the property conveyed does not exceed 500/. and the instrument
That
stamp duty of
10.
only;
of conveyance contains a statement certifying that the transaction thereby effected does not form part of a larger transaction or of a series of transactions in respect of which the amount or value, or the aggregate amount or value of the property conveyed exceeds 500/., nt the rate of M. for every 5/. or fraction thereof up to 25/., 2.S. 6d. for every 25/. or fraction thereof up to 300/., and above 300/., 5s. for every 50/. and in all or fraction thereof other cases at double those rates see stats. 54 & 55 Vict. c. 39, 61, and First Schess. 1, 14, 54 dule 58 Vint. c. 16, Part II. Wms. 10 Edw. VII. c. 8, 8. 73 Real Prop. p. 615, n. (p), 2l8t Chap. XII. 3. below. ed.
:
54 & 55 Vict. c. 39, s. 1, First Schedule, tit. Deed, placing 33 & 34 Viet. c. 97,
and
res. 3.
and Schedule.
(.s)
1020.
[t) Ground rent properly means the rent at which land is let for the purpose of improvement by building. Thus, it conveys the idea of something less than the rack rent, and a purchaser of a ground rent described as such without further explanation will not be compelled to accept a rack Stewart v. AUlston, 1 Mer. rent 26 Bartletf v. Salmon, 6 De G. M. & G. 33, 41 1 Dart, V. & P. 123, 5th ed. 138, 6th ed. 135, 7th ed. Lecoy v. Mogford, 2 Jur. ill) N. S. 1084: Langfordv. Selmes, 3 K. & J. 220 F.vans v. Robins, 8 Jur. N. S. 846 cf. Smith v. Watt-f, 4 Dr. 338.
:
Voluntary conveyances made by deed executed before the 29th April, 1910, were subject to a
OF PARTICULAR TITLKS.
lessee's covenants, or re-entrj, for
'^^^
Whether
of
tlie
the
first
of
these requirements
is
fulfilled
will
course
appear
title
;
documentary
second
is
is
and nothing more. The title on the purchase under an open contract of a reversion expectant on a lease for If the lease be more years has been already shown (./).
ought
to be abstracted
so as to
lease
under which the reversion is derived (//). The vendor of a reversion on a lease is under no obligation to deduce
the
title
to
prove
who
is
the
time of sale
the lease
it is
is a
him
who
lease
is
in possession of
on which he
(a),
and
also
whether he has been paying rent to the vendor. If such person be not the actual occupant of the property,
inquiry should be
made
and
is
to
whom
he pays
rent
{/>)
tenant or occupant
HIJ.
{x) (y)
(z)
HtiiU
1901,
Ch.
4.">, 4'.)
V.
ff'uodi)/,
Hare.
018.
(a)
with
notic(> of
below. (b) If the occupant should not be payiujr rent to the vendor's tenant, the inquiry should be pursued until all the links of the
2,
Chap. XII
400
OF PARTICULAR TITLES.
any inquiry
the inquiry
to
is
whom
(f)
but where
made
in
most cases
it is
If
it
should be refused,
of
his receipt of
and
it
is
having been extinguished by payment of the rent for twelve years or more to some person wrongfully claiming
to be entitled to the land in reversion
Sale of land leased for years, where succession duty i^ayable
at
(e)
Where
is
from incumbrances as a property to be immediately enjoyed and without any special stipulasold
free
end
of
tion as to
payment
of succession duty,
and
it
turns out
lease.
pay on the expiration of the lease (,/), the vendor must (if he can) procure the duty to be commuted at his own expense, or the purchaser will be at liberty to reject the title (g) and the purchaser is not
that the property will be subject to a liability to
succession duty
;
chain between the vendor and the occupant have been discovered.
(c)
As
title
Hnntv. Luck.
1901,
Ch.
45, 53. {d) See above, pp. 33, 43. {e) Stats. 3 & 4 Will. IV. c. 27, ss. 9, 34: 37 k 38 Vict. c. .57, ss. 1, 9 see I)oe d. AnqeU v. Angell, 9 Q. B. 328, 355359; JFiUtams v. Tott, L. R. 12 Eq. 149. But in the case of mere nonpayment of the rent for twelve
;
the Statute of Limitations as against the lessee, YalrJen, see Walter v. 1902, 2 B. 304.
Where a succession conof a beneficial interest possession in lands let at a ground rent by a lease not granted by the successor himself, the succession duty in respect of the increased
(/)
sists
years or more the vendor's title have been affected, though tlie arrears recoverable will be see Grant v. H/lis, 9 M. limited & W. 113, 126, 127; Archbold v. Scullij, 9 H. L. C. 360, 375; Wms. Real Prop. 581, 583. and
will not
:
value accruing on the determination of the lease need not be paid till then stat. 16 k 17 Vict. c. 51, s. 20 see the chapter on the Death Duties in vol. ii.
;
((/^
Re
tract, 1893, 1
OF PARTICULAR TITLES.
obliged to accept the vendor's covenant of indemnity
against this liability, however
401
small
it
may
be
(h).
Whenever
it
to lands let at a
ground
since the
become payable
commencement
been
left
outstanding
till
then
is
(i).
When
the reversion
and
is
proposed to be
if it
must be
made,
The purchaser
Reversion
"
^'
is
now
or tithe rentcharge
of Effect of
reversion,
the grantee at
common
and
tlio
&
Anne,
c.
by the tenant
grantee
may
{).
By
the
statute
Hen. YIII.
duty
.see
(h)
lie
WcKton
1907,
1
Contract,
mineral
rights
sects.
(/)
20-24.
See above,
p. 176.
See
Stat.
10
Edw. VII.
22 (1). And the purchaser of the reversion on a mining lease will have to bear
c. 8, 88. 13, 14,
Dart, V.
&
w.
26
402
Grantee's right to enforce lessee's covenants and
conditions.
c.
OF PARTICULAR TITLES.
34, the grantee of such a reversion
is
enabled to sue
upon such of the lessee's covenants contained in the lease as "touch or concern " the land demised (o), and also to take advantage of any condition of re-entry contained in the lease for non-payment of rent or
breach of covenant
(/?).
and does not touch or concern the land demised (q) or to sue at law upon any agreement to be performed by a lessee and
covenant by the lessee which
contained in a lease not
made by deed
Acts
(s)
(r).
But
in
mencement
is
of the Judicature
that,
where land
party so entitled
is
to
be treated, in
all
Courts having
upon the terms of the agreement (t), it has been decided that, where land is held for a term of years under a contract not made by deed but specifically enforceable by the landlord, and the landlord assigns
at law
the
reversion
is
with
the benefit
of
the
contract, the
assignee
lessee
entitled
by the
to the
contained in
the contract
as
and relating
if
land demised as
effectually
such
stipulations
Wins. 6th ed. 822, 7th ed. Real Prop. 340, 2l8t ed. (o) Sfipncn'''s case, 5 Eep. IG, 18; Sug. V. & P. 582, 583; 2 Dart, V. & P. 814, 5th ed. 916, 6th
;
(r)
Standen
v.
Q. B. 135; Bickford
5 C. B. 920.
(*)
Christmas, 10 v. Parson,
Stats. 36
&
83
37
&
{t)
38 Vict.
c.
ed.
c. 77.
{p) Co. Litt. 215; Wms. Real Prop. 338, 512, 513, 21st ed.
Walsh
V. Lonsdale, 21
Ch. D.
Sug. V. & P. (q) 6 Rep. 18 and see Webb v. Russell, 583 Bewar v. Goodman, 3 T. R. 393
; ;
1909, A. C. 72
Furness v. Bond, 4 Times L. R. 457 Loicther v. Heaver, 41 Ch. D. Crumj) v. Temple, 7 248, 264 Times L. R. 120 Foster v. Reeves, 1892, 2 Q. B. 255; Wms. Real
9
;
; ;
OF PARTICULAR TITLES.
had been expressed in covenants contained in a
deed
(w).
403
lease
by
As
regards leases
made
after
the
year
Conveyancing Act of 1881 (r) provides that the rent thereby reserved and the benefit of the lessees' covep nants therein contained and having reierence to the subject-matter thereof, and every condition of re-entry and other conditions therein contained shall be annexed to the reversionary estate in the land, immediately
1
veyancing
-^<^* '*/
*'
-Til'
^^^^
eufoi'ce
lessees' cove-
co^^tfong
estate),
from time to time entitled, subject to the term, to the income of the whole or any part of the land leased.
The
enactment
is
to In leases
statutory powers.
is
leased
by a
mortgagor under the power of leasing given by the Conveyancing Act of 1881 (?/), the mortgagee is enabled
to sue
in the lease
So where a lease
is
granted by a legal
Land
Act, 1882
(a),
annexed
to the
And
to
the in other
^^^^^^
of
the
right
alienation
incident
the
and
to those granted
Stat. 45
under express
&
46 Vict.
c.
Maiwhestrr Breucry Co. v. (//) Coombs, 1901,2 Ch. 608; Itkkett V. Green, 1910, 1 K. B. 253. [x) Stat 44 & 45 Vict. c. 41,
8.
() ss.
38,
612, 20; see Wms. Real Prop. 121123, 125, 189, 403,
404, I'lst ed. (A) Rickett
V.
10.
((/)
Green,
1910,
Stat.44&45Vict.c.41,s.
Municipal,
^-c.
18.
(z)
liuildtug
B. 253; see Wms. Real Prop. 74, 108, 118, 218, 513,
K.
Society v. Smith, 22
Q. B. D. 70.
2l8t ed.
26
(2)
404
OF PARTICULAR TITLES.
powers of leasing conferred by means of the Statute of Uses (c) or by will tbougli as to these it hardly seems
:
Remedy given
have extended the previous law (d). But the last part of this enactment invests the person for the time being entitled to the income of the land leased (in that
to
capacity) with a
and
it
been placed on
this
ments for
of
Assignee of rcvGrsion cannot sue for rent due or breach of
covenant
before time.
Henry YIII.
The
or for
any breach of
(/)
And
he
is
Ms
gi"^'en
by the
any breach
of covenant
;
(/.)
nor can
Leon. 62
cf.
MaseaVs
case,
Brown v. Trumper, 26 Beav. 11, 16. The statement to the contrary made in Sug. V. & P. 181
in 2 Dart, V. & P. 5th ed. (916, 6th ed. 824, 7th ed.) seems to be incorrect. The mere right to sue for damages for a past breach of covenant, other than a covenant to pay money, appears not to be assignable Torkington v. see Magec, 1902, 2 K. B. 427, 434 jDanson v. Great Northern and
and adopted
814,
382 Greenmcay v. Hart, 14 C. B. 340; Yellouly v. Goxcer, 11 Ex. 274 Davidson, Prec. Conv. vol. iii. pp. 484 and n. (x), 491500, 3rd ed. vol. ii. pt. ii. p. ''>?>&, n., 4th ed. Sug. Pow. 7^2, 813815, 8th ed. Williams on Settlements, 36 39,
3
S.
; ;
M. &
311313.
{e)
Turner
v.
Walsh,
Green,
1909,
1910,
2
1
K. B.
K.
B.
260,
[g) Above, pp. 402, note [t), 403, note [n). V. Bentley, 7 Sim. (/() Flight 149, 151.
(i) Johnsony. St. Peter'' s Churchwardens, 4 A. & E. 520 Martyn Williams, 1 H. & N. 817 V.
; ;
Fenn v. Smart, 12 East, Ru7it v. Bishop, 8 Ex. 675, Hutit V Remnant, 9 Ex. 635, Crane v. Batten, 2 Com. Law liep. 1696; 23 L. T. (O S.) 220; Williams on Seisin, 12-5 Cohen V. Tannar, 1900, 2 Q. B. 609 cf. Bennett v. Herring, 3 C. B. N. S.
444 6^0 G40
;
370.
OF PARTICULAR TITLES.
the right to re-enter for any such past breach of cove-
40'
(/).
It
does not appear that the law has been altered in any of
these respects
by the provisions
Conveyancing
Act quoted
(/).
Where
rent
is
of
apportionable
at
common
f^j.
Hen. VIII. c. 34, with respect to that part which the reversion has been assigned to him (o). But the assignee of the reversion of part of lands demised could not, under the statute of Henry VIII., take advantage of any condition of for the condition was re-entry contained in the lease destroyed by the severance of the reversion and was no longer enforceable even by ihe original landlord as to
statute 32
of the land of
;
Its effect
on
re-entry.
By
(y),
where
the
reversion
is
legally
of re-entry for
non-payment
And under the Conveyancing Act of 1881 (s), on severance of the reversion on a lease made after that year every condiapportioned rent so belonging to him.
tion
(l)
See cases cited in presious Jen/dm v. Jones, 9 Q. B. D. below, Chap. XV. 128, 131 (hi) See Cohen v. Tannar, 1900, Morris v. Komedr/, 2 Q. B. G09 1896, 2 Ir. R. 247. Rout can Inst. 504. () 2 only be legally apportionod with the con.sent of the tenant to the apportiouinont, or by the Bliss v. Colverdict of a jury Mayor of lins, 5 B. fc A. 876 Swansea v. Thomas, 10 Q. B. D.
note
;
;
p. 403.
406
(including, of
OF PARTICULAR TITLES.
course,
is
any condition
of
re-entry for
breach of covenant)
enforced
apportionable,
and may be
by the
made
though the
condition
is
apportionable
if
Notice to quit
by the involuntary act of the where part of the land leased has been taken compulsorily under the Lands Clauses Act, 1845 {f). Where lands have been let to a tenant from
by
reversioner, as
where the
reversion has been severed.
is
by
It does not
appear that
by the Convey(y),
is
{x).
As
already mentioned
and
shall
not
require
apportioned.
Reversions or remainders on an estate
of freehold
We
have seen
{z)
contract of a reversion
on an
to the
date
of the land
V. Mitchell, 1
Brod.
& Bing.
;
11
Eight
&
45 Vict.
c.
41,
102.
OF PARTICULAR TITLES.
has been in accordance with that instrument.
407
The main
no proof can
be given,
disposed of
reversion or
of sale or mortgage (a). Purchasers and mortgagees of reversions or remainders expectant Are subject to on estates for life or other interests conferring the power powers o-iven of sale and other powers given by the Settled Land ^y Settled Acts, 1882 to 1890 (h), take subject to the subsequent exercise of such powers by the particular tenant, and their estates are liable to be divested accordingly, and
by way
money
(c).
and
to
or estate duty
which
shall
and'est'ate
and in the case of a sale the purchaser cannot (unless he specially stipulate therefor) require the vendor to procure such duty to be commuted or to discharge it when it falls due for the tax is regarded as an incident of the estate and not as an incumbrance (c). But where such estates have been
shall fall into possession (d)
;
same
^^^y-
r A 01 the title deeds whether he is c I ix the reversion, awareoi any sale 01 ' 1 T, i.u ii, 1 and whether the deeds have 1, been -1 J i produced of at the request the ^ -.1 * reversioner with a view to any but the sale or mortgage by him person internjgated is not bound to answer, and an answer in the negative is no certain protection, as the reversion may have been
...1
1 1
1
Real Prop. 463, 13th The pur2l8t ed. cha.ser can of course iucjuire of the person entitled to the custody
{a)
;
Wms.
47 53
,
& &
,
ed.
599,
Vict.
&
c.
51 30
;
.,
^/ ^hD.C
(c)
, Wheelwright
,
jrr,
t\
J-'/,
.. '''2
I,
sails Contract,
4.1,
>iq_1.-).;)o
j r- \y r, . . navies and Kvut Contract, /-.i ..^ .i i. 1910, 2 Lh. 35 see above, pp. ^*
mm
on"
('^
'^>
',
v.
i
n-
Walker, 23 j V- i
tt^
,,
^r,
1908,
1
.s
'
Stats. 16^
'^^' ^'^
J
&
1_7
Vict.
c.
51,
**''
s^. 1, 2,
Death Duties
()
;
disposed of
of
by way
tlie
of
sale
or
mortgage without
the
particular
knowledge
tenant, and without production of the title deeds. (*) Stats. 45 & 46 Vict. c. 38
;
Cooper v. Treubi/, 28 Beav. 194 He Kidd and Gibbons^ Contract, 1893, 1 Ch. G9-t, (i98 lie Itepington, 1904, 1 Ch. 811, 814; see also Re Langhani, 1890, W. N.
;
213
60 L. J. Ch. 110.
408
OF PARTICULAR TITLES.
bona fide sold or mortgaged for full consideration in money or money's worth, before the 2nd of August,
of the
Finance
by the pur-
when
Sales of reversionary
interests at
an undervalue.
if that Act had not and in the case of a mortgage, any higher duty payable by the mortgagor shall rank as a charge subsequent to that of the mortgagee ( /). Sales of reverpionary interests were formerly liable to be set aside in equity on the ground of mere inadequacy of consideraBut this rule was abolished by statute as tion {g). from the 1st of January, 1868, since when no purchase made bond fide and without fraud or unfair dealing of
passed
any reversionary
be opened or
value
Time
of
(//)
.
set aside
On
time
is
and as the
is
money from
specified for
contract,
no time be
completion
(/.)
(/) Stat. 57 & 58 Vict. c. 30, 21 (3). By Stat. 7 Edw. VII. 0. 13, 8. 12 (whicli increased the scale of rates of estate duty), where such estates have been sold or mortgaged as above mentioned before the 19th April, 1907, no other duty will be payable by the purchaser or mortgagee, when the estates fall into possession, than would have been payable if that section had not passed and in the case of a
s.
;
made
as above mentioned of such estates before the 30th April, 1909. {g) See 2 Dart, V. & P. 750 sq. oth ed. 844 sq. 6th ed. 749 sq. 7th ed. see (70 Stat. 31 & 32 Vict. c. 4 below. Chap. XIV. 2, as to the construction of this Act.
;
(i)
Above, pp.
58,
59
New;
P. 262 1 Dart, V. & P. 419, 5th ed. 484, 6th ed. helow, Chap. XII. 497, 7th ed.
Sug. V.
&
as
to sales
and mortgages
2 P. W. Child v. Abingdon, 1 Ves. jun. 94; Cha?npernoume v. Brooke, 3 CI. & Fin. 4, 23; Brooke v. Champernoicne, 4 CI. &: Fin. 589 Enraght v. Fitzgerald, 2 Dr. &
[k)
Ex parte Manning,
410;
OF PARTICULAR TITLES.
or
if
409
a
(/).
time
Where land sold consists of an allotment acquired under an Inclosure Act (m), the title material to be
investigated, prior to the
to the
Act,
is
Act were not exceeded in making the award, for no title is confeiTed by the award of any allotment made
ultra vires (o).
Where the title to land sold is made under an ex- Exchange change effected in the manner which has now long been ^'^'^*^'^^^ ^y
usual,
namely,
by deeds
of
conveyances,
the
i.
title to
War.
3 Dr.
Veneij
;
v.
Elwood,
v.
allottees
see
ii.
Davidson,
part
Prec.
Sarel, 5
Conv.
;
vol.
;
p. 491, n.,
(l) Bailey v. Collett, 18 Beav. 1 Dart, 179; Sug. V. & P. 628 V. & P. 630, 631, 5th ed. 712, 6th ed. 654, 7th ed. {m) As to the inclosure of com;
;
mon
fields
and
commons,
Wms.
ed.
79,
;
246
4th ed. Toivnleyv. Gibson, 2 T. R. 701 Doe d. Zotvesv. Davidson, 2 M. & S. 175 Doe v. Hellard, 9 B. & C. 789 Wakejield v. Bucclciigh, L. R. 4 Eq. 613, 627; 4 H. L. Butterknowle Colliery Co., 377 Ltd. V. Bishop Auckland, S;c. Co., Ltd.. 1906, A. C. 305; Williams on Commons, 223, 224, 250, 251 Inclosure Act, 1845 (stat. 8 & 9
;
;
598, 604
1
Major V. Ward, n Hare ; Sug. V. & P. 372, 373 Dart. V. & P. 164, 286, oth ed.
iti)
;
Vict.
c.
As
to
186, 326, 6th ed. 181, 322, 7th ed. ; 1 Davidson, Prcc. Conv. 527, 4th ed. Inclosure Acts usually
the question whether the right of sporting over allotments of waste land has been reserved by an Inclosure Act to the lord of the
provided that the tenure of the lands allotted should bo the same as that of the lauds in respect of which the allotment was made, and reserved the minerals under the lands allotted to the persons previously entitled to them but
:
manor, see Williams on Commons, 240 243 Devonshire v. (P Connor, 24 Q. B. D. 468; Ecroyd v. Coulthard, 1898, 2 Ch. 358. (o) Winyfield v. Tharp, 10 B. &
C.
785
Casamajor
706,
v.
Strode,
My. & K.
718722; Sug.
V. & P. 375.
(p) See Da\ad8on, Prec. Cmv. ii. pp. 7781, 3rd ed. 1 Key & Elph. Prec. Conv. 700 713, 4th ed.
vol. V. pt.
where no
su(!h
provisions were
made the tenure of the allotments was freehold and the mines under
them passed with the
soil to
the
; ;
410
OF PARTICULAE TITLES.
be investigated prior to the exchange
title to
(q) is
the previous
title
^^chaugeby
the Inclosure Act, 1845.
exchange
is
immaterial
(>).
But
where land sold has been acquired through an exchange effected by an order of exchange made under the Inclosure Act, 1845, and the Acts amending it {s), it
is
title
to
so
change
jurisdictiou,
that
to
land
the
thenceforward
title,
vocably subject
[u).
The
(,r)
;
exchange
is,
therefore,
the only
it
title
which
it is
material to investigate
but as
appears
if
made
iq) If the exchange were made at least forty years befoi'e the sale, it would of course be a good root of title; see above, pp. 100,
106.
(r)
217, stats. 7 & 8 610, 611, 2l8t ed. Vict. c. 76, s. 6; 8 & 9 Vict, c. 104, s. 4.
(c),
;
ed. n.
Wms.
The
this
way
is
acquisition on sale, and if the title to the land given in exchange were bad, the party who took it in exchange would, in the absence of fraudulent misrepresentation, have no right to recover possession of the land which he exchanged for it, but could only pursue his remedy in damages under the covenants for title Bartram v. Whichcotc, 6 Sim. 86, 92 see below. Chap. XII. ^ 3
;
See above, i^p. 147 and 152 and n. (;) Wms. Real Prop. 143, 217, 21st ed. [t) 1 Davidson, Prec. Conv. 1 Dart, V. & P. 529, 4th ed. 328, 6th ed. 287, 5th ed. 324, 7th ed.
(.v)
n.
(9),
Chap. XIV.
5.
1
;
lands was effected at coiitinon laio before the year 1845, a mutual right of re-entry on eviction was implied, and so the title both to the land given and to the land taken in exchange was material see BustarcVs cane, 4 Rep. 121a; 1 David.son, Sug. V. & P. 372
;
9 Vict. c. 118, Jfiiief V. Leinan, 20 Beav. s. 147 269, 279, 7 De G. M. & G. 340 (deciding that gavelkind land may well be so exchanged for land held in free and common socage) Collins, J., Jacoinb v. Turner, 1892, 1 Q. B. 47, 51, 52 Davidson, Prec. Conv. vol. ii. pt. i. pp. 94, 95, n., 100, n., 4th ed. {x) Such an order of exchange is not in itself a good root of title, as it affords no evidence of the validity of the title to the laud given in exchange see previous note above, p. 106.
() Stat.
;
&
OF PARTICULAR TITLES.
posed to be exchanged
(?/)
,
411
it
would be
who
the
exchange was
in
fact
(s).
interested
therein
within
meaning
of the Acts
A
land
sale as well as a
all
;
right to
(a)
conveyance of land includes the Mines and mines and minerals in and under the except only gold and silver mines, which Royal mines,
(h).
If,
therefore,
the vendor
title to
any minerals
or have
no
the
by express
stipula-
be
Whenever mines and minerals are excepted from a con- What is veyance of land by the agreement of the parties thereto, ^^le term it appears that the word minerals, unless limited by the mi'i'erais.
(v)
Jacomb
See
;
v.
Turner,
1892,
in exchange
Stat.
1
Q.
S8.
&
Stat. 8
&
;
9 Vict. c. 118,
16 sq.,
i.
147
above, p. 409,
note [p)
vol. ii.pt.
So also after exchanges made under most local Inclosurt- Acts, upon inclosureuurler the Inclosui'c Act, 1845 (see Jacomb v. Turner, 1892, 1 Q. B. 47, 50), of lands lying in common fields, under
ed
& 5 Will. IV. c. 30, or under the Acts authorising the exchange of ecclesiastical proStat. 4
perty (stats. 55 Geo. III. c. 147 56 Geo. III. c. 52; I Geo. IV. c. 6 6 Geo. IV. c. 8), the title, prior to the exchange, of the is not land taken in exchange " J .. material and it is only necessary
; ;
.
pealed by 36 & 37 Vict. c. 91, the title to the land given and to that taken in exchange was material; 1 Dart, V. & P. 288, 5th ed. 328, 6th ed. 325, 7th 1 Davidson, Prec. Conv. ed. But where an ex530, 4th ed. change of charity land has been effected under the Charitable Trusts Act, 1853 (stat. 16 & 17 Vict. c. 137), ss. 24, 26, the tran8acti(in stands on the same footing as an exchange by deed of mutual conveyance see above, 7 of this chapter p. 409; beh)w. 1 Dart, V. & P. 329, 6th ed. 325, 7th ed.
; ; ; :
^^
()
a bee
^
toascerainthat^ the jurisdiction or right to make the exchange * 1 1 Tr D duly arose see c Suir. V. .v P. 373 1 Dart, V. & P. 287, 5th
I
; ;
^^^{
,
^^^^^^,^ ,
,
Contract,
, '
1906,
'
iCh.
ed.
1
323, 7th ed. 327, 6th ed. Davidson, Prec. Conv. 529,
: ;
310,
;
336,
4th ed.
Where
The case of Minen, Plowd. 337 1 Black. Com. A.-G. v. Morgan, 1891,
;
412
OF PARTICULAR TITLES.
context, will include every substance
embedded
in or
forming part of the land and having a value of its own Thus apart from its worth as a portion of the soil (c). the term minerals, when used in such a conveyance (d),
has been held to include china clay
(e),
coprolites (/),
and brick earth and clay {(j), and would certainly comprise slate, freestone and limestone {h), and every other kind of stone (/), besides coal and ironstone {k). It appears that the term minerala would have the same
meaning
Working
plied on
land
(/).
powers iman
exception of
away
mines and
minerals.
without reserving any express power to enter and get them, retains by implication of law all necessary powers
(c)
Komilly,
;
M.
Kay,
E,.,
Midland
Ey.
Co. V. (Jheckley,
ly, -lb
Hext
v.
;
Todd, Birleston ^- Co. and North Eastern Ry., 1903, 1 K. B. Great Western Ry. v. Gar603
;
Midland
^-c.
palla,
i-e.
Co.,
Ltd.,
1909,
;
Ch.
Ry.
Co. V.
Haunchwood,
;
Co.,
218
1910,
it
A. C.
83, 85
from
JS'eath
Jemey v. 20 Ch. D. 552, 555 Union, 22 Laic Poor Q. B. D. 555, 559, 561, 563 Johnstone v. Crompton, 1899, 2 Ch. 190 Great (Festern Rail. Co.
;
which
V.
Blades, 1901, 2 Ch. 624, 631, 636, 638; Re Todd, Birleston ^' Co. and North Eastern Ry., 1903,
1
actual surface soil of the lauds conveyed is not excepted, though it may have a vaiuo independently of its worth as mere soil.
()
cases the
Hext
V.
Ry.
Great
Co.,
ubi sup.
^-c.
Ltd., 1909, 1 Ch. 218, 226, 229, 231, 237; affirmed, 1910, A.C.83. (d) As to the meaning of the
term minerals in
Clauses Act,
Vict.
the
Railways
8
1845
(stat.
&
c. 20), 8. 77,
/) A.-G. V. Tomline, 5 Ch. D. ( 750, 762. Jersey v. Neath Poor Law ((/) Union, ubi sup. (A) Bell V. Wilson, L. R. 1 Ch. 303 Watson, L. A., Lord Provost, ^'c. of Glasgow v. Fairie, 13 App.
;
&
11 Vict.
c.
17), s. 18,
which
except from conveyances of any land acquired subject to the proall mines visions of those Acts of coal, ironstone or other minerals " under such laud, unless expressly named and conveyed see Lord Froiost, ^c. of Glasgow Fairie, 13 App. Cas. 657 v. Midland Ry. Co. v. Robinson, 15 App. Cas. 19; Great Western Ry. Re V. Blades, 1901, 2 Ch. 624
'
' ;
v. Chcckley,
[k)
Moultou,
v.
1
L.
J.,
Great
^-c.
;
Western Ry.
Ltd.,
Carpalla,
Co..
App. Cas.
(/)
See
(c)
;
note
Newton,
OF PARTICULAR TITLES.
for
413
him
to
purpose (w)
stipulate
and
it is
expressly
the reservation
of
larger
works connected with the mines, such as the deposit of rubbish, the erection of engines and other works, or of cottages for workpeople, and the making of tramways,
railways, &c.
hi).
not for the reservation of any express powers of working *^^ ^j^^^d
them, the vendor would not be entitled to require the reservation to him, in the conveyance to the purchaser,
for in the
any larger powers than he would retain by implication of law and if the contract should expressly provide
of
;
require
.
conveyance
,
stipulation
to
that
ro
ettect,
vendor
...
mines and minerals mil have no right to let down the surface by his workings ( /;), or, where the excepted minerals can only be gotten by surface work-
power
B.
Armitage, 2 v. C. 197, 207, 208, 211; affirmed in D. P., Sugd. Law of ' Property, S8 91. () Williams on Commons, 221 see Davidson, Prec. Conv. vol. ii.
(w)
Cardigan
v.
&
843; Love v. Bell, 9 App. Ciis. Greemccll v. Loiv liccchburn 286 Coal Co., 1897, 2 Q. B. 16.5 New Sharhton Collieries Co., Ltd. v. Westmorland, 1904, 2 Ch. 443, n.
; ;
pt.
i.
484
sq.
and note
Key &
314, 315, 8th ed. () The rule is that the rights to be defined in the conveyance
; ;
^-c.
;
Co.,
Ltd.,
v.
Markham
are those conferred by th(> contract see lie i'eck and London School Board, 1893, 2 Ch. 315;
Paget, 1908, 1 Ch. 697, 710. As to what provi.xions will confer the right to let down the surface, see Rowbothum v. Wilson, ubi sup.
5//it<A v. />ar/<i/, L. K. 7 Q. B. 716; v. Seddon, L. R. 10 Ch. Butterley Co., Ltd. v. Xew 394 Hncknall Cullicry Co., Ltd., 1909, 1 Ch. 37 affirmed, 1910, A. C. lireu-ir v. Rhyinnei/ Lron Co., 381
Re Huqhes and
XII.
3.
As/ilei/'s Contract,
;
Aspden
;
below, Chap.
{p) Humphries v. Brogden, 12 Q. B. 739; Rowbotham v. Wilson, 8 H. L. C. 348, 360; Davis v. Treharne, 6 App. Cas. 460 Dixon
;
1910,
414
ings, to
OF PARTICULAE TITLES.
work them
surface
in
soil
sucli
way
as will
(q).
utterly
Mines and
minerals go along with the surface
until severed.
destroy the
as
of
the land
So
is
long
en-
the
joyed as an incident of the ownership of the surface, they pass, as a rule, without express mention (unless
upon any conveyance or disposition and where a title has been acquired ander the Statute of Limitations {s) by adverse possession of the surface, a similar title to the mines and
specially excepted)
of the surface (r)
;
(f).
But after mines have once been severed from the surface, they remain distinct therefrom as separate corporeal hereditaments [u), the title thereto is no
longer affected by any act of disposition or possession and it is not lost by any mere omission of the surface
;
to enter
upon
or
{.r)
{q)
Bell V. Wilson, L. R.
303
Hext
v.
Gill,
L. R.
Gh. Ch.
(.s)
&
Will.
IV.
Vict.
c.
c.
amended by 37 & 38
{t)
;
27, 57.
Railways
Clauses Act, 1845, or the Waterworks Clauses Act, 1847 (above, (2) upon the enp. 412, n. {d)) franchisement of copyholds when effected by virtue of the powers given by the Copyhold Acts, 1841, 1852, 1858, or 'l894 (see stats. 4 & 5 Vict c. 35, ss. 13, fi6 sq., 82; 15 & 16 Vict. c. 51, s. 48; 21 & 22 Vict. c. 94, s. 14; 57 & 58 Vict. c. 46, s. 23) (3) upon the sale for redeeming laud tax of lands of ecclesiastiial corporations under the Land Tax Redemption Acts (see 1 Dart, V. & 422, 6th ed. P. 370, 5th ed. and (4) where 7th ed.) 4 25, streets or roads vest by statute in some local authority for the pui-poses only of exercising the powers thereby conferred on them in respect of the surface (see below, pp. 417, 418).
;
; ;
titled to use the spaces left when the minerals have been worked
and
219.
see
Williams on Commons,
[x) Seaman v. J'atrdrei/, 16 Ves. ;i90, 392 Norway v. 'Bowe, 19 Ves. 144, 156 Cardiff an v. ArmiMcBonnell tage, 2 B. & C. 197
; ;
OF PARTICULAR TITLES.
acquisition, subsequent to the severance, of a
415
new
title
to the surface under the Statute of Limitations, will not If, however. of itself disturb the title to the mines {if).
Title to
i^y
adverse
way
possession.
under the
It
is
merely
to enter
away
he cannot get a
as
And
the retention of
of coal, or
possession of
some part
thereof, will
under the
Statute of Limitations to
any
beneath the mine so possessed or to any other part of that mine than so much thereof as has been in the
trespasser's
actual
1
.
possession
,
(/^).
The reader
will
^^^i^es
under
remember
copyholds,
Such mines and minerals pass the tenant upon an enfranchisement made by a con10
V.
MrKiiih/,
'
Ir.
L.
514;
Smith
Ex. 562 9 Truntees, c^r. Aqciicy Co., Ltd. v. Short, i;} App Cas. 793, 799;
V.
IJoi/d,
()/) Sec previous note; MeSwinney on Mines, o84, Srd ed. \z) Hall, V.-C, Ashtou V. Stock, Low M<,or Co. 6 Ch. D. 719. 726 V. StU'lfU Coal Co., 34 L.T. IS6; Oliin v. 'noweU, l!l09, 1 Ch. f.66, 675 .sy/. So hIso where minerals are embedded in the surface soil and jrotteii by surface workin<rs, as gravel obtained by diguriiig in fjriivfl pitsorstono by <iuarrvinp, a title undur tlio Statute t)f Limitations may be acquired by keep;
ing possession of them, along with the surface, for the nece.sSmith v. Stocks, 38 sary period L. J. Q. B. 30G. {n) DartmoiUh Spittle, 24 v. L. T. N. S. 67 Ashton v. Stock, tihi flip. ; Thompson v. Hickman, 1907, 1 Ch. 550.
;
I.,on- Moor Co. V. Staiileii Coal 34 L. T. 186, 189; Ghni v. Howell, 1909, 1 Ch. 666. {c) intwhesterv.K>iit/ht,l P.W. 406 Bourne v. Tai/lor, 10 Ea.st, 189; Lewi.i v. Bra'nthwaite, 2 B. k Ad. 437 Kcyes v. Pon-dl, 2 E. & B. 132; Enrdlri) v. Grauville, 3 Ch. D. 826, 832,' 833 1 Scriv.
(A)
Co.,
508 xq :^rd ed. Wms. Real Prop. 355, liSth ed. 464, 21st ed. II the lord have by custom
Cr>p.
.
416
OF PARTICULAR TITLES.
veyance of the freehold in fee under the general law
unless of course they are expressly excepted
:
(d),
but they
by the
(e).
it is presumed that the soil of all highways or private ways, running through and enclosed on both sides by one man's land belongs to him ( /) that a conveyance of the lands on
At common
law,
roads,
whether
soil of
the road
(g)
and that a conveyance by him of the land on one side of the road includes the soil of the nearest half, up to
the middle of the road
(//).
Where
that
is
road
which adjoins
up
to the
that
any
strips
by the
6 C. 304; Scoones v. Morrell, 1 Beav. 251 Holmes v. Bellingham, 7 C. B. N. S. 329 (as to private As to cases where a road roads) adjoins an open common, see the
;
.
first
two
below.
n. {x).
{d) 1 Scriv. Cop. 25, 3rd ed. above, p. 414 and see Davidson, Prec. Conv. vol. ii. pt. i. p. 386, n., 4th ed. (e) See above, p. 414, n. (>). (_/) Salisbury v. Great Northern By. Co., 5 C. B. N. S. 174 Harrison V. Rutland, 1893, 1 Q. B. Hickman v. Maisey, 1900, 142
; ;
where a high road, having unmetalled strips of land on either side of it, runs between fences, and there is nothing to show that
the fences are not the boundaries of the highway, the presumption is that the public right of way extends over the whole of the land between the fences R. v. United Kingdom Telegraph Co., 6 L. T. N. S. 378; Harvei/ v. Truro Rural Council, 1903, 2 Ch. 638 Offin v. Rochford Rural Dis; ;
Q. B. 752.
See Salisbury v. Great Xor{(/) thern Ity. Co., ubi sup. [h) See cases cited in note [k), p. 417. below. (J) Due d. Priny v. Fearsey, 7 B.
trict cf.
Council,
1906,
Ch. 342;
Neeld v. Hcndon Urban District Belmore v. Council, 81 L. T. 406 Kent County Council, 1901, 1 Ch.
;
873.
'
OF PARTICULAR TITLES.
veyanee of the adjoining land carries with
one half of the road
of
(k).
it
'II"
the
soil of
And
land as in that
conveyance
(l).
may
soil is
whom, but
,
for
or that it would be presumed to be {m) was not the intention of the conveying parties to assure Whenever any conany part of the soil of the road (n) veyance is to be made of any land adjoining a road, the draftsman should take great care to make it unmistakably plain, whether any part of the soil of the road is intended Under the Public Health Act, 1875 (o), to pass or not. the surface soil of all streets, which are or become highways repairable by the inhabitants at large within any urban district, \ests in the urban sanitary authority to the depth necessary for exercising the powers conl)ut the sub-soil, including all mines feiTed by the Act
such evidence,
it
Streets within
djstnct.
Mines and
and minerals
land, which
Under
Jack, 5
df-
the
C. B. Jur. N. S. 10.58; Jlrrridf/e v. If'ard, 10 C. B. N. S. 400 (where the land conveyed was deHcribed by roference to a plan not including- any part of the Ite Whiter Charities, 1898, road)
(k)
Simpson
v. ])endij, 8
7
N.
S. 433, affd.
206 2G4
11
;
Leiyh
v.
v.
Ex. D.
Cu., Ltd.,
Pryor
Mappin
1
v. Liberty
Ch. 118. The above presumptions have no application in the case where a railway runs through one man's land, or (as it
1903,
Ch. 659; and see Lo))do>i North Western Ity. Cu. v. Westminster Corptt., 1902, 1 Ch. ^69. 279, afBrmed, 1905, A. C. 426,
1
df-
428, 429, 438. (f) Re Poppli and harratt^i Contract, 25 W. R. 248. [in) Grose v. West, 7 Taunt. 39 Doe V. Kemp, 2 Bing. N. C. 102 Beckrit V. Leeds Corpn., L. R. Hau/h v. West, 1893, 7 Ch. 421 2Q. B. 19, 20.
;
; ;
(w)
Salislmrn
Ry.
Co., 5 C.
stead
Land
Britis/i
16, 203,
appears) between the lands of different owners 'Tliompson v. Hickman, 1907, 1 Ch. 550, 556. (o) Stat. 38 & 39 Vict. v. 55, s. 149. By s. 4, street includes any highway (not being a tumpike road), and any public bridge (not being a county bridge), and any road, lane, footway, square, court, alley or passage, whether a tlioroughfare or not. {p) Coverdak v. Charlton, 4 Q. B. D. 104, 121 Tiotbri/ige Wells Corpn. v. Baird, 1896, A. C. 434 Finchley Electric Light (Jo. v. Finchley Urban Ihstricf Council,
;
w.
27
418
Streets in the metropolis.
OF PARTICULAR TITLES.
Metropolis
Management
local
Act, 1855
(y),
the surface
soil
in
the the
authority to the
Under
Public Health
(r).
(.),
London.
the purposes of
specified in sect.
as are
Under the Local Government Act, (f) main roads within the meaning of the Highways and Locomotives (Amendment) Act, 1878 (j^-), vest in the County Council, except where the ui'ban sanitary authority retain the powers and duties of maintaining and repairing such road {//). It has been held that this enactment does not make the County Council the owner of strips of waste land lying by the side of such roads, so as to entitle them to take the herbage thereof (s) but it appears to vest in them the surface soil of the metalled road and any footpath
poses specified
.
1888
{((),
all
Ch. 437; IVedmsbury 1903, 1 Corpn. V. Lodge Holes Colliery Co., Ltd., 1905, 2 K. B. 823, 826; 1907, 1 K. B. 78, 89, 90; 1908, A. C. 323 Folefs Charitii Trustees V. Dudley Corpn., 1910, 1 K.B. 317, 322, 324, 325.
;
(s)
Stat. 54
&
55 Vict.
c. 76.
(<)
& 19 Vict. c. 120, 2o0, street is defined in the same way as in the Public Health Act, 1875 see note (o), p. 417, above.
[q]
Stat. 18
.s.
96.
By
s.
Co. V. Westminster Corpn., 1902, 1 Ch. 269, affirmed 1905, A. C. 426 Westminster Corpn. v. Johnson, 1904, 2 K. B. 737. See cases cited in note [p), above, p. 417. 51 & 52 Vict. c. 41, (?/) Stat. s. 11 (1,6).
;
Ry.
[x)
s.
Stat. 41
&
42 Vict.
c.
77,
13.
(y)
()
Rolls V.
iSY.
George'' s Vestry,
SoHthwark,
14
Ch.
D.
785
v.
See Finehley Electric Light Finehley Urban Disti-ict V. Council, 1902, 1 Ch. 866, reversed
Co.
Vni/ed Telephone Co., 13 Q. B. D. Battersen Vestry v. County 904 of London, S;c. Lighting Co., lAd., 1899, 1 Ch. 474.
1903,
{:)
Council, 45
Counti)
OF PARTICULAR TITLES.
lying by
its
419
side (a), so
far as
is
them
The
soil of
like
Soil of rivers,
regard to the
roads
(c).
same owner,
it is
(r/)
;
pre-
sumed
sale
((')
that he
is
that
on both
and that
by
And
if
presumed that each of them is the owner of that part of the river-bed which adjoins his own land, up to mid- stream, and that a conveyance or
owners,
it is
sale of the
mth
it
the ownership
of
half
the river-bed
These presumptions
may
Island in a
Where
river,
middle of a
is
running between either bank and the island, and not so as to raise anj' presumption as to the ownership of the
{a) See Derbi/ Couuty Council v. Matlock Bath, *r. Urbnn District,
1896, A. C. ?.U->. (b) Sec cap oited in note p. 417, abovL'. (c) Above, pp. UG, 417.
(d)
(/^),
to what is the bed of see TIiuhkw Coiixcreatorx B. 3.J4. V. Smccd, 1897, 2 Q. With respect to the legal results of a river changing its course, see C,irH!<li: Corpn. v. Graham, L. R. 4 Ex. 3G1 Foster v. irri;//,t, 4C.P. D. 43S: Hituho), \. A>='lili>i,
tt
As
river,
Popplr and Barratt''x 25 "W. R. 248. (/) Lord v. Sudnnj Vommrs., 12 Moo. P. C. 473; Micklethwait v. Xcuiai/ Bridge Co., 33 Ch. D. 133: Kay, J., rUbiir;/ v. 6'i7t'rt, 4.i Ch. D. 98. 108. These prehumptious do not apply in the ea-se of lands abutting on a canal, of which the surface soil belongs to other owners Chambrr Colluri/ Cu. v. livc/idale Canal Co.,7'i L.T.
(e)
lie
(Contract,
2.i8.
(p)
1896, 2 Ch.
1.
Q. B. D. 263
>7
{2)
420
Owner
of several fishery
OF PARTICULAR TITLES.
island
(//).
It
that,
where there
river, it is
presumed to be owner of
the
soil.
soil of
(A-)
the river
(/).
In the case of
and navigable
rivers, estuaries
sumption
Tublio riaht of navigation.
Seashore.
is
up
to high-w^ater
mark belongs
also
Crown
(/)
but such
(;)
ownership
is
The Crown
soil of
the
mark
of
ordinary
tides,
between the spring and the neap(yO. But a subject may have become the owner of the soil of the foreshore
that
is,
the land
mark
of
medium
by grant
either conveying
in
Commons
Stevens,
Ulleswater (() See Marshall v. Steam Navigation Co., Ltd., 3 B. & S. 732; A.-G. v. Emerson, Hindson y. 1891, A. C. 649 Ashby, 1896, 2 Ch. 1, 11, 20; Eckroyd v. Coulthard, 1897, 2 Ch.
:
554, 565, 570; Hanburyx. Jtnkins, 1901, 2 Ch. 401, 411 Fitzhardinge y.Furcell, 1908, 2 Ch. 139, 146, 161. (A-) As to the meaning of navi;
f/able,
Q. B. 339, 374
Malcomson
v.
:
CBea, 10 H. L. C. 593, 618 Gann v. Free Fishers of Whitstable, 11 H. L. C. 192, 207; Lijoti r. Fishmongers^ Co., 1 App. Cas. 662,
N^orth Shore Ry. Co. v. Pion, 682 A.-G. v. 14 App. Cas. 612, 621 Einerson, 1891, A. C. 649. 653;
; ;
public right of way along a road see Orr Eiving v. Colqahoiin, 1 App. Cas. 839 Bourke v. Davis, 44 Ch. D. 110, 120124; Smith V. Andrews, 1891, 2 Ch. 678, 689, n., 695697; Simpson v. A.-G., 1904, A. C. 476. () A.-G.v. Chambers, 4 De G. M. & G. 206 A.-G. v. Emerson, 1891, A. C. 649, 653. Where the sea gradually encroaches or recedes, the soil, over which the Crown title extends, is altered accordingly but a sudden irruption or dereliction of the sea dues not cause any change of title to the soil so submerged or left dry 2 Black. Comm. 262 H. v. Yarborongh, 3 B. & C. 91, 2 Bligh, N. S. 147, 5 Bing. 163 Re Hull and Selby Ry., 5 M. & W. 327 Mercer v. Benne, 1905, 2 Ch. 538. Wms. Real Prop. 579, 582, 584 330, 13th ed. (426. 21st ed.).
: ;
;
Fitzhardinge
v.
Fnrcell,
1908, 2
Ch. 139, 146. (;) See cases cited in previous Inland or non-tidal rivers note.
may by immemorial
{o) Scratton v. Brown, 4 B. & Alderson, B., Re Hull 485, 495 and Selby Ry., 5 M. & W. 327, 332; A.-G. v. Emerson, 1891, A. C. 649, 653 Mellm- v. TFalmesley, 1905, 2 Ch. 164, 177180. [p) Mace V. Philcox, 15 C. B.
;
OF PARTICULAR TITLES.
from the exercise of long- continued and uninterrupted acts of ownership to have included it (q), or to have
been made
(>).
421
And
the
owner
is
of
a several
fishery Several
presumed
soil
to be
the
foreshore.
owner
(s).
Crown a
title
public navigation
And
if
form a natural
is
_ ^
barrier
the
Where laud conveyed is described as to remove it (u). bounded by the seashore, that means by the inland
limit of the foreshore,
;
mark of medium any part of the that no presumption tides and there is U). The owner foreshore is included in the conveyance
i.e.,
high- water
lip;'"ii'
of land abutting
J.1
bank
for
of a tidal
and navigable
of
and from the sea or river and otherwise as is enjoyed by the owner of land on the bank of a nonBut the public have no general right to No public tidal river (//). 'whether in the hands of the Crown or n the foreforeshore use the
of access over the foreshore to
the purpose
navigation
shore.
as
may
S. 600
rights of navigation
N.
;
and
fishing), or to pass
{()
and repass
(/)
CoHucil V. Woods, 1899, 2 Ch. 705; Liverpool, ^-c. Stenmship Co. V. Mersnj Trading Co., Ltd., 1909, and .see Scratton v. Ch. 209 1 Broun. 4 B. & C. 485, 495 sij. (q) Calmady v. Rowe, 6 C. B.
iricl
;
lieaufort v. Suauiea, 3 Ex. 861 413; A.-G. of Ireland \. VandeIfur, 1907, A. C. 369, 370; Fitzhardingi v. Pnrcrll, 1908, 2 Ch.
;
14 Ch. D. Musselburgh jRral Estate Co., Ltd. v. Musselburgh (Provost), 1905, A. C. 491. (x) Mellor v. Walnieslei/, 190.),
oH,
A.-G.v. Tomline,
followed
v.
Fishmongers' Co.,
Straits
i;^9.
Emerson,
1891,
hardinge v.
Ifemgss, 13 App. Cas. 192 Xorth Shore Jtg. Co. v. J'ion, 14 App. Cas. 612 Mellor v. Waltr^ley, 1905, 2 Ch. 164, 181.
v.
:
422
Inland lake,
OF PARTICULAR TITLES.
over
is
it
(;:)
The Crown
soil
not entitled of
common
right to the
;
of
it
any
is
and
the
a of
soil
(6)
rights in natural
The owner
of the
(c),
to
have the
its
may
be
[z)
Biundell v. Catterall, 5 B.
;
<t
V.
2
Gwyfai
Ch. 608
JJistrict
;
Council, 1899,
A. 268
Llandudno Urban District Council V. Woods, 1899, 2 Ch. 705 Brinekman v. Medley, 1904, 2 Fitzhardinge v. Pnrcell, Ch. 313 The 1908, 2 Ch. 139, 165 sq. foreshore may be subject through
:
Bradford Corpn. v. Ferrand, 1902, 2 Ch. 655, 660 McCartney \. Londonderry, ^-c. My. John Co., Ltd.. 1904, A. C. 301 White 4- Sons v. /. 4- M. White,
;
immemorial user to the right of the owners of fishing boat.s and other craft to fix moorings in the soil; A.-G. V. Wright, 1897, 2
Q. B. 318.
A. C. 72, 80. Any riparian owner may take water from the stream for his own domestic pur1906,
poses, such as drinking, washingand watering liis cattle, and for the reasonable irrigation of his land and he is also entitled to
;
And
there
may
be a
;
good custom for fishermen to dry their nets on land near the sea
Mercer v. benyie, 1904, 2 Ch. 534 1905, 2 Ch. 538.
(a)
(o)
;
Above,
p. 419.
divert the water from the stream for such purposes as the supply of water power to a mill erected on his land, provided always that he return the water so used to
Shury
v.
Piggot,
Bulst.
339.
{d)
&
St.
5 B.
& Ad.
1,
\1 sq.;
;
Emhrey
v.
Owen, 6 Ex. 353 Miner v. Gilmour, 12 Moo. P. C. 131, 156; Chaseinore v. Richards, 7 H. L. C. 349, 382 Swindon Waterworks Cu. v. Wil's and Berks Canal Xaviyition Co., L. R. 7 H. L. 697, Blackburn, L. A., ')rr 704, 709
;
Ewing
v.
;
Colquhoun, 2
Orinrrorl v.
App. Cas.
;
the stream and do not substantially interfere with the rights of the other riparian proprietors to the natui'al flow of the water but he is not entitled to divert the water to a place outside his riparian tenement and consume it there for purposes unconnected with such tenement see the cases Kensit v. above cited Great Eastern Ry. Co., 27 Ch. D. 122. Wood v. Waud, 3 Ex. 748 ((>) John Young 4' ^'o. v. Bankier Distillery Co.', 1893, A. C. 691, 697, and cases cited in pre698, 701 vious note.
: : ;
OF PAKTICULAK TITLES.
right in the nature of an easement to abstract from the
423
is
allowed as
or to disinto
owner
own
other
use
(./"),
matter
the
But any
prescripti^e
right to discharge
its
owner
Surface or
from the necessity of observing the requirements of the Rivers Pollution Prevention Act, 1876 (h). The right
to the natural
as flows in a
now of water is confined to such water known and defined stream or channel, and
'
nij
If,
(/),
or defined
strata in
however, a stream
underground in a defined and known and afterwards emerge on to the surface, the
down
The
is
rights
r*-
artificial it watercourses.
.in
not enjoyed of
common
right
as
incident
to
the
Where an
(f) See
S.
J
watercourse
1
is
obviously
Chaseinore
made
for a
Wright
-203
:
v.
Howard,
&
K.
S.
I!t0,
Jiace v. JFard,
H. L.
B.
702;
Williams
on
Commons,
v. Hichards, 7 C. Bradford Corpii. v. Pick/c.s, IH96, A. C. 5^7 Bradford Corpn. v. Ferrand, 1902, 2 Ch. 655.
[k)
M9
^- Sons, Ltd. v. {,,) See Cro.ssh',1 Lulhlowla; L. R. 2 cL 478; BnxendaU v. Mc.Murra,j. ib. 790 Mclntyrr lira., v. McGavin, 1893, A. C. 268 Williams, on Commons,
; ;
jgg
.',,
(A)
^'
Q.
Stat.
.,
o9
A:
40 \
,,,
1--
ict.
4,
-c
/..,
T.' ,'''""" '' T^ ,i^J JVent Ittdtng of Inrkslnrr Jiirers Board 1909, A. C. 45, 48-50. .)4, .lb, 57.
obi)
^eJ)wkh,i^o>iy. Grand June ^^ 282. 300 301: v. Rtchards, H. L. C. '^'^ ^^^ l^'Mford Corpn. y. t*^' Ferrand, 1902, 2 Ch 6o5, 66o, in which ca^c it was held that there is "o right to the flow of water .^^ ^^ underground channel, ^hich nmy be defined, but is not
[l)
.
^'f Chascmore
Canal, 1
>
'
known
(,)
'j{u,neshur
I'ershad
121,
Xaraiu
Pattuk,
}^^g|^
j^^j j^^hari
Cas.
Raustron v. Tui/lor. 11 Ex. Bradford Corpn. v. Ferrand, 1902, 2 Ch. G55, 6G0.
(i)
;
App.
126128;
424
particular
OF PARTICULAR TITLES.
and temporary purpose only, as for draining a mine or land or for supplying water power to a water mill, the owner of any land lower down the stream, as
he takes the water with notice of such purpose, does not acquire by reason of such enjoyment, though long
continued, any right to the continuance of the flow of water {n). But where the circumstances are such that
it
appears that the watercourse must have been conflows, a right to the continuance
water supply
may
be acquired, as an easement,
through long continued enjoyment io). And in the case of an ancient artificial watercourse of which the
unknown, it will be presumed in such circumstances that it was constructed on the terms that
exact origin
is
the various riparian owners should enjoy the like rights to the flow of water, and also (it seems) in the bed- of
the stream, as
natural
they would have if the stream were Of course an artificial watercom'se flowing through the lands of more than one owner is in its
{])).
lower
down
the stream
that
is
to say, the
landowner
higher up can have no right to discharge the water on to the land lower down without acquiring an easement
for that purpose
(</).
Where
sucli a right
exists for
pure water,
it
can have no right to discharge into the watercourse extraneous matter which pollutes the water, unless he
Arkwriyht v.
()
;
Gcll, 5
M. & W.
JFood v. TFaHd, 3 Exch. 203 Grvatrex v. Hayu-ard, 8 Ex. 748 Burrows v. Lang, 1901, 2 291 Ch. 502.
; ;
(o)
Sutclife V.
Booth,
Jui-.
N. S. 1037; Rameslutr Pnshad Narain Singh v. Koonj Behari Fattuk, 4 App. Cas. 121, 128. Such an easement may be gained
either
through twenty years' enjoyment from which a lost grant can be presumed, or through twenty or forty years' enjoyment under the Prescription Act (stat. 2 & 3 Will. IV. c. 71), s. 2 see Williams on Commons, 305 310. Baih/ v. Clark, 1902, 1 Ch. {2))
(149
V. Stanford,
{q)
by
prescription at
common
M.
&W.
77.
OP'
PARTICULAR TITLES.
42o
And
if
How
of water, he will
have the
come down
(s).
to
him unpolluted
On
the
it is Riglits of
fishing
and
spoi-tiug.
is
clear.
The
whether of the
sea-coast or of
any
Crown's ownershi}*
tidal waters,
which ownerSeveral
fishery in tidal waters.
ship
is
But the Crown had power, (^Oby Magna Carta U) to grant to any
, ;
and there
are
many
by
virtue of such
(//)
.
The
right Rights
in non-tidal waters
{u)
is
an incident of the
oi fishing in
ncm-tidal waters.
See Goldsinid v. Tunbridye Improvement C'omiiiissioners, Sons, L. R. 1 Oh. 349 Crossley Ltd. V. Liyhtuu-ler, L. R. 2 Oh. McMurrai/, ib. 478 Baxendale v.
JFellx
;
.J-
{x)
Heu.
III.
e.
16.
790. U) See
Mayor
;
v.
Cliadwivk, 11
A.'& E.
(t)
.)71
Williams ou ComCremvell,
Ward
Fogaell, o B. A: ((/) Somerset v. C. 870, 884 Malcom.son v. O'lJcti, Guiin v. 10 H. L. C. o93, 618 1 Free Fishem of JFhitslable, H. L. C. 192, 209 Carlisle Cor//n. V. Graham, L. R. 4 Ex. 361 Niirthumberlaiid Houghton, v. L. R. 5 Ex. 127 NeUl v. Devonshire, 8 App. Cas. 135, 158, 180; j4.-G. v. Emeison, 177 Fifzhardinge v. 1891. A. C. 649 I'lirrrll, 1908, 2 Ch. 139; Williams on 268. Several Commons,
; ; ;
;
ti.sheries so
426
OF rAUTlCULAR TITLES.
ownorsliip of the soil covered
by them
(z).
If this soil
is
prima facie exclusively his; and where the soil belongs to more owners than one (as in the case of the opposite banks of a river and the adjoining halves of the riverbed belonging to different persons {a)), they have 7>r/y;^ri facie the exclusive right of fishing between them, each
being entitled
Riglits of fishing
(it
the
soil,
which he owns
The
right of fishing in
by
Scvei'iil
from the ownership of the soil is njJi'ofit a prendre (c), and may take the form either of a several fishery, which is the right of
fishing so acquired apart fishing to the exclusion of all others
of
{(/),
A right of
fishery.
or of
Cominou
piscary.
of piscary,
others
{e)
fisli
in
is
owner
extends
of
but there
is
may
apart
And
it
{z)
p.
(see
Law Tracts)
;
The Banne, Davis, 55, 56, 57 Marshall 2 Black. Comm. 39 Ulletiivater Steam Navigation V. Co., 3 B. & S. 732, 745, 748
; ;
v.
Fitz(/erald
96.
(</)
Bnstoic V. Cormtcaii, 3 App. Cas. (i4l, 664; Pearce v. Scotcher, 9 Bowen, Q. B. D. 162, 165, 167 L. J., Blouni V. lai/ard, 1891,
;
Makviiisuii
V.
()'I)e<i,
;
10
2
V.
Hindson
9,
1
1,
10;
Ch.
366,
1898. 2 Cli.
p. 119.
358.
Above,
;
See authorities cited iu note Williams ou Commons, (r), above 269 Stuart Moore on Fisheries, 113; nanbiiry v. Jenkim, 1901,
;
C. 593, 618, 619 H,nthin->i V. Jcnhbif:, 1901, 2 Ch. 401, 111.' (c) Williams on Commons, 259 Stuart Moore on Fisheries, 32 nq. Vhesterjield v. Harris, 1908, 2 Ch. 397, 412, 418424, 426420. (/) Above, p. 420. \g) Somerset v. Fogurll, 5 B. & Williams on Commons, C. 875 Hanbnry v. Jetikins, 1901, 264 claim to a several 2 Ch. 4 01. fishery in gross cannot be established under the Prescription
; :
:
H. L.
OF PAKTICULAR TITLES.
appears that, wliere there
is
427
there
may
be appur-
way ahmg
The
river,
any non-tidal
"*
^'i.'!^
and cannot acquire such (/) however long a period (/). The right of sporting over land, that is, the right of killing and taking away the game and other Avild animals thereon, n\a.y be enjoyed either by virtue of some franchise derived from the Crown (such as a forest, a chase, a park, or a free warren), or as an incident of the ownerright
though by user,
iiavigable
for
ship
of the
land
(/),
or
as
separate
incorporeal
through grant or prescription, independently of the ownership of the soil (m) It must not be forgotten
.
Lessee's
fi^^iiilrimd
sportinjr.
that
all
rights
of
fishing
and
sporting,
whi(,-h
are
by a
lessee
of the
land for
years or
occupation of the
(ii).
A
;
& 3 Will. IV. c. 71j Lr Flemmi), 19 v. C. B. N. S. 687 see Williams on (Jomraons, 1, 4. u, 9, 11, 26.J. As to tlu' legal effect upon a several fisliery of a river chaugiug' its course, see cases cited above. p. 419, 11. {(l). (A) Htotbury v. Jenkuis, 1901, 2 Ch. 401. (t) See above, p. 420, n. /w). [k] Jfadsou V. Macrae, 4 B. & S.
Shutttni-ortli
:
'
{in) See Wickham v. Hawker, 7 M. & W. 63 Ewnrt \. Graham, 7 H. L. C. 33 1. 334, 33') rTooprr v. (Jlurk, L. K. 2 Q,. B. 200;
; ;
Webber v. Lee, 9 Q. B. 315 Lowe v. Adams-, 1901, 2 Ch. 59S. As to the differeuce betweeu a mere licence and the gi'ant of a
;
profit
li prendre, ee JVocff v, Leailhitlr, 13 M. & 838, 844, 84r) Holford v. Batleii, 13 Q. B. 426,
446
)8.5
Ifar(frea>'en
v.
;
Diddams,
;
,')98,
L. R.
V.
v. Adams, 1901, 2 Ch. 601 and see (froi'r v. Prtal, 1902, 1 Ch. 727.
;
;
Lowe
[ii)
Except,
howiver,
as
to
Andrea-s, 1891, 2 Ch t)78. J) See Case of jrono/nd,. ,. 11 Williams on Rep. 84b, 87b; Commons, 18, 82, 152. 228 sij.. 2i0 2 i3: Ltevon-shirev. O'Connor, 24 Q. B. D. 468.
the case of leases made before the 5th Oct., 1831; sec stat. 1 i: 2 Will. IV. c 32, ss. (i 8; Coleman v. Bathnrxt, L. R. 6 Q. B. 366; Poc/iln v. :Smif/i, 52 J. P. 4 Jones v.
.iramo, in
;
428
ill
OF PARTICULAR TITLES.
a lease is not
from the
and
is
common law
to be
made by deed
(7;).
It
by
deed,
and the
may
to be reserved
like right in
is
though the
lessor
eqtiifi/
And
in
it
//eirs
or to
him
fee
/)ivfif
lessor's
own
it
is
conif),
is
common
Griihom,
H. L.
v.
C.
331,
11
334,
335;
Proud
;
Batrs,
Jur.
to a
141-143, 16th
(o)
ed.
the general practice so to reserve the rights of sporting leases of agricultural granting in land see Davidson, Prec. Conv., vol. v., pt. i., pp. 87, 215, 227, David228, 243, 260, 3rd ed. son's Concise Precedents, 390, Such reservations 398, 1 8th ed. are subject to the provisions of the Ground G-ame Acts, 1880 and 1906, stats. 43 & 44 Vict. c. 47 see Wms. 6 Edw. VII. c. 21 Pers. Prop. 141, leth ed. [))) Bird V. Hlggiyimn, 2 A. &
It
is
:
;
E.
696, 704,
[q)
A.
JJriffstockeY. Er<>/>in\
iJoe V. Lock, 2
:
N. S. 441 see reservation of the right to kill game, R. v. Thurhtone, 1 E. & E. 502. [r] See Lour v. Adaiita, 1901, 2 Ch. 598 3Iatj v. Belleville, 1905, 2 Ch. 605 Laws of England, x., 377, 401, ^ 678, 721 (by the writer) Co. Litt. 9 a, b, (6) Litt. s. 1 Heulins v. Shippam, 5 307 a B. & C. 221, 228, 229. Tounley [t) Bract, fo. 227, 228 V. Gibson, 2 T. R. 701; Williams 150152, sq., on Commons, 103 243; Lancashire 212, 213, 240 V. Hunt, 10 Times L. R. 310; above, pp. 409, n. (w), 427, and
;
;
however as
710, 743
7
IFickham
63, 70, 77
Hairker,
n. U).
M. & W.
Ewart
v.
OF PARTICULAR TITLES.
manor
lord's
(//).
429
of
right
ap])roveraent
under
Statutes
of
|.'ommoTi
any part
of
common
is
Board
of Agriculture
The
lord of a
manor has
over
(~)
or for
{a)
Every landowner
as
soil
entitled of
his
common
right,
and
Right of
support,
a natural incident of
supported in
lauds
to
its
of tlie
adjacent
entitle
(/>).
right
does
not,
however,
any additional support required for any buildings which he may erect on his land (c) but he may by grant, express or implied (d), or through long continued enjoyment become entitled to such further
:
him
support.
The
any
may
rupted enjoyment
easement invohing an actual physical burden on the supporting soil, a negative easement merely restricting the use of
this
whether
right
is
positive
that
soil,
or simply an enlargement
of
the riglit of
supported
(m)
[r).
When
from the ownersliip of the land land is sold with any buildings
See lJa/to>i v. Angus, 6 App. 740; Nrw Moss Colltf., Lid. Manchester Corpii., 1908, A. C. 117: Gale on Easements, 21G (33.i, 4th ed.). (c) Wyatt v. Hnrriioti, 3 B. & Ad. 871 Fartridije v. Scott, 3 M. & W. 220 Gale on Easements, 218 (343, 4th ed.). {d See ca.'4e8 cited iji note (/
{/>)
Ca.s.
v.
on Commons, 103
((/)
sq.
Stat. 56
&
57 Vict,
57,
8. 2,
(s)
639.
()
See
Wms.
Real Prop.
7. 17,
l)elow, p. 430.
v.
Atiqiis,
App.
430
Sale of land with build
OF PARTICULAR TITLES.
erected
thereon
or
for the
by any adjoining
is
lands,
retains,
entitled
Support of
buildings b)^ buildings
It
appears
that
the
right
of
support
of
some
so
building
by another building
is
on adjoiningland.
Party walls.
an easement
to be acquired
by grant
or
prescription
(g).
The common
is
two
different
owners
is
erected belongs to
them
this
common in equal shares (/^). But presumption may be rebutted by evidence that the
as tenants in
will be
(?).
The term
cases,
may
but
wall held in
common
(//).
of landowners,
Co.
v.
;
& H.
Co., 10
;
H. L.
Rigby
;
v.
Orosvenor Hotel Cv. V. Hamilton, 1894, 2 Q. B. 836, 841, 842. {y) Lemaitrev. Davis, 19 Ch. D. 281; Tone Y. Preston, 24 Ch. D. and see Union Lighter739, 742
;
Mayfair Property 1 Ch. 508. At common law, either owner has the right to repair such a pai'ty wall; Coleheck v. Girdlers' Co, 1 Q. B. D. 234, 243. Hawkins, 5 Taunt. (;) Matts V 20 and see TFatsnn v. Gray, 14
Co. V. Johnston, 1894,
;
257 Ch.
D. 192;
Ch.D.
192, 195 Jonesv.Pritchard, 1908, 1 Ch. 630 JIason v. Fiilha/n Corpn., 1910, 1 K. B. 631, 637.
; ;
Granny Buck
(/i)
iibi
sup.
OP^
PARTICULAR TITLES.
by
tli<^
431
wall,
are
(/).
regulated
1894
Where
by a
ditch
nnd a bank
or hedge,
it
is
presumed, in the
aitrhos.
and
on the side where the ditch is not but no such presumption arises where there is a ditch on both
of the land
sides of a
hedge
(in).
be
to
sold,
which
is
held Undiviaed
under
tenancy
in
common
tlie
sale,
title
is
be shown, in the
title to
the
the entirety
down
forward the
Of course in either with commence a good root of case the abstract must title (o). If one tenant in common buy the share of another, and stipulate generally for the delivery of an
such, can be required.
Tenant
buyinjf shares.
in
i.tlier
good
title
he
is
same
But
if
he make no
(/) Stat. 57 & 58 Vict.c. ccxiii. see Druri/ v. Armi/ and Xavif, ^c. Siipph/, 1896, 2 Q." R. 271 ITobbg V. Graver, 1899. 1 Ch. 11; lie Stone and Hastir, 1903, 2 K. B. 463; Carlixhv. Salt, 1906, 1 Ch. 335 (a.s to which see above, p. 177 andn.(o)) Leivixv. CharitK/ Cross,
;
Laurence, J., Vowles v. Mrllor, 3 Taunt. 137, 138 Holroyd, J., Doe v. Pearsey, 7 B. & C. 304, Taxflur, 307, 308; Marshnll v. 1895, 1 Ch. 6-11, 644, 647, (349;
;
(haven
v.
;
Pridmore,
18
Times
S;c.
Rij.,ib.bm\Crosbii\. Alhambrn
1
L. R. 282 H'-nniker v. Ilotrard, 90 L. T. 157. (n) Sug. V. & P. 377. (o) Above, pp. 94100, 106
108, 192,
20 210.
482
OF PARTICULAR TITLES.
such stipulation, and the tenancy in
created less than
fort}'^
common were
sale, it
appears
demand production
common (q)
an undivided share in land must of course be careful to describe it as such and to state
of
The vendor
is
entitled
as
if
sell
altogether
(.s),
or to take
what the vendor could convey and demand compensation for the deficiency
(f).
Whenever a vendor
some property
conversion of
,
,,
as realty or personalty
j.
money
into
(it),
the
alleged.
And
{x)
it
must be borne
capital
in
mind
that, except in
the two
cases of a
inheritance
and
money
the Settled
Land Acts
(//),
in equity the
means
of
Thus
it
money
shall be held
money
V.
arising
{q)
Law
Lau\
9 Jur. 74/J
;
Phipps V. Child, 3 Drew. 709 Brooke v. Garrod, 2 De G-. & J. Dart, V. & P. 286, .5th 62, 68 322, 7th ed. 326, 6th ed. ed. but see Sug. V. & P. 377, 428.
: ;
(r)
Rofey
JRe
v. Shal/cross, 4
Madd.
;
ed.
s.
227.
(,9)
iv)
&
46 Vict.
1908,
c.
38,
22
[z)
Re
Walker,
2
1
"
Re Gihbon, 1909,
Ch. CL.
il
OF PARTICULAR TITLES.
from the
sale of certain freehold lands limited in strict
is
433
settlement,
money with
the
and in such
estate tail
case the
money
fii'st
under the
he
settlement
{a)
So
also,
remains entitled to the mortgage as his personal proSimilarly, in order to invest land in equity
Where land
is
given to
on trust for certain persons, with a mere power at the trustees' discretion, and a direction that
shall
at
the beneficiaries
once
be entitled
to
their
mode
of disposition
by no means infrequent
tion
is
entii'ely ineffective,
and
6.
the purchase of purely incorporeal heredita- sale of purely ments, the general rule as to the title required to be jncorporeivl
Upon
shown
is
tliat is ments.
contract,
forty years'
title,
root of
This applies equally to the sale of a seigniory, a rentcharge, a profit a prendre, a franchise, or an easement.
The
(ff)
{c)
of the sale of
760.
v.
Smith,
v.
Macq.
16
Cf.
and
n.
[b)
(()
IFatson
lihick,
Q. B. D.
().
270.
Re Gihbon, 1909,
;
Ch. 367.
(rf)
See authorities cited in note (c), above, p. 432 A.-G. v. Mangh's, ,5 M. & W. 120 A.-G. Adr.-Gen. V. Simcox, 1 Ex. 749
;
;
(m), 100,
100, 107 Itr Enrmhaic Wall, 1894, 3 Ch. 156, 158. {c) Above, pp. 97, 101.
w.
28
4M
Contract to grant an
incorporeal
OF PARTICULAR TITLES.
tithes or other property held
Upon
a contract to grant
new
hereditament
de novo.
way
or a rent-charge, the
>v':;
upon a
Rent-charge.
On
mentary
of
is
ground rent
(g).
This
after
is
may
be barred
twelve
years'
(/?).
non-payment
of
Limitations
the vendor
The purchaser
Purchasers of
question
to
(/).
redeemable.
buiLling purposes,
any person
issues, at
an amount of money to be
certified
by
the
Remedies of owners of
rents.
Board of Agiinultnre (/.). "With regard to the remedies to which a purchaser of a rent in fee will become
entitlnd, rents seek
are of course
now
(/)
;
recoverable
by
distress equally
with rents-charge
o 2
owners of rents
Bean of Ehi
v.
; ,
{f) Bi'd,r>ngt<n v. Atlee, R5 Ch. 317. 3.-9, 3.n R^ steirait, 41 I >. 494. -^Oii. The principle of this is tlie samp which was applied ill d'cidintr that one, who contracted to grant a lease for years, WHS hinmd to show a irood title to the freehold of the lauds to be leased: above, p 97, n. [in) Fildes V. Booker, 2 Mer. 421.
Ex.
IfiR
D.
Ch
De G. M. & G. 4.59, 472 Irish Land Commrs. v. Grant, lOApp. Cis. 14. 2f'.. 27: Ho'itt v. HnrCh. 497, .504, 507 Sha>v V. CromptoH, 1910, 2 K. B. 370. H76. (i) See above, p. 3^9. [k) Stats 4t & 45 Vict. c. 41, 8. 45 5i & 53 Vict. c. 30, s. 2.
rini/ion, 1R93, 2
; ;
(r/)
Above, p
:
39s.
(/)
s.
-5
;
Janie-1 v. Snltfir, 3
Bing.
Wrus.
21st ed.
Real
Prop.
428,
429,
Grant v
Ellis, 9
M. &
Ou-en,
Le
Beaiivoir v,
OF PARTICULAR TITLES.
have, since the abolition of real actions, been allowed a
435
and
may
by
sale or
mortgage of
is
it
issues, the
granting of such
the rent sold a Covenant
charo-e.
being discretionary
(;?).
Where
to
rent-charge in fee
created
course be borne
in
mind
that
any covenant
and assigns
will
(o)
Where on
such a
Pro\'iso for
grant the rent-charge and the grantee's estate have been non-payment rent-charge. limited by way of use to be executed by the Statute of *
and there has been a proviso allowing the non-payment of the rent or breach of covenant to re-enter and hold the land charged in fee, it appears, according to modern
Uses
(p),
doctrine
(q),
is
void, at least
it
as regards
must necessarily
by the
But
power given on such a grant of a rent-charge in fee for the gi-antee, his heirs or assigns, to enter on the land charged, in case of non-payment of the rent, and hold
Hambro
Thomai< v. Si/hr-iffr, L. R. B. 368; Rr Blackburn, ^c. Building Sociefi/, Ex parte Grnham, 42 Ch. D. 343; f^earle v. Cookfi, 43 Ch. D. 519; Perfu-ee v. Tou-nsend, 1896, 2 Q. B. 129 Re Herbage Rents, 196. 2 Ch. 811
(m)
8
(ii)
v.
Hamhro, 1894,
Brim^tcick, &c-
Ch. 564.
{o)
Tfai/tvood v.
Bnildinfj'Sociefif, S
Q. B. D. 403;
Frdeu's Chnritii Trustees v. Ihid'ey Corpn., 1910, 1 K. B. 317. The defi.ir)n in Thomas v. Sglres/er is
critifised
xiii.
Dunn
v.
629. 28
Ch.
288.
Rule
afrainst Perpehiities,
303.
3.
28
(2)
436
the land until
shall
OF PARTICULAR TITLES.
all arrears of
all
expenses
stand upon a
as remedial
different footing.
and whether the power be conferred in by virtue of the 44th section of the Conveyancing Act of 1881 (r), there appears to be no good reason for supposing that the same is invalid, if not limited to arise within the period allowed by the Here the reader may be rule against perpetuities (x). reminded that, before the 1-Hh of August, 1859, a release by the owner of a rent-charge of part of the lands, out of which the rent issued, had the effect of
;
{f).
Since then,
barred
and the lands not included in the release remain liable, not to the whole rent-charge, but only to
;
a part thereof
proportionate
to
their
value
().
It
same
charge stood at
common law
is
(,r).
No
registration
way
"^
the
grant of a rent in fee or in tail. But an annuity or & rent-charge granted, otherwise than by marriage settle-
ment
(>)
or will, for
life
or
lives
or for
any
estate
Stat. 44 & 45 Vict. c. 41. Havergill v. Bare, Cro. Jac Sugd.'Gilb. Uses, 178, 179 510 Lewis on Perpetuities, 618 Da vidson, Prec. Conv. vol. ii. part i 508, 511, and notes, 4th ed. Gray, Rule against Perpetuities, See below. Chap. XII. ^ 303.
(s)
;
:
Sect. 3. Bennett {t) Litt. ss. 2'22, 2-24 Bing. N. C. 388 V. Pern, 1 Wms. Real Prop. 437, 438, 2 1st ed.
; ;
{x) See Litt. ss. 217 227; Co. Litt. 147 b, 150 b; Gilb. Tenui-es, 402 and n. Ivii., 4th ed. All rent service payable in money, whether incident to a seigniory or reserved on a lease for years, is apportionable at common law Litt. ss. 222, 223 ; Co. Litt.
148 a, 149 b.
OF PARTICULAR TITLES.
determinable on a
the Office of
life
437
registered in
or lives,
must be
Land Kegistry
is
against the
name
lands,
of the
wise
the
same
will
any
tene-
Purchasers, however,
who
take with
bound by
(s).
them
in
Land Charges
Land
charged, or any
preafter
therein
{a).
And
similar rent-charges
niter rii-on
viously created
tlie Office
of
Land
For the same Act further provides that, after the expiration of one year from the first assignment made by act inter viron after the year 1888 of a
similar
rent-charge
previously
created,
the
person
same
as
any
(y)
88.
Stat.
14,
IS
&
19 Vict.
c.
lo,
12,
passed
26th
April,
185.5,
and applyinir
to annuities
or rent- charges granted after the passing of the Act. The registration was fomu^rly required to be made in the Court of Common Pleas, and afterwards in the Cen tral Office of the Supreme Court see stat. 42 & 43 Vict. c. 78 R. S. C. 1883, Ord. LXI. stat. 63 & 64 Vict. 0. 26. s. 1, and Order thereunder, W. N. 18th
; ;
Aug.
(z)
ments, or otherwise, with or without interest, charged otherwise than by deed upon land under the provisions of any Act of Parliament for securing to any person either the moneys spent by him, or the costs, charges and expenses incurred by him under such Act, or the moneys advanced by hini for repaying the moneys spent, or the costs, charges and e.xpenses incurred by anotlier person under the authority of an Act of Parliament, and a charge under the 35th
secticm of the Land Drainage Act, 1861, or under the 29th section of the Agricultural Holdings (England) Act, 1883, but does not include a rate or scot.
663.
(fl)
&
4.
8.
12.
By sect.
52 Vict.
c.
51.
438
OF PARTICULAR TITLES.
before the completion of the purchase
(6).
The
rent-
Improvement of Land Act, By or other Land Improvement Acts {d). ((?), the Improvement of Land Act, 1899 (e), rent-charges created either before or after that Act under the Improvement of Land Act, 1864, or any special Improvement Act, shall be recoverable, as regards any instalment accruing due after the year 1899, by the like remedies as are provided by the Conveyancing Act
those created under the
1864
of 1881 in respect of rent-charges thereafter created, and not otherwise. This appears to preclude the owners
personal
from recovering such arrears by the terre-tenant under the doctrine laid down in Thomas v. Sylvester {f). When a rent-charge sold is of such a kind that it requires
of such rent- charges
action
against
registration,
the
by subsequent
registration, as it
might be if since the grant of the rentcharge there had been no dealing for value with the
land charged.
Tithe rent"
An
''
subject to
title
on the
And when
merger
of
tithe- free.
free
owing
(?),
to
the
therein
{b)
s.
the
title to
Stat.
51
&
52 Vict.
4, in
c.
Stat.
62
&
63 Vict.
c.
46,
this Act "purchaser for value " includes a mortgagee or lessee or other
13.
By
sect.
3.
(_/')
(r/)
who for valuable consideration takes any interest in land or a charge on land. (c) Stat. 27 & 28 Vict. c. 114.
person
{d)
ed.
[h) Above, p. 101. (i) A tithe rent-chai-ge can only be merged by the execution of some instrument under stats. 6 & 7 Will. IV. c. 71, s. 71 1 & 2
;
See
Wms.
Real Prop.
12fi,
21st ed.
OF PARTICULAR TITLES.
must be shown
contrary.
in the absence of
439
stipulation to the
merged more
of
the
merger must still be produced (/>). If lands be sold as tithe-free, and the exemption be alleged to arise from other cause than merger (/), the facts giving rise to the exemption must be strictly proved (w). And if hmd sold as tithe-free should not be free from tithe, the
purchaser will not be compelled to take the
title {u).
which must be shown on a sale of Advowson. an advowson under an open contract has been already noticed (o). On the sale of an advowson, the abstract
of title
The length
list
made during
title (/?).
of pres^-ntations
entry in which
in writing),
is,
good evidence of the presentadnetion of snch an instrumpnt appeais. tlieretore, to lie sufficient proof of tbe ineiyer of the tithe. (/) See Burton's Compendium, ch. 6, sect. 4 stats. 2 A: 3 ^ViH. IV. c. 100; 4 & 5 WUl IV. c. 83
;
Vict.
8.
1
;
c.
64
&
Vict.
c.
&
10 Vict.
19. It does not nierfi-e by the mere fact of the union iu the same person of the estate in the land and in the tithes: Shelford on Tithes, 292, n., 3rd ed.
Su^. V. & P. 367 Dart, V. &P. 29.^, 5thed.; 336, 6th ed.;
(A-)
;
Mac. & G.
Dart, V.
(/.),
&
P. 3.54 3o6,
;
331,
7tb
ment
tithes
cuted with the consent of the Tithe Commissioners before the passing of stat. 9 & 10 Vict. c. 73, s. 19 (2(;th August, 1816), is valid and effectual to merge the tithes, although the person purporting to merge the tithes had
no
estate Bentley, 9
ed. 401. 402, ((/), 6th ed.; 396, 397, 7th ed. above, p. 170, and n. (<). () Ker v. Clobunj, Sug. V. & P. 321 ^imAs v. J?oAt^y, 2 Swanst. 222. (o) Above, p. 101. 1 Dart, {p) Sug. V. !c P. 367 V. k P. 293, 5th ed. 334, 6th ed. 329, 7ih ed. 1 David.son, Prec. Couv. 527, 4th ed. 439, 5th ed.
.5th
;
; ; ; ;
1075, n. 1201, n.
440
tion
OF PARTICULAR TITLES.
(q).
The law
is
now
Prior
to that Act,
the laws
any other real property, subject only to by which any presentation made to an ecclesiastical benefice in consideration of any profit or benefit was void as simoniacal (.s). With respect to this, the
transferable as
It
was not
less
church was
full
were not occasioned by some agreement or arrangement between the parties {f). And if a clerk so purchased an
estate in fee or for life in
himself
to
the
living
But
any agreement or
sale of an advowson for causing the living to become vacant was simoniacal and a presentation made upon any vacancy so caused was void, and the right of presentation for the next turn became forfeited to the Crown [x). A sale of an advowson made while the church was vacant did not carry with it the right of next presentation (i/), but was in other respects perfectly valid and passed the right of presentation for all subsequent turns. And if an
;
[q) See Tillard v. Shebbeare, 2 Wils. K. B. 366. The register appears to be such a public document as is admissible in evidence on mere productiou from its proper custody 1 Phillimore,
:
H. L.
coin,
Eccl.
Law,
354,
355,
2ud ed.
Walsh v. Lin17, 45, 52 L. R. 10 C. P. 518; see Bac. Abr. Simony. [i) See preceding note. [ii) See JFalsh v. Lincoln, L. R. 10 C. P. 518 lour v. Chester, 10 Q. B. D. 407.
;
;
Ii. V. Bishop of Ely, 8 B. & C. 112; see above, pp. 122, 123.
(>)
[x)
Stat.
31 Eliz.
c.
6,
s.
(a)
;
&
c.
48.
W.
Bl.
Abbott, C. J., Fox v. Chester, 2 B. & C. 635, 660; Cripps' Laws of the Church, 475, 476, 6th ed. (y) Alston v. Atlaij, 7 A. & E.
289.
OF PARTICULAR TITLES.
advowson were sold and conveyed while the church was full and at the same time a simoniacal arrangement were made for causing a vacancy, the next presentation only was forfeited to the Crown, and the conversance was otherwise good and passed the right of presentation
for the succeeding turns
(z).
441
And
was valid if made while the church was full (a), though not if it were vacant but a clerk was prohibited from purchasing a next presentaof next presentation only
;
(/>).
By
of
{c),
(1) it is registered in
may
;
to allow
and
(3)
more than
admission to
includes
tlie
benefice.
The
any conveyance
any legal or equitable interest infer vivos, and any agreement for such conveyance or assurance but does not include a transfer on marriage, death, or bankruptcy, or otherAvise by operation of law, or a transfer on the appointment of a new trustee where no beneficial And nothing in this enactment interest passes {e)
;
.
in a family
settlement of a
life interest to
riglit
redemption
(./').
London,
3 Bli.
5
s.
(c)
1
Stat.
61
i!c
(JJ
Vict.
c. 48,
(1).
N.
S.
(rf)
W.
Stat.
12
(A)
Anue,
st. 2, c. 12,
(<)
8.2.
(/) Sect.
442
OF PARTICULAR TITLES.
The Act
any agreement
for
any
or on the nomination of any particular person, and any agreement on the transfer of a right of patronage of a
benefi.ce for the resignation
of a benefice in favour of
any person.
ments of
this
Any
must now conform with the requireAct or it will be invalid. Thus it appears that the conveyance of an advowson by way of family settlement must be registered and must in other respects conform with the provisions of the Act whilst a conveyance of an advowson by way of marriage settlement remains exempt from the requirements of the Act as to transfer, including the necessity of regisa next presentation
:
tration.
And
it
The second requirement imposed by the Act appears to invalidate sales or grants by the owners of an advowson
(A) of
interest
except only by
way
of reservation or limitation in a
life interest to
family settlement of a
the settlor, or of
And
it is to
is
an advowson by a
invalid.
If,
any term
of years appears to be
his
own
Sect.
estate in the
advowson by way
of family settle-
(.17)
1 (3).
By sect.
2 (la),
a bishop may refuse to institute or admit a presentee to a benefice if at the date of the vacancy not more than one year has elapsed since a transfer as defined by the first section of this Act of the right of patronage of the bene-
unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year, (A) The right of next presentation obviously remains transferable where it constitutes the whole interest of the transferor.
fice,
OF PARTICULAR TITLES.
ment, the limitation of estates for years, for
tail, life,
443
or in
with an
iiltiraate
simple
is
Act
And
to
this
life
interest is
in fee to
it
him-
self.
The Act
provides
(/)
that
lawful to offer for sale by public auction any right of advowsom by patronage, except in the case of an advowson to be sold auction.
in conjunction with
estate in
land of not
parish
in
less
or
in
an
Upon
full,
when
the church
is
Right
of
^5^^*^*'*^^
completion of
conveyance
(/.)
accepting the
If, therefore,
the
purchaser,
having
accepted the
title,
may
living
to
the
purchaser
may
select (/).
But
of the
if
the
incumbent
(t)
Sect.
(2),
any person
offering
(A)
."519,
(/)
Fox
15.")
v. Chestei-, 3 Bli.
contravention thereof, or bidding at any such sale, is rendered Liable on summary con%'ictiou to a fine not exceeding 100/.
Nichohon v. Knapp, 9 Sim. 326; Bowling v. Magiiire, LI. & G. t. Plunk. 1, 30; Greenslade \. Dare, 17 Beav.
123,
50*2.
157;
N.
S.
441
OF PARTICULAR TITLES.
the bishopric of a see in England, the
to present for that turn
{in).
Crown
is
entitled
Devices
on
sale in
expectation of
a vacancy.
an advowson or a next presentation was sold of an earlj^ avoidance of the living, various devices were resorted to in order to protect the
in
When
expectation
.
/^
Thus
it
if
be deposited with trustees to be paid over to the vendor the vacancy occurred within a specified time, but
otherwise to be returned to the purchaser and the ad-
vowson
to be reconveyed to the
vendor
(ii).
Or
it
was
pay
interest
on the
purchase
money from
become vacant (o) and such a was held not to be void as simoniacal on the sale of an advowson, where the vendor was not the incumbent (p). Or it was agreed that the vendor should re-pm^chase the advowson, if the living were not avoided within a certain time. But now, by the Benefices Act, 1898 (q), any agreement on the transfer of a right of
until the benefice should
stipulation
(i)
for postponing
payment
any part
of the
more
any
(iii)
for
payment
of interest until a
(iv)
for
payment
in respect of
the
{m) Grocers'' Co. v. Archbp. of Canterbury, 3 Wils. K. B. 214, 232, 233 Ii. v. Eton Colleye, 8 E. & B. 610. Prec. Conv. () Davidson, vol. ii. parti. 30, 35, 4th ed. (o) Davidson, Prec. Conv.
;
vul.
1
part i. 37, 41, 4th ed. Elphinstone, Prec. Conv. 632, n., 4th edit. {p) Sweet v. Meredith, 3 Giff. 610, 8 Jur. N. S. 637. [q) Stat. 61 & 62 Vict. c. 48,
ii.
Key &
s.
(3).
OF PARTICULAR TITLES.
445
7.
On
there
main points
conveyancer
II. of the
(.s),
advising on the
title
first,
Mortmain and Charitable Uses Act, 188>-S statutes now replaced by that enactment
charitable uses on
{t),
the
which it is alleged that they are or and secondly, whether any conveyance of such hereditaments agreed by the contract of sale to be made or purported to be made by any of the documents of title is or was subject to the restrictions imposed by the 29th section of the Charitable Trusts Amendment Act, 18o5 (/<), and if so, whether the conditions thereby imposed have been complied with. The these requirements must also observed first of be on the purchase of any hereditaments to be assured to any
were
held
;
charitable
uses.
Besides which,
if
the
title
should
now
contained in Part
I.
of the
By
Requisit&s of
Act, 1888
,
and exceptions
in anceof land
to charitable uses.
are charitable,
trusts see Income Tax Comtnrs. v. Pcmstl, 1891, A. C. 531,588; jrunter \. A.-G .,\md,
(>)
;
As
to
what uses or
Tndor's Charitable A. C. 309 Trusts, Chap. I. 1 Jarm. Wills, 160, 5th ed. (,v) Stat. 51 & 52 Vict. c. 42, amended by 54 & 55 Vict. c. 73. 9 Geo. II. o. 36 (<) Stats.
:
called the Mortmain 9 Geo. IV. c. 85 24 & 25 Vict. c. 9 25 & 20 Vict. c. 17; 27 & 28 Vict. o. 13 29 & 30 Vict. c. 57 31 & 32 Vict, 44 34 & 35 Vict. o. 13; 35 & 3() Vict. c. 24. (m) Stat. 18 & 19 Vict. c. 124. [x) Stat. 51 & 52 Vict. c. 42,
(commonly
;
;
Act)
s. 4.
446
OF PARTICULAR TITLES.
the Act contained, and to the
assurance
(s)
of land to or
amendments now made (//) by will, every for the benefit of any charit-
made
ments of this Act, and unless so made shall be void (a). These requirements are that the assurance must be
made
least
(1)
by deed
(2)
(3)
[b)
two witnesses
and
(4)
Supreme Court within six months after the execution thereof and (5) must be made to take
;
effect
in
possession
for
the
charitable
use
intended
(6)
must,
Assurance.
By stat. 54 & 55 Vict. 73; seep. 454, below. {z) By stat. 51 & 52 Vict. c. 42, s. 10, in this Act, unless the context otherwise requires, " assurance " includes a gift, conveyance, appointment, lease, transfer, settleme.it, mortgage, charge, bequest, incumbrance, devise,
(y)
e.
of statute, any transaction which operates to transfer the property in lands or goods and any document evidencing such a transaction is an assurance see Shep. Touch. 1 2 Black. Coram. 294; Me Roberts, 3S Ch. D. 196; Re Cf. R^!/, 1896, 1 Ch. 468, 476. above, p. 377, n. (z).
; ;
and
every
other
assurance
by
;
and "assure" and "assuror" have moHnings corresponding with assurance. Independently
(c)
(a) See Churclier v. Martin, 42 Ch. D. 312. {h) Including in those twelve months the days of the making of the assurance and of the death.
s.
Bj' stat. 51
&
52 Vict.
c.
42,
of the
same
;
transaction,
may
contain all or
any of the following provisions .so, however, that they reserve the same benefits to persons claiming under the assuror as to the assuror himself, namely (i.) The grant or reservation of a peppercorn or other nominal
rent
(ii.)
(iii.)
The grant or reservation of mines or minerals The grant or reservation of any easement
(iv.)
(v.)
(vi."
Covenants or provisi(m8 as to the erection, repair, position, or de.scription of buildings, the formation or repair of streets or roads, drainage "r nuisances, and covenants or provisions of the like nature for the use and enjoyment as well of the land comprised in the assurance as of any other adjacent or neighbouring land A right of entry on non-payment of any such rent or on breach of any such covenant or provision Any stipulations of the like nature for the benefit of the assuror, or any person claiming under him.
; ;
OF PARTICULAR TITLES.
of revocation, reservation, condition or provision for the
benefit of the assuror or
"^"^^
him.
The
.
first
The
ance of land to
by reason
execution thereof,
made
and valuable consideration and this is equally the case whether such consideration be actually paid upon or before the making of the
in
good
assurance, or be reserved or
or
made payable
to the
vendor
any other person by way of rent, rent-charge or other annual payment in ]ierpetuity, or for any term and
disposition
Any assurance
of land. Assurance by
which
by the Act required to be made b}' deed, may be made by a registered disposition under the provisions of the Laud Transfer Acts, 1875 and 1897, and if so made shall be exempt from tbe requirements of the Act of 1888 as to execution in the presence of witnesses And enrolment is not and as to enrolment (./').
is
LandVransfer
Acts,
any charitable
separate
uses,
if
declared
by a
Enrolment of
deed'^onrust.
instrument, but in
the as-iurance
By
full
sect,
(o), if
is
made
on a sale for
and valuable consideration, that consideration inay consist wholly or partly of a rent, rent-charge, or other annual payment re-iorved or maile ]>ayable to the vendor, or any other person, with or without a
right of re-entry for n(m-i>ayinent thereof These enactments replace stat. '14 & '2/J
:
(iv.).
(passed 17th May, 1861), by which e.\c'ptions were first introdu'^ed to the rule of stat. 9 (Jeo. II. c. Ii6, that the assurance xnust be without any proviThis must not be forgotten in .sion for the bcTiefit of the grantor. considering the effect of a?suraaces to charitable uses made before that date.
Vi(!t. c.
s.
1
(d)
8.
See
stat. 51
&
52 Vict.
c. -12,
(6).
(f)
See
placing stats. 9 Geo. II. c. 36, 8. 2 27 & 28 Vict. c. 13, s. 4. (/) Stat. 51 & 52 Vict. c. 42,
;
8. 9.
448
OF PARTICULAR TITLES.
instrument must be enrolled in the Central Office within
six
months
(q). ' ^'
after the
"^
making
,
of the
assurance of the
. .
Power
iiients
to
enrol mstru-
land
Where any
not
within due
time.
High Court
empowered
enrolled
;
of Justice, or the
officer
having control
is
same
to he subsequently
Court or
enrol
in
document
{h)
if
the assurance to
faith
and for
full
and
made
to take effect in
any power
if,
vision, except
such as
authorised
by
the Act
(/)
and
sion or
but such
application
any pro-
any right founded on the invalidity of the assurance is pending, or any decree or judgment founded on such
(Z-). Where an assurance any charitable uses has not been executed in the presence of two witnesses, or has otherwise failed
{;i)
s.
c. 9, s. 2.
[h) In such case some copy or abstract thereof, or some subsequent instnuiicnt by which the
trusts sufficiently appear, may be enrolled. (() Above, p. 446, n. {e\. [k] Stat. .Jl & 52 Vict. c. 42, s. 5, replacing 35 & 36 Vict. c. 24, 29 & 30 Vict. c. 57. s. 13
;
OF PAETICULA.R TITLES.
to
449
to
of
no
power subsequently
failing to
amend
And an assurance The assurance comply with the requirements of the Act is "^^ ^e void equally void whether the intended charitable uses or charitable trusts appear from the assurance itself, from some *,^"8ts be not ^ disclosed, ^ separate instrument or from other circumstances so that if the trustees of a charity buy land with money belonging to the charity and take a conveyance to themselves, not disclosing their trust, the conveyance
ance remains altogether void(/).
.
'
made
And
it
not
made
is
in accordance
If,
however, the
and remained
title
^def th^
Statutes of
(o),
they
1
"v\dll
have a
land(7>). ihe above-mentioned Mortmain and Charitable Uses Act, 1888 (q), and the Mortmain Act of George II. (r) were imposed on the assurance to any charitable uses not only of land, but also of any tenements or heredita-
good
title
to
the
mi
Lumtation.
-j.^
^j^^^.
restrictions of the
interests in
extends,
{I) See Wickham w.Bath, L. R. Webster- v. Soitthey, 36 Eq. 17 Ch. D. 9. {/) See Lord. Wellardv. Hawthorn, 2 B. & A. 96, 101 103; Doe d. Preece v. Honelh, 2 B. & Ad. 744; A.-G. v. Gardner, 2 De U. & S. 102; A.-G.v. Munro,
1
;
(;;)
Above,
Stats. 3
(o)
&
37
Gardner,
De G. &
;
A.-G.v.
^fl(nro,
ib. 122 Churcher v. Martin, 42 Ch. D. 312. ol & 52 Vict. c. 42, {</) Stat, s.
10
(r)
(iii.).
Stat. 9
Geo. II.
c. 36.
450
OF PARTICULAR
and any edate or intcred
tJiercin.
TITLP:S.
effect of
money
secured by mortgage of land and other property commonly called impure personalty (.s). But now by the Mortmain and Charitable Uses Act, 1891 {t), the provisions of the Act of 1888, relating to the assurance
of
any tenure, and no longer extend to money secured on land or other personal estate arising from or conof
Assurance of
personal
estate to be laid out in purchase of land for a charity.
By
by that
of
George
II.,
every assurance
personal estate to be
any
as
such uses
law
is
now
altered
by the Act
of 1891
(//)
as stated below.
Act
Cam-
main Acts.
An
for
any
bridge,
London, Durham, and the Victoria University, or any of the colleges or houses of learning within any of those Universities, or to or in trust for any of the Colleges of Eton,
purposes
is
466,
See Wms. Pers. Prop. 46.'J, 1 Jarm. Wills, 16th ed. 177, 5th ed. k 5o Vict. c. 73, [t) Stat. 54 s. 3, repealing 51 & 52 Vict. c. 42,
(s)
;
presence oi two witnesses or to be enrolled, and remains valid unless the transferor die within
six
s.
10
()
[x)
(iii.).
months thereafter
c.
stat. 51
&
stoclc
See above, p. 446, n. [z). Except that the transfer of in the public funds fur such
52 Vict.
(//)
42,
s. 4.
s.
OF PARTICULAR TITLES.
Winchester, and Westminster, for the better
support and maintenance of the scholars only
451
or in
triist
for
the warden,
(2.)
Keble College (~). An assurance, otherwise than by will, to trustees on behalf of any society or body of persons
council,
and
scholars of
land not
any
of
any
of them,
made
(3.)
in
good
faith
for
full
and valuable
consideration
(a).
An
assurance
or an assm-ance
therein mentioned
museum
(c),
by
made
otherwise
full
than
(:) s.
(!.
Stat.
(i.),
7.
30,
s.
.')1 & rrZ Vict. c. 42, replaoino; 9 Geo. II. 4, except as to Loudon,
however, be enrolled,
fit.
if
thought
470,
Not exceeding twenty acres for any one public park, two acres for any one public museum, and
{b)
4th
&
52 Vict.
s.
Stat.
(ii.),
&
(c)
See
c. 44, s. 1.
29
(2)
452
OF PARTICULAR TITLES.
twelve months before the death of the assuror,
or he a reproduction in substance of a devise
made
not
of the assuror,
months
excluded either
is
wholly or
partially
from application or
be
excluded
(e)
.
or
applied
in
like
extent
or
manner
exemption from
some
of the restrictions
II.
particular pur-
poses
(,/').
{d) Stat. 51
s. 6,
and
& 52 Vict. c. 42, replacing- 34 & 35 Vict. c. 13, also exempting the assurances
:
for
therein meutioned from the opesee ration of Part I. of the Act above, p. 445. this Vict. c. 11, 55 By stat.
to any is extended assurance by deed of land to a local authority for any purpose
exemption
to acquire land, without the requirement that an assurance not made for full valuable consideration mu.st be executed not less than twelve months before the assuror's death, Stat. 51 & 52 Vict. c. 42, {/)
s. 8.
;
ment
I Jarm. Wills, (/) SeeTudor's Charitable Trusts, 470476, 4th ed. With regard 202 204, 5th ed. Index to Statutes, Mort.main, 2, 3. institutions specially authorized by statute to charitable to particular are corporations, it must be considered whether where these lands, take they are exempted from the provisions of Part I. only of the Mortmain and Charitable Uses Act, 1888 (above, p. 445), or whether they have been granted a dispensation from the restrictions imposed by Part H. see Nethersole v. School fur Indigent Blind, L. R. 11 Eq. 1 of the Act cf. Perrimj v. Trail, L. R. IS Chester v. Chestn-, L. R. 12 Eq. 444 As to assurances for particular charitable purposes, there Eq. 88. nre numerous instances in which the Legislature has exempted the
OF PARTICULAR TITLES.
it was considered that the George II. {(j) had no application in ease of land, which was already in mortmain by reason and it of its being lawfully vested in a corporation
453
Mortmain Act
of
ground that the conveyance of land to charitable uses by an ecclesiastical or an eleemosynary corporation was not subject to any of the restrictions
was decided on
this
{h).
And
was further held that, when land had been once duly assured into mortmain by reason of its having been vested in trustees for charitable purposes,
the conveyance thereof to other trustees or to another
charity did not fall within the purview of the
same
the
to
therein
prescribed
And
(/), is
as
mainly
laud ov of limited quantities of laud for objects rt-garded as laudablp from all or some of the requirements of Part II. of the Act of 1888, and also from tlie pnmsions of Part I. of the Act. Amongst these are the augmentation of benefices, the building of churches (see Tudor's Charitable Trusts, 473, 773.sy., 785 sq., 4th ed.), the provision of public recreation grounds (stat. "22 Vict. c. 27), and of dwellings for the working classes in populous places (stat. o3 & o4 Vict, c. G), and the acquisition of land by institutions for promoting technical and industrial instruction and training (stat. 55 & 56 Vict. c. 29, s. 10). Other instances, in which also tenants for life or other limited owners are empowered to couvey the whole estate in the laud for the charitable purpose in question are the pro\'ision of sites for schools (stats. 4 & 5 14 & 15 Vict, 12 & 13 Vict. c. 49 Vict. c. 38 7 & 8 Vict. c. 37 15 & 16 Vict. c. 49), for literary, scientific and like institutions e. 24 (stat. 17 & 18 Vict. c. 1 12), and for places of worship or burial (stats. Also, 36 & 37 Vict. c. 50 45 & 46 Vict. c. 21). 30 & 31 Vict. c. 133 by stat. 33 & 34 Vict. c. 34, the investment on mortgage of land of public or corporation or trustees for any any money held by any charitable purpose is exempted from the restrictions now contained in Part II. of the Mortmain Act of 1888, and also from any forfeiture but in every case in which the for alienation of land into mortmain ecjuity of redemption of the promises comprised in any such security shall become liable to foreclosure or otlier\\'ise barred or released, the same shall thenceforth be held in trust to be sold and converted into money, and shall be sold accordinglj' and in any proceedings for redeeming or enforcing such security the decree shall direct (in default of redemption) a .sale and not foreclosure.
I
(ff)
o.
36.
(i)
A.'</iton
v.
Jones,
28 Beav.
c.
{h)
M. &
Walker W. 882
v.
;
liichanhun,
v. Ghfii,
460.
(A-) Stt. 51 see the title.
A.-a.
12
&
52 Vict.
42
Sim. 84.
454
OF PARTICULAR TITLES.
a Consolidation Act
(/), it
is
Gift of land
by
will to a charity.
But by Mortmain and Charitable Uses Act, 1891 (n), land may be assured by will to or for the benefit of any charitable use. In such case, however, the land is, as a rule, required to be sold within one year from the
interest in land {m).
any
the
(o)
as
may
at
be determined by
High
of charity lands,
shall
take
Construction
of Consoli-
all
dation Acts.
Codifying
Acts.
Acts, which {/) Consolidation are Acts passed for the purpose of expressing existing statute law in a new form, are construed on principles different from those which govern the construction of statutes enacting new law or codifying the existing common or Thus the judge- made law. provisions of Consolidation Acts are considered to he retrospective, contrary to the general rule apExp. plicable to other statutes Todd, 19 Q. B. D. 186, 195, 199 they are construed with reference to the state of law which existed at the time when the enactments consolidated were originMitchell v. Simpson, ally passed Stewart v. 25 Q. B. D. 183 Thames Conservators, 1908, 1 K. B. their construc893, 902, 903; tion -mW be determined by the decided upon the concases struction of the original enRe Budgett, 1894, 2 actments Ch. 557 Re Pickard, 1894, 3 Ch. 704 Norton v. Davison, 1899, 1 Q. B. 401 The Heather Bell, 1901, P. 143, 272 and the Acts consolidated may be referred to as a
:
Above,
Stat.
p. 446.
& 55 Vict. c. 73 (passed 5th August, 1891), s. 5 see Re Bridgev, 1894, 1 Ch. 297 Re Hume, 1895, 1 Ch. 422. The Act only applies to wills of testators dying after the passing thereof (sect. 9), and is not to limit or affect the exemptions contained in Part III. of the Mortmain and Charitable Uses Act, 1888 (above, p. 450), or to apply to any land or personal estate to be laid out in the purchase of land acquired under any assur()
54
ance to which such exemptions or any of them apply (sect. 10). (o) See Re Sidcbottom, 1901, 2 Ch. 1. [p) See note (), above.
OF PARTICULAR TITLES.
the sale thereof
{q).
455
And
the assurance
by
will of
any
rendered void
for the
the
High
Court, a
by
is
charity,
may
be, of such
land
(s).
As we have
seen
{i),
secured on land or other personal estate arising from or connected with land from the requirements of the Act of 1888 {u), thus allowing for the future the
money
It has
been
is
a charity, the
estate arising
personal
the last
from land, and the case is governed by mentioned provision of the Act of 1891, and
(.r)
any charitable
death
is
use.
In such
for
land
is
bound
and cannot,
((/)
Sect. 6
Sect. 7
lie
liylaml,
lUO:j,
l'J03,
(<)
Ch. 4G7.
(*)
;
(m) Sect. 3.
{x)
Ch. 640.
(.v)
Sect.
liyland,
[y)
Above,
456
OF PARTICULAR TITLES.
with the consent of the charity, postpone the sale
indefinitely
(s).
It is a question
whether a contract to
is
sell
land to be
by the provisions contained in Part II. of the Mortmain and This depends on the Charitable Uses Act, 1888 (a). question whether such a contract is an assurance of the for every land within the meaning of that Act (b) miiiiranee (in the ordinary legal meaning of the word, apart from statute) of land to any charitable uses must be made in conformity with the Act and, unless so made, is void. Such a contract is not of course an but it has assurance of any legal estate in the land the effect in equity of an immediate conveyance to the purchaser of the whole equitable estate in the land
affected
;
:
purchased
(c)
it
definition of
is
to be confined to
by the
what
is
agreed to be
done shall be treated as actually accomplished (e). Such a restriction of the term would have the remarkable result that, whilst an actual conveyance of land on
the completion of a sale to a charity would be void (say)
if
it
sale
effected
by a written
contract
Ch.
{z)
841 389
1
2 Ch. 1903,
c.
(f/) The Act originally extended in express terms to assurances of land or any hereditaments, or any
Ch. 467.
{a)
&
52 Vict.
p.
42
See
above,
;
446,
aud
but was by the Act of 1891 to assurances of land and hereditaments see above, p. 450.
estate or interest therein,
restricted
n.
(z).
(e)
See
Wms.
(c)
Above, p. 49
1.
below, Chap.
XI.
OF PARTICULAR TITLES.
of
457
conveyance
the
purchase
money without
further
would be unimpeachable, though the contract were not made by deed, nor attested by any witness, nor enrolled. A door would in fact be left open for evasion of the Act (g). It has been held that, where a contract for the sale of land to some charitable use had been actually completed by a deed of conveyance, which was void for non-compliance with the old Mortmain Act, the whole transaction was void in equity as well as at law, and
the land was not subject to the charitable trusts as
ferring
tlie
;
purchaser
This seems to show that the contract have had the usual effect of transequitable ownership of the land sold to the for if it had had that effect, the land would
(//).
trusts,
though
But
if
made
as
(?').
therefore void
As to the way in which the {ff) Court has dealt with an attempted
evasion of the Act, see Wickham V. Bath, L. R. 1 E(i. 17. (A) A.-G. V. Gardner, 2 De G. & S. 102, 116, 118; ci. A.-G. V. Munro, \h. 122, as to enforcing charitable trusts against persons who have taken and remained in possession of land, as tru.stees for a charity under a conveyance void for non-compliance with the Mortmain Act.
(i)
wise than as directed by the Act, of any hereditaments or any estate or interest therein to any
charitable use.
solidating
The Actof
though purporting
1888, to be a con-
4.54,
and
n.
(J).
It
is
thought
See
stat.
It should be observed ss. 1,3. that sect. 1 of this Act contained an absolute prohibition against in
any ways
conveying
to
any
charitable use any hereditaments for any estate or interest whatever unless with the formalities therein spotdKed, and sect. 3 made void all assurances, made other-
th&t the dictum in A.-G. v. Dai/, 1 Ves. sen. 218, 222, that a sale effected by a written contract and payment (before conveyance) of the purcha.se money is sufficiently taken out of the Act, is not an authority foranj-thing more than that the transaction is not liable to be avoided bj- the vendor's death within a year for it seems indisputable that if in such case the sale were completed by a con;
458
OF PARTICULAR TITLES.
On
it
neither an assurance
1884
(k),
Stamp Acts
such transfer
is
good
is
title.
To
may
ordinary legal
meaning apart from statute that in the Stamp Acts a clear distinction is drawn between the stamps required for a contract and those necessary for a conveyance (n) and that, though the transfer of the equitable estate effected by a contract of sale is conditional on a good
;
title
is
in substance sub-
and
if
a good
title
be shown, he has no
real effect of the con-
The
property sold
is
restored
to
his
former
ownership in case (contrary to the parties' main intention in making the sale) the contract be rescinded or
broken
view of the transaction, the contract does appear to be an assurance to the purchaser of the But it is certainly equitable estate in the land sold.
{q).
In
this
only, the conveyance would be void. Harrison, 1893, {li) Rodger v. above, p. 377, n. (s). 1 Q. B. 161 Coinmrs. v. 11) Inland Revmnv Anym, '23 Q. B. D. 579. Uii) Stat. 47 & 48 Vict. c. 54, s. 3; above, p. 377, n. (s). (w) &QQ Inland Revenue Uonuurs.
;
Anyus, ubi sup. above, p. 28 below, Chap. XII. 3. () (o) Above, p. 49, and n. (/() below, Chap. XI. 1. Re {p) Above, pp. 35, 4G
v.
;
3,nd n.
Taylor, 1910,
K. B.
562, 571,
572, 580
(?)
See
1, 2.
OF PARTICULAR TITLES.
argument that the amendment made by the 1891 (;) in restricting the Act of 1888 to assurances of any lands, tenements or hereditaments, and expressly repealing the old provisions applying to assurances of " any estate or interest therein," has the effect of confining the operation of the Act of 1888
open
to
459
Act
of
(.s).
If however this
argument should
prevail,
a simple
declaration of trust
made
gratuitously in favour of a
(/)
charity
would be
By
sect.
Restriction
not be lawful for the trustees or ^"tl^esale, mortgage, or persons acting in the administration of any charity to leasing of
Act, 1855
.
...
make
''
"'^^
rity of Parliament,
under any Act already passed or which may hereafter be passed, or of a Court or Judge
(r)
Stat. 54 & 55 Vipt. c. 73, above, pp. 450, 456, n. (d). () See Gcntk v. Faulkner, 1900, '1 Q. B. 267. {t) See Wms. Real Prop. 190, 21st ed. Adliiigton v. Can>t, 3 Atk. 141, 150; Boson v. Statham,
8.
Stat. 18
&
19 Vict.
c.
124,
passed 14th August, 1855. According to the previous law the alienation of charity lands was not absolutely prohibited, but was liable to be set aside if not provident and beneficial to the charity. And a sale or other alienation of charity lands might well be made under the direction of the Court of Chancery, or by the trustees of a charity acting under express powers conferred by the author of the trust. But if a sale or other disposition of charity lands were made by the trustees without the authority of
the Court or any such express powers, the burden lay on the purchaser or other person taking under the disposition of proving that the transaction was provident and beneficial to the charity and if he failed to establish this the disposition would be set aside, unless the defence of purchase for value without notice of the trust or of tho Statute of Limitations could be maintained, See A.-G. v. Wdrren, 2 Swanst. 291, 302 A.-G. v. Rumjerford, 2 CI. & Fin. 357 A.-G. v. Brcttingham, 3 Beav. 91 A.-G. v. South Sea Co., 4 Beav. 453 Magdalen Colkge, Oxford v. A.-G., 6 H. L. C. 189, 205, 213 Re Ashton Charity, 22 Beav. 288 Re
; ; ; ; ;
Chrgy Orphan Corp., 1894, 3 Ch. 145, 154 Re Maxon's Orphanage and London and North Western Rail. Co., 1896, 1 Ch. 54, 59, 603, 604.
;
460
of competent
OF PARTICULAR TITLES.
jurisdiction,
or according
to a
scheme
Board any sale, mortgage, or charge of the charity estate, or any lease thereof in reversion after more than three years of any existing term, or for any term of life, or in consideration wholly or in part of any fine, or for any term of years exceeding twentylegally established, or with the approval of the
of Charity Commissioners,
one years.
prohibits
enactment absolutely
any
and any
it
such disposition
alienation
is
altogether
void
(//).
And
has
made
under the jurisdiction in that behalf inherited by the High Court from the Court of Chancery or conferred by the Charitable Trusts Acts [z) so that the trustees
;
of charities are
no longer
The word " charity" in this Act includes every institution in England or Wales endowed for charitable purposes, but not any charity or instituthe Act of 1855
{a).
exempted from the operation of the and the Act of 1855 does not extend to any case excepted by sect. 62 of the Act These exof 1853 from the operation thereof (b). ceptions are stated in the note (c), and regard must of
tion
expressly
{x)
Re
Maso}i''s
Orphanage,
;
^-c,
Fell y. OJfi1896, 1 Ch. 54, 596 cial Trustee of Chariti/ Zands, \S98, 2 Ch. 44. (y) Bangor v. Farri/, 1891, 2 Q. B. 277. Charitable Tiidor's See (2) Trusts, 3, 181 sq., 184 sq., I'dbsq., 593, 596 .sry., 4th ed.; stats. 10 & 17
'
Vict. c. 137, ss. 28, 29, 32, 43 23 & 24 Vict. c. 136, s. 2. () Re Maso)i's Orphanage, ^-c., 1896, 1 Ch. 54, 596: A.-G. v. National Epileptic Hospital, 1904, 2 Ch. 252; A.-G.\. Mathieson, 1907, 2 Ch. 383. {b) Stat. 18 & 19 Vict. c. 124, ss. 47, 48.
(c)
By
sect.
uot extend to
(1)
The
Loudon
or
Durham,
or
OF PARTICULAR TITLES.
course be had to
461
title to
them
in advisinj^
on the
any
colleg'o or hall in the said Universities of Oxford, Cambridge and Durham or to (2) Any cathedral or collegiate church (see Rf Dod's Charity, 1905, or Ch. 442) to (;i) Any building registered as a place of meeting for religious worship with the Registrar-General of Births, Deaths or Man-iages in England or Wales, and bond Jldv used as a place of meeting for religious worship (see stats. 18 & 19 or to Vict. c. 81, s. 9 32 & 33 Vict c. 110, s. lo) or to (4) The Commissioners of Queen Anne's Bounty or to (5) The British Museum or to (6) Any friendly or benefit society or savings bank (7) Any institution, establishment, or society for religious or other charitable purposes, or the auxiliary or branch associations connected therewith, whollij maintained by voluntary contribu'
any
tions ; or to
bookselling or publishing business carried on by or under the direction of any society wholly or partially exempted from this Act, so far as such business is or shall be carried on by me.ans of voluntary contributions only, or the capital or stock of such business and (9) Where any charity is iticintaiiti-d pertly by voluntary subscriptions and partly by income arising from any endowment, the power.'^ and provisions of the Act shall, with respect to such charity, extend and apply to the income from endowment only, to the exclusion of voluntary subscriptions, and the application thereof aud no donation or bequest unto or in trust for any such charity as last aforesaid, of which no special application or appropriation shall be directed or declared by the donor or testator, and which may legally be applied by the governing or managing body of such charity as income in aid ot the voluntary subscriptions, shall be subject to the jurisdiction or control of the Board of Charity Commissioners or the powers or provisions of this Act and no portion of any such donation or bequest as last aforesaid, or of any voluntary .subscription, which is now or shall or may from time to time be set apart or appropriated and invested by the governing or managing body of the charity, for the purpose of being held and applied or expended for or to some defined and specific object or purpose connected with such charity, in pursuance of any rule or resolution made or adopted by the governing or managing body of such charity, or of any donation or bequest in aid of any fund so set apart or appropriated for any such object or purpose as aforesaid, shall be subject t<) the jurisdiction or contiol of the said Board or the powers or provisions of this Act and (10) Nothing in this Act shall subject the funds or property of any missionary or other similar society, or the missionaries, teachers, or otticcrs of such society, or of any branch thereof, which funds or pnipcrty shall nut be within the limits of P^nglaud or Wales, to the jurisdiction of the said Boai-d
(8)
;
; ;
: :
Any
Trovidixl always, that the said exemption shall not extend to any cathedral, collegiate, chapter, or other schools, See also sect. 66.
; .
462
Dispositions
of charity
OF PARTICULAR TITLES.
Under
Cliarity
the
Charitable
Trusts Act,
authorise
1853
the
{d),
sale,
the
ex-
Commissioners
{c)
,
may
;
change, mortgage
where
like
b}'
/')
Commissioners.
exchanges,
so authorised shall
if
have the
It has been held that, by charities wholly maintained by voluntary contributions, it is intended to describe charities which have no invested endowment yielding an income for their support, or other property permanently available for the purposes of the charity (as freehold land owned and occupied for such purposes), but are entirely dependent on the gifts of the benevolent, whether recurrent or occasional, and whether infei- vivos or by will; A.-G. v. Mathieson, 1907, 2 Ch. 383. With regard to charities maintained partly by voluntary subscriptions and partly by income arising from any endowment, it has been held that the income of any endowment prima facie means income derived from any invested funds that in the case of such charities, bequests and donations for the general purposes of the charity, which may be lawfully applied as income consistently with the terms of the and that, so gift, are exempt from the operation of the Acts long as they remain so applicable as income, such gifts and the income thereof are not brought within the operation of the Acts by being invested, even in the purchase of land. So that in the case of the last-mentioned charities, land bought by the trustees with the produce of such gifts can be disposed of without the consent of the Charity Commissioners, and, further, appears to be alienable by the trustees at their discretion without subjecting the jiurchaser to the burden of proving that the alienation was beneficial to the charity see Re Clergy Orphan Corporation, 1894, 3 Ch. above, p. 459, n. [n) Royal Society of London and Thompson, 17 Ch. D. 407 145, 150, 154 Re Gilchrist Finnis and Younq to Forbes and Pochin, 24 Ch. D. 587, 591 Educational Trust, 1895, 1 Ch. 367; Re Stockport, ^-c. Schools, 1898, 2 Ch. 687 Re Church Army, 1906, W. N. 73 94 L. T. 559 A.-G. v. Re Society for traitting Teachers of the Mathieson, 1907, 2 Ch. 383, 393 Leaf and Whittle^ s Contract, ib. 486 Re Wesleyan Methodist Chapel, South Street, Wandsu-orth, 1909, 1 Ch. 484 see also Corporation of Sons of Clergy and Skinner, 1893, 1 Ch. 178 sed qncere whether this case If is consistent with Re Mason^s Orphanage, S;c., 1896, 1 Ch. 54, 596. however any land so purchased be by deed or othei-wise so settled or purposes that it is no longer appropriated to some particular charitable competent for the governing body of the charity to apply the proceeds of a sale thereof as income, it will become an endowment and be subject to the jurisdiction and control of the Charity Commissioners A.-G. V. Mathieson, ubi sup.
;
;
ss.
Stat. 16 & 17 Vict. c. 137, 21, 24. {e) See also stats. 18 & 19 Vict.
{d)
c.
s.
124,
15.
s.
30
23
&
24 Vict.
17 Vict.
c.
136,
137,
s.
&
c.
OF PARTICULAR TITLES.
Commissioners
thereof
{(j)
;
463
dispositions
may
authorise
provident
Wliere the
disposition of
Charity Commissioners
the
and
if
this
be not done,
The order
of the Charity
Commissioners
disposition authorised
either
Assurance of
estate in charity lands.
by the person
(A),
under
12 of the Charitable
sale,
exchange, parti-
mortgage,
body duly conand vote on the question shall have and be <ieemed to have always hud full power to execute and do all such assurances, acts and things as may be requisite for canying any such sale, exchange, partition, mortare present at a meeting of their
stituted
who
gage, lease,
or
disposition
into
effect,
and
all
such
((/)
The
Court
>
jurisdiction
to
\
I
of
/
tlie
(A)
Above, pp.
-kt
^
4')9,
r
i,
460.
.
i
v -tdLspositions (above, ^
Hififh
authorise
4-1.
such
,>
remains but under the Chantrp . ,. able 1 rusts Act, ,u-.j 18.>3, no apiih/^ t cation can be made * to .1 the Court tor sucli purpose vs-ithout the certificate of the Charity Commissioners: stat. 16 tc 17 Vict. c. 1^7,
;
.
Mortsraarees of chanty lands, * * ^ ^- n \ i, i^ however, are i!renerallv satished -.i ^. with the provision r for repayment * ^, -^ /-,. K , made by the Chanty Lommis('
>
/^
t>
/-n
'
"'""
Stat. 32
&
33 Vict.
c.
110.
8.
17.
; .
464
assurances, acts
if
OF PARTICULAR TITLES.
and things
shall
effect as
all
such
and by the
official
trustee of
on the trustees by order of the Charity Commissioners and it enables the majority of the trustees to convey the legal estate in the land, whether the same be vested in
the whole
number
(/).
charity lands
title to
who executed
same were the majority of those present at a meeting of their body duly constituted and voting on the question (m)
As
(), is
to be con-
and
1855,
it
In such
cases, therefore,
must concur in executing any assurance thereof. Where any land sold has been held by a succession of charity trustees, of course the appointments of any new trustee
and the conveyances consequent on such appointment form part of the title, and must be abstracted and produced accordingly. Under the Trustees Appointment Acts, 1^50 to 1890 (p), lands held in trust for certain
religious or educational purposes vest in
new
trustees
duly appointed, or in such new trustees together with the continuing trustees, without any express conveyance
for the purpose.
See stats. 15 & 17 Vict. 18 & 19 Vict. 137, ss. 4750 124, s. 15. Im) 1 Dart, V. & P. 288, 289, r,th pd. 329, 6th ed. 325, 7tli ed.
{I)
; '
;
(n)
s. 3.
Stat. 32
&
33 Vict.
c.
110,
c.
{o) Above, p. 460, and u. (c). [p) Stats. 13 & 14 Vict. c. 28 32 & 33 Vict. c. 26 53 & 54 Vict.
;
c, 19.
OF PARTICULAR TITLES.
465
(y),
Under
the
and
the
Board of
Orders in
Council
made thereunder
(r),
all
powers conferred on the Charity Commissioners by the for Charity enactments ahove mentioned (.s) were, so far as those s^io^fas t powers relate to endowments held solely for educational endowments
purposes, transferred to the
SbSut^
Board
of Education.
fortdS
tional
pui-poses.
8.
Partnership Property.
Where a purchaser has notice that any land sold is Partnership or has been partnership property, he must ascertain that Property, the same has been or shall be duly assured,
not only by
persons seised of the legal estate therein, but also by all persons interested therein in equity under the agreement of partnership {f). As is well known, when any land becomes partnership property, the legal
all
estate therein devolves according to the general law applicable to land of the like nature and tenure but in equity the land is held in trust for the partners, who are entitled
:
thereto, as
as personal estate
estate,
which
it has been dealt with. It may have been con\'eyed to the partners or some of them only, as joint tenants in fee or as tenants in common, or to one
according as
partner
only in
of
fee, or it
whom
Stat.
have been vested in trustees, none were ]iartners. But in whatever form tlie
& 63
of
may
(7)
62
Vict.
c. 3.S.
him and the plaintiff as partners, were held to have had construcnotice of the firm's title because they were aware that the business of the finn was carried
tive
()rder.s
7th
1901,
Aug.
11th
24th
:
July,
Aug. 1902 Tudor's Charitahlc Irusts 760-769, 4th ed. Above, pp. 455, 460464.
(.)
;
on
()
.ss.
there.
And
see
abi.ve,
See stat. 53
& 54
Vict. c. 39
having taken from on.- Be w lay a mortgage of land, of which at law he was solely seised iu fee, but which m equity belonged to
2022; Darby
;
v.
Darby
Drew. 495;
IFatc'rer \.
3 IVatcrer
L. R. 15 Eq. 402 A.-O v Hiihb,uh; 13 Q. B. D. 275 Rr Bourm1906, 2 Ch. 427. 429, 432, 433.
;
w.
30
466
OF PARTICULAR TITLES.
conveyance was taken, the subsequent devolution of the
legal estate
is
a person (whether
equity as partnership
property, the
:
legal
estate
was held to be a trustee for the persons entitled under the partnership agreement (//). Since the end of the year 1881, it appears that, in the same
circumstances, the legal estate passes to the deceased
tenant's personal representatives under the Conveyancing
Act
(.r)
of 1881
(s).
As
who should
Land, which
is
is
partnership
in effect held tipon trust for sale and conversion into money and application of the proceeds of the sale, first, in
property,
289
stat.
53
&
22,
c.
89,
ss.
20
(2),
54 Vict, Ite 44
;
lia-
Bourne, 433.
1906,
Ch.
427,
432,
bihties and subject thereto in dividing the same between the partners in proportion to their interests Darby v. Darby, 3
:
{tj) Broom v. Broom, 2>M.j. Sc'K.. 443; West of vijlimd,^-c. Broil \. Murch, 23 Ch. D. 138 above,
;
p. 219.
;
above, p. 221. It is submitted (j) Stat. 44 & 45 Vict. c. 41, s. 30 that the cases cited in the two preceding- notes establish that the estate, even when vested in a partner or in all the partners, is held upon a trust within the meaning of this enactment. Where land has been vested in partners as joint tenants in fee, but as part of their partnership estate (see 1 Key & Elph. Prec. Conv. 4 38, 4th ed. 436, 8th ed.), or as tenants in common in equal shares, the case of Re Stloim, 1901, 1 Ch. 921, may perhaps be thought to raise a doubt whether the partners can have different interests in the land in equity from what they have at law. In that case, one who was a trustee of leaseholds for two ladies in equal shares, by deed reciting that they had requested him to execute to them such assignment thereof as was thereinafter expressed, assigned the same to them as joint tenants, and they jointly covenanted to indemnify him against the rent and On the death of one of the ladies her executors lessee's covenants. claimed her share on the ground that in equity the ladies had remained tenants in common. Farwell, J., decided against this claim, liolding that the case came within the rule in Selby v. Alston, 3 Ves. 339, that where eqiutable and legal estates, equal and co-extensive, unite in the same person, the fomier merges, or in other words, that a person cannot be a trustee for himself. Ho said: "The only doubt I felt was whether the advantage of a tenancy in common over a joint tenancy raised any presumption against merger. But the difference in interest between these two estates is so smnll unci shadowy that I do not think it would be sirfficient to raise that presumption. I hold that two or more persons cannot be trustees for themselves for an estate
;
OF PARTICULAR TITLES.
conciu' in a disposition of
467
is
land,
which
partnership
co-extensive with their legal estate." It is respectfully submitted that the learned judge rightly rejected the executors' claim, but for the wrong reasons. The deed of a.ssignment was a conveyance by a trustee under a simple trust, who had been requested by his ccstiti que tntsfs to execute the estate to them. In such conveyance the limitation of the estate was expressly made to the cestui que tntsts as joint tenants at theu- own request their intention to take as such was plainly evidenced by the deed which they executed themselves. Why, then, shoidd there be any equity to preserve theii' estate in common contrary to their expressed intention? (See Fotckes v. Pascoc, L. R. 10 Ch. 343.) Suppose, however, that they had taken the assignment to themselves jointly on trust as to one moiety for the one and as to the other moiety for the other, or, which is the same thing, on trust for themselves as tenants in common in equal shares. Would the Court then have rejected the executors' claim? I think not. It is respectfully submitted tl)at the learned Judge's dict/nn as to the difference between joint tenancy and tenancy in common being small and shadowy was an incautious utterance. There is nothing to prevent a man from being a trustee for himself and others, or from being one of several trustees for him.self If lands are conveyed to the use of A. and B. in fee as joint tenants on trust for them in fee in equal shares, each undivided moiety is, in equit}-. held by a several title: see Litt. s. 292. At law A. and B. are joint tenants in fee each is therefore sensed of the whole. But in equity A. and B. have no interest in each other's shares each has a several titli^ to one half only. In all except unity of posses.sion the case is the same as if two separate pieces of land had been assured to the use of A. and B. in fee on trust, as to one for A. in fee, and as to the other for B. in fee. How, then, can it possibly be maintained that their estates in equity are co-extensive and commensurate with their estates in law ? And where the equitable estate ia not commensurate with the legal estate in the .same person, there is no merger: see Ih-ydgcs v. Bryih/es, 3 Ves. 120, which was not cited in Ite Si'loHs. The rule in Sclbij v. Ahton has never been supposed to apply to land assured to the use of partners in fee as part of their partner.ship estate and the case of Re Seluus certainly affords no good reason why the construction previou.sly placed on such a.ssurances should be in any way disturbed. The interest which the partners take in equity by reason of their interest in the partnership is altogether different from that which they have by reason of their tenancy at law: see note {c) above. And it is contrary to the principles of equity that an equitable interest in any property, whicli interest has become vested in the legal or equitable owner of the property, but is not of exactly the same nature as his ownership, shall merge in the ownership if it were not intended that such merger should take place see Forbes V. Mnfatl, 18 Ves. 3S4 Adams v. Angell, H Ch. D. 634; Re Pnd<; 1891, "2 Ch. 13'); Minler v. Vnrr, 1894,'3 Ch. 49S Thome v. Caiin, 1895, A. C. 11 Ingle v. Vaughan Jenkins, 1900, 2 Ch. 368;
;
.
;
Thelliisson v. I.iddard, ib. 635. The' cases of Re Wra>i, 1905, 2 Ch. 349, 352, Re Bourne, 1906, 2 Ch. 427, 432, 433, and Re Kent Count;, Gas, ^T. Co., Ltd.. 1909, 2 Ch. 195, show clearly that, where real e.state is vested in partners a.s joint tenants, their beneficial interests therein are personalty in i>quity, and are according to their interests
30
(2)
468
ment,
it is
OF PARTICULAR TITLES.
to be observed,
first,
relation of partner-
execute
that one
(a)
and,
seeondl_y,
seems,
make an
equitable
;
mortgage of the firm's land to secure the firm's debt (b) but, except where the ordinary business of the firm is to sell land {() he has no general authority arising out of
,
sell
{</).
All
by law
to be
made by
by attorney acting under an express power of attorney given by deed and except in the case of an
;
it is
to sell or
in
made by
the partners
as,
is
carried on.
whether by death or otherwise, the authority of each partner to bind the firm continues, notwithstanding the
dissolution, so far as
affairs
may
of the partnership
and
to complete transactions
in
no case
bound by the
rupt
(r).
acts of a partner
It has
partners
may make
(a)
207
141 2 K.
;
ib)
Jackson, 7 T. R. Egginton, Holt, Marchant v. Morton, 1901, B. 829, 832. See Re Vloiiyh, 31 Cli. D.
Harrison
v.
[c]
See
stat.
53
&
54
Vict.
Steiglitz v.
c. 39, ss. 5, 6.
v. Dn-sser,
10
Do
G.
M. &
c.
Stat.
53
&
51 Viet.
39,
38,
OF PAKTICULAK TITLES.
deposit of the title deeds of the firm's land to secure a
469
firm debt
(./),
priority
{g)
of
And
it
on the dissolution of a partnership by the death of one ^'^^7^) sell of two partners, it is the duty of the surviving partner or mort<rage
to realise all the assets of the firm, including its real lands,
estate, for the
affairs,
purpose of winding up the partnership and the sm'viving partner has for this purpose
sell
full
such
real estate
it
Haviug regard
to this
pronouncement,
sells
death to
make
it
apparent that he
is
selling to
wind up
the
dis-
the partnership
affaii-s,
(/)
he can
make
a good
title to
equitable interest
in the land
money without
the concurrence
And
it is
thought that
and
is
given an
as well as to partner-
regulated by a
stipulation
that the
surviving
(/) Hi Clough,:\\ Ch. U. 324. Jle Bourne, 1906, 2 Ch. 427. (A) S. C, 1906, 2 Ch. 430 433. (i) The title to the legal estate depends of course on the manner in which it was hold on trust for see above, p. 465. the finu If the land had been vested at law in the two partners as joint
(/)
;
See Da%-idson, Prec. Conv. pt. ii. p. 355, 3rd ed. Such options must be exercised precisely according to their temis Vijse v. Fonlrr, 7 H. L. 3 IS, 329 but it is thought that, if so exercised, they relate back to the time
[k]
vol.
o,
ship,
partner's share,
470
OF PARTICULAR TITLES.
partner shall take over the dead partner's share at a
valuation
payable by instalments
(/).
But where
and remained
in possession of land,
which
it
belonged to the firm, for a long time after the dissolution of the partnership
and then
sells
the land,
is
the assets
representatives, either
effect con-
money
9.
Sale
bij
made by
Court.
the
for sale
Where the title to any land sold depends on au order made by the Court [m), the principal points, on
satisfy themselves,
:
(/) The effect of such a stipulation is that, on the death of a partner the entire property in all the assets (including any real estate) belonging to the firm passes at once in equity to the surviving member of the firm Vyse \. Foster, L. R. 8 Ch. 309, 328, 7 H. L. 318, 330, 334, 335, 341, 345; Kordcrn v. Hordern, 1910, A. C. and that the surviving 465, 473 partner has authority, for the purpose of winding-up the affairs of the partnership, to sell or mortgage such assets free from any lien of the personal representatives of the dead partner for the amount so payable to them see Ec aiiffiticad\s Trn.stn, 20 Beav. 20, 7 De G. M. & G. 353 Ee Bomw, 190G, 2 Ch. 427. In
;
; ;
10 Hare, 453, 456, 4 De G. M. & G. 542, 544 TFcst of England, d|V. Bank v. Mtirch, 23 Ch. D. 138 50 Sol. J. 307 (by the writer) [ill) As to sales of land by the Court, see 2 Dart, V. & P. 1190
;
Ec Bourne the partnership consuch a stipula1 Ch. 113): but the case was decided on the footing of its being a partnership
tract contained tion (see 1906,
5th ed. 1313 svy., 6th ed. sq., 7th ed. 1 Dan. Ch. Pr. 872 sq., 7th ed. 1 Seton on Judgments, 333 sq., 338, 6th ed. 1 Davidson, Prec. Couv. 499 sq., 5th ed.
sq.,
; ;
1151
OF PAUTICULAK TITLES.
has beeu conveyed to
tlie
471
person asserting
title
under
the order, or will be conveyed to the purchaser, either by the assm-ance of all persons interested therein or by vesting order
;
duly made and properly carried out, or if not, that the defect is one which may bo disregarded in reliance on and sect. 70 of the Conveyancing Act of 1881 {n)
;
for
any equitable
estate or interest
parties to or otherwise bound by the proceedings in which the order for sale was made or if not, that all estates or interests of all persons not so bound have
;
under the order or to the purchaser. The jurisdic tion of the High Court of Justice to order a sale ot land (o) is either derived from the general equitable or
title
.
Jiu-i.sdictiou
l^"*!-
& 45 Vict. c. 41. original jurisdictiou of the Court of Chancery to order a where such a !salo of land appears to have been confined to cases sale was uc(jcssary in order to satisfy creditors' claims enforceable a,'>-ainst the land in that Court, or where a trust for sale of the land had been created and was exercisable Lechmere v. Brasier, 2 J. & W. Carhjon Y.Truscott, L. R. 20 Eq. Calvert v. Godfrey, 6 Beav. 97 2S7 348 Re Staines, 33 Ch. D. 172. Thus in suits for the administration of the estates of deceased persons the Court might order a sale of chattels real, and might, if there was jurisdiction to administer the real estate, either bv reason of the s;ime haA-ing been charged with the payment of debts or under stat. 3 .Sc 4 Will. IV. c. 104, order a sale The Court might also order a sale of land in a suit to of real estate. enforce an equitable hen in the nature of an equitable mortgage of land, as in the case of a vendor's lien for unpaid purchase money Mackreth v. Sijnimonii, 15 Ves. 329 Nente v. Marlboroiujh, 3 My. & Cr. 407 417- Governors of Gmjcoat Hospital v. ll'rstmiu.ster Improvement Skene v. Vook, 1902, 1 K. B. 682, 688, Commrs., 1 De G. & J. 531 Seton on Judgments, 2054, 6th ed. And lands forming part of 689 the assets of a partnership firm might be ordered to be sold under the general jurisdiction of the Court to order the sale of the firm's pro{,i)
Stat. 44
(o)
The
perty on a dissolution of partnership FcatIicrstotihau(jh v. Fenwick, Tai/lor v. Kenle, 39 Ch. D. Darbij v. Durlnj, 3 Drew. 495 17 Ves. 298 538. The principal statutory jurisdiction of the High Court of Justice to order a sale of land is tlic following : (1) That conferred by sect. 25 of the Conveyancing Act of 1881 (stat. 44 & 45 Vict. c. 41) to order a This was new as to redempsale in redemption or foreclosure actions. tion actions, while as to foreclosure actions it replaced and extended the jurisdiction given by .sect. 48 of the Chancery Trocedure Act, 1852 (stat. 15 & 10 Vict. c. 86). (2) That conferred by the Partition 39 & 40 Vict. c. 17). Acts, 1868 and 187G (stats. 31 & 32 Vict. c. 40
: ; ; ;
472
the
OF PARTICULAK TITLES.
statutory jurisdiction of
the
Court of Chancery
to the
transferred
of Justice
High Court
in
exercisable
the
What
in-
Chancery Division {j>), or else has been expressly conferred on the High Coiu't since the Judicatui-e Acts, so that such orders have been made in the past either by the Court of Chancery or by the High Court acting as a Court of Equity. When such an order is made, it
binds the equitable interests iu the land sold of
persons,
all
terests are
bound by
an order for
sale.
who
order
is
made
There
is
in pursuance of
property sold,
all
that
veyed
to liim
(;)
But an order
any land
parties to nor
bound by
so that
if
made
any such
good
(3)
title is
not made
As
a rule, a purchaser of
That conferred by the Settled Estates Act, 1877, replacing a Act of 1856 (stats. 40 & 41 Vict. c. 18 19 & 20 Vict. c. 120). 2") & (4) That conferred by the Confirmation of Sales Act, 1862 (stat. 26 Vict. c. 108). (5) That conferred by the Judgments Act, 1864, enabling the Coiu-t to order the sale of a judgment debtor's interest This superseded in land taken in execution by a judgment creditor. the former proceedings under the Judgments Act, 1838, to realise the 1 & 2 charge given by that Act (see stats. 27 & 28 Vict. c. 112, s. 4 Wms. Real Prop. 275, 21st ed.). (6) That conVict. c. 110, s. 13 ferred by R. S. C, Nov. 1893, r. 18 (Ord. LI. r. 1b), to order a sale in debenture holders' actions: and see R. S. C. 1883, Ord. LI. r. 1, which has been held not to extend the jurisdiction of the Court so as to enable it to make an order for sale of real estate, where none could have been made before Jic- Jivbiiiso)/, 31 Ch. D. 247.
similar
;
[p) Stats. 36
S8. 16,
;
34 37 38 & 39 Vict. c. 77 Wms. Real Prop. 167, 21st ed. {g) Cole v. Sm-eU, 1 7 Sim. 40 He Williams, 5 De G. & S. 515 Bamictt v. 3fo.io)i, L. R. 20 Eq. 182, 184.
;
: ; ;
2 (>) 104, n.
vol. ii. pt. i. 270, n. {ir), 283, n. (/;), 4th ed. (.s) See Cradduclc v. F'qier, 14 Sim.
pital V.
OF PARTICULAR TITLES.
land under an order for sale
47;j
made by
the Court
is
What
estates
duly
,
conveyed to him
^1111
(f)
IP
lands
title
conferred
by the order
had notice
infant attained
removed by
was and by the (//) Trustee Acts, 1850 and 1852 (;;), now replaced by Trustee Act, 189-j {a), power was given to the
age
{jc).
The
occasion
for
this
exception
statutes of
Will.
IV.
in
any
lands
under
of
its
order
could not be
of
obtained
by reason
the
disability
by an order
was conferred, it has been the regular practice to and where lands have been sold under an order of the Court and any lega/ estate or interest
resort thereto {b)
;
by the person
entitled
whether by reason of his disability or of the same having been limited to some unborn or unascer-
Knu/h/ V. I'ucov/,-, Beav. 430 Freeland v. Fearson, L. R. 7 Eq. 246 Jones v. barnett, 1899, 1 Ch. 611, 1900, 1 Ch. 370. [t) Noel Wiston, G. Coop. V. 138 .lf(/>-//s V. <7rt>7.:.0M, 3Swau8t. Sug. V. & P. 397, 398 558, 564 Freeland v. rearson, L. R. 7 Eq. 246.
;
(y)
Stats.
Geo. IV.
8.
&
c.
"Will.
s. 7.
IV.
c.
47,
11,
aud
GO.
(m)
1
See
stat.
11
s.
(tpo.
11
;
&
13 & 14 Vict, GO. 16 Vict. c. oo, s. I. () Stat. 56 & 57 Vict. c. 53. a. ser also sects. 2629, 30 31 and .see as to the 33, 50 orders made and practice thereunder, 2 Seton on Judirraents.
(;)
Stats.
29; 15
&
1261
(A)
/..
6th -d.
;
nine,
cited
2 Dart. V. A: P. 1220, and 5tli ed. 1347, aud n. (/;, 6th ed. 1184, and n. (), 7th ed.
n.
'q),
;
474
OF PARTICULAR TITLES.
taiued person or persons, the purchaser's
title will
not
(c)
As
we have
persons
who
ings in
bound by the proceedwhich the order was made, and there is no need
for any other assurance of such interests to be made. So that where any equitahic estate has been limited to any unborn or unascertained person, there is no occasion to obtain an order expressly vesting the same in the
pm'chaser
The
urder
is sufficient
But
made
made on a
{e)
that behalf
and
title,
this
were
not the case, the Court would not oblige the pm'chaser,
if
and
if
he did
accept the
protected
by the order
And
were valid
{(j)
Other irregularities in the proceedings, in which the order for sale was made, would not, as a rule, affect a
purchaser under the order
(()
(A).
See Wale
v.
Wake, 17 Jur.
1
.545
Wood
; ;
v. BrctJcutouc,
K. &
IISG,
J. 213
Eq. 20
Lcvs V. CouUoii, L. R. 20 Jjasiictt v. JIoxou, ib. 182; Setoii ou Judgments, 1261, 12G2, 6th ed.
{d)
Colcloiujh V.
181
Poicell v. Poivell,
atenuu, 3 Bligh, L. R. 10
Above,
Above,
p. 472.
(e)
p. 471, u.
(w).
(/) Lechmere v. Brasier, 2 J. & W. 287 Blacklow v. Laws, 2 Hare, 40 Calvert v. Godfrci/, 6 Beav. 97 2 Dart, V. & P. 1224,
; ; ;
Ch. 130. (A) See Lutwyeh v. Wiiifuvd, 2 Lloijd v. Johnes, Bro. C. C. 248 Curtin v. Biice, 12 9 Ves. 37, 65 Bowcu v. Evam, 2 H. L. Ves. 89 Beloley v. Carter, L. R. C. 2.57 Sug. V. & P. 4 Ch. 230, 238 110; 2 Dart, V. k P. 1223 1350 1352, 6th 1225, 5th ed.
; ;
ed.
11851187, 7th
ed.
OF PARTICULAR TITLES.
not affect the interests, whether legal or equitable, of
-175
any persons who were neither parties to nor otherwise bound by the proceedings, it was always necessary for
the purchaser to see that
all
would
their
an
express
conveyance from
(/).
them
of
respective interests
By
1881
(k)
want
of
want
oi jurisdiction, or
service,
want
not.
of
any eoncun-ence,
dicta, if
consent, notice, or
The
it is
somewhat
conflicting
(/)
and
its
precise effect.
But
it is
to
be observed that
title
an order of the Court, whether aud that it does not appear to extend the effect of a valid order so as to bind any persons whose interests would not otherwise have been The enactment appears to protect affected thereby [in). purchasers from disturbance by persons who might otherwise have ejected them or recovered against them on the ground that an order of the Court forming part of their title was invalid for want of jurisdiction or for any other cause therein mentioned. And it has been held
(t)
Colclvtiijh V. iSleiiiiii,
;
3 Bligh,
rised
tletl
Ibl, 18G
1
Li.R. Ch. -JoO, -238 Siig. V. k P. 111; '2 l)art, V. & P. I'i'i.'), oth
JSeiulri/ V. Citrtcr,
;
ed. ed.
1352, (ith ed. 1187, 7th and see above, p. 172, aud
;
uote
{k)
s.
(.).
44 A: 4.) Vict. c. 41, 8ub-s. 1, extendiu*;- by sub-8. 3 to past as well as fntimorders, except tliose whicli liad been already held tn be invalid, or to invalidate which proceedaud declared iug's were pendiuy by siib-s. 2 to have etfect as to leases, sales or other acts authoStat.
70,
;
by the Court imdur the SetEstates Act, 1877, or the Act of 18oG, uotwithstandiug the exceptions therein meutioued see stats. I'J A: 20 Vict. c. 120, s. 28 40 & 11 Vict. c. 18, s. 40. (/) See Jte Hail Darr'-s <'untr<tcl, 21 Ch. D. 41 Mustijn v. Moityn, Jonexw Barnett, 1893, 3 Ch. 37G
: ; ; ;
1890, 370.
(i)
Ch.
is
Gil,
1900,
Ch.
It
v.
liu-ta
to the
;
contrary etfect
iu
Munfi/ii
erroneous
ubi sup.
476
OF PARTICULAR TITLES.
that purchasers of land under an order for sale
made by
title
on the ground that the order is invalid for any of such But the enactment does not protect a purcauses {ii).
chaser
interests
to
be affected by the
order
it
effect of conferring
on a purchaser
is
under an
world
{(>)
good
title
And where
not
The
depends
upon an order
for sale
made by
i 10.
Sale of
of
iDi
E(piitij
of Redemption.
is
The purchaser
an equity of redemption
exposed
charges or
emp
1011.
affecting the (y), he takes subject to all equities vendor at the time hands of the in the purchased land equities or such any notice of have he whether of sale,
created
not.
He
all
prior equitable
mortgages of the land, whether made in favour of the legal mortgagee on further advances or of any other
any right of consolidation of securities which the mortgagee may have already acquired (.s),
person
(r),
to
{r)
See
v.
Bailey
'Tai/lur
previous Blchardson,
iiote,
9
aiid
;
Hare, 734
Jones V. Uiiriu'tt, 1899, Ch. 611, 1900, 1 Ch. 370. (p) Pp. 470, 471.
(o)
[f/)
v. Mii.s.scll, 1892, A. C. where the prior equitable mortgage was only excluded by
244,
JoiicH V. Jouen, 8
Sim. 633
14 Pike, o Hare, Phillips V. Phillips, 4 De G. P. & Tai/lury. Londun and J. 208, 215 Couniij Bank, 1901, 2 Ch. 231, 260; Perham v. Kempster, 1907,
Wilmot
V.
tacking. White v. Hillacre, 3 Y. {s) See & C. Ex. 597, 608, 609 Jenninrjs Harv. /my/m, 6 App. Cas. 698 tcr v. Colinan, 19 Ch. D. 630; Minter v. Carr, 1894, 3 Ch._498. These cases establish that, if no
;
OF PARTICULAR TITLES.
and to all other equities affecting the conveyance to the any equitable right to set aside premises arismg from the vendor {t), or any claims on may have been subject m any trust to which the same
the vendor's hands
contract
(.0-
477
And
Secondly, in consequence o Thvou.h equitable charges to the legal the doctrine of tacking an equity of redemption mcurs estate, the purchaser of by or postponed to equitthe danger of being excluded made subsequently to the sale. able charges on the land mortgagee were to make further
Thus
if
the
legal
advances to the
but whilst the apparent or otherwise vendor remained in possession received having without ownership of the land, and be entitled to tack all that notice of the sale, he would advances to his mioht become due in respect- of such And any other person who should original charge (//). the security of the make advances to the vendor on
sale,
the same circumstances, land after the sale and in was only defeated by
able right
tacking
:SXS;^rS;:;':iatonoi
themortgageandeomesecunty^n
30,Uere^^^tUe^,.
^^^^
.-^
TcL"
15 Ch.
'
j.j3^^e,p.
to ditterent
mo
:
j_,,^^^
purchase for
tiuentlv arise
mt
\. i("'!/<', -
']^\
no P
611
Fled,/, v.
JrhUe,
'
Ch.
'25,
478
might,
if lie
OF PARTICULAR TITLES.
could obtain a transfer of the legal mort-
{z).
The puragainst
may guard
some
Inquiries to
of these
risks,
protection.
as to the state of
what is owing thereon; secondly, whether the mortgagee has already made any further advances to the mortgagor on the security of the land purchased and thirdly, whether the mortgagee has in himself vested any other mortgages or charges which affect any other property of the mortgagor and which he is entitled to consolidate with his mortgage on the
;
purchased land.
And
mortgagee
if
is
made
(a).
And
to
answer these
is
submitted,
But
if
precisely,
being informed of the pm-pose with which they are made, he will be estopped from denying the truth of his answers, and so cannot afterwards
after
assert his
own
Frere v. Moore, 8 Price, {z) 475, 488, 489; Jones v. Powles, ?, My. & K. 581, 596, 598 Baten Baileij v. V. Johnson, Job. 304 Barnes, 1894, 1 Ch. 25, 36,' 37. But a person entitled to a charge on the purchase money to be paid under a contract for the sale of
;
an equity
mortgage:
413.
Lacet/ v. Ingle, 2
Ph.
(ff) BiitjideH V. Bignold, 2 Y. & C. C. C. 377, 390 Loir v. Bonverie, 1891, 3 Ch. 82.
;
OF PARTICULAR TITLES.
on the
faitli
479
(/>).
of the representations so
made
And
legal
of
security
(r).
redemption in
own and
are either
unknown
or suppressed
by
the
inquiries.
him no
priority over
and
will
if
gage
is
{e).
The purchaser
of
an equity
of
redemption
aware of any equitable charge, incumbrance or riglit which affects the property sold and is not disclosed by the and it is submitted that, as the pm-cliaser abstract ( /')
;
is to
against
unknown
the
title offered
vouch the rule in 7iV Ford and Hill {(j) as an excuse for refusing to answer (//). The purchaser should also
inquire of the legal mortgagee whether he has
notice or
is
had
aware of any
incum-
brance or
riglit.
But
if
{h)
.'554
;
Vern.
De G.
Bon-
M. & G.
436,
186, 196;
Lnv
v.
Rooprr v. Hnrrisov, 2 K. & J. 86; Phipps v. Loregrove, L. R. IG Eq. 80,91; 7?ei?i<-Afl)v/,s, 4o Ch.D. oSO; Hopkins \. Hemsicorth, 18'.)S, _'
Ch. 347.
v. {>) Peacock (N. S.) Ch. 33.
EUames, 2 see sXo Hopkiimou V. Kolt. H. L. C. ol4 Mcnzies Eq. 4')9 V. Lujhffoot, L. R. London and (huutg Pauk v. ItatJ/Vv/ v. cliff'e, G App. Cas. 722; iniliams, 1899, 1 Ch. 132. {d) Above, p. 476, nn. {q), {r)
;
Birch
v.
Burt,
L.
J.
Ch. 373, 381. {g) 10 Ch. D. 36.'). {/i) See above, pp.
13.').
n. (/),
178.
480
OF PARTICULAR TITLES.
the purchaser of some existing equitable incumbrance,
tlie
same
after
payment
of his
stall
he can, a transfer of the legal mortgage, and so forethe other incumbrancer in using the resource of
If he can accomplish this, he
Avill
tacking.
be entitled
all
to hold the
persons
paid his
had no notice at the time when purchase money and any subsequent notice
;
of
so
(i)
but he cannot
actual or constructive
price agreed
receive
sale,
upon for the land (/). If, therefore, he notice of any such eqviities after the contract for
the
proceed with
are
Purchaser of
equity of
if
redemption pay
notice of
mortgage
mortgage when he has an intermediate charge, the first mortgage is extinguished and the intermediate incumbrancer is enoff
the
titled
on the
off
(;/).
Birch
[l)
306 630
Story v.
;
Windsor, 2 Atk.
drcU, 10 Ves. 246, 271 Taylor v. Baker, b Price, 306 Raync v. Baker, 1 Giff. 241. {m) Above, pp. 170, 238. (h) Toulmin v. Steere, 3 Mer. 210.
; ;
Le
I\'cve v.
Lc Neve, Amb.
OF PARTICULAR TITLES.
This doctrine has been frequently mentioned with
approval, though never precisely overruled
(o).
481
dis-
It has
however been established that if, when the first moi-tgage is so got in, an intention be shown to keep the Keeping the charge on foot, the purchaser will be entitled to the change on
benefit thereof, and the intermediate incumbrancer cannot then enforce his security without redeeming the
charge.
And
;
it
is
purchaser
alive
it Avill not merge if the intention to keep it appear either by express declaration or by inference from the surrounding cii'cumstances, notwithstanding
that the
If the
Purchase by
^g'^equfty'of
under the doctrine of tacking, to hold the land free from all intermediate equitable incumbrances of which
he had no notice at the time when he paid his purchase
redemption.
money
of
it
But with regard to mesne incumbrances [q). which he had notice and which were not discharged, was formerly considered that, unless his mortgage
by purchasing the property at a sale thereof under a power of sale given by such first mortgage Otter v. Vaux, 2 K. & J. 650, 6 De G. M. & G. 638. But if a man become entitled to an equity of redemption by descent or devise, he may keep alive for his own benefit any charge made by his predecessor which he chooses to pay off: Daris v. Barrett, 14 Beav. 542; or if he be hitn.self the mortgagee under any such previous charge, the same will not merge if such be not his inForbesv. Mofatt, 18 Ves. tention
siib.sequent incumbrancers
: :
See Wattxy. Symes, 1 De G. Adaiii.s v. 240, 244 Angell, 5 Ch. D. 634, 641, 645, Thome v. Cann, 189-5, A. C. 647
(o)
M. & G.
;
11,
1618;
Li(/iii(f(itio)i
Estates
Purchase Co.
I
v.
WUloiifihbij, 1896,
note and liailey v. Itichardsoii, 9 Hare, 734 Phillips v. Gultcridi/t\ 4 De G. & J. 531 Hayden V. Kirkpatriik, 34 Beav. 645; Re
;
P;iVfe,1891,
2Ch.
135.
Of course,
a mortgagor paying off a first mortgage created by himself cannot by any means set up the charge to defeat or hinder his own subWatts v. sequent incumbrancers Symes, 1 De G. M. & G. 240, 244. Neither can he defeat his own
:
384.
(q)
notes.
w.
31
482
OF PARTICULAR TITLES.
were transferred
of keeping
to a trustee for himself for the
purpose
it alive, it
merged
brances became
first
But
it
is
now
established in
first
redemption of a
mortgage by the purchaser of an equity of redemption, that if an inteution to keep the mortgage on foot be shown, either by express declaration or by implication from the surrounding circumstances, the mortgagee purchasing the equity of redemption may avail himselfof the charge as a protection against mesne incumbrancers, of whose claims he had notice, notwithstanding that the first mortgage, as well as the equity of redempand when such an tion, be vested in himself alone intention is shown the mesne incumbrancers must redeem the first mortgage if they wish to enforce their Both a mortgagee purchasing the equity securities (.v). of redemption, and the purchaser of an equity of redemption redeeming the mortgage, should be careful to take a conveyance in such form that there can be no doubt whether it is intended to keep the charge alive or not (t). A charge so kept on foot remains the personal estate of the party, for whose benefit it is preserved but it may subsequently be merged by any assurance of the land which would make it a fraud to keep the
;
charge alive
(u).
Marshalling
securities.
-^
In connexion with the sale of an equity of redemption, ^^^ -^^ useful to mention the rules as to marshalling
2Dart, V. &P. 917,5thed.;
; ;
(})
sup.;
vol.
;
1040,
224.
is)
Adams
v. AiiffeU, 5
Ch. D.
634; above, p. 481,' note (^;). v. An^ell, ubi [t) See Adams
Prec. Conv. 324, n., 327, n., 4th ed. 1 Key & Elph. Prec. Conv. 490, 531, and notes, 4th ed. 486, 525, and notes, 8th ed. {n) fie Glbhon, 19('9, 1 Ch. 367 above, p. 433.
ii.
Davidson,
i.
*/'
pt.
OF PARTICULAR
securities.
TITLE;S,
483
Where two properties belonging to the same owner have been mortgaged by him to the same mortgagee or are otherwise subject to some paramount charge affecting both of them (.r), and he has subsequently assigned over one of them for valuable consideration, whether on sale, mortgage, or settlement {y), then if the paramount incumbrancer satisfy his security
out of
the
property so assigned
{z),
the
assignee
is
entitled in equity, as against the owner, the trustee in his bankruptcy {a), and his representatives taking by
and subject
to
any agreement
have the
securities marshalled,
is, to stand in the place of the paramount incumbrancer with regard to the other property to the extent of the value of the property taken (c) to satisfy the
that
paramount charge. The assignee is in fact entitled, in equity, as against the owner, his trustee in bankruptcy,
heirs, executors, administrators and devisees, and in default of agreement to the contrary, to have the property so assigned to \\\m exonerated from the charge (r/).
{x) See Wchh v. Smith, oO Ch. D. 192. 200, 202; The Chioggia,
[z)
The
is
paramount
iiicum-
brancer
189S, P. 1, 6. Mar.shalling i.s also permitted where s -veral propertie.s have by consolidatiou of mortgages become subject to the entire claim of oue mortgagee above, pp. 476, -177, and note (.) where properties belonging to different owners are pledged for
perty he
to,
fer(>
may choose
v.
the exercise of
right
Wallis
N.
288
S. 179.
(n)
;
See Krpfe.
the
\. Farrcll,
Deac. Dru.
Sca-
v.
Marshalhng has been (//) allowed in favour of the grantees under a voluntary settlement containing covenants that the land settled .should remain to the
uses assured, and for quiet enjoyment: Hales v. Coj; 32 Beav. 118: but not wliere there was a
grim, 20 Beav. 614; llci/min v. Dubois, L. R. \.<, Eq. 158. {!>) See Re Jfo,rer\s Trust,, L. R.
8Eq.
{c)
110.
See
Craduck
v.
Ptper,
I.anog
lo
v.
Hardwicke, C,
covenant for fuither assurance only; Ker v. Kcr, I. R. 4 Eq. 15; Re Jone.s, 1893. 2 Ch. 461,
"^"3- ''*
Athol, 2 Atk. 444. 446: Eldon, 0.^ Aldrich t. Oooper, 8 Ve.s 382' 395; Averall v. U'ad<; LI. & G.' t. Sugd. 252. 259; Uuglies v. iniliams, 3 Mac. & G. 683 mn 691; Uaiidcock y. Haudrork' Ir' (,'h. 444, 474 Tidd v. Li.strr 10
] ;
Hare, 140,
157,
De
G.
il".
&
31(2)
484
This
equity
is
OF PARTICULAR TITLES.
however
vii'os,
enforced
only
against
the
l^ersons
by
act
whether
taking
[e).
for
value
or
If therefore
owner assign
to different persons
who
is
which but for the subsequent assignment he would have enjoyed, to have the property assigned to him entirely exonerated from the charge. But he will not be
deprived of
mount
still
respective
values,
and
incumbrancer's place as
apportionment
paramount charge which according to such it ought to bear (_/) and to the extent of the property, which according to such apportionment was that assigned to him that is to say, up to the
of
, ;
its
due proportion of the paramount charge (g). Thus if Blackacre, worth 2,000/., and Whiteacre, worth 1,000/.,
belonging to A. be mortgaged to B, for 2,100/., and
then Blackacre be mortgaged to C. for 900/., and B.
sell
extent, C.
Whiteacre
;
and
if
Whiteacre should
sell
for 1,000/.,
Gibson v. Seagrim, Gr. 8.57, 872 Kay, L. J., i?'(!Jrt< 20 Beav. 614 y. Howard, 1893, 2 Ch. 54, 72; Re Jones, 1893, 2 Ch. 461, 470 sq. Dolphin v. Aglward, {e) See Flint v. L. R. 4 H. L. 486, 501 Howard, 1893, 2 Ch. 54, 61, 72,
;
;
73.
Strange v. Hawkes. 4 De G. & J. Wellesley 641, 651653; v. Mornington, 17 W. R. 355; Moxonv. Berkeley, %c. Bdg. Socg., 59 L. J. Ch. 524, 526 Flint v. Hoivard, 1893, 2 Ch. 54 Woody. hVest, 40 Sol. J. 114 Baglioni v. Camlli, 49 W. R. 236.
632,
; ;
;
(/) Barnes
v.
Bacster,
C. C. C. 401, Bignold, 2 Y.
410;
1 T. Barden
&
v.
;
[q)
See
note
[c]
to
p.
483
above.
&
C. C. C. 377
OF PARTICULAR TITLES.
485
would be entitled
But
if
Blackacre A. had sold Whiteacre to D., then in adjusting the equities between C. and D. after the sale of
Blackacre, the paramount charge of 2,100/. w^ould have
to
be entitled to stand in B.'s place as regards Whiteacre Out of this sum in respect of the 700/. so apportioned.
B. would
first
have bOO/. and subject thereto Whiteacre or the proceeds It does not of sale thereof would belong to D. (//).
appear that in these cases the rights of the assignees are altered by the circumstance that the second assignee
took with notice, either express or implied, of the
first
assignment
course be
(/)
but
the
second assignment
may
of
made on
him entirely exonerated from the paramount charge, and if so, the second assignee's rights will be determined by such agreement (/.). It seems, however, that if the paramount charge were a legal mortgage and either
assignee should get
it
in,
varied
by the doctrine of tacking (/). Thus in the example given, if D. had purchased Whiteacre without
(h) Sec cases cited in the last note but one. (i) See Kay, L. J., F/int v. Howard, 1893', 2 Ch. .it, 7:<. aud other cases cited in the last note It is thought that but two. these authorities have overruled
Lef. 'ilr), 327 329, and Aicken v. Mack/in, 1 Dru. & Walsh, 621, 634, C3.'), that, where the second assignee takes with notice of the first
V.
Rui/sr, 2
Sch.
down &
in
Hamil-
assignment, or subject generally to all equities previously created, he takes subject to the first original equity to assignee's marshal. It is thought that the propositions stated in Dart, V. & P. 914, 5th ed. (lO^o, 6th ed., and still retained, 947, 7th ed.), in reliance on these cases cannot now be maintained. Jie Moiver's Trusts, (X) See L. R. 8 Eq. 110.
(/)
486
OF PARTICULAR TITLES.
notice of C.'s charge on Blackacre,
Blackof that
would extend,
any equity of C. had first obtained a against Whiteacre. if C. transfer of B.'s mortgage, he might have sold Whiteacre to satisfy that mortgage jrro tanto (m) and then tacked
B.'s charge thereon
and Or
so exclude
his
thereto (n).
Interest
now
Usury Laws
agree to
(o),
any
rate of
may
may
be taken on
a mortgage debt and secured on the mortgaged proa commission stipulated for by the mortgagee and deducted from the loan will, in the absence of any fraud or undue influence, be allowed in taking the and agreements for charging compound accounts {p) interest, or capitalising interest which nuxy fall into The Court however arrear, are no longer invalid ((/). strenuously upholds the rules that no stipulation form-
perty
Mortgage
cannot be made irredeemable.
any
and
(*)
See
note
(z)
to
p.
-183,
above.
(w)
Titlri/ V.
"pi.
Davics, 2
Abr. 604,
35, 36, 2
C. C. 383, n.,
Kemp, Marine
7
Mainland v. Upjohn, 40 4th ed. Oh. D. 126, 136, 142, 143 Wrigley v. Gill, 1906, 1 Oh. 165. In the absence of agreement to the contrary, simple interest only is chargeable in respect of a mortgage debt carrying interest
; ; ;
Oh. 507. 512 Flint v. Howard, 1893, 2 Oh. 54, 68, 69 Dart, V. & P. 914, 915, 5th ed. 1036,
;
;
947, 948, 7th ed. (o) By Stat. 17 & 18 Vict. c. 90 see Wms. Real Prop. 645, n. {e), 21st ed. (p) Mainland v. Upjohn, 41 Oh. D. 126. As to undue influence, see below, Ohap. XIV. 2. Henderson, 14 (q) Clarl-soit v.
;
6th ed.
Daniell v. Sinclair, 6 App. Oas. 181 Ainsivorth v. Wilding, 1905, 1 Oh. 435. Prrrie, 2 Freem. (r) Price v. Salt v. Xorthampion, 1892, 258 A. 0. 1. Thus a stipulation in the mortgage contract that the mortgagee shall or may purchase the mortgaged property is void Samuel v. Jarrah, S;c. Corpn., But the mort1904, A. 0. 323.
;
;
Davidson, Prec.
pt.
ii.,
gagee
may by an agreement
to the mort-
p. 360, n.,
made subsequently
OF PARTICULAR TITLES.
that any agreement to fetter the equity of redemption Equity
of
487
redemption not to be
due under the mortgage is clogged. invalid (*), It may be mentioned here that, under the Mortgages to moneyMone_y lenders Act, 1900 {t), a mortgage of land to a lenders. moneylender {ii) is void, if not made to him in his
and
costs
registered
name
{x)
or
if
were not carried out in conformity with the requirements of the Act (//)
gage purchase the equity of redemption Seeve v. Lis/c, 190'2, A. C. 641 above, pp. 481, 482.
;
mortgage
of an hotel to a brewer covenants to take beer from the mortgagee only during the continua)icc of the seckrity and for the continuance of the loan for five years were upheld Santley V. IFUdc, 1899, 2 Ch. 474 (where an agreement to pay to the mortgagee of a leasehold theatre onethird of the' profit rental thereof during the term was held valid by the C. A.). The latter decision was however criticised adversely in Noakes Co., Ltd. v. Rice,
;
(*)
Jenniitffs V.
IFard, 2
Vem.
James v. Kerr, 40 Ch. D. 449, 459 (agreement for .subsequent payment of a bouus to the mortgagee hold void) Field v. Hopkins, 44 Ch. D. 524 (agreement for adding to the security a
520
;
;
solicitor-mortgagee's profit costs held void since allowed by stat. 58 & 59 Vict. c. 25) Noakes S; Co., Ltd. V. Rice, 1902, A. C. 24 (covenant on mortgage of a leasehold public -house to take beer during the term from the mortgagee only held not to bind the mortgagor after redemption) Bradley v. Carritt, 1903, A. C. 253 (agreement on mortgage of shares in a tea company that the mortgagee should have the sale of all the company's teas as broker held no longer binding after redemption) British South Africa Co. v. Be Beers, ^-c. Ltd., Ch. 354 (agreement 1910, 1 to grant an exclusive licence to the mortgagee to work certain diamondiferous ground held void as a fetter on the equity of redemption) Morgan v. Jcffrei/n, 1910, 1 Ch. 620 (stipulation that the mortgage should not be paid off for twenty-eight years without the consent of the mortgiigee held void). Cf. Bii/g-s v. Iloddi;
(f-
1902,
A. C.
and Bradley
v. Carritt, 1903,
A. C.
c.
&
64 Vict.
;
51,
2 (1).
sect. Sadler 6 v. () See Whiteman, 1910, 1 K. B. 868, reversed, 1910, "W. N. 193. Chapmax {x) v. Michaelson, 1908, 2 Ch. 612, 1909, 1 Ch. 238 see also Bonuard v. Dott, 1906, 1 Ch. 740: Slafordshire Financi'il Co. v. Valentine. 1910,
;
K. B. 233
and
cf.
Lodge v.
Co.,
Gadd v. Provincial (y) See Union Bank, 1909, 2 K. B. 353 reversed, nom. Kirkiroodv. Gadd, Jackson v. I'rice, 1910, A. C. 422 1910, 1 K. B. 143; Re Seed, ib. 661 Re a TJehtor (No. 2 of 1910), 1910, W. N. 70 Ruetei- v. Bradford Advance Co.. 26 Times L. R.
;
; ;
ttott,
where on a
533.
488
OF PARTICULAR TITLES.
11.
On
day
bound, on the
and
effectual
licence of the
same
may
be
on the business until the next special sessions, and to apply at such sessions for a transfer of the licence (s).
And
on the
time
is
of the essence
of the contract
so that
if
day
fixed for
com-
But
even interim authority to carry on the and does not warrant that such transfer or business, and the purchaser interim authority shall be procured
licence
or
buys subject to the risks that the licence will not be renewed at the next annual Brewster sessions {b), that
the transfer of the licence to
special sessions,
him will be refused at the and that interim authority will not be
(c).
accorded to him
Tadcaster Tower Brewery Co. As 1 Ch. 705. to the duties now imposed on liquor licences, see stat. 10 Edw.
{z)
Ch.
[b]
12
V.
IVilson, 1897,
Parkes6;Co.,\?,99,
See
Sharp
1891,
A. C. 173
stat.
Wakefield, 4 Edw.
VJL
()
c. 8, ss.
Scaton
4353. V. Mapp,
Coll.
556 336
Grimsdick v. c. 23, s. 1; Sweetman, 1909, 2 K. B. 740 below, p. 490 and n. (). Tadcnaiev Ton-er Brewery Co. (r) V. Wilson, 1897, 1 Ch. 705.
;
VI [.
OF PARTICULAR TITLES.
489
By
the
Licensing
Act,
'
1904
(d),
renewal of
licence.
under that Act, the amount therein specified (representing the difference between the value of the licensed
premises with and without the licence
{e)
)
is
to be paid
as compensation to the persons interested in the licensed premises. And the Act authorised a compensation
^jJ^^Pg^'^^^'^"''
licences.
Quarter Sessions in respect of all existing on-licences renewed in each year {/). This charge is imposed for
the period from April 5th of the year in which
it
is
and on
amount of the charge is an outgoing apportionable between the vendor and purchaser accordingly (//). The Act further provides {Ji) that such deductions from rent
{d)
s.
2 (1)
1904, Nos. 2134, W. N. 14th Under these rules Jan. 1904. the persons interested are the licensee, the registered owner of the premises, and any other person duly claiming and determined to be entitled to compensaand the amount tion thereunder of compensation, when determined, is divided between those persons in the shares settled by the compensation authority, or otherwise as therein provided
;
Noakea v. 2 Ch. 98 1906, Noakes S; Co. Ltd., 1907, 1 Ch. Daicson v. Braime's, i^Jr. Ltd., 64 1907, 2 Ch. 359; Re Bentley's
; ;
Yorkshire Breweries, Ltd., 1909, Ch. 609. And where his interest in the premises is subject to any triist or equity, or his
2
claim ot compensation was made as agent for others, the compensation money awarded to him is subject to the same trust or equity or to his principals' rights Birkin v. Smith, 1909, 2 K. B. 112 see also Bent's Brewery Co. Ltd. V. Dykes, 1909, W. N. 51, 100 L. T. 476.
: ;
see
33. so
Walker
Any
compensation money
(()
See
Be
Ashby's,
;
i;c.
Co.,
he
be
freeholder
or
Liverpool 1900, 2 K. B. 754 Corpn. V. Peter Walker ^- Son, Ltd., 1908, 2 K. B. 33.
(/) Stat. 4
s.
interest therein, is equivalent to the proceeds of a compulsory sale thereof, and is payable, where he has mortgaged that interest, to the
Edw. VII.
c.
23,
3 (1).
(7)
Hortoii
;
K. B. 561
67, 74.
(A)
mortgagee
Socy.
V.
Law
Guarantee, ^c.
^-e.
Mitcham,
Co.
Ltd.,
Sect. 3 (3).
490
OF PARTICULAK TITLES.
as are set out in the
(/)
may,
be
(/r),
made by any licence-holder who pays the charge and also by any person fi'om whose rent a deduction is made in respect of the payment of the charge. The deductions so authorised constitute a charge upon the rent as against the person, who would otherwise be entitled to
receive
it (/)
;
of course be
had
to this
liability
Effect of
refusal to renew licence in case of a leasehold licensed
reversion on a
property.
When
by
a lease containing a covenant by the lessee to use the premises as a licensed house and not
the renewal of the licence
is
otherwise,
and
house.
covenant
ance
{in),
is
and the
reserved without
(i)
by degrees from 100 per cent, of the charge where the tenant's unexfdred term does not exceed one year down to 1 per cent, of the charge where the unexpired term exceeds 5.') but does not exceed 60 years but the amount to be deducted is in no case to exceed half The unexpired term the rent. is to date from the day on which the compensation chai-ge is payable by the licence-holder; Lnndon County CoioicUy. Watney, ^-c. Ltd., lyO'.i,! K. B. 637. It has been
so
deducted varies
ititt:ressc termini at law) further period of years from the day but one after the date of the expiration of his Llatigattork v. existing term Watneti. 6fC. Ltd., 1910, 1 K. B. 236, affirmed, 1010, A. C. 394 ; see above, p. 372. (A) Whether made before or after the Act Wooler v. North
H.n
K. B.
is here proper legal meaning, so that a tenant holding under an unexpired term of not more than two years was entitled to deduct the amount allowed (88 per cent.) in respect of that term, notwithstanding that he also had a reversionary lease (which only gave
used in
1906, 1 Ch. 799, deciding that, where the person entitled to the rent is a tenant for life, lie is not entitled to have the amount of the charge raised out of capital. See also Hancock v. Gillard, 1907, 1 K. B. Smith V. Lion Brewery Co. 47 Ltd., 1!^09, 2K. B. 912. [m) See below, Chap. XVITI.
Re Smith,
803,
1.
Grim.sdick {n) v. 1909, 2 K. B. 740.
Sweetman,
OF PARTICULAR TITLES.
491
?}
12.
L))d
seen
mbjcd
(o)
,
to
Redrictive Covenants.
^subject to restricth
As we have
is
such a defect of
covenants.
title as justifies
contract
make no
<t
objection to the
on that account.
And
fortiori,
any statutory
like objection
Statutory
^''^
restriction
^'^ '^^"'
such cove-
It
make a is now
whom
some forbearance restrictive of the free use of his land (>), and were made with the object of benefiting the owners and occupiers of some other land retained by the former owner or belonging to the adjoining landowner, as the
case
may
be
{s),
with the
that
is
to say, the
by
action for an
persons
who
act of
law or assign-
ment
(0)
{t)^
Above, pp. 107, 195197. Bird V. EggktoH, 29 Ch. D. 1012; lie Punsjurd and Xcwport School Board, 1894, 1 Ch. 454; Re BosworthandGravcsiud Corpu., K. B. 426. 1905, 1 K. B. 403, [q) The law is the same where the adjoining landowner is the
{
p)
-1
BrUjg v. covenantor's lessee 1 Ch. 386 ; Thornton, 1904, liicketts v. Eiifeld Churchwardens,
;
1909,
(r)
*92
OF PARTICULAR TITLES.
such assigns as have acquired the legal estate in the
faith,
without
of cove-
law or in equity.
restrictive
And
where some particular place, retaining no adjoining or neighbouring land, and the
a vendor
sells all
his land in
D. 866; Austerberry Oldham, 29 Ch. D. 750 S2nc('r MacV. Martin, 14 App. Cas. 12 kenzie V. ChiJders, 43 Ch. D. 265 Rogers v. Hosegood, 1900, 2 Ch. 388. In Re Ni.sbet and Fotts' Contract, 1905, 1 Ch. 391, 1906", 1 Ch. 386. it was held that the burthen of restrictive ooveiiants is incumbent on a person, who has wrongfully ejected the covenantor or his successor in estate bound by the covenants. This
125, 11 Ch.
V.
;
;
land subject to the burthen of covenants is taken restrictive under the Lands Clauses Act, 1845 (stat. 8 & 9 Vict. c. 18), and
the parties entitled to the benefit uf the covenants receive compensation, the burthen is extinguished. If however such parties be not compensated, the burthen of the covenants continues to although, so long affect the land as the land is used in accordance with the statutory powers, under which it was taken, the rights given b) those powers are paramount to the obligation of the Kirby v. Harrogate covenants School Board, 1896, 1 Ch. 437; Lony Eaton, i^r. Co. v. Midland Ry., 1902, 2 K. B. 574. But if the land be sold or disposed of as superfluous, the burthen (if not extinguished by payment of comEllis v. pensation) will revive Royers, 29 Ch. D. 661 Bird v. Eyy/eton. ih. 1012. With respect to the powers of a corporation, which has been authorised by statute to acquire land for some special purpose, to enter into covenants restrictive of its use, see Re South Eastern Ry. Co. and Wijfin's Contract, 1907, 2 Ch. 366
;
decision is however inconsistent with the rule laid down in Finch\'< Case, 4 Inst. 85 (which was not cited to the Court), that a dis-
not bound by a ti'ust incumbent on the disseisee and it is respectfully submitted that the case of Re Nisbet and Potts was decided on erroneous principles see the writer's criticism in 51
seisor
is
;
Real R.
9
[n)
Carter v. Williamx, L.
;
Eq. 678
London
:
4"
South
Tf'ei>(ern
Rail. Co. V. Gomm, 20 Ch. D. Notthuiham, l^-c. Co. v. 562. 583 Bntler, 16 Q. B. D. 778, 787, 788 V. Satchell, 1903, 2 Ch. Rouell 212,221. Notice may, of course, be either actual or constructive
; :
Wilson V. Hart, L. R. 1 Ch. 463 Pat man v. Harland, 17 Ch. D. 353 above, pp. 246 sq. Where
;
Stourcliffe
Estates
Co.
Ltd.
v.
OF PAKTICULAR TITLES.
thereof with the vendor, the burthen of the covenants
493
them by
;
action for an
injunction
against
the
imposed in equity by
to the burthen of
restrictive
covenants
analogous
exist in the
absence of
dominant tenement
It is therefore
no objection to the
to land that
natui'e, or of a restrictive
object of benefiting
restric-
may
be
x,se^ofland^
deed,
by the
fee
simple
the
land
(z).
Thus, where
and
b}^
for their
mutual benefit
burthen of
(x)
Form/);/
v.
Barker,
1903,
Ch. 530.
(y)
Haywood
v.
Society, 8
berry
V.
,
Actou,
4r.,
v.
Formhy
(Jrftipiqntf,
The
made
is
where the covenant was expressly for the benefit of some jiarbut the covenantor
ticular land:
Ta/k
y. Morfxri/, 2
v.
778
Carter
fFi//i<imx,
Ph. 774, L. R. 9
Eq. 678.
494
these
OF PARTICULAR TITLES.
stipulations will
And
that
if
in such case
it
purchasers shall
have
the
benefit
of
the
any
of the lands
which
may remain
assigns
law and
taking with
notice
thereof
(a).
And
not onlj'
may
lands be subjected to
which he has offered the same, together with adjoining for sale and has sold the adjoining lands to
if
purchasers, but
to be let on lease on the terms that all the tenants sliall enter into the same restrictive covenants, so that
each tenant
is
from
remaining unlet
lessor,
will
his
representatives
notice, to the
burthen of the
it
And
in such cases
rise to
an equitable right
(r),
may
formance
()
(d).
It follows that
v.
anyone who
is
about to
See Menals
Coulinhaw,
;
9 Ch. D. 125, 11 Ch. D. S66 Spicer v. Martin, 14 App. Cas. Machcnzie v. Childtrs, 4 3 12
;
Bickerstaf, 1909, 2 Ch. 30;") ini/v v. St. John, IQIO, 1 Ch. 84, 325. {b) Spicer v. Jfariin, 14 App.
v.
Ch. D. 265 Me Biniiinyham. ^-c, Co. and AUday, 1893, 1 Ch. 342 Holford V. Acton, <S;c., 18.)S, 2 Ch. 240. 246 Ituwell v. Satchell, 1903, 2 Ch. 212: Elliatou v. Rmchcr, 1908, 2 Ch. 374, 665; cf. Tucker V. rallies, 1893, 1 Ch. 195; lidd
; ; ;
Cas.' 12.
[c)
c.
3, s. 4
above, p.
[d)
Stratton,
ment
H Ap^.
OF PARTICULAR TITLES.
sell or let
495
lands in
lots,
to be entered into
let,
by the eoveuauts
one
[c).
If land subject to
come
to
who
good
we
have seen
restriction,
from the
and any purchaser from him will enjoy the same immunity, even though such pui'chaser bought with notice of the restriction. But if a man's title to hold land free from some such restriction depend on proof of the fact that he so purchased the same without
notice as above mentioned, he will not be able to oblige
(r/)
for
the
depending on proof of such a fact is too doubtful to force upon an unwilling purchaser (//). In such a cise, theiefore, the vendor must be
careful to protect himself
by
a special condition of
sale.
Cas. 12, 20 25, where he considered that though the appellant might not have incurred any contractual liability on the construetion of the correspondence between the parties aud had not made any false representation which he was
let
the lands iu question, (c) See 1 Davids^on, Prcc. Conv. 712, 4th ed.; o7G, 5th ed.; Davidsou's Concise Precedents, 123, 124, 18th ed. Osborne v. liradhij,
;
1903,2 Ch. 446; JJ'/iifrhoiise v. Hu(//i, 1906, 2 Ch. 283, where power was reserved on a sale of allowing a variation of the plans aud conditions and of. Ellistoti v. R>mliet\ 1908, 2 Ch. 374, 66.5. Above, p. 491. (/}
;
(g)
&
C 495
De G. M.
lie
496
Devolution of
the^beiiefit of
OF PARTICULAR TITLES.
With
tlie
benefit of a
restrictive
covenants.
in fee with a
vendor or an
is
in
of
owner of some neighbouring land and annexed to the ownership of that land (i).
should
be
If this be
same manner
or for
and any
assign,
whether in fee
any less
estate
(/),
And
is
not
should he
tractor
it/
of the If
same
the
had
it
{n).
restrictions
be created
by
covenant,
will run at law with the land, for the advantage of but that an which the restrictions were imposed assignee of the land could not sue on the covenant at
;
law unless he took the original covenantor's estate therein (o) On the other hand, an assign of the person, in whose favour the covenant or contract was made, will have no right to enforce the restrictions if he cannot
.
prove either
(I)
that he
is
was
(i) See FMstov v. Reacher, Reid 1908, 2 Ch. 374, 384, f.G5 V. Bickerstaff, 1909, 2 Ch. 305, v. John, Willi .S7. 319, 320 .S(?."; 1910, 1 Ch. 84, 325; and other cases cited above, pp. 491, nn. (), {t), 494, B. (ff). Child V. JJovff las; Kay, F)60, (^-) 568; Rogers v. Hoser/ood, 1900, 2 Ch. 388; EUiston v.' Rccchcr, ubi
;
(/)
D.
273. [m)
Wlialma)i v. Gibsoti, 9 Sim. 196: Mnnn v. Stephcnx, 15 Sim. 377; Coles v. Sims, 5 De G. M. and cases citt'd in the & G. two preceding notes.
1
;
See note (A-), above. Rogers v. Hosegood, 1900, 2 Ch. 388, 404,
()
(o)
sup.
OF PARTICULAR TITLES.
497
to
made
which
which he
is
purchasers or lessees
thereof
(/?),
of land as
and he derives title to one of those pieces or through such a purchaser or lessee {q)
benefit
of
When
the
such a covenant
the land, for
or
contract
the advan-
cannot,
act
of
course,
be
of
effectually
released
by any
or
any deed
the
(y).
person
If a
re-
of adjoining land
make
or
permit
own land
him
his
to insist
he will
lose
equitable
right
for
to
enforce
such restrictions
(s).
specifically
by
action
also
an injunction
this
landoAvner
may
lose
equitable
right
Such a by
These
he
facts
mil
not, however,
deprive
him
of
any
riglit
may have to enforce the the}' may be taken into conany particular property) appears taken away by the dcciaion
Foritibi/
;
{]})
(7)
Jieachev,
;
1908,
to bo
Ch.
:
374,
384,
liickn-Htntf, 1909, 2
in
v.
Barker,
above,
Rogcm
v.
Hosegood,
2 Ch. 388. Brrtfordv. Trustees of British (.) 2 My. & K. 552. See Osborne v. Bradley, 1903, 2 Ch. 446, but note that the ground un which that decision is founded (viz., that the restriction was created for the benefit of the vendor, but not as the owner of
Mmmm,
Roper v. Williams, T. & R. Pcr^ v. J/^ffW/jcM-s, L. R. 3 Eq. 515 Gaskin v. Balls, 13 Ch. D. 324 Sayers v. Colhjcr, 28 Ch. D.
(<)
;
103
see
German
:
v.
Ch. D. 271
Knight
;
\.
Chapman, 7 Simmonds,
1896, 2Ch.294; Rouellv.Satchell 1903, 2 Ch. 212 Osborne v! Bradley, \Wi, 2 Ch. \A&\ Elliston v. Reacher, 1908, 2 Ch. 374, 392, 665.
w.
32
498
OF PARTICULAR TITLES.
sideration in assessing the
amount
of
able
(ii).
But
will be
presumed
{x).
the benefit of any covenant or contract restricting the use of any adjoining land, the vendor must, of course,
covenant.
prove his
selling
title to
any easement
And
if
man
sell
land together with the advantage of some be newly created as to the use of other land
restriction to
of his own, he
title
to the latter
13.
Investigation of title in
A few words
title in
may
view of mortgage.
When
it is
money on
:
the security of a
mortgage of land, the title is usually investigated even more strictly than on a sale (z) but the parties stand in a very different position from that of a vendor and
purchaser.
In the
first
proposing to lend
money on a mortgage of lands to bind They are, themselves by contract to make the loan ().
therefore, generally in a position to exact of title
at
any evidence
if
which they
may
in
any time
any respect insufiicient. They the title produced is should, however, before commencing the investigation of the title to the lands proposed to be mortgaged or
incurring any other trouble or expense in the matter, be
careful to stipulate expressly that the
Trustees of (ii) See Bedford v. British Museum, 2 My. & K. 552 Sayers v. Colkjcr, 28 Ch. D. 103. Hepworth v. Pickles, 1900, {x) 1 Ch. 108.
;
mortgagor
p. 434,
shall
n. (/).
(y)
(s)
Above,
and
Wms. Real
ed.
pt.
(rt)
i.
OF PARTICULAR TITLES.
and expenses of and incident to the any event, whether they choose For although the regular to make the loan or not. course of practice, where a mortgage is completed, is for all costs incurred by the mortgagee in investigating the title, valuing the land, and otherwise preparing for the loan, to be paid by the mortgagor (^), yet where the parties are not bound to each other by any contract, there is no obligation on the mortgagor to discharge
all their costs
499
pay
transaction proposed in
fore,
Unless, therecosts, if the loan be not made (c). an intending mortgagee make the above-mentioned express stipulation, he runs the risk of being out of
such
if
he should be obliged to
title.
another borrow
land,
it is
money on mortgage
title to
some particular
tliat
the
as the trans-
borrower to
land
if
:
title to
the
any property
of
his corresponding
(Ii) If the loan be made without such costs beinjr paid, they cannot be added as mortgagee's (losts to the security but they arc recoverablc by the mortgagee from the mortgagor personally under an implied contract of indemnit}' ir,tltx V. Can; 1902, 1 Ch. 8G0. (r) Rlglnj v. Dagkln, 2 Y. & J. 83; IFilkimoti v. Grant, 18 C. B.
:
title
sup.
Bank
Ch. D. 582.
(2)
32
500
OF PARTICULAR TITLES.
The Court
tract to
lend
money on mortgage
of
some particular
(c)
;
actually advanced
to
give the
may
It follows
an intending mortgagee of land should contemplate entering into a contract to make the loan, he
should expressly stipulate that the borrower shall
first
title to
and that the borrower shall pay all the lender's costs (h) and expenses of and incident to the transaction in any event, whether the loan be made or not. If it be intended that the lender shall recover any compensation beyond expenses out of pocket in the event
accept the
title,
money
express stipulation
What
title
required on behalf of a
morts:a2:ee.
In advising on title on behalf of an intending mortit must be remembered that the object of the transaction proposed is very different from that of a ^
g^gee,
^
"^
(e) Rogers t. Challis, 27 Beav. 175 Sichel v. Mosenthal, 30 Beav. South African Territories, 371 Ltd. V. Wallington, 1897, 1 Q. B.
; ;
692, 1898, A. C. 309. (/) Ashton V. Oorrigan, L. R. Hermann v. Hodges, 13 Eq. 76 L. R. 16 Eq. 18 Taglor v. Eckersley, 2 Ch. D. 302.
; ;
See Western Wagon, ^-c. Co. 1892, 1 Ch. 271, 277 South African Territories, Ltd. v. Wliere the Wallington, ubi sup. borrower under such a contract breaks off the transaction without
[g)
V.
West,
reason, the lender can recover his solicitor's costs as damages: Carter V. Merrion, 32 L. T. N. S. 663. bor(/*) Where an intending rower agreed to pay the lender's reasonable costs in case the loan went off, it was held that this did not include the commission charged by the lender's bankers for withdrawing his money from He Blakesley and Berdeposit wick, 32 Beav. 379. (j) Sweetland v. Smith, 3 Tyrw, 491.
:
OF PARTICULAR TITLES.
sale.
501
Purcliasers generally
it
;
occupying or enjoying
immediate
re-sale.
But
what conduces most to this end is that he should be able at any time to exercise effectually his best and most convenient remedy, which is his power of sale. While purchasers, therefore, so long as they can obtain a good holding title, are often willing to waive defects of title which will be cm-ed by lapse of time or may be covered by special conditions on a re-sale, a mortgagee will always desii'e to get a good marketable title for
;
when
special
conditions, in
spite
of the
auction mart,
may
Avill
be depreciatory.
The conveyancer
title,
title
sale
chaser's rights, or
As
we have
seen
(/),
an intending mortgagee
to accept less
is
not usually
is,
by any con-
him
it
able
title.
If
mortgagee should accept a title less than this, the question, whether lie may reasonably concede what is asked, should be determined by considering whether the
suggested concession will practically hamper the exercise of his
power of
sale.
And
as a
parchment
security,
(^)
Pi/rke V.
Waddingham, 10 Hare,
1, 8.
[l)
Above,
p. 498.
502
OF PARTICULAR TITLES.
like a vendor, enter into possession of the land, there is
mortgagor's
title
title
is
in every respect
complete.
The
with most
for frauds and forgeries have been more frequently effected in connection with the mortgage of land, where there is no transfer of the actual possession, than upon sale. As regards the evidence both of any facts material to the title and the
conveyancing prac-
We have seen
of their
(o)
that purchasers,
who have
to
pay out
own
the land.
have long been known as the o^vners of But an intending mortgagee cannot safely
With
as
in view of a
is
carried
out in like
manner
Investigation of
title
mortgage.
mortgage
siderations as arise
On
governed by the same conon a proposal for a new mortgage. the transfer of a mortgage, made without the
is,
of
course,
(p).
And
if
the transferee
mortgaged property
as security for
any sums
of
money
(m) See above, pp. 143, 144. (m) Above, pp. 131 sq., 143. (o) Above, p. 142.
cf.
Biekertony. Walker,
;
1.51
Bateman
v.
Hunt,
K. B. 530.
(p) Matthews
v.
TVaUwyn,
OF PARTICULAR TITLES.
paid since the transfer by the mortgagor to the original
503
mortgagee on account either of interest or principal (q) A transfer of a mortgage cannot therefore he safely taken from the mortgagee alone wdthout first inquiring
.
of the mortgagor as to the state of the mortgage debt and the interest thereon and obtaining a favourable reply, and giving notice of the transfer to the mortgagor. In practice the mortgagor is always made a party to a transfer of the mortgage whenever his con-
(r).
(q)
Sorrell, 4
Ves.
389
tate,
Turner
1901,
Ch.
213 see Dixon v. Winch, 1900, 1 Ch. 736. {>) See Davidson, Free. Conv., vol. ii. part ii. p. 264, 4th ed.
;
504
CHAPTER
XI.
Of the Eights and Liabilities of the Parties pending Completion in respect of the
Property
sold.
2.
Of the Transfer pending Completion of the Rights and Liabilities under the
Contract.
1.
res^ycct
of the Projierty
sold.
The
of the contract
upon the
position of the
{a).
Unlike the
by the
contract itself
is
contract
always requii-ed
But
there
is
a con-
law and the effect in For in equity, subject to the vendor's duty of showing a good title, to his lien for the price, and to his right to the rents and profits up to the proper time for completion, the whole estate
sale
of a particular chattel at
is
considered as belong-
ing to the purchaser as from the date of the contract for As from that date, therefore, the vendor is sale (c).
() ib)
Above, pp.
49, 50.
Wms.
(/*),
KJth ed.
505
As from
that
purchaser's risk as
regards
all losses
through tempest,
or fall in prices
all
tlie
death of the
(./').
tenant for
life
And
as
{g),
But
and
if
this condition
as
by the want
[i).
of a
good
is,
title
on the vendor's
part,
by reason
of the
any
act
what ought
to be
(/.)
that
in the interval
Above, p. 50 and n. [k). Foolcv. tiheryold,\Cox,'l~r6\ Paine V. Jlel/er, 6 Ves. 349. 352 Harford v. Furrier, 1 Madd. 532, Itobertson v. Skelton, 539 12 Beav. 260; Sug. V. A: P. 291 RatjHer V. Frestoii, 18 Ch. D. 1 Castellain v. Frcnton, 11 Q. B. D.
{(l)
{e)
ogQ
,is [n)
j A. -It.
y~f
(/) White V. Nnttx, 1 P. W. 61, Gl; Kr parte MaHni>7>/,2F.'W. 410; Sug. V. & P. 291, 292; Dart, V. & P. 248, n. (w), 649, 5th ed. 286, n. (), 732, 6th ed. 672 7th ed. (^) Thus,' the lauds sold will pass under a devise of all the purchaser's lands or real estate Grecnhill v. Gretiihill, Prec. Ch. 320; Atcherlcyy. Vertion, 10 Mod.
;
:
^' ^'
Monek, 10 "Ves. (') ^97; Sug. V. & P. 191, 193; Lyswjht v. Edtcards, 2 Ch. D.
34 Fowler, 1904, 1 Ch. 658, 2 Ch. 93; see above, pp. 456, 458.
;
^>oo>nc v.
'^^=^'
..
4^9,
^'h-
506508
;
Fe
T/ioma,s,
v.
D. 166
Ridout
Canj - Fltces' Contract, Ch. 143, 149; Wma. Real Prop. 187, 2l8t ed.
{k)
Re
2
1906,
'^OQ
whom
constructively a trustee.
This trusteeship
entitled to
which he
is
protect
is
(/).
bound, as
As a trustee for the piu-chaser, the vendor we have seen, to take proper care of the
beneficial interest in the land sold con-
property.
sists,
first,
His
purchase
money be paid {m) and secondly, in the right own use the rents and profits up to the proper time for completion, that is, the time fixed by
;
or,
when
a good
lies
title
shall
And
the vendor
up
to the
same time
(o).
We
and
rights.
We
sold,
the purchaser
is in equity the owner of the property though not absolutely, but subject to the condition The lands that the contract be specifically enforceable. he can sell, charge or sold are in equity his lands
;
devise
them
if
payment
of
his
debts
{q)
He
therefore
bears all
L. E.. 5 Lysaght v. EdMayncr tvards, 2 Ch. D. 499, 606 V. Preston, 18 Ch. D. 1, 6; lie Stuclei/, 1906, 1 Ch. 67, 78. 2 Gaisford, v. {m) Acland
Foster,
;
;
Madd.
vaster,
Phillips v. Sil28, 32 L. R. 8 Ch. 173, 176178. It should be noted that the vendor's equitable hen on the land sold for unpaid purchase money
;
continues after he has let the purchaser into possession or executed a conveyance to him, without recei\-ing payment of the whole or part of the price; see below, Chap. XVIII. 1. (w) Above, pp. 26, 46, 50.
Above, p. 50. {p) Above, p. 605, and notes (e), (/), {g). {q) Paine v. Meller, 6 Ves. 349,
(o)
-^07
its
destroyed by
liable to
fire,
may
specific
performance in
equity
sold be devastated
or lose in value
of a fall in prices
(t).
On
of
imj)rovements
in
the
property sold
through extraneous causes, such as any exertion of natural forces, the dropping of lives on sale of a reversion or remainder (ii), the death of the incumbent on the purchase of an advowson (.r), a general rise in
the price of land, or the
or other public of any road, railway, work or undertaking, through or near the
it
making
property
(//)
And
appears that
as
if
by building
Mai/nciv.r>rs(o>i,lSCh.D.l. This is undoubtedly so in the case of an absolute s:ile but if persons contract on such terms that the continued existence of the object of the contract is a condition precedeut to the performance of the agreement, they are discharged from their respective obligations by the destruction of the object without their fault Taylor v. Caldwell, 3 B. & S. 826 and see Counter v. Macpherson, 5 Moore,
; : ;
P. C. 83, 104, 105; below, Chap. XVIII. 1. (.v) Sug. V. & P. 291, 293, 294 Jessel, M. R., Li^saght v. Edwards, Ch. D. 499, 507. The
;
'l
case is parallel to that of the absolute destruction before delivery and payment of the price of a particular chattel so sold as to pass the property to the purchaser see Taylor v. Caldwell, 3 B. & S. 826, 833, S37.
:
(<)
Poole
v.
Sheryold,
Cox,
273.
()
{x)
Above, Above,
p. 505. p. 443.
(y)
352.
508
payment
(s)
The purchaser
is
owner
down
by a
(a),
trespasser
or
in
Destruction In connection with the destruction of a house sold by by fire pendfire occurring before the completion of the contract, it ing completion of a should be mentioned that, where the house has been inhouse insured by the vendor. sured by the vendor, the benefit of the policy of insurance
sale
him
for the
policy of insurance
And
it
able without
the insurer's
consent, for
such policies
than by will
(()
(d).
vendor of
6 Ves.
v.
(s) Clare Hall v. Harding, 6 Hare, 273, 296 3Ionro v. Taylor, 8 Hare, 5). 60; Sug. V. & P. 1 Dart, V. & P. 248, n. (), 304
; ;
349,
Adams, 12
Preston,
Ch.
D.
1.
{u),
291,
(^7)
Poole
V.
273
(
Magcnnis
See Nelson
561, 591.
v. Bridges, 2 Beav. Broini v. Lihbs, 25 W. E. Lepplnq776, 37 L. T. N. S. 171 ton V. Freeman, 40 W. R. 348, As to the 66 L. T. N. S. 357. damages recoverable where minerals have been wrongfully gotten by wilful trespass or under a hona fide claim of title, see Jegon Vvcian, L. R. 6 Ch. 742; V. Livingstone v. Eawyards Coal Co., Bulll, ^c. Co. v. 5 App. Cas. 25 Osborne, 1899, A. C. 351.
J)
;
Collinyridge
v.
Royal
Assurance
173.
[d)
Corpn.,
Exchange 3 Q. B. D.
239
Bro. v. Dalzell, 4 Saddlers' Co. v. BadBarrell v. Tibcock, 2 Atk. 554 Castellain bitts, 5 Q. B. D. 560 V. Preston, 1 1 Q. B. D. 380 ; West of England, ^-e. Co. v. Isaacs, 1897,
P. C. 431
;
; ;
Lynch
Q. B.
V.
;
226
Phoenix Assurance
1905,
2
Co.
Spooncr,
K. B.
Fire Insurance, 11, 182, 303, 304; Porter on Insurance, 300, 2nd ed. There
753
Bunyon on
509
insurance against
fire
of
of to
For if the vendor make such an assignment or agreement without the consent of the office, and pending completion the house be barnt down, and he receive the insurance money and hand it over to the purchaser, or
lay
it
will be liable
on receiving the
full
purchase
money
at
the
(./')
but
it
does not
And
if
the
vendor,
money
insurance against
fire
of a house bui-nt
down pending
it
money on
that accoimt
(//),
and he
amount
of the
insurance
money
on receiving the
a provision of
property sold
(//).
By
nothing iu the nature of a contract of fire insurance which makes it impossible to assign over the benefit thereof policies of marine insurance, which arc equalh' contracts of indemnity, have always been made in favour of the iusured and his assigns and have
is
;
&
v.
Preston,
11
Q. B. D. 380
(y)
been assignable accordingly although, of course, at common law they were only indirectly assign;
able by means of a jiower of attorney see Amould on INIarine Insurance, i. 10", 112, 'I'M, 2;M, 6th ed. Wms. Pers. Prop. 33, 34 and n. ((/), 282, 283, Kith ed. For a form of stipulation ((') appropriate to the case, see 1 Key
: ;
p. 507. CasteUauix. Preston; Phoenix Assurance Co. \. Spooner, iibi sup. The principle is that a contract of insurance is a contract of indemnity, and the insurer, having made good the loss, is entitled by subrogation to tlic riglits of the insured to the benefit of any compensation which the insured luis a legal claim to exact from other sources. See also JFest of England Fire Insurance Co. v. Isaacs, 1897, 1 Q. B. 226. It la
(A)
Above,
510
still
remaining
unrepealed, insurance
of
any person
any houses
or buildings
damaged by
fire,
money
ad-
same
be disposed of
faction
of
among
the contending parties to the satisIt has been held that the
is
the
office (/).
general,
and
is
not conthe
metropolis
(/),
who has an
damaged,
office to
money
lay
money
in
rebuilding.
Thus,
where a
lessor to insui'e
in their joint
names
money
in
re-
not, however, the usual policy of insurance offices to stand upon their strict legal rights where
person who effected the insurance, cannot after he has himself rebuilt claim the insurance money
such a course would involve hardsee Davidship to the iusured son's Concise Precedents, 117, 118, n. (b), 18th ed. Stat. 14 Geo. III. c. 78, (i) The person interested, 83. s. desiring the insurance money to be applied in reinstatement must make a distinct request to that effect to the insurauce office otherwise the office may pay the 'money to the person who effected
: ;
by
virtue
1
of
this
enactment
Simpsun
ance Co.,
{k)
v. tScottixh
Ex
H. & M.
&
S. 477.
Westminster Fire Office v. [1) Glasgow, S;c. Soci/., 13 App. Cas. The rule in Ex parte 699, 716. Gorehj was followed by Swinfen
Eadv,
1908,
J., in
1
Re
Q,Hicke''s
Trusts,
the insurance.
The
office is
the
Ch. 887, 893 and n. (1), but apparent ly without the opinion expressed in the House of Lords liaving been cited to him.
511
own name, it was held that the money payable under such further insurance must be laid out at the
in his
lessor's request in reinstating the
property
(;)
But
it
Lords whether this enactment gives a mortgagor or subsequent incumbrancer any claim to require the money paid imder an insurance made by a mortgagee to be applied in reinstatement (ii), and the doubt apparently extends to question the claim of a mortgagee to require reinstatement, where the insurance was effected b}' the
mortgagor before the mortgage, and the mortgagor has
not expressly agreed to apply the insurance
reinstatement
(o).
money
in
it
If
this
does not appear that where a house sold has been insured
of
insurance
money
to be
reinstatement (p).
It follows
Hx
parte Gorehj, 4
De G.
that the
&
in)
S. 477.
Wentiiiumter Fire Oj/ire v. Glasgow, ^-c. Socy., 13 App. Cas. 699, 714. (o) It is submitted that, independently of the enactment in
be so applied and the benefit of that contract in effect forms part of the mortgagee's security, as where a lessee bound by covenant with the lessor to
insure
money shall
question, a mortgagee has no right or equity to require any money received under an insurance effected by the mortgagor prior to the mortgage to be applied in making good the damage done, except where the mort(of.
money
in reinstatement, insures accordingly and afterwards mortgages the demised premises see Garden v. Ingram, 23 L. J. Ch. 478 Lce>i v. Whitcleg, L. R. 2 Eq. 143 Wms. Conv. Stat, 156 159.
: ;
{p) The contrary is maintained in 1 Dart, V. & P. 197, 6th ed. 193, 7th ed.), written, however, before the case of Westminster Fire Office v. Glasgow, Jc. Soeg. It is there suggested that, unless the vendor expressly stipulate that, as regards all insurable loss or damage, the property shall bo at the sole risk of the purchaser, as from the date of the contract, the vendor is liable to have the insurance monej' applied against his will at the purchaser's request in rebuilding and yet to refund the amount of the insurance money to the office on completion. It is, however, submitted that, even if the above enactment should bo held to enable a person, interested in the buildinjj burnt but having no independent
512
Purchaser should himself insure
fire
as
from
ao-ainst fire.
be arranged
office
^g
of
c
.
^j^g
ownership
the
property sold
tr^gteeship for
the purchaser,
vendor
is
bound,
same condition
trvistee
in
which
He
of the con-
care that a
ought to use with regard to the trust property, which he is in possession that is to say, he must take the same care as a prudent owner would take of his own Thus he must cultivate the lands, if in property (r).
of
;
(s),
and
if
he
fail in
any
money or its application, to require the office in reinstatement, in such case there would in effect be a statutory modification of the contract of insurance to the They would be under a statutory duty to prejudice of the insurers. lay out the money in rebuilding, which would indeed discharge them from the obligation of paying the vendor. But as the vendor, having previously parted with his beneficial interest in the property insured, would derive no benefit from the reinstatement, it is submitted that the principle of subrogation would not apply, and the vendor could not be called upon to refund on completion a simi of money which was neither paid to him nor laid out on /lis property see above, p. 506 Davidson's Concise Precedents, 117, n. {I>), 18th ed. (but the present writer doubts the safety to the vendor of the clause there suggested). It is submitted that there is no necessity for the vendor to make the stipulation suggested as above in Dart, V. & P., 6th ed.
claim on the insurance
to lay out the
money
Wilson V. Claphaiii, 1 J. & W. 36, 38; S/trriviH v. Sfiakspear, 5 De G. M. & G. 517, 537. Beacon, 3 Madd. (s) Foster V.
(;)
(q)
Above,
p. 50,
and
n.
(/.;).
Eegcnfs Canal
Co.
;
v.
Ware, 23
394.
{t)
222,
Royal Bristol, 575, 588 i^r. Bdq. Socy. v. Bomash, 35 Ch. D."390, 397, 398. 1891, 2 () Clarke v. Maimz, Q. B. 456.
513
to
of
may
for
is
As
boimd
to execute at his
repaii's as are
the contract
(z).
We
;
have seen
(a),
is,
under an open contract, the time at which a good title shall have been shown and the vendor's obligation of
keeping the property in a good state of preservation up
to that time at his
own expense
appears to
fall
on him
goings
{b).
When
day
for completion,
and completion
of the title not
is
delayed beyond
preserve the
that time
out, the
by reason
vendor
is
bound, as a
rule, to
until a
good
title
be shown
The vendor
is
Vendor not
not, however,
improve the property, and he improve the should be careful not to e.\i)end money on improvements, property,
to
bound
as he will have no right to recover any sums so expended from the purchaser, unless the purchaser shoidd have authorised such expenditure (d). If the state of the property sold be such that an extraordinary outlay, beyond Avhat may properly be regarded as current out(j)
(//)
See note
{t),
above, p.
iil'l.
"2
Clarke v. Q. B. 456.
lOnnii:,
1891,
be bound to pay for any repairs out of his own pocket, if he had
512 [z) See note {t) above, p. Sherwin v. Shakspmr, 6 De G. M. & G. 517, 582, 534, 539. (fl) Above, pp. 26, 46. (6) Above, pp. 49, 50. An ubsolute trustee would, of course, beentitled to be reimbursed all moneys
;
no trust money in hand available for the purpose see Bridye v. Jirown, 2 Y. & C. C. C. 181, 191, 192 FazakerU-y v. Cuhhaw, 19 W. R. 793 Ee l)c Tri.ssier's Sttllcd Estates, 1893, 1 Ch. 153; Re Monlaffu, 1897, 2 Ch. 8. [c) Sherwin v. IShakupear, 5 De G. M. & G. 517, 532, 539. Above, p. 507. (>/,
: ; ;
w.
33
514
made
in lasting repairs
it
from deterioration,
(r)
If
by reason
of
may
(./').
If
would in the interval between the making of the conand its completion, and see that the tenants duly
{[/).
:
He
(//)
but he
may
reduce them,
where a prudent owner would find it necessary to do If any tenancy of lands usually let determine so ('). during the interval in question, the vendor ought to notify the vacancy so occurring to the purchaser, and
unless the purchaser
And
by the vendor
at the purchaser's as
request
{k).
So the vendor
should not,
a rule,
it (/).
When
;
a sale of land
is
G. M.
Sheru'in v. Shakspcar, 5 De & G. 517, 532 F/iillips v. Silvester, L. R. 8 Ch. 173, 176.
(/) Binks V. Fokehi/, 2 Swanst. 222, 226; Minchln v. Naiwe, 4 Beav. 332. Foster v. Deacon, 3 Madd. (ff) 394, 395.
(h)
36, 38; Flews v. Samuel, 1904, Ch. 464. (i) Sherwin v. Shakspear, 5 De G. M. & G. 517, 537. ik) Egmont \. Smith, G Ch. D. 469 and see Bennett v. Stone, 1902, 1 Ch. 226, 237, affirmed, 1903, 1 Ch. 509. [1) Bafety v. Schofield, 1897, I Ch. 937," 944, 945.
1
;
W.
015
completion
pletion
(;?),
or otherwise on the
is
day fixed
for
com-
the vendor
entitled to
remain in possession
by payment
of the
purchase
money
;
(o)
due to the
in
payment
named
irrespec-
But, as
we have
at the
seen
(q),
when
the purchase
is
not completed
is
and profits, and is bound to pay interest on the purchase money, if he bought under an open contract, from the time when a good title was shown and verified (r) if he bought under a contract fixing a day for completion, but not expressly proentitled to the rents
;
attributable to
liis
own
fault,
and other-
wise from
the
and
if
pay
interest
on failure
evcr to complete
In such
purchaser for the rents and profits received by him from account for the date when the purchaser so became entitled to them t'lo rents.
received
and the amount so must be deducted from the amount of purchase money and interest payable (.s) In taking such account the vendor is, as a ride, chargeable only with the amount
until the date of actual completion,
.
by him
(/)
Above, Above,
4/).
p. 57.
p.
;')0(;.
[p) See
(jcihjf V.
Montrose, 26
TiO,
re.spectfuUy maintained that the decision of Parker, J., in Halkefl v. liudley, 1907, 1 Ch. r)90, 60G, was erroneous.
Beav.
{q)
See M'Nainara
v.
iniluiDis,
Above, pp.
60,
TiO,
67,
6S.
())
166,
it
6 Ves. 143; P/ews v. Samuel, 1004, I Ch. 464. [t) Shirtviti v. Shakspcny, !) De
n.
(),
whore
is
G. M.
(2)
& G.
.')17:
Setoji on Judsr-
33
516
may
for his wilful default, he might have where he has allowed the rents to fall into
to
let
arrear
(?/),
or neglected
the
land(a:;),
(i/).
or
has
As we have
seen
(::),
'
making of the
first,
contract
and
its
completion consists,
money be paid
and
own
pletion.
As
vendor
is
entitled to retain
price is
an express or implied
day without making such payment (a). And where the contract provides, as upon a sale by auction under the usual conditions (b), that the balance of the
particular
ments, 2237,
Stone, 1902,
6tli ed.
Bennett v.
1903,
(u)
W.
and see Pleivs v. Samuel, 36 1904, 1 Ch. 464, where rent was in arrear at the time of the sale and on the day fixed for comand the vendor was not to appropriate moneys received by him from the tenant after that day (when the purchaser became entitled to the
pletion,
allowed
733735, 6th
ed.
V.
;
such wanton negligence on the vendors' part as justified a decree against them on the footing of but Lord Selwilful default
;
Bomash, 35 Ch. D. 390, 397, 398; Clarke v. Ramuz, 1891, 2 Q. B. 456. [z) Above, p. 506. Lysaght v. () Above, p. 515 Echrards, 2 Ch. D. 499, 506. {b) Above, pp. 57, 67, 73, 74.
;
517
money
it
shall be paid
intended as
may
and time is not, as a rule, of the essence of the and as the purchaser is not bound to take possession until he can safely do so, that is, until a good title has been shown and verified, so the vendor cannot be compelled to deliver up possession without receiving If, however, the conpayment of the whole price tract provide in such manner that time is either expressly
other,
contract
(<:)
or impliedly of
the
essence of
the stipulation,
that
is
on that
The
vendor
is
entitled to take
up
to Vendor's
^
the proper time for completion are the ordinary casual p^fits^ profits arising in the course of the proper management of
the estate
life
impeachable for
derman
(e).
TUlei/ V. Thomas, L. R. 3 (c) Ch. 61 Fhillips v. Hilreiter, L. R. 178. 8 Ch. 172, 176 (d) Gedye v. Montrose, 26 Beav.
;
45.
{e) This comparison appears to be correct as a general rule. But it has been held, where a manor containing copyholds was sold by order of the Court of Chancery and copyhold tenants died alienated before the date on whicli it was ordered tliat tlie purchaser should bo lot into possession, but
the admissions so rendered necessary were not granted until after such date, that the fines upon such admissions were to be considered as having accrued before that date and were therefore payable to the vendor: (jarrick v. Camden, 2 Cox, 231. And it has
;;
518
due and
entitled
.
own
benefit
(_/')
and
if
the land be
let,
he
is
become payable
{h), but, if not,
(),
{y)
And,
to
under the
an
Apportionment
of the
Act,
1870
he
is
entitled
cmTcnt rents which will become payable after So the vendor may work mines and quarries open at the time of sale (/.) But he is not otherwise entitled to take any profit or benefit which forms part of the inheritance (/), and if he diminish the value of the inheritance by committing any voluntary waste, as by felling timber or working an unopened mine, the
that time.
.
purchaser
or, if
may
damage
may
may
Thus, on the
sale of
an advowson,
if
484
Graham v. Sinie, 1 East, E. V. Wclhdcy, 2 E. & B. Momkton v. Payne, 1899, 2 924 1 Wat. Cop. 317, Q. B. 603 1 Scriv. Cop. 346, 347, 7th ed. Ill, 118, 283, 3rd ed. (/) Webster v. Donaldson, 34 Beav. 451, 11 Jur. N. S. 404 it appears from the latter report that the stipulation that the growing crops should be included in the sale was held to be controlled by the provision that the purchaser should be entitled to the profits only as from the day fixed for completion.
;
63'2
Stat. 33
&
34 Vict.
c.
35,
s.
2.
[k) Above, p. 508, and n. {b). (Q Above, p. 507. {m) Magennis v. Fallon, 2 Moll. 1 Dart, V. & P. 248, 561, 590 441, 5th ed. 286, 507, 6th ed. 290, 519, 520, 7th ed. Shrewnbury See and Chenter () Rail. Co. v. ahreinbary and Birmingham Kail. Co., 16 Jvu\ 548,
;
550
;
Hadley
v.
London Bank of
iff)
Above,
p. 49.
aud
n.
1
(A)
Ch.
Scotland, 3 De G. J. 6: S. 63, 7U, 71 Londoni^- Counti/Bank v. Lewis, 21 Ch. D. 490; Siig. V. & P. 228,. 229.
519
may be restrained
to
from presenting
i\jid the
his
own nominee
the living
(o).
vendor
may
And
sold
it
vendor
may
pending completion.
But
made
as alleged
an injunction
any
of his
(q).
'^^*^^
'^^
^^^
from any other cause than the vendor's wilful default, and the vendor remain in possession after the
or
completion,
title
has not
(/),
to
land
sold,
gather
in
the
crops,
and
of
generally
manage
the
care
And
(s).
where he
is
is
in actual occu-
chargeable with
(o) Nichuhun v. Kiiupp, 'J Sim. 326; above, p. 443, ami n. (/). {p) EchUfw.nulflirui, 16 Vcs. Curtis v. Biwhini/hdni, 3 V. 267 & B. 168; SpilU)- V. iSpilhi, o Swaust. 556. (y) Tiinier v. IFight, 4 Beav. Hadleij v. London Bunk of 40 Scotland, 3 De G. J. & S. 63. 51''>. {>) Above, pp. 512 Uaiijraic, 10 Ves. () Dj/vr V.
; ;
511
Shcnvin
v.
Shakapcar,
517, 532, 533, 538, 539; above, p. 51. It appears, however, that in an action for speciiii! performance of a contract under which the vendor has so remained in actual occtipatiou of
5
De G. M. & G.
the land
.sold,
direct an inquiry whether ho ha so occupied, and if so, that an annual value by way of rent
520
Outgoings.
ment,
such a
title as
any subsequent deterioration though he must, of course, still account for the rents and profits until the actual comliable for
is
is,
neverto
and
pay
The
vendor's
As we have
contract, but
seen
(y/)
the vendor
is,
usually
by express
if
not,
by
should be set thereou Shcrwtji V. Shnl-sprar, 5 De G. M. & G. 517, 538, 539; Seton on Judgments, 2244, 6th ed. If this be omitted the vendor cannot be charged with an occupation rent under the usual order for an account of the rents and profits received by him or for his use (see above, p. 515) but where the land so occupied is in cultiis chargeable vation, he with the proceeds of crops sold, less the expenses of realizing the same Bennett v. Stone, 1902, 1 Ch. 226, 237, 238, affirmed, 1903, 1 Ch.
: ;
charge the purchaser with losses incurred in carrying on farming business on a farm which was let at tlie date of the contract, but afterwards fell vacant and was occuf)ied and farmed by the vendor Bennett v. Stone, ubi sup. Ben(') Above, pp. 513, 514 nett V. Stone, 1902, 1 Ch. 226, affirmed, 1903, 1 Ch. 509. (.() Dakin v. Hope, 2 Euss. 170
: ; ;
L.
509.
Above, pp. 506, 513; Ban^ht 1900, 1 Ch. 231, 235; Bennett v. Stone, 1902, 1 Ch. 226, But the vendor 1903, 1 Ch. 509. cannot, under the account usually
[t)
V.
Tacjg,
in such circumstances the purchaser cannot be charged with the vendor's losses, and the vendor is not liable to account for his profits in respect of a business carried on by him on the premises diu-ing such occupation
tliat
thereof.
(y)
directed in actions for specific performance of rents and profits received by or for him (not upon
513.
521
or
up till that time. He must therefore pay out of his own pocket all rates, taxes, tithe rent-charge and rent (whether quit-rent of freeto his right to enjoy the profits
ordinary expenses
managing
the property
and keeping
by the vendor
by
for
distress or otherwise
upon the property sold or recoverable by from the owner or occupier thereof the time being {a) and this is the case whether the
statute
;
vendor have expressly contracted to discharge the outgoings or not (b) Thus, it has been held that the
.
vendor
must
pay the
property sold of paving, draining, or lighting the adjoining street under a local Improvement Act(c), the
1875 (d), or the Private Street 1892 (e), or of removing a dangerous structure under the Metropolitan Building Acts, 1855 and 1869 (./'), or the London Building Acts, 1894 and 1898 {(j), and tlie same law seems applicable to the
Works
Act,
C'arrof/u-s v. Sharp, 20 Beav. above, p. ol3. [a) Above, pp. 50 and n. [1), Stock- V. Meakin, 1900, 177, 178 Stockdalf v. Ascher1 Ch. 683 berff, 1904, 1 K. B. 447, 449. (6) J{r Btttexworth and Richir, liarsht v. Ta(i;i, 37 Ch. D. 535 1900. 1 Ch. 231, 234, 235. (c) Midqlniv. Coppock, 4 Ex. I).
(z)
;
S(
56
226
309.
(rf)
"
522
lOFFKCr OF THE
cost
of abating a nuisance
(London)
statute
Act,
1891
{//).
upon the land sold, whether by express words by reason of theii' being recoverable by distress upon or other process of law against the land, are payable by the vendor if the statutory charge arise before the time for completion, even though the money secured by the charge should not become actually payand if the purchaser be able until after that date (/) obliged to pay the same after completion, he can recover the amount from the vendor either under an
or impliedly
;
e.t'pre-sii
stipulation in
shall
the
contract
for
sale
that
to
the
vendor
discharge
the
outgoings
up
the
time fixed for completion (A) or under the covenant against incumbrances implied by statute (/) in the
Where such outgoings are not so conveyance {m). charged by statute upon the property sold, but are
merely recoverable by suing the owner thereof for the time being personally, it appears that the vendor ought
to
pay them
;
if
if
they
fall
for
com-
pletion
but
to pay, the
vendor after
the land(//).
is
amount paid cannot be recovered from the completion under a covenant by him
is
no
liability affecting
money which he
completion
if
is
stipulation that the vendor should discharge all out1902, 2 Ch. 214, 190a, 1 as to -which case, see Oh. 287 above, p. 354. (A) Barsht v. Taffc/, 1900, 1 Ch.
tract,
;
(/j)
Mid(ileij\. Uoppock, 4
TFi/i/nr,
309; Tuhhsx.
74.
(l)
1897,
Ex. D. 1 Q. B.
,
231, 234, 235. (t) As to the times wheu the charges given by the above-iueiitioued Acts attach, see the cases cited in the six preceding notes.
(;)
s. 7.
Ch.
683.
(w) Eijy v. Hlmincii, 21
Q. B. D.
107.
(o)
See
Re
Bettcsworth
and
Richer, 37 Ch.
D. 535.
523
and be completed without the vendor disit is a question whether the purchaser, being subsequently obliged to pay them, have any remedy to recover the amount expended from
stipulutiou
the vendor
[q).
As we have
goings
seen
(/),
land
out
Appurtiuu-
that the
meut ^^^^
iif "^'^
outj?oiui<-.s.
shall, if necessary, be apportioned between the vendor and purchaser up to the time fixed for com-
pletion.
Where
outgoings as
to a
though they
only
may
If
309;
purchaser;
it
would
certainly
((/) Sec Q. B. D.
V.
lilayiiey,
it
21
seems to have
survive if put iuto ^.Cyw^r.v.s words. Why, theu, should it be e.xfciuguished merely because it is iniplied by law See Pw/wo- v. //(><^on, 13 Q. B. D. 3.31, ooG, 357,
':"
paid the amount claimed as outgoings; but the only point argued and decided was that the purchaser could not recover under the vendor's covenant against in(Unibrances. (liucre whether, whon land is sold under an open contract, the contract is so entirely merged in the convej'ance as to prevent the purchaser from recovering after completion outgoiugs which th; vendor ought to have, but has not paid, under the implied sti|iulation tliat Xhv vendor shall discli.irge all ourgoings up to the time for completiou. This stipulation is not in any way carried out, nor is the object thereof performed by the conveyance of the property to tlie
In Clarkv v. Rainnz, 1891, Q. B. 456, an action was successfully maintained by a piu-chaser against a vendor after completion for a breach before completion of the vendor's iniplied duty to take proper care of the laud sold above, p. 512. And see below. Chap. XVIII.
359.
2
:
Above, pp. 67, 74. (s) See Lmvcx v. Gihuon, L. R. Eq. 135, as to rent before the .Vpportionmeut Act, 1870 (it is
(r)
1
524
Purchaser taking possession before completion.
he
will,
unless
the
contrary he expressly
and be liable to bear the outgoings and to pay on the purchase money {it). But as we have seen {x), where there is no express contract to pay interest, the purchaser may, in case of delay attributable to the vendor in completing the purchase, discharge himself from his liability to pay interest by appropriating his money to the purchase and giving the vendor
use,
own
interest
Where
the purchaser
is
he parts with
it
by conveyance
but
his
is
payment
of the pur-
chase
money
{>/)
is
the owner
to the
and
is,
be shown
(s)
It appears,
as a rule,
to
owner
().
But he may be
restrained
by injunction
309, 313.
XII.
4,
901, 908.
the outgoings. (?) Powell \. Martyr, 8Ves. 146, Fludycr v. Cocker, 12 Ves. 149 A.-G. V. Christ Church, 13 25 Sim. 214 Birchv. Joy, 3 H. L. C. Ballard v. Shutt, 15 565, 591 Ch. D. 122 Fletcher v. Lanca;
Above, pp. 51, 68. Smith v. Hibbard, 2 Dick. 730 Ecclesiastical Commrs. v. Finney, 1899, 2 Ch. 729, 1900, 2 Ch.
(a-)
(y/)
;
736.
[a)
shire,
i-c.
Rail. Co.,
1902,
Ch.
525
that of a
mortgagor in possession
(h).
If the purchaser
he may be ejected and restrained by injunction from re-entry, or from the commission of waste, as a mere trespasser may (c). The question to what extent
be a waiver of objection to the
(d).
may
title
has already
been considered
'^""^''^'^y.
vendor from year to year or for any other term, and the
contract
shall
is
vendor's
at
show a good title, the tenancy is not determined law pending completion of the contract (c) though
;
tlie
contract
/').
And
it
rents
and
profits
purchase
money
as
and liable to pay interest on the from the date of the contract, nottitle (g).
is
determined
is
by the
contract,
Ves. 138
Crockford v. Alcxmider, 15 Humphreys w. Harrison, Kiny v. Smith, 1 J. & W. 581 2 Hare, 239, 244; Goodman v. Wms. Real Kinc, 8 Beav. 379 Prop. 552, 21st ed. (c) See Crockford v. Alexander, 15 Ves. 138.
(J)
; ; ;
"
(c)
1
Boc
d.
Gray
;
15
{d)
(/) Above, p. 604; Daniels v. Davison, 16 Ves. 249, 253. (y) Townky v. BedweU, 14 Ves. 590, 597 Daniels v. Davison, 16 Ves. 249, 253 see M,IU v. Hayu-ood, 6 Ch. D. 196.
;
;
526
tract
Orders for
(?')
of a contract for tlie sale of land possession to pay price into j^ possession, he be ordered, ' -^ ^ Court or give up possession, the action, to pay the purchase
may
pay the
money money
into bourt, or at
into Court or to
give up possession.
the preservation of
The
to have both the land and the purchase money in his Thus, if the purchaser possession pending the trial.
exercise
any
working mines, which impairs the vendor's seciuity for payment of the price, he will be ordered to pay the purchase money into Court without having the option and this is the case, of giving up possession instead whether the purchaser were put into possession pursuant
;
the contract
(/.).
And
such a
title as
being
pay the
money
.
into Court
(/)
Where
money
{h)
564:, 1
2
3
The
shaw,
Mev. IS3; Cutler Y.Simons, Mer. 103 Bradshaw v. BradBramley v. Teal, ib. 492
; ;
of a vendor suing for rescission of the contract but other proper ordei's for the preservation of the property in dispute may be made in such an action: Cook v. Andrews, 1897, 1 Ch. 266. 19 Ves. [k) Dixon v. Astley,
;
Madd. 219
tern Rail.
Co.,
330.
v. Bradshaw, 2 (/) Bradshaw Mer. 492, 493; Crutchley v. Jernighaw, ib. 502; Wood v. Edn-ards, 1876. W. N. 15.
EFFECT OF
of giving
Till':
527
up possession
but
it
he has been
but not under the contract, he will, as a rule, be ordered to elect within a specified time whether he will pay the
money
that a
good
title
there be delay in
up possession, not\vithstan dinghas not yet been shown (n), unless making out the title attributable to
.
the vendor's
lar/ifs (o)
Where
the
(p).
And
able to
where the purchaser's right to possession is refersome other title than that conferred by the
where he entered imder a lease granted to him prior to the sale, there appears to be no ground for requiring him to elect as above mentioned (q).
as
2.
Of
fJic
the
RUjhtx
and
.
liabilities
created
by the
contract pending
pietion'^of
tli<>
the completion
thereof.
involuntarily, which
tarily, that
is,
.,.
is
mainly by
-ii
This
may
:""^
J'.'-'''.^:'
PI
liabilities
tlio
by
The former
or
case inca-
eontraet.
occurs
personal
v.
Tnmcr, 1891,
15 Ves.
500,
(Jlatke
V.
in/xon,
Gihmn v. (JIarkc, 1 V. & B. 317 500; Smith V. IJoi/d, 1 Madd. 83 irick/iain V. Erenil, 4 Madd. 53 Yoiingew. Diuuombi,Yo\x\\^c,'nb\
;
oOl Morqan v. Shaiv, 2 138 Grli v. Walxon, 3 Madd. 225; Prif.sr v. Cninhrinii Rail. Co., L. R. 2 Cli. 444. Bonner v. Jolinnton, 1 Mer. (//) 36G Frcehody v. Pcrri/, G. Coop. 'Jl. Note that in GreenuuoJ v.
;
Mer.
Ttnd^il V.
CoMum,
My^ & K.
385; Foirfer V. Word, (J Jiir. .')47. (o) Fox V. liirc/i, I Mer. 105. Ip) Oihsonv. Clarke, 1 V. & B.
Turner. 1891, 2 Cli. 144. tlic lease under wliich the purehasor claimed to be in possession had expired at the time of tlie motion.
528
assignment
judgment against the vendor the latter upon the inter riros by either party of his rights
;
We
will
is
only at law but specifically in equity at suit of either party thereto, his representatives in law or assigns,
against the other party or his representatives in law
(r)
The
contract
is
contract
(.s).
Death
of the
^'^^ ^"
the vendor's death, his rights under the contract pass to his executors or administrators, who are the proper persons to sue upon the contract either for
Qn
damages
at
law or for
specific
performance in equity
{f).
But
personal representatives must, of com-se, procure the performance of the vendor's part of the agreement
that
Devolution of sold
2tlte'^'^'^
is,
and
is
therefore
land
sold
Potter v. 17 Ves. 433 ; 249, 2 Dart, V. & Sanders, 6 Hare, 1 P. 823, 824, 996, 5th ed. 927, 836, 837, 928, 1115, 6th ed. 1030, 7th ed.
;
; ;
{t) Baden v. Pembroke, 2 Vem. Eaton v. Sanxter, 6 Sim. 212 517; Roberts v. Marehant, 1 Ph. Hoddel v. Pugh, 33 Beav. 370 489; Sug. V. &P. 177; 1 Dart, 293, V. & P. 256, 1008, 5th ed. 1130, 6th ed. 296, 1029, 7th ed.; Fry, Sp. Perf. 212, 3rd ed.
; ; ; ;
529
Freeholds
had left the same to descend by his will and the heir or devisee was obliged to convey the estate to the purchaser (?y). The vendor's estate would not only go to a specific devisee thereof, but might also pass under a general
devisee, according as he
or disposed thereof
if
all estates held by him upon any was a question how far the estate sold was held by the vendor upon a trust so as to pass under the devise of his trust estates. Where the title had been accepted prior to the vendor's death, it was held tliat the property was vested in him upon a trust, and so passed under a devise of his trust estates but it appears that if the vendor had died prior to the acceptance of the title, the property sold would not have been lield by him upon an absolute trust, for the contract had not yet become unconditionally binding on him, and so the land would have passed to his general
;
devisee
(//).
Under
the
Land Transfer
personal representative,
thereof
;
the
title
(it) The heir or devisee was a necessary party to a suit for .specific perforinauce of the contract, both ou this iicc.ount and as haviujr au interest in disputiu;; the contract see previous note. (x) See H'a// v. Bright, 1 J. & W. 494 Li/saght v. Edwards, 2 Ch. D. 499, 510513 1 Jarm.
:
s.
30.
w.
34
530
Under
1881
(ft),
and
sold
may
pass,
on
thfi
vendor's
any testamentary
disposition
thereof, if they
were vested in the vendor upon a trust This is the within the meaning of sect. 30 of that Act.
had been accepted and the purchase and appa(e) rently it is so, if before his death the contract had become unconditionally binding on the parties by
case
if
the
title
money paid
title {(/),
but
Under
(e),
person there
is
his heir or devisee for the sale of the fee simple or other
by
virtue of this
all
the estate
and
interest vested in
him
at his death in
any manner
Under
this
vendor of freeholds in
fee, or
vie (/), who has died since the commencement of the Act, and pending completion, have been enabled to
But
to
by the 4th
(a)
Morgan
^c. Authoritij, 9
Stat. 44
&
45 Vict.
c.
41,
2 Ch. 567
5 Ch. 72.
(h)
applying only in cases of death after the 31st December, 1881, and pioviding that a conveyance made thereunder shall
s.
4,
Stat. 44 & 45 Vict. c. 41, 30; above, p. 221. Re Cuming, L. R. 5 Ch. 72. [c] {d) See Lysaght v. Eduards, 2 Ch. D. 499 Re Fagani, 1892,
s.
;
Ch. 236.
531
where the contract for sale was oral only, or put into writing but not signed by the vendor {()), unless this objection to the enforcement of the contract should have been removed under the
arise
(//).
And
title
made
in pursuance of this
power
so exercised
into -^Titing
As we
1897
ance
(/.),
sale, duly put and signed, ma}", it seems, be required (/). have seen, under the Land Transfer Act,
now
notwithstanding
any testamentary
for
It
the
appears,
that
if
a vendor of
of that
commencement
therein
administrators in
must devolve upon his executors or any event. If the contract sliould
have been so far performed that the vendor was, at the date of liis deatli, an absolute trustee of the land for the
purchaser,
tlie vendor'r^
estate
30 of the Con-
veyancing Act of 1881 (/); otherwise they appear to take the estate under tlic Land Transfer Act, 1897 {ni).
(t/) (/()
(i)
Above, p. 11. 14. Above, pp. li Key & Elph. Prec. See
alM,
c.
fi'il^
Stat. 60
:
&
Gl Vict.
0-5,
s.
(1)
above, pp.
]).
2'IH, -i'ig.
(/)
Above.
'jiiO.
(in) It appears, however, that the vendor's heir or devisee should still be made a party to any action for specific performance of the contract, as having' an interest in di.spiitiug the contract above, Rawpp. o2. n. {f), 529, n. () lins, Sp. Perf. 83.
:
34(2)
532
Estate
tail.
still
passes,
on his death pending completion and without having barred the entail, to the heir in tail (w), or if there be no
such heir, to the reversioner or remainderman.
the contract
is
And
(o)
have made a good title by barring the entail (p), and might have been decreed to perform the contract specifically (q).
But
if
only,
had
entered into
sale of
and
Land
Acts.
power oi sale given to him by the Settled Land Act, 1882 (r), and died pending completion, the contract would be enforcesell
iiii-m
exercise oi the
en
have contracted to
ci
Such a contract
ownership of his
is
by law
(h)
(o)
to the
estate.
Above,
Stat. 3
;
p. 234.
&
4 Will. IV.
;
c.
74,
under the Act. In such case, if the prior conveyance were made
favour of a purchaser for valuable consideration, the subsequent assurance will (unless it were itself made to a purchaser for value not having- express notice of the prior conveyance) operate to confirm the prior conveyance see sect. 38 StHrgift v. Morse, 2 De G. F. & J. 223 Hankey v. Martin, 49 L. T. 560 Cotton, L. J., Bankes v. Small, 36 Oh. D. 716, 721 Re Gmkell ^ Walters'' Contract. 1906, 2 Ch. 1. Sug. V. & p. 205 Bankes {q) V. Small, 36 Ch. D. 716. (r) Stat. 45 & 46 Vict. c. 38, .s. 58 (1) (i).
in
;
Sug. V. & P. 427 2 Dart, P. 998, 5th ed. 1117, 6th As to the ed. 1032, 7th ed. old law, see A.-G. v. Buy, 1 Ves. FranJc v. Mainwar'iru/, 218, 224
8.
40
;
V.
&
228
Here
be noted that under stat. 3 & 4 Will. IV. c. 74, ss. 1, 15,
may
whether
less
may neverthesubsequently bar the entail, by a proper disentailing assurance duly executed and enrolled
or to a volunteer,
(,s)
Sect. 31 (2).
533
pm-cliase
money
is
(f),
and
it
is
not
money for himself [ii). It appears that an open contract to sell the fee made by a tenant in tail would be referable to the
power
of disposition
(^),
annexed
to his
owner-
as the purchase
money would be
payable to himself.
under
sect.
of 1881
(//),
or under the
Land Transfer
Act, 1897
(;:),
(a).
ancing Act of
if not, it would appear them under the Land Transfer Act, 1897 {(). to pass to The 4th section of the Conveyancing Act of 1881 (d)
1 ;
sect.
relates only to
tlie
or
other
f'rce/ioid
descendible
to
the
heirs
genera/,
sale of
and does not therefore apply in the case of the an estate of inheritance, whether legal or equit-
{t)
Above,
p. 300.
()
Wms.
Sug. Pow. 343 /., (x) See 8th od. ; Farwell on Powers, 266,
Above, pp. 228, 231236. Above, pp. 216, 529. {b) Above, pp. 221, 222, .530. (c) lie iSomervilU and Turner's Contract, 1903, 2 Ch. 583 above,
(z)
{a)
2ud
ed.
p. 235.
p. 221.
(rf)
{;/)
Above,
Above,
p. 530.
534
Leasehold.s.
If the property
would
in
common law
own
(c).
As between
we have
seen
representatives
is,
as
If
be
fulfilled,
the purchase
money and
the
j)art of
up
devisee
{//),
subject to
or
administrator's interest
therein
for
payment
the
(/).
Land
although
it
would,
j)rior
Land
Transfer Act,
(/.)
is
in equity
adeemed
purchase
so that the
devisee
is
money
(/)
ed.
302,
Luiiisden v. Fraser, 12
263
&
;
power
;
of a])pointraent
:
and
(l)
123
1
;
Ij. R. 17Eq. 217. Above, pp. 229231. Above, p. 529. Moor V. Itaisbeck, 12 Sim. Farrar v. JFiiiterton, 5 Beav.
C. C. 580
G.
1
&
J.
S. 722
Weeding
;
v. Jl'eeding,
Weeding
424, 431
v.
;
TFerdiufji,
J.
&
H.
JFatts 'v.
;
IFatts,
Sug. V.
&
P. P. 263, oth
&
1 Dart, V. 424, 431 & P. 263, 264, 5th ed. 302, 303, Oth ed. and see 306, 7th ed. Sugd. Law of Property, 223.
; ; ;
& H.
535
become unconditionally binding by the the vendor's title and the vendor die pending completion, and afterwards the contract fail to be performed owing to the purchaser's default in payment of the price, the land becomes in equity the property of the persons entitled on the vendor's death to his personal estate for they became absolutely entitled
estate
acceptance of
when
the contract
But if upon and specifically enforceable against both parties, as where there is a failure to show a good title on the vendor's part, or the contract is voidable ab initio and is avoided for fraud, misrepresentation, or any other cause (such as omission to comply with the Statute of Frauds (o) ),
in
specie
{)/).
there
is
no conversion of the property sold in the if lie die, the land, which was the
under his
And
of
abandoned by
lifetime
[q).
to
consent
the
parties
in
the
vendor's
When
man
P"'"'^"^*^-
()
6,
11.
;
Cunr
V.
Ilowj/rr,
Jji/saghl v. Bduiird.s, 2
Bcav. Ch.
p. 11.
Above, pp. 21'? .v^.; and see Hayncs v. llaijucs, 1 Dr. & Sm. 426; Edwards v. J/'e.s/, 7 Ch. D. Jarm. AV'ills. 54, 80S, 862 1
;
5th ed.
and con(7) Sii}^. V. &P. 191 sider lUdoul v. Foic/tr, 1904, 1 Ch. 658, 2 Ch. 93. contract giviuif an option (>) to purcha.se any land jjivcs au interest in the laud to the person
;
who has the option, and must therefore conform with the 4th the Statute of Frauds (above, p. 3); see London and South ll'esfcni Jiiuli'ni/ v. Goiiiin, 20 Ch. D. o62 above, pp. 370, 371. In order that an option to purcha.se any hmd may be well exercised, the terms of the contract, jrrant or devi.se, which created the option, must in all respects be strictly pursued, and where any particular time is specified for the exercise of the option, time is of the essence of
.section of
;
536
and
if
any
made by
his will
(.s),
his legal
personal
(t).
Conveyance
of deceased
vendor's
estate by vestinsr order.
As we have seen(i), in case of the vendor's death pending completion, a conveyance of his estate must be
executed to the purchaser before the purchase
money
can be obtained.
immediately executed by the persons on whom the vendor's estate has devolved on account of their being under
In certain cases of this disability or from other causes. kind the required conveyance may be effected by vesting order made under the jurisdiction conferred by the
{x),
or the
Trustee Act,
1893
(y).
lagh
V.
;
Melton,
10
Jur.
N.
S.
Weston v. Collins, 11 Jur. N. S. 190 and see Milh v. HayBruner v. wood, 6 Ch. D. 196 Moore, 1904, 1 Ch. 305. The benefit of an option given by covenant contained in a lease to the lessee, his executors, administrators or assigns, to purchase the fee simple of the demised premises goes, after the lessee's death, to the persons becoming entitled to the Re Adams and Kensington lease As to Vestry, '2.7 Ch. D. 394. the question how far an option with conform to purchase must the rule against perpetuities, see
1141
;
; :
As to the above, pp. 370372. eti'ect of a contract to give the first refusal of land, see Manchester Ship Canal Co. v. Manchester Racecourse Co., 1901, 2 Ch. 37. () See above, p. 634, n. (/).
Laives v. Bennett, 1 Cox, Townley v. Bedwell, 14 Ves. Weeding v. Weeding, 1 J. & 590 H. 424 Re Adams and Kensington Vestry, 27 Ch. D. 394, 399.
{)
167
(m)
[x)
Above, p. 529.
Stat. 53 Vict. c. 5,
s.
135,
57 Vict. c. 53, ss. 26 34. These enactments and [y) Stat. 56 & that mentioned in the previous note have replaced the Trustee Acts, 16 & 16 Vict. c. 55), which 1850 and 1852 (stats. 13 & 14 Vict. c. 60
;
537
established
by
briiig-
&
WiU. IV.
s.
c.
60
&
5 Will.
IV.
c.
TS
and
&2 By
(i.)
Vict.
c. 69.
26, the
a vesting
order
(ii.)
Where the High Court appoints or has appointed a new trustee Where a trustee entitled to or possessed of any laud, or entitled to a contingent right therein, either solely or jointly with any other person
;
(a)
is is
an infant, or
;
(b)
(c)
(iii.)
(iv.)
who was the sur\dvor of two or luore trustees jointly entitled to or possessed of any land Where, as to the last trustee known to have been entitled to or possessed of any land, it is uncertain whether he is living or
Where
uncertain
;
dead
(v.)
Where there is no heir or personal representative to a trustee who was entitled to or possessed of land and has died intestate as to that land, or where it is uncertain who is the heir or personal representative or devisee of a trustee who was entitled
to or possessed of any land and is dead ; Where a trustee jointly or solely entitled to or possessed of any land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or a release of the right, to convey the land or to release the right, and has wilfullj'' refiised or neglected to convey the land or release the right for twenty-eight days
(vi.)
after the date of the requirement. where anj' laud is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence, would, in respect thereof, become entitled to or possessed of the
By
sect. 27,
land on any trust, tlie High Court may make an order releasing the land from the contingent right, or may make an order vesting in any person the estate to or of which the unborn person or class of unljoru persons would, on coming into existence, be entitled or possessed in
the land.
By sect. '61, where judgment is given (amongst other things) for the specific performance of a contract concerning any land, the High Court may declare that any of the parties to the action are trustees of the laud or any part thereof within the meaning of this Act, or may declare that the interests of unborn persons who might claim under any party to the a(;tiou, or under the will or voluntary settlement of any person deceased who was duriug his lifetime a party to the contract concerning whidi the judgment is given, are the interests of persons who, on coming into existence, would be trustees within tlic meaning of this Act, and thereupon the High Court may make a vesting order relating to the rights of those persons, bom and unborn, as if they had been trustees. By sect. 32, vcstingorders have the effect of a conveyance by the proper persons. By sect. 33, tlie Court niay, in all ca.scs where a vestiug order can be nuide, appoint a per.son to convey, and a conveyance by siich ])ersoii shall have the same effect as a vestiug order. By sect. 34, where an order vesting copyhold laud is made with the
538
make
a vesting order
as to a
deceased vendor's
estate
he was unquestionably an absolute trustee for the purchaser (;:) as, for examj^le, where the whole or the
;
bulk of the purchase money had been paid and the purchaser let into possession (a). It may be observed
that the construction so placed on these Acts
inconsistent with the
is
not
is
vendor
and
absolutelj^
when the
become
fully binding
by the acceptance
of the title
The
by
it
merely
before
it
Death
of
Where
power
{()
,
and dies before completion of the sale by conveyance under the power, the contract for sale is treated in equity on the same footing as a defective execution of the power, and will accordingly be specifically enforceable by the purchaser against the persons
consent of the lord of the manor, the land shall vest without surrender and where a person is appointed to convey any copyor admittance hold land, he shall do all things necessary to complete the assurance thereof, and the lord of the manor shall, subject to the customs of the manor and the usual payments, admit him accordingly.
;
(;)
lie
Carpenter,
Kay, 418
32 Ch. D. 333. (a) Re Cumiwj, L. R. o Ch. 72 Re Pagani, 1892, 1 Ch. '236. [h) Above, pp. 505, 529, 530. \c) The question whether the vendor contracted to sell in exercise of the power depends upon his intention. It is not necessary that the contract should refer to Where the vendor the power. had no estate in the land, it will
Jte Collimj,
:
&,
Beat.
Sug.Pow.
;
201.sY?.,289,343Ar/.,
8th ed.
2nd
ed.
539
Thus,
and the contract for sale were made by unsealed and the vendor died before conveyance, eqvdty would supply the defect in favom* of the purchaser, and would oblige the persons entitled in default of appointBut in order that ment to carry out the contract (^/) power over land may be so a contract to exercise a binding on those entitled in dnfault of appointment, it and it appears that must be valid from the beginning a parol contract, followed by part performance by the purchaser, is not so enforceable against them {e), unless, witli knowledge of the parol contract, they lie by and Every allow him to lay out money on the estate (,/). contract for the sale of settled land made by a tenant for life or any person liaving the powers of a tenant for life under the Settled Laud Act, 1882 {(j), is binding on, and enures for the benefit of, the settled land, and is enforceable against and by every successor in title for the time being of the tenant for life, and may be carried into effect by any such successor, but so that it may be varied or rescinded by any such successor in the like case and manner, if any, as if it had been made by himself. And by the Settled Land Act, 1890 (A), a tenant for life may make any conveyance
only,
writing,
Contracts for
l^e^tie'jj'^ii^Q^
under the
^vcts.
which
which,
is
contract
if
made by such
predecessor,
title.
(Sic.)
This enactment
was made
(d)
in exercise of
v.
CoviHtry
Ijlo;
59G; Mortluck
'l'J2,
1
v. Built r,
33.
Shdiiiioii V.
;
JlrmMrret,
Sell.
Let". 6"J
;
lir 563, 8th od. Eq. 337, 342. ^Sutton, 3 Mer. 237; Blorc V. (e) Moryun v. Alttmun, 3 De G. M. &
{f) .Sdlci v. <JowjMr,'6 Aik. 692-, Shannon v. Jiradxtnct, 1 Sch. & Lef. 52, 72, 73. ') Suit. 45 cc 40 Vict. c. 3.S, ns. 31 (1), (2), 5.S. (A) Stat. 53 & 54 Vict. c. G9,
8. 6.
540
Land
for
circumstances,
if
ment
life
of the
Land
(/),
under the
will,
was not
holds
(/.)
,
affected
by
for the
effect of
the Act
legal estate
from passing
if
to the devisees,
the devise,
made
thereby
(/).
Devolution of
the burthen of the contract on the vendor's death.
proper
persons to be sued
by the purchaser
formance of the contract are the vendor's executors or administrators, as being his general representatives in
respect of his contractual liabilities
money
but the
entitled
appears,
is
still
The vendor's
(/?).
the
contract at law
Death
of the purchaser.
We
tract,
have seen
(o)
that
when a man
which
is
valid
and
Above, pp. 228 /., 531. Above, pp. 2'i9, 2o5, 533. cfj., 534. {1} Above, pp. 22b (/) Above, pp.528, n. (C), 529, n. (m), 531, n. (;;;), and theauthoriRawlins on ties there cited Speciiic Performance, 83.
(i)
(w)
But
if
the contract
were
(k)
seal and bound the vendor's heirs, his heirs or deviseea might be sued thereon at law: see above, p. 223; Wnis. Conv. Stat. 234, 235.
under
(o)
541
land
is
in equity
///s
land as from
If therefore he die
pending
become
which
is
his lands,
If this
were
estate of
interest
he died intestate
and otherwise to his specific or and in the hands of such heir or devisee would be rra/ assets for payment of his debts {q).
respect
thereof,
;
Under
of
pass,
liis
the
Land Transfer
Act, 1897
(r),
freehold estate
the
payment
and
or
devisee
and
it
does not
appear
estate
:
that
his
any
1897
therein
take
the
purchaser's
where he bought an equitable estate only in copyIn either case the lands would be real holds (s)
.
assets
for
payment
of
the
purchaser's
debts
{f).
If
liis
personal estate.
The persons
so
becoming
entitled,
on
the purchaser's death, to the land whicli he has contracted to purchase, are the proper persons to sue for
(;;) Since the Wills Act, 1837, lands purchased after the date of !i will pass under a <i-oneral devise previously contained; therein thev did not Sur. V. A: P. 183 189; Stat. 7 Will. IV. & 1 Vict.
:
{q) (;)
&
61 Vict. c.
6.),
c.
1,2; above, pp. 228, 229. (.v) Jie Soiiitrville and Tut iter'' Contract, 1903, 2 Ch. .583 above, pp. 229, 2^323.5. [t] Above, pp. 222, 223.
ss.
;
542
by the vendor
but the purchaser's legal personal representatives should be made parties to such an action, if brought by his
heir or devisee, as they are liable to the vendor for pay-
ment
of the purchase
(fi).
law for
form
so recovered appear to
Purchaser's
now
Formerly, if one contracted to buy land and died pending completion, his heir or devisee, in the case of
^^^^ estate, '
holds,
was
money paid
(//)
But now, under the Acts amending Locke King's Act (z),
specific
(h),
of lease-
holds
(a),
(?/)
ed.
And
it
the purchaser's personal representatives sue for specific perf oi-mance of a contract to buy real estate, as being entitled thereto under the Land Transfer Act, 1897, they should still make his heir or devisee a party as being the person beneficially entitled and being interested in securing a proper Rawlins, inquiry into the title Spec. Perf. 83. (.r) Oi-iiie v. Bronghton, 10 Bing. 533 Sug. V. & P. 238 2 Dart, 1084, 6th V. & P. 9.54, oth ed. ed. 998, 7th ed. Mo)ick, 10 Ves. ()/) Broome v. Hood v. Rood, h'dl, 614, 620, 621 3 Jur. N. S. 684. (r) Stat. 40 & 41 Vict. c. 34, extending the provisions of 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69, to the case of any testator or intestate dying after the Slst December, 1877, seised or pos: ; :
sessed of or entitled to any land or other hereditaments of whatever tenure which shall at the time of his death be charged with any lien for unpaid purchase money, unless in the case of a testator he shall within the meaning of these Acts have signified a contrary intention and providing that such contrary intention shall
;
not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal esBy tate or residuary real estate. Stat. 30 & 31 Vict. c. 69, s. 1, a general direction that the debts of the testator shall be paid out of his personal estate is not to be deemed a declaration of such contrary intentiou without words expressly or impliedly referring to the debt charged on the land. {a) Re Kershaw, 37 Ch. D. 674. [b) Re Fraser, 1904, 1 Ch. Ill,
726.
543
payment
of the ])urchase
money, whicli
is,
as
between
personalty, to
;
be satisfied out of
the estate
purchased
unless
tlie
property bought
[<),
meaning
do not
[turcliase
money out
{d).
personal
It
is to
subject to
any vendor's
{<').
lien, as
may
be the case
if
the
parties so agree
The
of the
arvulvino- as
''""'
""
^'^^
like condition as
ot the con-
purchaser's death,
hands
that
is
to say,
specifi-
so
money
raised
if
the contract
had been
at his
deatli,
him
of other lands
/").
But
this
See See
lit'
Cockcroft,
'.'A
Ch.
I).
Garnett v. Acton, 28
94, 100.
{d)
Hudson
Stat.
v.
Cook,
17
&
IS
Vict.
c. 113.
{e) See Re Cockcroft, ubi sup. (/) jrhiffakcr V. irhilfukrr, 4 Jimn/ne v. Mu/ick, Bro. C. C. :U 10 Ves. 597, 599, 006608, 614
;
sed qii. whetlier this last case was rig^htly decided; the jjurchaser had entered iuto a contract which waa not absolute, but voidable by the vendor in certaiu events.
-117;
544
want
of title
for that
proved that the contract was not specifically enforceable This doctrine against the purchaser when he died (g).
of allowing the heir or devisee to
money
to
lieir
have the purchase and laid out in buying other lands appears be only applicable, under the present law, where the
raised
The burthen of the contract on the purchaser's death Devolution of the burthen of before completion devolves upon his legal personal the contract on the purrepresentatives, who are the proper persons to be sued
chaser's death.
by the vendor
of the contract or at
its
breach
(/)
but the purchaser's heir or devisee becoming entitled to the purchased land w^as, and apparently still remains, a
necessary party to proceedings at suit of the vendor for
specific
terest in
title is
properly
conducted
Bankruptcy
of either
party to the
contract.
{g)
Broome
v.
Monck, 10 Ves.
597
295.
Collier v. Jenkins,
Younge,
Coekeroft,
Wms.
Conv.
Towmend
v.
9 n.
[u),
the contract were under seal, and bound the purchaser's heirs, his heirs or devisees might be sued thereon at law: 2 Dart, V. & P. 957, 5th 1084, 6th ed. 998, 7th ed.; ed.
(i)
But
if
Rawlins on Specific 540 formance, 83, 84. Hewitt, 3 (/) Brooke v. 253, 255; Sug. V. & P. 1 Dart, V. & P. 253, 5th 294, 7th ed. 291, 6th ed.
;
PerVes. 175;
ed.
;
545
commence any
enforce
to
such
liability,
unless
may impose
may
[m).
And
any
of a
bankruptcy petition
stay
pend-
When
made
made by him,
so
pay
or
money
or
is
or money's worth
payment
of
money
money's worth (o). And an order of discharge under the Bankruptcy Act, 1S(S3 {p), or a composition or scheme of arrangement accepted and approved by the Court under the Bankruptcy Act, 1890 (</), will release the bankrupt or debtor from all liabilities provable in
bankruptcy, with certain exceptions not material to be
here stated.
The
law seems to be provable in his bankruptcy, for it is reducible to the obligation to pay money damages on
breach of the contract
to
(r)
:
but his
liability in
equity
specifically
depends on different
to be so provable
().
considerations,
The
or
in equity,
{m) Stot.
ss. 9,
46
see
&
c.
52,
16S
Re OuednUa, 1905,
Ch.
()
(o)
;j:n.
Above,
p.
.^6
Levi/
v.
Sect. 10. Sect. 37; see Ifardyx. Fot/in</ill, 13 App. Cas. 351. {p) Stat. 46 & 47 Vict. c. 52, s. 30. {q) Stat. 53 & 54 Vict. c. 71, s. 3 (12); F/ifit v. Rnrnard, 22
Stogdo)), 1898, 1 Ch. 478, '483. 484, affirmed, 1899, 1 Ch. .5. (s) See the cases cited in notes (z), p. 546, (rf), p. 547. below Lfvi/ v. Stnqdnn, ubi sup. Re Rris, 1904, 2 K. B. 769, 777, 781, 787, affirmed, nom. C/owyA v! Samuel, 1905, A. C. 442 above
p. 37.
w.
35
546
and
to be provable in his
and
his
by payment
money
held,
own
use in
by way
of indemnity
(//)
But the
trustee in the
and
if
land sold under his power to disclaim onerous property (r/), he cannot disclaim the contract for
where
(t)
Above, pp.
Stat. 46
34, 35
and K. B. 562.
; ;
see
&
Ch. D. 367. See A'. C, 8 Ch. D. 371 Re Taylor, 1910, 1 K. B. 562 above, p. 529. It does not appear that the vendor could be treated as holding the land sold on trust
hidge, 8
;
(ji) Expte. HoUhausen, L. R. 9 Ch. 722, 726 Expte. Rahhidge, 8 Ch. D. 367, 370, 371 Rv Taylor, 1910, 1 K. B. 562; see above, pp. 504 ^i., 528.
;
{a)
s.
Stat. 46
&
47 Vict.
c.
52,
55,
c.
trustee
bankruptcy
after
twelve
months
for the purchaser, so that it would not pass to his trustee in bankruptcy, merely by reason of the acceptance of the title see ca.se.s cited in note [d], below, p. 547.
:
appointment of a trustee, or where the pi-operty shall not have come to the knowledge of the trustee within one montli after such appointment, within twelve months after he first became aware thereof, or in either case within such extended
541
contains no
vendor
tract
(c)
;
and
purchaser
reciprocal duties of
unprofitable
con-
but the
may
to
If
bound himself by the contract lay out money on the property sold prior to combankruptcy might,
it is
it
thought,
if
would be
of
and
so free himself
:
not
affect
{e).
land
And
if
the
in
bankruptcy were
and shoidd disclaim, the property sold as being onerous, as he might in the case of leaseholds, the purchaser's equitable interest therein would be equally unaffected {e), and the purchaser might
entitled to disclaim,
him
(./').
of bank-
a trustee in banki-uptcy to the act of banka purchaser of land have notice of an act
^
vendor.
ruptcy
of
(g), if
bankruptcy committed by the vendor, he cannot safely proceed with the contract (unless with the con-
(), p. 546. Pearce v. Ba-stablc's Trustee, 1901, 2 Ch. 122 Re Bastable, 1901, 2 K. B. ol8 ; Re Taylor, 1910, I K. B. 562. {e) Re Bantahle, 1901, 2 K. B. 518, 529 stat. 46 & 47 Vict, c. 52, s. 55 (2). Stat. 46 & 47 Vict. c. 52, (/)
(c)
See note
(d)
s.
65
(6).
{g) Stat.
ss.
46
&
1,
47 Vict.
;
c.
52,
4,
43,
c.
amended by 53 & 54
Cohen,
of 1905, 2
sum
20 see Fonsford v. Union of London, ,^c. Bank, 1906, 2 Ch. 444 above, p. 394,
Vict.
71, ss.
;
n.
(a).
648
months
for
which the
act of
bankruptcy
remains available as a ground of bankruptcy proceedFor if the purchaser were to accept a conveyings {g).
ance from the vendor and to pay him the purchase
money, then, if the vendor should afterwards be adjudged bankrupt in respect of that act of bankruptcy, the conveyance to the purchaser would be rendered ineffectual and the purchaser would be liable to pay the money over again to the trustee in bankruptcy (h). For these reasons, a vendor who hns committed an act
of
bankruptcy
is
And
if
where time
is
of
the
purchaser have
entitled at
Where time
is
not
on sales of land (m), it seems open to the purchaser, on receiving notice of an act of bankruptcy by the vendor, at once to object to the title, on the ground that after the act of bankruptcy the vendor can only convey
of the essence of the contract, as
is
an
estate,
which
is
purchase
purchaser
And
still
it
is
submitted that
if
the
iff)
See Stat. 46
(1) (c), 43.
&
8S.
6
{h)
Expte. Rdbbidqr, 8 Ch. D. V. Marshall, 1899, 1 71-2, 713; Davis v. and Pctric, 1906, 2 K. B. 786 see Re Taylor, 1910, 1 K. B. 562. ()) Loivet V. Lush, 14 Ves. 547. \k ) Above, p. 488,
549
But
if
adjudged bankrupt,
trustee
in
it
bankruptcy,
the
case
may
be, will
be
in
equity or at law.
the contract in the
And
appears
gone by
The vendor's
trustee in
(yj).
If the purchaser
of his
own
be available
safely,
(y),
and in the latter the vendor himself. Bankruptcy Act, 1883, if the purchaser should have no notice of an act of bankruptcy committed by the vendor, the conveyance of the property by and the payment of the purchase money to the vendor will
fomier
Under
the
pajment take
See Loues v. Luah, 14 Vea. 549; Dart, V. & P. 498, 568, 1114, 6th ed. 995, 5th ed. 1226, 7th ed. Rawlins on Specific Performanco, 87 above, pp. 58,
()
;)9,
.)47,
i^c
47 Vict.
c. 52,
s.
57
[q)
(2).
.)68,
550
made
But
is
if
not protected
and
it
appears
ineffectual
If before completion of the contract the vendor be adjudged bankrupt and obtain an order of discharge, or a composition or scheme of arrangement with his creditors be accepted and approved by the Court, it appears that he will be released from his liability on the contract at law (f). But, as we have seen {it), the vendor's trustee in bankruptcy takes his legal estate in
and
if
this estate
subject to the
same
equities.
Besides
this,
(x)
so that a vendor
making
a composition or scheme of
arrangement with his creditors under the Bankruptcy Act, 1890, without parting mth his estate in the land
sold, does
Vendor an
undischarged bankrupt at
the time of the contract.
s.
Where
the vendor
is
Stat. 46
&
47 Vict.
c.
52,
{x)
(/)
Above,
p. 545.
49.
(s) Hxpte. Rabbidge, 8 Ch. D. 367, decided on the Bankruptcy and see Poiccll v. Act, 1869 Marshall, 1899, 1 Q. B. 710, 713, 714; Re Taylor, 1910, 1 K. B.
;
562.
[t)
(f)
See Lexni v. Stogdon, 1898, 1 Ch. 478, 1899, 1 Ch. 5, where, however, the purchaser was barred by his delaj^ from enforcing the specific performance of the contract, but was held to be entitled to a lien for the amount of his
deposit.
551
if it
were vested in
him before
estate
his
bankruptcy (-) or being freehold or other (whether legal or equitable) had been
him
(a)
.
since
If,
the
com-
mencement
acquired
of
the bankruptcy
however, the
by or devolved upon the vendor since the commencement of tlie bankruptcy, he can make a valid disposition thereof to anyone dealing with him in good faith and for value, either with or without notice of the bankruptcy, before the trustee intervenes, and will
therefore be entitled to enforce the contract against the
damages
{h).
And
been extended
to real estate
more than
rights
and of his creditors (d). Where a tenant Bankruptcy for life has a power to consent to the exercise by trustees f,j/[if"^ of a power given to them to sell the settled land and empowered
becomes banki'upt, the concurrence of the trustee in the bankruptcy is necessary to enable his power of consent
to be effectually exercised
{c).
.^
saie.
life
him by the
(./')
Land Acts
{z)
Above,
()
Stat. 46
195
see
above,
Bird
v. Fhilpott, 1900, I
Ch.
822.
2 Ch. 661.
(/;)
RcBedingJield and Herring'' Contract, 1893, 2 Ch.* 332 see Williams on Settlements, 43 45,
(c)
Re
Claiftun
(Jontract, 1895, 2
(c)
322, 323.
Re Kent,
^-c.
552
Bankruptcy of the purchaser,
the
purchaser be adjudged
bankrupt pending
be entitled to enforce
who
will
by
action
brought with
{//)
either
damages
(i).
at
law
or
for
specific
performance in
the
contract as
equity
is,
The
(k),
however, at
disclaim
it
unprofitable
and
so
long as
mthout
for
against
(//?).
him
specific
performance of
the
contract
(n)
the
(o),
any
for
any
injiu'y sustained
by him
in
bank-
ruptcy by the
purchaser.
committed by the purchaser, he cannot safely proceed with the contract so long as the act of bankruptcy
him by
any money subsequently paid to by the trustee under a consequent adjudication of bankruptcy For this reason, a purchaser against the purchaser (q)
remains available
;
for
(ff)
(A)
[i)
Above, p. 546, n. (m). Above, p. 549, n. [p). 2 Dart, V. & P. 995, 1004,
;
()
s.
Stat. 46
(2).
&
47 Vict.
c.
52,
55
(o)
Expte.
Barren,
v.
L. R.
10
1114, 1126, 6th ed. 5th ed. 1029, 7th ed. Rawlins on Specific Performance, 87, 88. {k) Above, p. 546, n. {a); Expte. Barren, L. R. 10 Ch. 512. {I) See Stat. 46 & 47 Vict. c. 52, above, p. 546, n. (a). s. 55 (m) Holloivay v. York, 25 W. R.
; ; ;
Stimson, 11
c.
&
47 Vict.
52,
55(7).
;
627.
[q) Above, pp. 546, n. (m), 547, n. [g) see next note, and Re Pollitt, 1893, 1 Q. B. 175, 455 Pomford V. Union of London, ^c. Bank, 1906, 2 Ch. 444 Davis v. Fctric, 1906, 2 K. B. 786.
;
^53
who has committed an act of bankruptcy remaining available against him cannot enforce the specific performance of the contract by the vendor {r). And it
appears that
if
bankruptcy
And
it
if
time be
vendor receiving notice of an act of bankruptcy by the purchaser may at once take the objection that the purchaser
is
pletion be capable of
making
a valid
payment
of the
may
ground (/). But, as in the case of an act of bankruptcy by the vendor, when an act of bankruptcy by
the pvu'chaser has not been followed
by any bankruptcy
meannot of
{k).
where time
is
same
And
vendor
may
(./). TSHiere the vendor has no notice of an act of banki'uptcy committed by the
is
executed by payment of
expressly
the purchase
money
the
and
(y).
trustee
under
an
adjudication
founded on that
act of
money back
And
even
v. Brownlnir, 14 (>) Franklin Ves. 550. above, 548 Collins (s) See p. V. Stimson, 11 Q. B. D. 142.
;
[t]
V. Sfimsoii,
(/)
(.r)
(y)
554
any money
or negotiable securities in
payment
(s).
Adjudictitiou
If the purchaser be
whether he
for
the
sucli
an application or within
be allowed by the Court,
may
he wdll no longer be entitled to disclaim the contract These last but shall be deemed to hare adopted it (a).
words, as to the adoption of the contract, were added to
by the Bankruptcy Act, 1883 (b), and they have not yet received any judicial interpretaApparently, their effect is to impose on the tion.
the bankruptcy law
trustee,
liabilit}^
being so deemed to adopt the contract, the to fulfil it with the bankrupt's assets, but not
the trustee otherwise personally liable on the
(c)
.
to
make
would seem that the purchaser's trustee in bankruptcy, on being so deemed to adopt the contract, would be liable to be sued on the eoncontract
If so,
it
tract
for
by the vendor either for specific performance or damages {d). If however the vendor make no apand the
trustee allow the time otherfor
of the contract,
wise
limited
to
him
disclaiming
onerous pro-
.'A?,,
s.
See Wms. Pers. Prop. ")42, 16th ed. () Stat. Hi k 47 Vict. c. 52, 55 (4).
(2)
{c) See the arguments put forward in the Court of Appeal and the judgment of James, L. J.,
(b)
Apparently in consequence
lie
Sncczum, 3
Wilin the last-mentioned case liams's Bankruptcy Practice, 261, 262, 7th ed. {(l) See above, p. 552.
:
555
to elapse without
deemed
to
it and any under does not appear that the trustee comes
such case
liability to
tain
any
But by
the
Bank-
{g),
is,
made make an order rescinding the conon such terms as to payment by or to either party
for the non-perfonnance of the contract, or
of
damages
may seem
equitable,
and any
damages payable under the order to any such person as a debt under the bankruptcy. If the purchaser's trustee in bankruptcy do not disclaim the contract, the question arises whether the vendor can
adopt
it.
The Bankruptcy
generally.
Act,
1883
trustee
(A),
gives no
But the
is
expressly
which includes the benefit of a contract made by the and by the former bankruptcy law the bankrupt (A-) trustee was entitled to perform a contract entered into by the bankrupt, if he thought it would be beneficial to It seems therefore that, as uuder the the creditors (/). present Bankruptcy Act the purchaser's trustee may,
;
if)
iff)
Stat. 46
(5).
&
&
47 Vict.
c.
62,
see sects. 56, 57 3 Ch. D. 463, 473. (i) Sect. 57 (2). (k) Sect. 168.
(l)
Re
Snceziou,
3.
55
Re
Sneczinn, 3 Ch.
D. 463,
(A) Stat.
46
47 Vict. c. 52
472, 474.
556
may
well
the same
benefit
litigation
willing to
carry out
the contract
thought that the trustee ought to obtain the permission of the committee of inspection before so performing the contract, and that the vendor cannot safely complete the contract unless
but
it
is
this be
done
[ii)
Insolvent purchaser
when
dis-
charered
liability
from on
make
a composition or a scheme of
the contract.
arrangement with his creditors approved under the Bankruptcy Act, 1890, it appears that he would be released from all liability under the contract, even though the trustee had not disclaimed the contract and
the vendor had not proved in respect of the purchaser's
liability (o)
were an undischarged bankrupt at the time when the contract of sale was made, and the vendor complete the contract and receive, in ignorance
If the purchaser
of that fact,
any money
price,
ment
of
the
the
same cannot,
of
course,
be
by the bankrupt in pursuance of the contract, unless the money had been acquired by the purchaser since the
See the principle applied in V. Medivay Navigation Co., 1903, 1 Ch. 169. (w) See Re Vavasour, 1900, Q. B. 309.
(?)
iltaffff
i'
(o)
(;;)
16th ed.
Collins v.
Stimson, 11
Q. B.
I).
H2.
5o7
had
The
purchaser,
it
seems,
would be obliged
if
was the
case, and,
the
vendor
(^ould
not
safely
complete the
(r).
contract
only in
the I^qI-,^"
pletion.
^o^.
If this be
or
by
virtue of an
(7),
receiver
and the
order
be duly registered
(?/),
an indefeasible estate by
to hold the
in the
land, entitling
satisfied
him
same
(r)
and
this will
was legal
(./).
The judgment
the
creditor
for
(//),
the
amount
of
And
these rights
now
affected
or liable to be
(ly)
,S'/!;m.so,
() ss.
s.
Stats, ol
c^-
o'i
Vict.
v.
ol, 26,
46;
2
63
(1); see
c.
Prop,
earmarked
E.r//(r.
L. R. 7 Ch. 18.), where note that the mouny liad been aequired by
tlic
274, 276, 21st ed. [x) See ibid. 273, n. (/), 275. (i/) Stat. 1 & 2 Viet. c. 110,
s.
13
.see
bankrupt
after
tlie
liank-
ruptcy.
(>)
(
&
28 Viet.
e.
v)
4.
amended by 63 & 64
;
112, Vict.
26.S
e.
nfj.,
2l8t ed.
Wms
R(>al
Prop.
558
The judgment
by him
in the land
the
contract
(b).
If
the
purchase
tion
(before
purchase
money therefor
the
in respect of
amount
so
If,
purchase
judgment creditor becomes entitled to receive the amount remaining unpaid, or so much thereof as will satisfy the judgment debt and the purchaser is bound and must take care to pay this amount to the creditor and not to the vendor (d). Any writ or order of execution and any delivery in execution of the land sold pending completion is void as against
tion of the or order, the
;
the
Land Charges
Act, 1888
{(')
(ff)
By
the
Judgments Act,
v. Lyseleij, 4
Sim. 70.
no judgment, as against purchasers and mortgagees without notice thereof, should bind any hei'editaments more extenthan a duly docketted sively judgment would have bound such purchaser or mortgagee before the Judgments Act, 1838; but this enactment was repealed by the see Land Charges Act, 1900
1839,
:
Stat.
;
63
&
s.
2 (1)
Wms.
Forth 505;
[e]
& P. 518, 527 4 Madd. 503, Pope, 17 Q. B. D. 743. Stat. 51 & 52 Vict. c. 51,
Sug. V.
v. Norfolk,
Re
ss.
4 6.
&
64 Vict.
c.
(/) Stat. 63
s.
26,
stats. 2
&
3 Vict. c.
c.
11, s. 5
s.
63
&
64 Vict.
26,
276,
Wms.
521, 522,
These provisions apply to writs or orders affecting any hereditaments of any tenure and appear therefore to apply to writs
2 (1).
;
of Ji. fa. when used for seizing leaseholds, as well as writs of elegit : stats, 51 & 52 Vict. c. 51,
'559
it is tliouglit tliat, if
that the land sold has been actually delivered in execution under an
unregistered
;
Avi-it
or order,
lie
is
cannot
valid as
against
the
judgment
creditor
debtor,
estate
judgment
it
an
default of registration, as
and confers upon the by eJcgit voidable, in against purchasers only, and
is
may
valid
in equity as against
is valid,
judgment
creditor
must concur
cliarge for so
to
dis-
him.
much of tlie purchase mone}' as is payable The delivery in execution of any land,
whether by writ of clcnit or order apj)ointing a receiver, is not an act of bankruptcy, so that in such cases the
sale
may
ditor's
concm-renee
It
appears
that
equitable Execution
purchaser,
will not operate to give the judgment any charge on the land, if the vendor should never become an absolute and a bare trustee for the
for sale
creditor
purchaser.
s.
iVi
&
()4
Vict.
c. 'JS, s.
(.'5);
Ileal
Prop.
o'21,
.V2i,
(A)
c. ;V2, s. 4
s. 1.
-VJ
<5:
o4 Vict.
c.
71,
debtor commits an act of bankruptcy if (amouji^'st other thinff.s) e.xei;ution against him has been levied by seizure of his good.s under process in an action in any
Court or in any
iu the
civil procei'din;,''
(Jourt, and the ffoods have been either .sold or held by the sheritf for twenty-one days.
High
In this context "goods" includes chattels personal, but not apparently chattels real: see stat. 46 & 47 Vict. c. .52. ss. 4.), 168. If execution be levied on a debtor's leaseholds by writ of Ji. fa., and the .sheriff hold them for twenty-one days, it is a question whether an act of bankruptcy is committed and if so. a purchaser of the laud cuuld not safely complete his contract, even with the judgment creditor's ooniurrence see above, p. 54S,
all
;
5(i0
him
(/).
The
(k)
Lunacy.
when
mind
before
order for
performance
may
nevertheless be
obtained
can
make no
payment
to another,
who
{in),
he cannot
But the
the
the
eifectual
may
be
Lunacy Judge
(>?).
in lunacy
By these may by
Acts,
order
any con-
and
sound mind,'not being lunatics so found by inquisition, whom the powers of management and administration
given by the Act of 1890 apply
(q),
See Midout v. Foioler, 1904, above, Ch. 658. 2 Ch. 93 and pp. 605, 506, 529, 530, 538 below. Chap. 36; see above, p.
()
XVIII.
{k)
[1]
;
2,
XIX.
1.
Chap. XII.
v.
^ 2.
1 Ves. sen. Warren, 9 Ves. 605. Wms. Real Prop. 298. (;w) Wms. Pers. Prop. 299, 21st ed.
Ou-en V. Daries,
82
Hall
95, 159, 16th ed. {n) Stat. 58 Vict. c. 5. 120 (i). (o) Stat. 54 & 55 Vict. c. 65, s. 27 (1), which enabled the jurisdiction of the judge in these respects to be exercised by the Masters ; see Jif Browne, 1894. 3 Ch. 412 Re Langdale, 1901, 1
.<;.
:
Ch.
3.
c. 5, s.
120
(i)
[q)
By
(a)
(b)
(c)
these powers apply To lunatics so f oimd by inquisition To lunatics not so found by inquisition for the protection or administration of whose property any order has been made before the commencement of the Act To every person lawfully detainecl as a lunatic thouffh not so found by inquisition (see lie Whalley, 1906, 1 Ch. 565)
stat.
53 Vict.
c. 5, s.
116
SGI
Act
as are
made
oxercisable
by the committee
of
or Master
estate, or
sliall
And
name and on behalf of the lunatic execute and do all such assurances and things for giving effect to any order under this Act as the Judge or Master directs, and every such assurance and thing shall be valid and effectual, and shall take effect accordingly, subject only to any prior charge to which the property affected
shall in the
is
subject
(s).
If the
vendor become of unsound mind after the contract has been so far executed that
chaser within the
lie
is
vesting orders to
may
be obtained under
Lunacy Act,
woman,
Marriage of
^^^*^
l^^\^^
tract,
and marry pending completion, she is not, under the present law (.<), disabled from enforcing or completing the contract by herself alone. If she should have made
everj' person not so detained and not found a lunatic by inquisition, with regard to whom it is proved to the satisfat'tioii of tlie Judge in hinacy that such person is through mental iiiHimity arising from disease or ago incapable of managing his aliuirs (see Jie Ih-otnic, 1894, o Ch. 112 Re Spurlhxj, I'JO!), 1 Cii. 199) (e) T(\ every person as to whom it is proved to the satisfaction of the Judge in lunacy that he is of unsound mind and incapable of managing his affairs, and that his property does not exceed 2,000/. in value, or that the annual income
(d)
;
To
(f)
To
thereof does not exceed 100/. every person as to whom the Judge is satisfied that he is or has hcin a criminal liuiatic, and continues to be insane and in eonlinement.
124,
(j'),
(>)
{)
,'is
c.
;').
s.
amended by
27
(/)
&
o5 Vict.
c.
s.
(1).
{u)
Vict.
c.
.'),
s.
1:5.'')
;
AV Vagani, 1892. I Ch. 23G. (j-) As to the elf eet of marriage on a woman's legal cajiacity at "ominon law, see below. Chap. XVf. Wms. Keal Prop. :?()G sq., 2 1st ed. Wm.s. Pers. Prop. IJ^S,
:
;
see
lie
Ciimiii;/,
L. R.
'
Ch. 72:
ICth ed.
w.
36
'562
EFFECT OF
'11111
no disposition of her interest in the contraot by wny of settlement, she will on marriage become entitled to the same as lier separate property (//) and will be enabled to
sue alone in respect thereof as
if
f<oh>[z).
And
husband being joined (a) although he will be liable on the contract to the extent of all property belonging to her which he shall have acquired or become entitled to from or through her, after deducting therefrom any
payments made by him, and any sums for which judgment may have been ho)id fide recovered against him at law in respect of her ante-nuptial debts, contracts or wrongs (/>), and he may be sned on the contract either
alone or jointly with her accordingly
{<).
If she be the
sold will
become her
disi
>
unless
otlierwise
same
husband's concurrence
in a married
[d).
In consequence of the
in-
woman
to
become and
[c)
cannot be conveyed
doctrine intended
a
of
be
remedied
by the
Married
married
Women's Property Act, 1907 (./), wluch enabled woman to dispose as if she were difcmo aoh
real or personal property held
by her
as
trustee or
personal representative
it
or
woman,
[y)
S.S. 'l
Stat. 45
(1),
&
46 Vict.
o.
75,
23 Q. B. D. 316.
{d) Sects. 1 (1), 2; Re Drinnmoiul I)urie\-< Co)ifracf, 1891, 1 Cli. 624. ITcirkncfis ^AU>iopp\s (') Re Contnici, 1896, 2 Cli. 358; see
ei,'-
2,24.
(z)
()
Sects. 1 (2), 12, 24. Sect. 13; and see sect. 19;
:
Jy
below, Chap.
(/) Stat. 7
s.
1
\c)
c.
18,
Beck
v. Piercr,
(1); see
below, Chap.
XVI.
'56-3
now
her liusband
slie
became an
the time
when
place,
the
title
was accepted
(r/).
For
in
the
first
when
a married
woman
own
is
by payment
of
the
purchase
tliat
money
(//).
And
secondly, even
admitting
acceptance of the
price,
she would, on
for him(/),
make a conveyance to him on receipt of the purmoney by virtue of the power of conveyance given to married women, wlio are bare trustees, by the Trustee Act, 1893 The marriage of a man does not, of course, affect his legal capacity. But on the marriage of either party to the contract, wliether man or woman,
well
chase
(/).
made
affecting
(/)
any such disposition should have been made, the contract can no longer be safely or properly completed
of the persons to
whom
have judgment of
ui)on
pending completion, either party to the contract deatli or penal servitude pronounced or recorded against liim in Kngkind, Wales or Ireland,
If,
any charge
p.
I
(f/)
Above,
See
7iV
.'J29.
^-
(/i)
Jiroo/.e
Ficmlins
;
Contract, 1898,
Ch. G47
.')2'.1.
above,
pp.
ftO.i,
506.
p.
(i)
(/.)
.s.
Above,
Stat. .")(j ic .)7 Vict. c. o.'J, IG, replacing' 37 & "iS Vict.
s. G see Itc Howfiate (uid (hhurii\st:outnut,VjO->,\bh..\^n below, Chap. XV^I. (/) 1 Dart. V. & P. 32!), 5th f(l. :57;5, Gth eJ. 307, 7tli od. See above, pp. Mb, 13U. (;;/)
c. 78,
36
(2)
164
J'EN1)IN(t
COMPLETION.
he remains a convict,
but
all his
bring
contract either at
property
(//)
who may
sue or be
with the
Oiitl.iwry,
convict's
him
to
by a party
raise
to
the
contract
pending comin
and would
Pai'ty lipcomiTisjr ixn alien
eiit'iny.
obstacles
to
the completion
the
forfeiture to the
Crown
and
and of
his goods
enemy
(q),
If,
contract
remains so
countrj'
(r)
Assi.i^nnioTit
We
gj^j^g^
will
now
by
liis
by a party
to
the ooiitraot.
land sold or of
With regard to the beneficial interest in the contract. Assignment by the vendor assignment by the vendor of the land sold, this land ^
ot the land
sold.
Ix-ing
tlie
/ the m equity
,
from
not
tlie
vendor
is
entitled to
make any
disposition thereof
pending
completion of the contract to any other person or otherwise in derogation or to the prejudice of the purchaser's
rights under
tlie
contract
(.s)
any
sucli disposition
by
()
s..
Stat.
;
33
&
see
34 Vict.
.sect.
;
c.
23,
G
(o)
and
30.
Sects.
914
C'arr v.
An-
The drrmi, 1903, 2 Ch. 279. administrator of a convict has, however, no power to bar an estate tail vested in the convict but the convict himself can exeRe cute a disentailing deed GmMl&; irall(W Cnntmct, 1906,
:
see above, p. .'532, n. Ch. 1 below, Chap. XVI. (p) See below, Chaii. XVI. Wms. Real Prop. 48, llo, 3t)l, 21st cd. "Wms. Pers. Prop. 96,
2
;
(7/)
KiO, 16th od. Driefontein, (7) See Jansoii v. .\r., 1902, A. C. 484, fjOr), r)OG.
l.i3,
(r)
(.s)
XVI.
519.
Above, pp.
-501 </.,
565
may
at once sue to
him
as
law, witliout
any
(/),
offer
complete the
we have
seen
(//),
however, the
sold,
(r),
any person
(,/),
chaser's equities
may
be joined as a
performance, and
may
if,
But
To punhiisir
forv^-l^c
notico.
from
all
chaser,
who
And
good
faith to
entitled
and for the like valuable consideration is the same priority over tlie purcliaser, not
where he
sale, accjuired
For
for
instance,
13.,
and
13.
the lands to
See
Miiiiael!
v.
C,
and,
2
h Rep. "iOb Main's COM {I) Lovelock V. Frankit/n, 8 Q. B. 371 Synge v. Sijnye, 1894, 1 Q. B. below, Chap. see 466, 471
, ;
c)
Mnincll,
P.
XVIII.
()
\c)
2. .JOl v/..
1
miloughh,/ v. WiUouyhby, 1 T. R. 763, 7^1 Clemow v. Geach, L. R. 6 773 Ch. 147 rUchu-v. Ildwlins, L. R.
678,
W.
;
681
Above, pp.
.)!'.>.
Ch.
;
:
2r)'J;
luiuxon V. Ellin,
J.
A:
W.
63'J 2Si)
Ji>ii,Ii v.
624.
(.()
Ha'hs
i>y>i!/c v.
{)
;
Hyxyc, 1894,
288; Q. B. 400,
(y)
Above,
y. .V28,
ii.
Fry,
e'd.
471.
Ml,
241, c;rd
566
appears
(a).
But
it is
to be observed
purchaser's
prior equity
faith, for
alienee acquiring in
good
actually
has
been
received.
If
the
vendor,
valuable consideration
which
is
cannot,
if
Thus,
if
the
sale, re-sell
receiving
payment
is
of
the
whole
price,
first
the
piu^-
second purchaser
protected
against the
much
of his purchase
money
first
as he has paid
sale,
and
is
amount
;
But
after
he has
set
re-
purchase
A/.s
money
for
up
contract of
first
the
(a) See ini/.rs v. Boduujion, Veni. 599; WiUaiajlibii v. Willoufikby, I T. R. 76;i, 767 77'2 Sta)ihope v. Vcniri/, 2 Edeu, 81
;
'l
If'ilmnl v.
Pdc,
v.
Ti
1
rohnm
0G7
and
lie
will Le
obli-
discharged from
fm-tlier
performance of his
gations thereunder
(h).
vendor
alienee
is
entitled to
if
Titikin:,'
by
he
aiieu.ju.
can obtain
The
}urchaser
is,
as
we have
seen
(r),
own,
at
any time
after
of'theVand^'^'^ sold.
(b)
Joiirii
68."),
V. S/i/ii/ii/, 2
Eq. Ca.
^^
Abr.
for,
'1
pi.
Slor;/
U'liui-
Atk.
;i
y,vhlh,
Xiiish.
In the last ca.so a purchaser whu had taken a conveyance and given a bond for the balance of the jjrice without notice of a prior efpiitable incumV.
A:
P.
78'..
brance, and received notice thereof prior to payment of the money due on the bond, was postponed to the incunibruncer, as reg-ards Much money, on the ground that he would be entitled in equity to avoid payment of the money on the bond. The privinpr of a bond or covenant for payment of the whole or part of the purchase money may, i)erhaps, be properly treated as not constitutin;,' executed consideration within the meaning of the rule stated above,
as any assi^jrnee of the debt so secured would take subject to the equities between the debtor and original creditor. Tint if the sale were made on the terms that a negotiable security should l>e given for the un])aid purc^hasc money, it appears that tlie giving of such security ought to be treated as executed con.sideration, at least where the security has lx>eu negotiated before notice of the prior equity is received for after the negotiable security has come to the hands of a bona fide holder for value the liability thereon can no longer be avciided.
;
(()
Above,
(3
p. 4S(), n.
(i)
I'ottir
V. Sdtidrrs^
Hare,
V.
;
1.
\.
1892, C. 244 liuilrif v. Hunicn, IS9i, I Ch. 25, 30, 37; tibovo,
T<(i/lvr
d)
UitustU,
5t;8
A.ssigiiniciit
may
(/'),
hiwfully assign
may
own name
;
making
the
and
this is
the case
some
lesser or
money
lent
{//).
And
entitled,
own name
at
law
if
by way
(/).
of
express
notice
in
writing of
such
assignment were
by
him from
further
performing the
contract
for
the
(/)
43," 55,
iS/i(iw
]rood V.
GriJ/it/i, 1
Swaiist.
;
56
ciaUd
iff)
Fort lane/,
<^-c.
Ltd.,
19C3,
Mon/an
v.
Modes,
FoireU v. Frw, 1 Y. & C. C. C. 345, 358 12 L. J. (N. S.)Ch. 158. 162, 165; Buckhoul \. Fapilhn, L. R. 1 Eq. 4 77, 2 Ch. 67 Ely, Sp. Perf. 222, 3rd ed. (/i) Browne v. Lundun Necropolis Co., 6 W. R. 188 Shaiv v. Foster, L. R. 5 H. L. 321, 333, 338
ib.
435
350. 36 & 37 Vict c. 66, (J) Stat. Turklngton v. . 25, sub-s. 6 McHjee, 1902, 2 K. B. 427, reversed on the facts, 1903, 1 K. B. and see FJaivson v. Great 644 Xortherii By., 1905, 1 K. B.
;
344,
200, 270, 271. It ha.s been decided that where there is au absolute a.ssigiiment of the chose; in action (in the sense of a complete transfer of the legal ownership thereof), the a.ssiguee may sue in his own name, although the assignment be made to secure the payment of money, and be subject to a proviso for redemption on such payment Tancred V. Ikhuioa lUuj, iff. Hall. Co., 23 Q. B. i). 239 hnrhum x.liobertsoH, 1898, 1 Q. B. 765 Hughes V. Fuwp House, ^-c. Co., 1902, 2 K. B. 190 cf. Merennlile Bank London Evans, V. 1899, 2 of Q. B. 613; Jones v. Humphreys, 1902, I K. B. 10 or although the assignment be made on trust for
: ;
the assignor Comfort v. Bells, 1891, Q. B. 737; FUzroy v. Cave, 1905, 2 K. B. 361.
:
EFFECT OF
assignor's
'J'HE
ofi->
own
use,
he
entitled to do.
And,
as a ride,
thenceforth bound
to
in
must be an
effectual
assignment
(jf
the original
of the contract
S/iau-v.lox/cr.
execute to
ment
of
the contract,
agreement
the deposit of
the contract or
the
benefit
of
the
at a
same
and
it
vendor was
purcliase
justified in executing,
money by
rX)
S/,nir
:?21,
V.
Fvstir,
L.
3:jy,
R. 5
3o0
;
}I.
L.
3.i3,
33,
the
i.u
Wms.
{I)
ahaw
321.
V.
t'wlii\
L.
1\.
.')
See
Turklngton
v.
Mugu,
H. L.
570
As
tlie
El'FlXT OF
tilt'
to
Of
over
burthen of
contract
burthen thereof
(ii).
It follows that
when one
after ;in
ussisifuuient.
and the other party cannot sue the assignee, either for the specific performance or for damages for breach of
the contract
{o),
ment
is
of
the contract.
In
trutli to
assignor
action
not a necessar}'
proper
party to
any
tliereon {p).
make no
direct assignment,
merely transfer by some indej)endent act or agreement a part of the benefit which he is to derive
from
its
performance
as if the
the purchase
money with
the
payment
sell
some smaller
transferee,
a part or to lease
the
an absolute assignment
of 1873,
is
meaning
of the Judica-
ture Act
to
own
lutme at law
(y).
()
Tolliio'st V. ^hsociiitcd
Forl-
Chadwick
v.
Madcn, 9 Hare,
188.
[p)
HoldcHW
V. Later, 3
Uaijn,
Mer. 47
Hall
Y.
.^
C. 101.
;
Mei[q) Sec above, p. 5GS rKiilde Batik of J.oiidvn v. Ecarns, 1899, '1 Q. B. Glo Jones v. Hum;
p/nrt/n, 190-2,
K. B.
10.
It iw
a question whether an absolute assignment by the vendor of part of the purchase money would enable the assignee to sue the purchaser at law but the better opinion appears to be that it would not see Urice v. Bainiii'fer, llnrham v. liu3 Q. B. D. 5U9 hrrtson, 1898, 1 Q. B. 765, 7G9 and the two cases cited 77-5, above Hkippcr v. llollowat/, 1909, W. N. 230, 79 L. J. K.'B. 91, reversed ou the facts, 1910, W. N.
; : ; ;
EFFECT OF
11
IK
'^"l
who has
specifically enforceable,
may
claim,
to the contlie
be an assignee
the benefit of
have the same specifically performed in Thus, in Bromio v. Lmnloii his own favour accordinGrlv. " Nccropolis Co. {/), a vendor of laud assigned a portiou of the purchase money by way of mortgage, the mortcontract,
and
to
^j'O"'"^
'
London J\'f/y/^o./i*-
\;
Cu.
gagee deposited
chaser, his
this
vendor, claiming,
Jis
specific
performance of the
under the agreement to purchase, and thus obtain the benefit of his charge through the medium of specific
performance.
The same
by
But
it
must
partial
of
his
74: 1910,
;i')0,
3.')7.
358;
;
aud
v.
see
Sunt/i
/y^^r/-,
W.N.
Jui.strrn
Rail.
Co.
A'lwlt,
10
Hare, 122 Fen wick v. liulman, L. R. 9 E(i. 1().5, where note that Broune v. Lo)i<lon XvcropoUn Cu.
was uot
Hail.
Co.,
cited 13
(Joienniiiul
of
Xcic/oinid/dtid
v.
Xeirfvuiidlinid
App.
Gas.
199,
p. 570.
572
to
and he can only enforce formance by the other party on the terms out his own part of the agreement (.r).
entirety
[if)
;
specific per-
of carrying
Contract
ispecifically
Here
it
may
sale of
who
would
be displaced by a conveyance.
sale
by a
is sj)ecifically
by
survivorship, the
(s).
And
entered into
by a
if
power
{(()
;
of sale
is so
is
but this
contract
And
to invest
a contract of purchase in sucli circumstances as to constitute a breach of trust, the contract is not specifically
enforceable
cc.sfui-ijKc-frtO'if-s,
(/()
Above,
Fry,
n.
(.s),
p. 571.
(ff)
Shai/iioii
V.
Bradstreet,
;
{x)
Sp.
Perf.
922
sq.,
Sch.
&
Lef.
52
Mortlock
;
v.
3rd ed.
(y)
;
2 Dart,
V. & P. 997,
;
5tli
1031, 7th ed. 1117, Gth cd. ed. see above, pp. o38, 539.
.sry.
Hintun V. llin/on, 2 Ves. Broun v. Raindlc, sen. 631, 634 3 Ves. 256, 257.
(2)
;
[h) See Mortlock v. Bailer, 10 White v. Cuddon, Ves. 292, 313 8 CI. & Fin. 7G6; M>m v. Top;
573
and
to
payment
of the
money
and
(c)
Ecclesiastiral
riiinei/,
1899. 2
2 Ch.
T-'^G.
in the judgments in this case it ajjpears that the vendor would not
have had any remedy to obtain payment of the purchase money from the c xlii'i-qut-tnisfs or out of the trust fund if the contract had not been a breadi of trust.
574
CHAPTER
XTI.
Of Of Of Of ^5. Of
Completion generally.
Searches and Inquiries.
the Preparation of the Conveyance. the Adjustment of Accounts. the Execution of the Conveyance.
^:?
1.-
-Of Completion
f/enern////.
is
and proceeds to completion, and claims that the vendor has perform that part of the contract. In the latter
title
case the vendor either admits the purchaser's claim or disputes it, when the parties must pursue their legal
remedies.
tract is
But
if
title,
the con-
to be performed
either for
non-payment
of the purchase
money
or else
for
some reason Avhich is not precisely a matter arising upon the investigation of title, as that the contract was induced by mistake or by misrepresentation as to some fact, or bv fraiul, duress or undue influence, or cannot or ouglit not to be performed by reason of the incapacity
of
relation in
which
tlie
Of course, any of tliese parties stand to each other. for avoiding the ground as a alleged be matters may
contract before or during the investigation of title. But the normal as the plan of this treatise has been to take
land, coiirse of a contract for the sale of
and
to describe
wo
Ol^ TIIK
575
will first
completed,
examine the cases in which the contract is duly and will consider afterwards tlie various grounds on which the contract may he avoided.
Let us now approach the subject of the completion of
Tiinr- f.,r
""'^'
the contract in
its
ordinary course.
And
seen
first,
as to the
As we have
(a), if
when
the
a good
title
and complete the contract bound Under an open contract, the time for accordingly. completion is when the vendor has shown a good title (//)
to accept the
:
but
it is
When
this is done,
time
is
commenced,
This
rule,
however,
is
subject to certain
exceptions.
The
is
(/').
are referable
is
founded
As
failure
make
so the
performance of a con-
where the
tlie
sliall
be an essential
a contract
particular
on a
day
tlie
parties
and
this inten-
(rt)
(/;)
,
179.
{,)
Y.
&
v.
Knight.
(r)
Above,
,,
p. 5<.
;
,-
[d)
V. Mihier, 2
(/) Above, pp. .58, '>9. j..,^ the cases cited above, (;^. Put rick v. Milne,; 2 C. P. p. 5s D. 342.
;
576
tion
may
be
eitlier
expressed or implied.
An
express
is
intention to
make time
such an intention
done within a given time {//) but may also be gathered from other
:
(/).
It must, however, be
time
is
on
we have
seen
(/)
may
from the surrounding circumstances. Thus, time is of the essence of the contract where the value of the
property sold must necessarily increase or diminish
according to the effluxion of time (m), as in the case of
sales of
of estates
determinable with
(
life (o),
p)
So,
generally of
as
on the purchase of a
public-house
{>),
them
is
{x).
But
whether time
material
{Ji)
Y.
16
&
Lloifd V. Rippingah, cited 1 C. 410; Parkin v. Thorold, see above, Beav. 59, 65
:
See Withy v. Coltle, T. & R. Dart, V. & P. 419, 5th ed. 484, 6th ed. 497, 7th ed. IlKflson v. Temple, 29 Beav. {p)
(ol ;
'
78
Till, I Rxis^fi.
1
Z76
/r//.-^rv./^#m/.'(.
Above,
Y.
>Sc
Beav.
533
C. 401.416.
[u'l
^1079 1082.
Perf.
^.'
..
Above, p. 408.
577
of the
to be determined
(f)
;
parties
and
if it
delay in completion
{u), it will
essential
{.a)
As
to inferring
may
be illustrated by
sell
or to
sell
factory
it
(s)
or for
but
make
of
it (b).
An
may
conduct of the parties, as where they continue negotiations as to title after the
day
(c).
As we have
,1
seen
i.1
(^/),
J.
where time
J.
is
1
'i
it
may
be
made
'
so, in
of the essence,
so,
by
formance of his part of the contract, by a notice served on him by the otli<^r party and requiring him to do the acts, which he has so delayed to perform, within a specified
time
{t}
(m) (x)
&
(a)
S. 190.
74.
]Vebb V. Ilufihes, L. R. 10 Eq. 281, 28G; I'o'trick v. Mihier, and see Jones v. 2 C. P. D. 342 Gardiner, 1902, 1 Ch. 191. Lenj V. Liiido, 3 Mer. 81, (,v)
:
84 45
Gedi/i' v.
Montrose, 26 Beav.
Tiiley
v.
Thomas, L. R. 3
v.
See Jonrx v. Gardiner, 1902, Ch. 191. {h) See Bofhin v. TFood, 1 J. & W. 419, 422 Tifki/ v. Thomas, L. R. 3 Ch. 61, 67, "70 Webb v. Hitghrs, L. R. 10 Eq. 281. 286. (r) Hipwrll v. Kntqht, 1 Y. i: JVebb v. Hughes, L. R. C. 401 10 Eq. 281.
1
;
;
U'rit/ht
IFoicard,
{d)
Above,
p. 48.
w.
37
i78
Here
it
may
be mentioned that,
as that
if it
be a term of the
formance by vendor of a
condition which is a term of the
sale.
by the vendor,
security,
and a day be
vendor
may,
any time
before the
day
{e).
completion.
and delivering up the actual on the purchaser's enjoj^ment thereof possession or part it lies in accepting such title, preparing and ten;
of either party's
himself be ready to
own
Thus the vendor cannot require payment of the price and call upon the purchaser to take possession unless and until he have shown a good title and be ready and willing to execute a valid conveyance to the purchaser;
nor can the purchaser oblige the vendor to convey and give up possession of the land without himself accepting
the
title,
And
this is
day
either party
'^79
day
for completion
anive or be
past,
Let us
title, if
first
him
is
the
title
shown on the
abstract
and proved by
the documents and other evidence produced for verification of the abstract be a
contract (A)
No
of
acceptance
last
is
required
it
takes place
last
when
the vendor's
outstanding requisi-
tion
(").
Such acceptance,
title so
however,
put
it
subsequently
sources than
as
the
information
supplied
inquiries
by the made by
vendor,
the purchaser
provided of course
by
such
objection (m).
title
prevent objections
rather than of
as a part of
the
i
proper investigation of
,1
i.
every
i.1.
title
;
making
i.
Searches and
inquiries to be
See 3lfirtin v. Smith, 6 Jones v. JLidd, 4 East. 555 Russ. 118; Pookv. Hill, 6 M. &
{g)
;
1903,
(A)
(/)
Ch. 287.
;
W.
3
83.)
Tillii/ v.
;
Ch. 61
Mosti/n,
1893.
Ch.
376
above, pp.'eo, olT), .516. (A) See above, pp. 35, 36, 105,
;
Above, p. 189. Above, pp. 189, 190 Jie Jackson and Oakshott, 14 Ch. D. 851 Re Monekton and Gilzean, Re Haedicke atid Ti Ch. T>. obb Lipski's Contract, 1901, 2 Ch. Rr PuckHt and 666, 669, 670 Smith's Contract, 1902, 2 Ch. 258. (w) Above, pp. 202207. (i Above, pp. 164-166, 181,
; ;
;
n.
See cases cited above, pp. 26, Re Iliyhett and 60, n. (/) Bird's Contract, 1902, 2 Ch. 214,
(i)
(r).
188, 190 ; Mosti/n v. Mostyn, 1893, 3 Ch. 376 ; Re Hughes and Ashley's
Contract, 1900, 2
Ch. 595.
37(2)
580
is to
is
be
in
inquiries should be
made
before completion
And
it
contract {p).
We
have seen
(</)
Soper V. Arnold.
and afterpay the purchase money and the vendor rescind the contract and retain the deposit as forfeited
defective title put forward without fi'aud,
fail to
wards
on that account
(r),
to
2.
Of Searches and
Inquiries.
The
to ascertain
title is
deed
of
arrangement,
assurance,
deed
by a married woman
common law, or by registration of the title any registered disposition under the Land Transfer Acts, 1875 and 1897 {t), or in the case of lands in Middlesex or Yorkshire, by any disposition thereof
or
(o)
Sug. V.
;
&
P. 538
Dart,
(?)
V.
454, 499, 5th ed.; bUsq., 1191, 1227, 7th ed. 569, 6th ed. {p) Above, pp. 165. 166, 181, Mostyn v. Mostyu, 1893, 3 182 Ch. 376.
;
&P.
74.
(.s)
Armld, 37 Ch. D.
c.
96, 14 App. Cas. 429. [t] Stats. 38 & 39 Vict. 60 & 61 Vict. c. 65.
87
(r/)
581
by
judgments and Crown debts of record form or arising from public accountantship to the Crown, all of which at one time were, when registered, charges on the debtor's lands (i/), it is now provided by the Land Charges Act, 1900 (z), that a judgment (a) or recognizance, whether obtained or entered into on behalf of the Crown or otherwise, either before or after the commencement of the Act (h), shall not operate as a charge on land, or on any interest in land, or on the unpaid purchase money for any land,
to
With regard
by
Judgments,
^^^^ ^"pj^^ ^f
or
specialty in statutory
execution,
unless or until
enforcing
it is
any inquisition and any obligation or specialty made to the Crown, and any acceptance of office from or under the Crown, whatever may have
(c)
;
1888
and
been
manner
as
it
applies to a judgtoo,
ment
(d).
Under
(c)
no entry shall
Court, in
High
(./),
the register
by the
Judgments
Act,
the
of Property
Amendment
(/),
Act, 1860
{h),
or the register of
(6)
Crown
294, 60260.'), 2l8t ed. (y) Ibid. 209275, 28.3287. (2) Stat. 63 & 64 Vict. c. 26,
8.2(1).
(a) Hero including' any order or decree having the effect of a judgment, except an order made by a Court having bankruptcy jurisdiction in exercise of that jurisdiction see sect. 6 (3) stat. 51 & 52 Vict. c. 51, s. 4.
:
26, s. 6 (2). Stat. 51 & 52 Viet. c. 51. (rf) Stat. 63 & 64 Vict. c. 26, s. 2 (2) ; see Wms. Real Prop. 285 287, 21st ed. (e) Sect. 2 (3). (/) Stat. 1 .Sc 2 Vict. c. 110, .*. 19, 21. i. 8. (</) Stat. 2 & 3 Vict. c. 11,.
(c)
64 Vict.
(A)
(i)
Stat. 23 Stat. 27
&
ic
582
by the Crown
(/c).
And
all
lis
pendens and
annuities
Office
Land
Registry {m).
of
As
(o),
that,
by the
1888
any tenure)
ing a judgment
[q)
whose land is affected in the Office of Land Registry. This enactment was extended by the Land Charges Act, 1900 (r), to every writ or order affecting land issued or made by any Court for the purpose of enforcing a judgment, whether obtained on behalf of the Crown or otherwise, and whether obtained before or after the commencement of the Act, and to every
delivery in execution or proceeding taken in pursuance
of
or order.
may
be renewed, and
the
renewed has
(s).
years from
date of
renewal
With
regard,
therefore, to judgments,
Crown
whether
debts or liabilities of
Land Charges
Act, 1900,
and process
of execution,
at suit of the
Crown
Stat. 28 & 29 Vict. c. 104 (/.) sec Wins. Real Prop. 271 275, 286, 21st ed. {I) See below, pp. 587, 593. (?) Stat. 63 & 64 Vict. c. 26,
Above, p. 581, n. {a). Including a mortgagee or lessee, or other person who for
{p)
[q)
interest in or a charge
sect. 4.
()
s. i
Stat. 63
Stat. 51
&
64 Vict.
52 Vict.
c.
26,
51,
558.
s.
3.
(a)
ss.
Stat. 51
6.
&
52 Vict.
c.
51,
s.
&
c.
5 (3).
583
common
now
last five
and
if
this be so,
of the lands
shown, he
if
may
safely complete
the
purchase
writ or order be
registered,
But
complete without
this is the case
the
concurrence
every person
(ii).
entitled thereunder to
any
And
by
the
Land Charges
i\.ct,
1900
(//),
on the judgment debtor's lands, wlien the writ or order it has been registered under the Land Charges
of
Act
1888
(r^),
no
{t) It fjiunot now be necessary, as regards judgments suffered or Crown debts incun-ed before the
any
of
the registers
closed
as
above mentioned: p. 581. If before that Ait any sucli judgments or debts wore i;harges on
any
lands
without
actually
having been
purchaser must ascei'tain that the possession of the land sold is in accordance with the title shown, because he is deemed to ha've
son.s
it
Crown
debt incuiTcd before the 2nd Nov. appears that on the it 18(3.)), commencement of that Act they ceased to be charges, unless or until a writ or an order to enforce them had been or should be registered. If the lands had been actually delivered in execution prior to that Act, it appears that, by virtue of sect. 'A of the
p. 582), unless the land h;wl bei'n already sold under the Judgments Act, 18G4, it
may be held that, if the purchaser have notice of a delivery in execution under an unregistered writ or process, the same is valid in equity as against him see below, p. 581. (it) See above, pp. 557 560. An order appointing a re(.)
:
ceiver
cution
V)
(-)
(i). s.
<}3
2.
c.
110,
Act (above,
s.
13.
(a)
Stat. 51
&
52 Vict.
c.
51.
584
ment
(b)
Land Charges
So Crown debts of tlie kind included in the Act, 1900 (c), h;ive the binding effect on
them by common
(d), so
them
registered.
But
as
no
now
Crown
debts of this
by
judgments, or
Crown
debts
accountantship.
notice or knowledge of any of these Crown debts incurred by or any judgments against the vendor or his predecessors in title, so long as the purchase is comDebts due pleted before such registration takes place. to the Crown by simple contract and not arising from the above-mentioned accountantships {c) did not, under the old law, give rise to any lien on the debtor's
made
them (/') and they do not now give The piux-haser may therefore such a lien.
that he have notice of
them
him
Notice of unregistered
process of execution.
if
his purchase
but
to
With regard
it is
to
against
of
any
elegit
vests in the
creditor
(b) Under the Judgments Act, 1864, no judgment thereafter entered up affected any land until actually delivei'ed in execution. But this enactment was repealed by the Land Charges Act, 1900 see stats. 27 & 28 Vict. c. 112, 63 & 64 Vict. c. 26, s. 5 s. 1 Wms. Real Prop. 274, 21st ed. (c) See above, p. 583, n. (y) and p. 581.
:
{d)
See
Wms.
21st ed.
p. 581. Smith, Wightw. (/) M. V. Casherd v. A.-G., 6 Price, 34 411, 473476; Chitty on the Prerogative of the Crown, 293 296 Sug. V. & P. 545. Sug. V. ^' P. 545. ((/) (/() Above, p. 582.
{e)
;
Above,
585
which
is
ment debtor himself, his representatives in law and It appears thereassigns by voluntary conveyance (/).
fore that the actual delivery in execution
under unregisbefore
or
made
pending the completion of the contract for sale, is an objection to the title, the estate sold being partly vested
in to
some person,
whom
tlie
convey to the purchaser {k) and it seems by analogy to the rule applied under the old law as to the sale of lands already parted with by voluntary conveyance (/),
ance of the contract, upon the ground that conveyance
to the purchaser
void.
Nor
See
above,
p.
.559.
The
rkgit vests in the judgment creditor, in the case of execution under a writ of <hgit,
estate
by
wLen he has g-ot the sheriff's return to the wrif. and in the case of equitable execution by the appointment of a rei:eiver, when the order for a receiver is made. In the case of an fU(/i/, the slieriff delivers to the judgment creditor symbolical not actual possession of the land but the latter, when tenant by elegit, may, if the land were in the oocupatiuu of a tenant, distrain for rent subsequently be;
L, R. 9 Ch. 229, 236 Re Pope, 17 Q. B. D. 743, 74.5, 751 Re Anthoiii/, 1892, 1 Ch. 4.5(i Johus V. Puik, 1900, 1 Ch. 296. It is submitted that the case of Re HobsoN, 33 Ch. D. 493, if well
;
;
decided, which
is
doubtful, lays
down
no
more
than
this
coming due without any attornAnd if ment by such tenant. the land were in the judgment
occupation, the actual pos.ses8ion thereof by peaceable see Ifve^s entry or by action Tai/lor v. Co/*-, rtm; n Rep. 8'Jb
debtor's
own
tenant by
elegit
may obtain
:
Rogn-.s v. 3 T. R. 292, 29r) Pitcher, 6 Taunt. 202, 206, 207 Sharp V. Key, 8 M. & W. 379 Lloyd V. navies, 2 Ex. lO.i
; :
:
;'
that the .symbolical delivery of land by the sheriff under an elegit may be equivalent to a "seizure" thereof within the meaning of sect. 45 (2) of the Bankruptcj' Act, 1883. It appears that a judgment creditor, who has obtained actual delivery in execution of the judgment debtor's lands under unregistered process, is entitled to obtain an order for sale under the Judgments Act, 1864 (stat. 27 & 28 Vict. c. 112), 8. 4, as the words in that enactment which required registration of the process of execution as a condition precedent to obtaining an order for sale were repealed by the Land Charges Act, 1900 (stat. 63 & 64
Vict.
y.)
(/j
c. 26), s. 5.
Hughes
6
Lumleg,
;
E.
&
Eq. 619
Hatton
v.
Haywood,
586
for it
may
under the old law (), and of unregistered life annuities under the Judgments Act, 1855 (o), executions actually
put in force against lands under unregistered process
are valid
of
in
equity
as
against purchasers
who have
notice
the
same.
Until this
it is
point be precisely
conceived, refuse to
complete in such a
the land sold {p).
Orders
case,
made
It will
{q)
in exercise of
bankruptcy
jurisdiction.
the
to
made
payment
any sum
of
costs,
a jvidgment
and therefore
to operate as a charge
(.s)
:
but
all
{t).
where one who has contracted with a person afterwards adjudged bankrupt applies in the bankruptcy for rescission of the
for example,
Wins. ReaJ (;) Above, p. 37o Prop. 212, 21st ed. (m) Bails V. airat/uiion; 16 Ves. 419; Sug. V. &P. r)2l. (o) Gnavesv. Tofirld, 14 Ch. D. 663. The language used in the Judgments Act, 185.5, is difierent from that used in the Land Charges Act, 1888. But Greaves V. Tofield was expressly decided on the principle applied in construing the Middlesex and Yorkshire Registry Acts, of which the language closely resembles
;
that of the
1888.
[p)
((/)
:>)
Land Charges
Act,
559.
Above,
;
p. 581, n. ().
See stats. 1 & 2 Vict, c lid, s. 18 46 ic 47 Vict. c. 5:!, ss. b2, R. S. C. 1883, Orders 42 93, 100 Bank(it. 3, 24, 28), 43 (r. 1) ruptcy Rules, 1886, r. 93.
;
(.s)
Stat. Stat.
&
e^:
Vict.
c.
110,
26,
13.
[i)
63
64 Vict.
c.
7 :
587
(?/).
and
is
There do not appear to bo any means of discovering whether lands sold are affected by a liability of this
kind.
and those created under statutory authority, generally for the purpose of securing the repayment of money advanced for the improvement of land. Of annuities of the former kind, those granted on or after the 26th of April, 1855, otherwise than by marriage settlement or will, for a life or lives or for any estate determinable
on a
life
Common
against
,
Pleas and
now
{x)
1
.
in the
Land
so
charged
annuities
therewith
.
purchasers
Life
N.jticc of lite
required to
annuities.
chasers
who have
notice of
them
(//).
Annuities or rent-
nature
if
legal,
they will
;
charged in
if
made
in
(m)
p.
5.);3.
An example
of an appeal made by a contractor with a bankrupt to bankruptcy jurisdiction and dismissed with costs against him occurs in J{e Jiti-stab/c, 1901, -IK. B. n\S. {x) Stat. 18 & 19 Vict. c. lo, 88. 12, 14; above, pp. 437, 582. Annuities for or determinable on any life or lives, granted for valuable con.sideraticm, and not secui'ed on lands of equal or
session,
an estate in fee or in tail in poswere formerly made void by statute, unless a memorial thereof were duly enrolled in the stats. 1 Court of Chancery oli Geo. III. Geo. III. o. -26 c. 141; 3 Geo. IV. c. 92: 7 But the.se Geo. IV. c. 75. statutes were repealed by the
: ;
greater value than the annuity, and belonging to the grantor for
oG3.
588
and
for
executed valuable
consideration
{z).
[f
any
exist,
if
but
discoverable
by any
search,
or
by the
deeds of
absence of the
title deeds, as
only
is
Land charsfes.
With regard
coming under the description ot a land charge {() in the Land Charges Act of 1888 (^d), and created after that
year, are void as against a purchaser for value
(c)
of the
Land
Registry.
And
by
act
of such assign{e)
of the land
charged
Notice of
uru'egistered
therewith,
.
unless
registered
in
the
same
as
register [g)
so
As
it
may
land
charge.-*.
equity
against purchasers
who have
Land
improvement
charges
created before 1889.
though not registered, of which they have notice. Land improvement charges created by the authority of statute before the year 1889 were not declared to be void, as against purchasers, if not registered but some of them
:
were required to be registered and are discoverable by Thus, charges created under the Public Money search.
{z)
mnv
{a)
{/>)
V. Geach,
{d)
Stat. 51
cVc
52 Vict.
(c/).
c.
51,
12.
[c)
{(/)
Wms.
Above,
ed.
(/*)
(o).
(c)
589
the
1849
(/),
or the
Improvement
Money Drainage Act, Laud Act, 1864 (/), were registered against the name
Private
of
Land
Commissioners (w), whose powers and duties were in the year 1889 transferred to the Board of Agriculture (),
at
whose
(o).
office
Land improvement charges created under the General Land Drainage and Improvement Company's Act(/>), the Lands Improvement Company's Acts (q), or the Land Loan and Enfranchisement made
to be (() Thesi! charg-fs were made by certificate of the Inclosure Commissioners, and to consist of rent-charges payable for twenty-two years stats. 9 & 10 Vict. c. 101 (see s. 34),
:
c. 44 to the supply of water to a rural district. Under the Act of 1864 (sect. 56) the rent-charges thereb}' created were required to be registered in the Office of
amended by
by 27 &
Vict.
(/)
c.
These
years and granted by certificate of the Inclosure Commissioners, and. if eharsred on lands in Middlesex or York, were to be registered in the county register: stat. 12 & 13 Vict. c. 100
(see
ss.
Land Registry but the words requiring this were repealed by stat. 62 & 63 Vict. c. 46. s. 5, which also prohibited any entry or search from being made in any register kept at the Office of Land Registry under sect. 56 of the Act of 1864, except under an express order of the High Court. This does not appear to prohibit search at the Office of the Board
:
10,
14),
9.
c.
of Agrictilturc. {ill) Stat. 45 & 46 Vict. c. 38, s. 48. {II) Stat. 52 & 53 Vict. c. 30.
{n
See
Elphinstone
109
i:
;
Clark
above,
on Searches,
n.
{I).
112
(/; These were to be made by absolute order of the Inclosure Commis.sioners creating a rentcharge for the term tliereby fi.\ed, not exceeding twenty -five j-ears .stat. 27 & 2S Vict. c. 1 14 (see ss. 26. 49j, amended by 62 ..t 63 Vict. c. 46, and extended by 33 & 34 Vict. c. 56 and 34 tV: 35 Vict, e. 84 to the erection, (-ompletion or improvement of limited owners' residences by 4 c^- 4 I Vict. c. 31 by 1 <& 46 Vict, to waterworks
: ; ; >
Commissioners:
Vict. c. xci.
stat.
.see s.
13
and
personal)
{q] These were to be created by absolute order of the Inclosure Commissioners charging the lands by way of annuity for not more
c.
38.
s.
30, to all
improvementH
than twenty-five years; and, if affecting lan<ls in Middlesex or Yorkshire, were to be registered in the county register stat.
:
16
&
'.see
&
590
may
also be discovered
by
(s)
.
search at
office
of
tlie
Board
of Agriculture, as well as
by
Charges
under the Artisans' and Labourers' Dwellings Acts, 1868 1882 {f), in favour of owners who themselves completed the works required under the Acts by the local
to
authority,
had
to be recorded
where
also
may
Landowners Drainage and Improvement Company's Act {u) and the LandoAvners West of England and South Wales Land Drainage Company's Act (x).
Charges under the Sewers
will be
Amendment
Act, 1833
if
(y),
any,
or
if
made by
at the
c. c.
Ixxxiv.
Ixxxii.
;
22
&
23
Vict,
c. cxl.
(?)
terms not exceeding twenty-five years created by absolute order of the Inclosure Commissioners, and, if affecting lands in Middlesex or Yorkshire, were to be registered in the county register
:
32 Vict. c. 130 (see ss. 19, 38 & 39 Vict. c. 36 42 & 43 Vict. cc. 63 and 64 43 45 & 46 Vict. c. 54 Vict. c. 8 all repealed by the Housing of the Working Classes Act, 1890 (stat. 53 & 54 Vict. c. 70) see ss. 36, 37, as to charging orders
of 31
Quarter Sessions
see stats.
&
2530)
Stat.
23
&
24 Vict.
c.
c.
clxix. (see
ss. 37,
38, 47),
24 Vict.
personal)
cxciv.
owners completing works themselves, which are to be registered in Middlesex or Yorkshire in the county register.
in favour of
{ii)
Stat. 10
Clark
on
(.1-)
Stat. 11
charges were made [t) These by order of the local authority charging the lauds with an annuity for
if tliirty years, and, affecting lands in Middlesex or Yorkshire, were required to be registered in the county register.
16
.Is:
Co. y Ashford, Ch. D. 411. 424 Elphinstone Clark on Searches, 119, 120.
the local authority themselves executed the works, the costs, charges and expenses so
Where
((/) These are made by a decree or Ordinance of the Commissioners of Sewers and are payable by instalments over a period not
(z)
Stat. 24
&
25 Vict.
c.
133,
s.
67.
591
the Board
(a)
repayment improvement expenses, are required to be registered and may be discovered by search at the office of the local authority. There are also some eases in wliich charges authorised by Local Improvement Acts are required to bo registered (c).
for securing the
of
money advanced
for private
rent-charges which did Land improvement on p 8H9 require any registration of any eharges not ^-^q? kind, are those created under stat. 8 <fc 9 Vict. c. 56 (d). ^ registration Various local Acts have also authorised the creation of before issit.
'
rent-charges to repay
money advanced
for
improve(e).
way
sum not
so payable
''^P'^^
^}^^' *
to be
registered.
Among
way
of
"""'*y-
amount
by any
local authority
A: Clark ou (rt) Elphiustone Searches, 114, 11'). These are granted b^' the {/>) local autliority by way of rentcharge for a term not exceeding thirty years stat. 38 & '.id Vict.
:
more than twenty-five years, of moneys expended in the improvement of settled estates to be
iharged thereim with the sanction of the Court of Chancery but apparently seldom resortetl to Elphinsto'ne & Clark on Searches,
;
:
c. .TO, 88.
(()
2 JO, "241.
those created under the of Buildings Act, 18()() 'c. cxxix.), as to lauds iij Middlesex, the Bradford Waterworks aud Improvement Act, 1K7.') (c Ixxx.), and the Leeds Improvemeut .Vet, I.S77 (c. dxxviii. where registration in the county register is retjui red Pjlphin.stoue &: Clark ou Searches, 121, 123. (^ Enabling the repayment, by iustalmeuts extending over not
As
11.).
{e) See Elphinstoue Searches, 121 .iq.
(
Improvement
vS:
Clark on
s.
257
Ch. D. 782: Rr littles. north tiiid R'uhvr, 37 Ch. D. .)3.> Rr Simfh's Sittl-il Extnlcs, 1901, 1 Ch.C89: above, pp. 177, 521, .522. [g) As in sewering, paving or lighting private streets under sect. !.')() of the Act.
v. Btiher, 17
;
'592
were incurred,
is
made
liable
agreement with the local authority. Similar charges have been created by various local Acts, sometimes by
express words, sometimes impliedly, as
to distrain for the
amount due
{/i).
under the Agricultural Holdings (England) Act, 1883 (/), to a landlord who had paid to a tenant compensation under that Act and where the landlord was
not
entitled
for
his
own
benefit,
also
required
no
registration.
What
are fand
^^
improvement rent-charges
after Tsss^
1888
(A-),
and must be
So,
it
seems,
must an}^ other laud improvement charge effected under the same Acts at the instance of the owner of the land, but not payable by way of annuity (/). The abovementioned charge given by the Agricultural Holdings (England) Act, 1883, in favour of a landlord, who had paid compensation, was expressly included in the definition of a land charge given in the Land Charges Act of 1888 [m). And by an Act of 1890 () it was provided
See Elphin stone & Clark on .sv/. above, pp. 177,
:
(A)
ss.
46
&
47 Vict,
4
c.
61,
within the meaning of sect. 4 of the Land Charges Act, 1888, though such order or certificate be directed to be made under hand and seal see above, pp. 588
:
(/,)
Above, pp.
591.
(l)
Office
certificate of the Inclosure Commissioners, Land Commission ei's, or Board of Agriculture or other body, given under statutory authority,
Stat. 53
&
54 Vict.
57,
^93
Act
of 18S'3,
own
of the
and should be
1908
(o),
regis-
tered accordingly.
And
the
Agricultural
Holdings
Act,
are
also
same manner.
sect.
(p),
Land Charges
Act
sect.
of
and do
be registered
rised
was autho(f)
:
but a
required to be kept
by the
urban authority.
With regard
above referred to
:
(ii)
Lis pendens.
of
searches
Under
the
{x),
the Office of
Land
Registry.
years to
find
out
if
proceedings
And
at
will be
bound by the
result of
any action
law
8 Edw. VII. c. 28 (o) Stat. (which consolidated and repealed the Act of 1888 and its amending
Office
of
Land
Ecfiislrt/,
24 Q. B.
D.
s.
178.
{t)
Acts),
8.
19
see
ss.
1518, 35
13
Wms.
cd. (p)
[q)
(r)
(s)
Stats.
&
;
3 Vict.
c.
;
c.
11,
42
& 43 Vict.
(a).
1883, Order 61
78 R. S. C. above, p. 581.
Vicc-Rc(jislrnr
uf
w.
38
'
594
is
so
peiideiis
against
on the land
the land
it
(s)
.
may not
affect
It
is
of the claim.
And
if
Where
is
Durham.
palatine
Lancaster
and
of
pending
searched
Bankruptcy.
if
must
also be
made to
discover
by reason
of theii" vesting
by the Court
((/).
By
;
Co. Litt. 344 b Anon., 1 ('!/) Vern. 318; v. Mill, 13Ves. 114, 120 Bellamij v. Sahinc, 1 De G. & J. 566 Price v. Price, 35 Ch.
mem
D. 297.
{z)
[a)
615.
{h)
See
Wms.
and
15,
a. 3.
See above, pp. 546 550 stats. 46 & 47 Vict. c. 52, s. 44 53 & 54 Vict. c. 71, s. 3 (16, 17). An order of adjudication in bauk-
see stat. 47
3,
& 48
54,
ss.
4,
6 (3), 14;
(z).
595
in
any
of
made
unless registered
{(/)
in
the
Central
Office
of
the
first
Supreme Court
within
and
to
that
is
for a composition,
and any agreement or instrument entered into for the purpose of carrying on, winding up, or disposing of a
debtor's business with a view to the
debts.
payment
of his
by the Land Charges Act of 1888 (?'), every such deed of arrangement, whether made before
or after the
And
commencement
(k)
against a person becoming after the year 1888 a purchaser for value
of
Land
bankruptcy and for deeds of arrangement should never be omitted where it is known
Registry.
Search
in
or there
is
former owner
stances
(/)
;
and having regard to the difficulties occasioned where bankruptcy proceedings have taken place
(e)
amended as
Vict.
(;.
W.
2
N.
(/)
(/7)
K. B.
In
170.
Ireland
the
place
of
Division:
c.
stat.
50
&
51
Vict.
57,
(h)
8. 8.
posted within one week after execution, and registered within seven days after aiTival in the ordinary course of post see stat. 50 & 51 Vict. c. 57, 8. 5. (i) Stat. 51 & 52 Vict. c. 51, ss. 2, 4, 7 9. Such a deed need not, since the passing of the Land Charges Act, 1900, be registered in the Middlesex Registry stat. 63 k 64 Vict. c. 26,
:
Others
may
execute
s. 4.
[k)
(/)
Above,
p. 582, n. {q).
38
(2)
596
unknown (m)
on every
Disentailing,
it
sale.
And
assurances.
depends on
only requisite to
title is
woman
is
has been
made by her
ledged
(n)
before the
and has been suppressed (o) Both these searches are now made, as to assurances under the Fines and Recoveries Act, 1 833 ( p) at the Central Office of whilst the records of fines and the Supreme Court {g) recoveries are preserved in the Public Record Office (>). The object of searching, on the sale of unregistered land, in such of the registers established by the Land Transfer Acts, 1875 and 1897 (-s), as are open to public
,
;
inspection,
is
to discover
is
whether the
title to
the land
Acts.
This
of
may
Land
map and
there.
search in
Such inspection and search should certainly be made on every sale of unregistered land situate in a district where registration of title is compulsory on sale (t) and, having regard to the effect of registration under tliese Acts in extinguishing title (it), it is no doubt a prudent
;
{m) See the cases cited above, pp. 551, 552, nn. (), (o). () See Stat. 45 & 46 Vict, Wms. Real Prop. c. 39, s. 7 311 andn. {c), 21st ed. (o) 1 Dart, V. & P. 499, 5th ed. 568, 6th ed. (p) Stat 3 & 4 Will. IV. c. 74. 42 & 43 Vict. e. 7S Iq) Stat. R. S. C. 1883, Order 61, r. 9.
; ; ;
(>)
Established by
c. 94.
stat.
&
87
Vict.
()
Stats. 38
&
39 Vict.
;
c.
60 & 61 Vict. c. 65 Land Transfer Hules (1898), 12, 14 Wms. Real Prop, 671, 672,
;
21st ed.
{()
Above,
See
p. 380.
()
Wms.
'^97
But
until voluntary
becomes more common than it has hitherto been, the risk practically run in omitting this search, on the purchase of land not situate in a compulsory registration
district, will
title to
not be great.
If
it
must
The
object
and
Semcli iu
Yorkshire
Registries.
(x)
Copyholds,
copyholds
for
similar
appears,
then,
that
the
searches
usually be
f ollo\ving
1.
:
made on
Office
the
purchase of
In the
of
Land Registry
(s).
/is
for
wiits
and
i.
Writs aud
^
'iD,/[j^if(i
>.
In the same
office for
any
pendem
registered or
.
Lis pendens.
Aud
situate in Lancashire
Durham,
(/>).
for
//s-
Durham Court
of
Chancery
'6.
life
'^-
Lift-
aunuities.
annuities
A.
(c).
vendor or
^-
'^'H'k-
is
adjudications of
bankruptcy,
{x)
(y)
(s)
(a)
{b)
[c)
;>
598
compositions
1883
(c/)
Bankruptcy
is
Act,
necessary to
go
back so
far,
adjudications or liquidations
by arrangement under the Bankruptcy Act, 1869 (e), or any previous Bankruptcy Act (/'), or for insolvency {g). These searches are made
in the registers kept at the
Bankruptcy Court in
in
London {h)
are
required to
(i).
the
Loudon
Gazette
5.
Deeds
of
arraDS'oment.
the Office of
Land Registry
for deeds of
6. For registratiou of
title.
regis-
compulsory on
sale, at
sale,
but as a
excessive)
on every
(I).
the Office of
list
Land
map and
is
of
pending
Land
On
sale of
land which
charges.
or
may
ment charge
imtil
in the Office of
Land Registry
and
also,
by the
8.
Middlesex
8.
On
in m
Middlesex Miaaiesex
cV:
or
52,
or Torkshii'e Register.
{d)
{e)
(i)
Stat. 46
47 Vict.
c.
&
33 Vict.
c. 71.
ss.
(/) See Wms. Pers. Prop. 238, 241, 254, 11. (d), 16th ed.
Ibid. 277 279, 2l8t ed.
(ff)
;
58S
{h)
(o)
See above, pp. 588 593. Above, pp. 588, 689. [p) Above, pp. 589591.
()
599
On
9.
Court
On
company
(s),
regis-
lO-
On
pur-
Conipanies
office
(Consolidation)
Act,
1908,
at
of
the
Com-
Companies Acts, 1900 {t) and 1907 (u) and the Companies (Consolidation) Act, 1908 (.?), of the mortgages and charges created after the year 1900 by any such company for any of the purposes mentioned in those Acts. Where a limited company is the vendor the purchaser should also inspect the company's register of all mortgages
(n)
(/)
Above, Above,
p. 597. p. 597.
Stat. 25 (0 Stat. 68
()
s.
14.
()
Stat. Stat.
aO,
9.
10.
[x)
c.
69,
8.
93,
or charge created after the Iwt of July, 190S, by a company rcgi.stered iu England or Ireland and bei ug cither (1) for the purpose of secniring any is.sue of debentures, or (2j on uncalled capital of the company, or (:{) created or evidenced by an instrument
if executed by an individual, would require registration as a bill of sale, or (4) on any laud, wherever situate, or any interest therein, or (5) on any book debts of the company, or a filiating i;harge oji the (6) undertaking or property of the company, shall, so far as any security on the company's property or undertaking is thereby conferred, be void against the liquidator and auy creditor of the
which,
company, unless registered as therein required within twentyone days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured. This section replaced Stat. 7 EdAv. VII. c. oO, s. 10, which by s. 52 (3) came into oj)eration on the 1st July, 190S, and replaced Avith amendmenta Stat. 63 & 64 Vict. c. 48, s. 14, containing similar provisions but not extending to mortgages or charges made for piu-poses (4) and (5; above mentioned or .saving the contract or obligation for repayment. See .e Harro(/atc Estates, Ltd., 1903, 1 Ch. 498; Cornbrook, S;c. Co. v. Law Debenture Corpn., 1904, 1 Ch. 103 Illingivorth v. Hoiifdsuoit/i, 1904, A. C. 355; Jie Yolland, i^r., Ltd., 1908, 1 Ch. 152 lUistol United Jlrtiirries, Ltd. v. Abbot, ib. 279 Jie N^PW London, ^c. Co., ib. 621 Cunard Steamship Co. v. Jfopwooti, 1908, 2 Ch. 564; inison v. Ke/land, 1910, 2 Ch. 306.
;
; ; ;
600
after the
commencement
of the
Court otherwise
void,
purchaser of land
is
company
the
London.
Gazette
(/>)
for
winding-up petitions
This exhausts the
to be
first list
of searches,
made
but
it
three only are imquestionably necessary on every sale though Nos. 4 and 5 are very desirable and No. H
;
perhaps advisable apart from the special circumstances which make them absolutely requisite. Nos. 7, <S, 9, and
is
ticular
10 need only be undertaken on the purchase of the parkind of property which can be affected by the
Search
acknow-
ledgment of deeds by married women is only necessary in the special circumstances above mentioned (c)
See stat. 8 Edw. VII. c. 69, 100, 101 (the latter replacing 7 Edw. VII. c. 50, s. 17), under which this rcg-ister is open to public inspection. This register
{>/)
ss.
was
Vict.
established
c.
by
stat.
25
&
26
by the Court, the time of the presentation of the petition for and on a winding winding up up under the supervision of the Court, the time of the passing of the resolution authorising the
;
89,
s.
made open
creditors
company
only.
non-registration in this register did not avoid the charge TFrif/ht V. Horton, 12 App. Cas. 371.
(z)
see stat. 8 Edw. VII. 139, 183, replacing 25 & 26 Vict. c. 89, ss. 84, 130; m-slon\ Cme, L. R. 4 Ch. 20 ; 39 Ch. D. lti> Dry Docks Corpn.,
winding up;
c. 69, ss.
306
Co.,
Stat.
(2)
s.
,
s.
206
89,
{a)
Re West Cumheflniid Iron 40 Ch. D. 361. (*) 1 Dart, V. & P. 566, 6th
; ;
ed.
c.
153.
{()
This
on a winding up
601
Agaiust what
"'a'rchu><
Acts of 1888
was not the practice, prior to the Land Charges {(I) and 1900 [r), to direct any search to be
in respect of
made
any
necessary to
of execution,
be searched
viz.
judgments, writs
execution,
in
Crown
debts and
process of
annuities,
//.s-
against the
\
names
last
was assumed that all necessary searches were made on the occasion of the last purchase {y). And the same practice prevails with respect to the matters above mentioned (//) as to which though in strictness it searches are now required searches Nos. 1 and back appears desirable to carry in every case for the whole five years before the sale and to extend searches Nos. 8 and i) over the But search wliole period covered by the abstract. should always be made against the names of all persons appearing by the abstract to liave been entitled to the
purchase deed, as
;
'2.
last
any estate or interest which might be adversely affected by any of the incumbrances to be discovered by the search. Thus the search for writs and orders affecting land and lis jjcitdeii-s should be made against the names
of trustees or
may well
Stat.
6:J
& &
.'52
Vict.
c. c.
51. 26.
64 Vict.
;
86
465467,
lljth ed.
270 27,
602-605,
2'.)3,
294,
On
tliis p(jint
the testimony
is
of
Mr.
Jo.sliuji
AVilliaiiis
ex-
press: Wins. Kc;il Prop. :{57, 1st And tlie same ed., 465, i;{thed. rule is laid down in Klphinstone v& Clark on Searches, 144, 148, 149. Mr. Dart, however, stated si'arches in the Middlesex that and York.shire Registries and in the Court Rolls should extend
over the whole period covered by the abstract: 1 Dart, V. & P. 497, oth ed.: .')67, 6th ed.: 122:5, 7th ed. The statement in 1 Dart, V. k, P. .560, Oth ed., that it is not the practice to go further back, in searching, than the last iiwrtr/ayee or pui'chaser for value does not appear in the 5th ed. (p. 491), and is the statement of the editors only. The same statement as to the practice is, however, made in
Wolstenholme's
Ctmveyancing
Act<,
and
(h)
Settled
Laud
196,
8th ed.
600.
602
{/)
or of
a mortgagee,
who
lias
been paid
The same
made
power
sold
or
to
any vested
contingent
if
the
title
For under the Judgments Act, 1838, and the Act, 1900, lands over which a man has a general power of appointment may be taken under the writ of elegit in execution of a judgment against him, and the judgment is a charge on the lands when the
interest.
Land Charges
it
(/).
Under
all
lands to
any
estate or interest at
tered
{ni).
years
(>/),
elegit (o), it
in respect of such an interest, though not equivalent to actual delivery in execution, may nevertheless be au oi'der made for enforcing the judgment, and so may be suffiof a receiver
may be made
order,
cient, if
rise to
the statutory
Real Prop. 381,
Real Prop. 419,
U'hitt, 15
(i)
Finch
innchil.sca,l'P.W.
.s.
2 (1);
{))>)
Wms.
Wms.
21st ed.
See
Stat. 18
;
&
19 Vict. c.
la,
21st ed.
()
11
434;
{i)
Ilai/or of Foule \.
M. &W.'571.
(o) lie South, L. R. 9 Ch. 369 Hood-Barrs v. Cathcarl {No. 5), 1895, 2 Ch. 411.
;
21st ed.
ss.
603
make
Life annuities
owners only
though a trustee
deeds.
It
is
not dis-
by the
title
of course unnecessary
to search in
who have no
affected thereby
on their bankruptcy.
the
Land
1888
Land Charges
first
Act,
are
entered, in
the
name
of copyholds,
on the Court KoUs at the time of the creation of the charge and they must be searched for against such names. Land improvement charges created before the year 1889 must be searched for against
of the tenant
;
name
the
of the
landowner
at
and
may
Re
1
piu'chaser to
[p) 1899,
(7)
make
or direct
laeutM Act, 1838; but the principles iu Hulmvs v. Q. B. 5.31, seem opposed to auy such jurisdiction, (>) Stit. 46 A: 47 Vict. c. 52, laid
Mi/hit/r, 18913,
1
dowu
of the Court to make au order for the appointment of a receiver in respect of a judgment debtor's legal or equitable estates iu reversion or reniaiuder in land may be supported by the decision iu Tyrnlly. J'nititoii, 1S95, 1 Q. B. 202, and the f/ictu of Lindley, M.Il., in J{f Harrison and Hottomley, 1899, 1 Ch. 465, 471, and by the ttousideration that uuder the Land Charges Act, 1900, actual delivery in execution is no longer a condition precedent to the attacluuent of the charge given by sect. 13 of the Judg-
The
.ss.
(.v)
A:
52 Vict.
c.
51,
providing also that where the person, on whose application the laud charge was created, was beneficially entitled to a lease for lives or life at a rent or to a term of years, the land charge shall also be registered in the name of
s.
10,
that person. {t) See the Acts cited above, Elphiustone !c pp. 588 593 Clark on Searches, 109 sq.
604
not
{it)
But
if
he do
affect
make a
search in person or
all entries
by agent, he
fail to
will be affected
with notice of
Duty
of
in the register
which
may
discover
search.
duty of the purchaser's solicitor to his behalf all searches which in the circumstances of the and if he omit so to case are necessary and proper (//)
;
title
be injuriousl}^ affected
damage incurred
(;:).
Official
searches.
Under the Conveyancing Act, 1882 {((), and the Land Charges Act of 1888 (6), official searches may be directed to be made in tlie registers of /w pendens, life
and orders affecting land, land charges, deeds of arrangement, and certificates of acknowledgment by married women, and a certificate of the result Such a certificate, according to the of the search filed.
annuities, writs
tenour thereof,
as the case
is
may
under the matters or documents, which are the subject of registration an office copy is evidence of the certificate and solicitors obtaining an otfice copy of such a certificate, and any trustees, execupersons interested
;
;
(u)
03.).
Lam
V.
Jaclcson,
20 Beav.
any
certificate.
Procter V. Cooper, 2 Drew. 1, affirmed, 1 Jur. 444 N. S. 149. Having regard to the provisions of stat. 45 & 46 Vict. c. 39, s. 2 (3), stated below, as to the certificate of the result
{x)
18
Jur.
See above, pp. 5^7600. Cooper \. Stephenson, 16 Jur. Sug. 424, 21 L. J. Q. B. 292
(y/)
[z]
Elphinstono & V. & P. .547 Clark on Searches, 4, -5 Dart, V. & P. 454, 455, 5th ed. 522,
; ;
of an official search being conclusive, negatively, it seems that a purchaser will not, by merely directing an official search to be made, be affected with notice of
1196, 1197, 7th ed. 523, 6th ed. {a) Stat. 45 & 46 Vict. c. 39,
;
s.
2.
{b)
Stat. 51
&
52 Vict.
c.
51,
s.
17.
605
wliom they are so acting, are not answerable in respect of any loss that may arise from any error in the certificate {<). These advantages are not obtainable on private searches, which may still be made. The utility of
ofiicial
searches
ha=5,
however, been
doubted by the
(d),
learned authors of
who
an
official
name
any of the matters searched for is made against the of the person therein mentioned by the description applied to him in the requisition for search, and does
of
other
The Convevbe
certificate sliall
tenour
(e),
not according to
It is true that
made under that Act (/) any one directing an official search to be made against a particular name is required to state the usual or last known place of
by the
rules
title,
But according
to the forms
by these
be
the
made name
and the
the the certificate of the result of the search does not necessarily specify the address and description of
office, too,
By the practice of
name the search was made. no entr}^ or none but those specified in the certificate, were found against any person of that i/a/i/r, the fact is
(<)
((/)
(/) See
></. ;
Wms. Con v.
SUit.
47'.
Scrtrclii's,
(t)
-l(i,S.
Above, p.
()01.
8th ed.
fi06
name
but coupled
is
the same as
is
made
And
if
person be certain, as
it
would be
name
.
are included in the scliedule to the certifiIt appears, therefore, that a certificate of the
cate (g)
result of
an
official
is
the
treatise
on
and
it
to take is to direct
an
official,
instead of
making a
private
search.
When
of
title,
liability
(//)
The
writer
is
iudebted for
Office
Land
Registry,
^07
in
Official
may
and
also be directed to be
(//),
made
in the
Yorkoertifi-
disentailing-
Registries
(/),
in
the
index of
(/)
.
assui'ances <ipedsaud
iu
The
and Middlesex
J^'f-'i*'^''*"^-
any such search has no effect as against any person interested under any entry duh' made, but not disclosed, by the certificate (/) but in and Yorkshire (/) Registlie case of the Middlesex tries, solicitors directing an official search, and an}^
;
(/.)
acting,
loss that
certificate.
may
It
cases also,
the best
direct
official
is to
an
official search.
It
may
be remarked that an
made by a person
is
;
familiar
in charge,
and
soli-
but a
may
{ni),
the
Inquiries to ho
J."^',*^,pK.f,j,*,|['
is
likely to
meaning
of the
Land
(),
by
a local authority in
subject to
(A)
r.
R.
S.
C.
17
W. N.
(/)
23.
(i)
See
c. ;1U,
Stat.
&
48 Viot. c. o4,
s.
ss.
20-2:5,
(/.)
.51.
Land
Re<cistry (Middlesex
18!t2,
2 (I, 11) Wins. Conv. Stat. 273, 274. (w) Above, pp. .597000.
(m)
Deeds) Rul.-s.
Nos.
914
608
served,
passed hy
the
local
authority
which
kind
This inquiry
title (o)
:
is
usually
but as such a
may
arise after
it
is
such
tion,
liability, to
and
also to
make
As we have
seen
(r),
purchaser
may be
where he might have some difficulty in recovering the amount thereof from the vendor if paid by himself
cases
As
to dis-
after completion.
And
generally
tlie
purchaser should
all
the
purchase, that
have
{qj
Above, p. 177. Above, pp. 520523. See Ee Ley land and Taylor''
omission as a ground for resisting the specific performance or claiming the rescission of the contract
Carlish V. Salt, 1906, 1 Ch. but see the writer's 335, 340 criticism of the dicta in this case and as to nonin 50 Sol. J. 611 disclosure, see below, Chap. XIII. 1, XIV. 1. See also Hampstead Corpn. v. Cauni, 1903, 2 K. B. 1, as to the liabilities of the above natui'e which a purchaser may incm". It has been laid down that in cases of the
cf.
;
;
where
a purchaser, vrho completed his contract without making such inquiries, was held not to be entitled to compensation, under a condition pronding that compensation should be allowed for any omission in the particulars, by reason of the vendor having omitted, without fraudulent intent, to disclose that such a notice as above mentioned had been served on him before the date of the contract for sale, no liability under such notice having been actually incurred before compleIt was pointed out, howtion. ever, by Rigby, L. J. (p. 632), that, if the purchaser had not completed the contract, he might perhaps have relied upon such
above kind there is no incumbrance nor even a liability, inchoate or otherwise, on the property, until the charge given by the statute has arisen Re Allen and DriscolV s Contract, 1904, 2 Ch. 226, 230, 231 see above,
;
p. 522,
(>)
(.s)
609
purchaser should ascertain that the water rate or other charges payable by the vendor have been duly paid or
that non-payment thereof will not subject
liability (0-
him
to
any
enjoyment
title
in
accordance
gion is in
with the
shown.
For
this
purpose he should
accordance
title,
make
or
.pii if he have
equities
of
any part
all
of the property,
he will be
of
rights
or
the
but also to
all collateral
matters
(.r)
as,
for
option to
or
if
the
property sold
are paid to
{a), and were in the occupation So actual knowledge that the rents some person, whose title is inconsistent with
is
the vendor's,
rights
:
constructive
notice
of
that person's
but mere knowledge that the rents are paid to an estate agent does not affect the purchaser with
(c).
As we have
V.
works Co. V. Kellerman, 1892, 2 Q. B. 72 Cannon Brewery Co. v. Gas Light and Coke Co.. 1904.
Luck, 1901. 1 Ch. 45, 49, 1902, 1 Ch. 428, 432. (y) Dank fs y. Davidson, 16 Vefi. 249, 17 Ves. 433. (z) Allen v. Anthony, 1 Mer.
282.
(a)
A. C. 331.
(m)
See above,
p. 465.
Biilteel,
See Caballero
v.
Henty, L. R.
9
(i)
Cavander \.
L. R.
1
Ch. 79.
(c)
v. Urrenshields, 9
Hunt
1
v.
Luck, 1901,
Ch.
18,
.32
ffiint
v.
45, 1902,
Ch. 428.
w.
39
610
seen
is
a reversion expect-
the vendor.
And
according to the
thereof
(e)
.
contract
of
sale,
is
in
occupation
,
As has been
already mentioned
(,/')
it is
pos-
sible that
a person
may
sold
by
virtue of a writ of
may
made by way
the purchaser
,
of equitable execution
and
in such cases
if
may
he
.
Inspection have notice of it. and survey of the property, inspect the whole
also carefully
and have
it
property.
For
if
by reason
of
any material
defect of
or in
to
spond with the description of it given in the contract, any representation which induced the purchaser
make
remains uncompleted
performance of or to rescind the contract, while it but when the contract has (g)
:
Above, pp. 399, 400. to the duty of the vendor to give up vaoant possession on
(d)
\e)
Societi/ v.
3.5
Ch D.
390.
As
(/) Above, p.
,'584.
;
completion, see above, pp. 512, Em/eU v. Fitch, L. R. 4 515, 578 Roijal Bristol, S^c. Q. B. G59
;
'
p. 608, and n. [q) {g) Jacobs v. Revell, 1900, 2 Ch. 858 Re Puckett and Smith's Contract, 1902, 2 Ch. 258,
;
Above,
611
virtue
any
except
(1)
by
an express agreement contained in the contract to make compensation for such errors (/), or (2) if the
of
and compensation be
title
contained in
the conveyance
(/),
or (3)
if
(/).
Here
it
may
be mentioned Purrhaser
it,
that
if
man buy
own
risk
he does
oi
it
ouUnfpectinii
so at his
any detects m the physical condition property which are patent to any one who views
sation
TP,..,
and must accept without compen- must atcept TPii patent, but
1-1
a
the not
latent
and
ob-
'l^*^''*^-
as
where
meadow
sold
is
by a public footpath (m), or a house sold plainly out of repair (>/). But a man may decline to
on
account
of defects which by inspection, if they interfere materially with the enjoyment promised to him by the contract as where a pathway across a field
ment
is subject to an easeway, not disclosed by the contract, in favour of an adjoining landowner (o) and this is the case whether the purchaser actually inspect the property
of
sold
or
not,
knowledge
Wilde \. Gibson, 1 H. L. C. 633 Jolifr v. Baker, Claiiton v. 11 Q. B. D. 25;)'; Seddoti v. Leech, 41 Ch. D. 103 North Eastern Salt Co., 1905, 1 above, pp. 66, 608, n. Ch. 326 1. (q); below, Chap. XIV.
(A)
bridge,
ubi
ij
sup.;
bolow. Chap.
v.
605,
632,
XIX.
(/)
").
1901, 2
(;/)
Le Lassalle K. B. 215.
Guildford,
y^
{i)
361
Hound, oYes. 508. Gran/ v. Mioit, G. Coop. 173. 177; Kea/es v. Cadogan, 10 C. B. 591; Cool; v. Waugh, 2
(in) Jiorv/e.sv.
Giff. 201.
[o)
ham\. S<iwhridge,\90\.-lCh.9%:
below,
4 of this Chapter. (k) May v. Plait, 1900.
;
3
1
Cli.
n.
[t).
and
n. {q).
616
v.
Sair-
39
(2)
; ;
612
[jn)
Such
by a
though not by a mere casual view As we have seen (r), if a man buy land with notice that a good title cannot or will not be made in some particular, he is precluded from objecting
careful survey,
{q).
of the property
by the
title.
make a good
This doctrine
may
land with notice of phj^sical defects, which would otherwise constitute a ground for refusing to perform the
contract, from objecting to the title on that account and may also preclude him from avoiding the contract, where the vendor has made an innocent misrepresentation as to the property sold, but the purchaser bought
{s).
3.
Of the Preparation
is
of the Conrei/aiice.
Preparation
of the con-
veyance.
ance to himself of the property sold and to tender the same to the vendor for his execution the vendor is
;
bound to execute this instrument at his own expense and where other persons than himself are necessary
parties thereto, in order to
whole
them
to execute
Who are
necessary
parties to the
own
expense.
What
conveyance.
Re Puckett and Smithes Con1902, 2 Ch. 258. and White' Con(<7) Re Tern/ tract, 32 Ch. i). 14, 23. (r) Above, pp. 203, 353, 354. Gi//-ioH, () See Farebrother v.
{p)
tract,
t<
De G. &
;
Illmf/ivorth ,
J. 2
602
Let/land v.
De
G.
F.
&
1.
J.-
248
[t)
47, 67,
73, n. ().
613
any portion
of the legal
Every person in whom is and equitable estate conor any interest therein,
conveyed or defeated
mnst concm-
will be
by
is sold, all
life,
tail,
and
either in possession or in
any contingent
or execu-
may
displace or defeat
any
all
all
and doweresses,
and all persons interested in the property sold under any trust or equity of or by which the pur(ihaser has notice or is bound {u), are necessary parties
or easement,
to the
conveyance
is
{jc)
chaser
by the
exercise of
Uses or created by
that given
trust for or
will, of
by the Settled Land Act, 1882 (//), power of sale on the part of trustees
(~).
And
some person
entitled,
who
is
not,
therefore, to be
made a party
thereto, care
that
all
by the execution
the same.
Thus we have seen that on a sale under the powers given by the Settled Land Acts, there may be
(m)
(j-)
Alxjve, pp.
KW,
'I'M
s,j.
594, .595
(//)
and elsewhere,
p. 306. p. 256.
"J
1st ed.
463
and
elsewhere,
13th
ed.
(:)
Above, Above,
614
by the conveyance of the tenant for and the owners of all such estates and interests,
or defeated
life {a)
as para-
mount mortgagees of the fee, mortgagees money actually raised under some power
for securing
or trust for
these
last
by some
of
separate
document
for
life's
consent to
the
exercise
the
tenant
power
{b) ),
must be required
to assure
by
their
own conveyance
So also, to the purchaser. where the purchaser has bought at a sale made by order of a Court of Equity, he need not require the concurrence in the conveyance of any persons having equitahle estates or interests, which are bound by the order for sale but he must obtain a conveyance of the
:
property, or to
Intermediate
trustees.
not
any equitable estate or interest therein bound by the order (r). Where the title to any
is
land sold
estate
where
who
is
a trustee for
C,
which
may
well be
made by
legal estate
The intermediate
however,
may
possibly have
may,
[e).
it
seems, be required
by
any such
lien
And
Cox, 57
;
if it
be proposed in
()
{b)
sq.
v. Walfurd,
v.
4Russ.
5
318,
319,
372
Gramge
Wilhcrforcc,
3()6,
Times L. R. 436.
(e) 1
See above, p.
aud
u. {x).
See ilead
v.
Teynham,
615
lien.
of
Here we may
notice that
if
to the Incapacity
conveyance be under any incapacity, such as that of thJcon^ev^ infancy, coverture on the part of a woman, or lunacy, ance.
all
concurrence of
the
husband and
acknowledgment
of the
woman
or otherwise.
On
to the
in
general the
seen
(</),
thel^antee'
side,
But
as
we have
the
to execute a
conveyance of the
The
Conveyance
chaser's
some other person or persons than himself, or to himself and others, and for such estates and and the vendor is bound to interests as he shall direct
;
made
nominee,
It appears that in
may
in
general
demand
that the
whom
made
made
to a stranger
his part of
and that the vendor has duly performed the contract by complying witli this direcif
tion (A)
But
the
made an
.561.
(h)
the fact that, if the purchaser's seek to enforce the assijjuoe specific performance of the con-
ti'act by the vendor, the purchaser should be made a party to the action (above, p. .")(i8j, and would be a proper party to a conveyance ordered in such
action.
^16
(/).
In
which took no notice of the original contract and the assignment for the vendor would be entitled to have
;
to accept
any
recital or
statement
had contracted
(k).
If the
direct
future of
original purchaser
re-sale
Where
no
()
570.
(k)
Burton, L. R. 3
Ch. 365.
[I ) It is thought that, where a purchaser re-selling before compietion discloses to the sub-purchaser the fact that he is himself a purchaser under an uncompleted
ance of the legal estate from the vendor in order to avoid all question of the first purchaser having incumbered his equitable
interest under the contract for sale see below, p. 619, and Having regard to this n. (). liability, it is advisable for a purchaser of land re-selling before completion to sell his interest under the contract for sale, as such, and to stipulate expressly that the sub-contract shall be
;
contract of sale and in effect sells the interest so acquired by him, the sub-purchaser cannot oblige him to take a conveyance from as that the original vendor course would apparently involve the payment by the first purchaser of ad valorem stamp duty on such conveyance. But if the first purchaser so re-sell as if he were the full owner of the land, without disclosing that he is only
;
entitled
under an uncompleted
contract of sale, it is submitted that the sub -purchaser's strict right would be to require the first purchaser to take a convey-
completed by a conveyance from the original vendor to the subpurchaser by the fii'st purchaser's direction. Where a purchaser of land re-sells before completion, he is bound to furnish, at the subpurchaser's request, an abstract of the original contract for sale and of his dealings, if any, with his interest thereunder Re Htickerby and Atkinson'' s Contract, 102 L. T. 214, where note that
;
617
of
price
on
if
the
re-sale,
the
vendor
may
well
agree to this
the original
purchaser sign a
memorandum
to
authorising
and
to receive
(tn).
purchaser
increased price,
in order to
him to convey the land direct payment of the price from the subBut if the purchaser re-sell at an he must be a party to the conveyance
profit
on the
transaction (n)
is
only entitled
on payment of the price fixed by the and cannot of course require the vendor to accept the whole of this and pay over part of it to the original purchaser. And
to a conveyance
re-sale to the person entitled to receive it (o)
,
conveyance, as
is
it
is
payable
(yj).
Where
on that price that the stamp duty the vendor will remain after
the conveyance under some liability in connexion with the property sold, as where leasehold land subject to
payment of a rent and performance of onerous covenants is sold, and the purchaser is therefore bound to enter
into a covenant of indemnity (q),
it is
vendor
is
may whom
insist
on
alone he
(.,),
whether Form
outstanding estates or incumbrances should be got in by deeds separate from the conveyance, the conveyance of
sub - purchaser expressly waived all objectiou to accepting conveyance direct from the original vendor (see p. 215). (m) See 1 Dart, V. & P. oil,
the
of the ^'o^veyance.
(p) Stat. 54
s.
&
55 Vict.
;
c. 39,
58
(4), (5).
and see [q] See above, p. 80 bolow in the present section of this chapter as to the (rases in which the purchaser is bouud to give a covenant of indemnity,
(r)
duplicate, one part being given to the sub-puroliaser. See Davidson, Prec. Conv. (;/) vol. ii. pt. i. 319, 4th ed.
[o'j
This
appears
clearly
to
follow from the rule that the burthen of a contract cannot be assigned over; above, p. 570.
(s)
Above,
p. 57.S
Page
GIS).
618
But
it
is
will take his conveyance, provided that the burden laid on the vendor, in respect of expense and otherwise, be
(/).
by one
to
may
require
the
same
be conveyed
assurances and
by separate money as he
may
think
fit (n).
freeholds
sale,
may
to the
And
where
counties
may demand
But
it is
that they
question-
execute a great
number
;
of
for that
would sensibly increase the vendor's trouble of perusing and executing the assiu-ance completing, the contract and in any case he could only be requii-ed to do so on
the terms of being paid the extra expense so occasioned,
and
also, it
is
one
new
descrip-
{t)
See Clark
Cooper v.
v. 3Lii/, 16
Cartiv'ri(jht,
273;
Bwiv. John.
v.
Smith,
{i()
Clark
V.
May, 16 Beav.
27o.
(J19
If a purclmser
him
for purchase
by
Where
is
of laudi*
where
_
it
is
subiect to mortg-affes or o o
*
_
cuuibrautx's.
lia\ e
to be paid
discharged, or released, to
by the
and
in the absence of
is
any
in strict
own expense
interests
and
and
vest
them
may
it
be one
and
{x)
But
has never
See Sug. V.
;
ic
P.
.ji59
;
ivit/i
that
of tchich
4:{,
/jox.HSxioii
t.v
Dart, V. & P. 503, 5th ed. 573, 6th ed. 531. 7th ed. It is subniitted that the dictum of Jessel, M. R., in Egmont v. Stiiith, (i Ch. D. 469, 474, that in no case can a vendor object to convey the .sold property in piu-cels on reieiving the whole purchase money, and on bcinfjr paid the additional expense, is not correct. The vendor's obligation is to convey the land which he has conAV'hat that land tracted to sell. by the de.scription is, is sliown thereof contained in the contract If the vendor hii.s for sale. shown a good title, that is, has proved liis right to convey what he contracted to sell, induding the identity of the land described in the contract with that described in the title detnls, and
94). it
ap-
pears that the vendor cannot be obliged to convej- and to coven.int for title b}^ t)thcr dcMcriptious than those mider which he sold, But land.s sold as one entire pruperty can seldom be conveye<l in lot*s without a number of newdescriptions. This con.sideration alone, it is submitted, e.\hibit.s the inaccuracy of tlie late M. R.'s dictum. Besides, it takes no account of the increased trouble,
apart
which
(y)
ca.se
from the extra expense^ may be laid on the vendor! Note that such a stipula-
tion wa,s actuallv made, in the of Egmoiit \\ Smithy ubi sup. (z) Above, pp. 94 164 () Sug. V". & P. ;)57 Dart V. & P. 7'J2 5th ed. 814 6th ud. 723, 7th ed. see livevi.s v.
;
;
;
620
on
this
cumstances of
extreme
complication
and, as
we
land sold
brancers,
is
is
heavily incumbered
so in
conveyance
as
the
vendor,
are
parties to the
is
so occasioned
{c)
the property
is
charges or incumbrances,
to
is
make
a good
title, it
liable to contribute
As we and has long been the practice to stipulate expressly in conditions of sale by auction that the vendor and all other necessary parties, if any,
to the cost of preparing the conveyance {d).
have seen
(c),
it
is
purchaser
shall
bear
the
any, which
shall
for
completing or perIt
title,
or for
wide as these,
bear the
expense of preparing,
maMmj and
and
any outstanding
V.
ed.
568.
{b)
Lewis,
Sug. V.
&
1
P.
r).57
and see
S. 245. 2 Dart,
P. 722, 5th ed. 814, 6th 723, 7th ed. ; see Jones v. 1 De G. & S. 245. {d) Sug. V. & P. 558.
; ;
&
Junes V. Leivis,
(c)
De G. &
P. 558
;
[e)
Above, pp.
67, 73.
Sug. V.
&
621
he
is
bound
to
or of the execution of a
ot'
deed of
the
confirmation
imperfect
execution
(g).
the
conveyance
sale
to
the the
vendor himself
profession
is
of
that a condition
in
the
above
form
is
an
is
liable in
(/)
and
himIt
condition.
title to
of deducing the
Under
sale, either
subject to
(/), upon the by tlie Court (in) or out of Court (//), " of land any incumbrance (including any mortgage,
^
'
^
payment
'^^^
'
into
if it
thinks
fit,
party to a
tlie sale,
direct or allow
sum
of
money
amount
(/) lie Willett and A>yenfi,60 L. T. 73;'), explained and distiuguished in Ite Samler and Il'aiford'.s Contract, 83 L. T. 316;
W.
the purchaser does literally undortake to bear the expense of w<^/.//i</ the assui'ance to himself. (i) Sag. V". & P. 561 2 Dart, V. & P. 707, 5th ed. 798, 6th ed. 7 H, 7th ed.
; ;
;
to the usual condition of sale a greater effect than it wa.s presee viously supposed to have
:
Davidson, Prec. Couv. vol. i. p. 612, 4th ed. Re If'onds and Lewis's Von((/) IS'.IS, tract, Ch. 433, 437, 1 affirmed, 1S'.8, 2 Ch. 211. be noted, how(//) It should ever, that, a<Tordingto this form,
Re Adams^ Trustees and Fronton Contract, 1907, 1 Ch. 695, 703 above, p. 73, n. {a). 44 & 45 Vict. c. 41, (/) Stat. s. 5 ; see s. '2 (viii.). {m) Sec Patching v. Bull .30
(/)
;
W.
387.
R. 244
Dickin v. Dickin, ib
Co.
v.
622
costs,
if it
expenses and
thinks
fit,
and
either
after
the incumbrancer,
make any
is
conveyed
an unincumbered
not oblige the
to
the incumlk'ancers.
will
But
it
appears that
at
the Court
vendor,
the
purchaser's
instance,
adopt
this
mode
where such a course would involve hardship, as where the amount required to be paid into Court would greatlj''
of
estate,
conveying an unincumbered
money
p)
is
outstanding
obtain the
"'
'^
'
The reason
of this
is
that, if the
vendor
tlie
equity of redemption
conveyance by way of
containing a precise
recital, if
was and all persons claiming under him would be estopped from denying that he was so seised, or entitled. It would follow that upon the reconveyance or conveyance of was
seised of
them
into Court, the Court will make a declaration as to future rights: Re Freme's Contract, 1895, 2 Ch.
{p) lie Great Northern Raxl. (Jo. and Sanderson, 25 Ch. D. 788. (q) See General Finance, ^-c. Co. v. Liberator, ^-c. Kocji., 10 Ch. D.
15, 20.
62.'3
mesne
conveyance.
As
would be subject
to the
same
notice of
the mesne convej'anee (r). The purcliaser would thus be affected by mesne incumbrances created by the vendor, wliicli he might liave avoided if he luid
The
is
to
require that
any
by them
will then
to him, or to a
He
be able to rely
on
tlie
and without
and of tacking,
if
equitable incumbrances, of
(.s)
.
It
is
thought
for
as
the vendor
is
in
equity
trustee
the
and
by
as the purchaser
is
entitled to restrain
any
made
(n),
to
his prejudice
and
[rj An ambiguous rocital not preciBely avcn-ing (in the case of freeholds) the vendor's legal
seisin
instance, a recital etteet that he was seised of or otherwise well entitled to the lands, for he might well 1)0 entitled in equity though not at law. Neither would any such estoppel result from a mere conveyance of lands, for
See Bmxhi/ L. J. Ch. 85 Jliff/if d. Jefferya v. Buckuell, 2 B. & Ad. 278 Doe d. Gaixfurd v. S/om, 3 C. B. I7G Mentli v. Vrealock, L. R. 10 Ch. 22; General Finance, i^c. Co. v.
title.
iSc
ruvenants for
;
v. JJindon, 2 S.
S. 5l;>, 8
l-^herator,S;c. Socy.,\ij
Qh.Ti.Xh;
Umif/ison
4S.3,
'>6r,
without
any
recitals,
by
\ene-e
v.
release or grant; for these are innocent conveyances, passing only the assuror's actual estate or interest, if any. Nor would .my such estoppel arise from the
and
5lJ7.
{t)
()
sq.,
512.
624
is
pleases
and
own
benefit, if
he desire to do so
the purchaser
is
entitled
to insist that
any outstanding
to the vendor.
a requirement
is
to be paid
to
pay
off
own
resources before
it
does
doing so
for
if
would be
title so offered, if in
(//)
other respects
good according
Purchase
followed by
to the contract
It constantly
sale
an immediate
mortgag-e.
who
his
money and
takes a mort-
In such cases
it
is
common
whole estate in the lands purchased to be conveyed to the purchaser, and to be mortgaged by him to the
lender
by a deed
title
executed
immediately after
the
new mortgagee's
judge
custody.
(s),
It
if
was pro-
nounced by a
late learned
that
in a case
There
no doubt that
'
it is
{x)
Cooper v.
Cartivright, Joh.
p.
Jessel,
^-e.
M. R.,
General Fin<|'C.
679, 685.
(/)
ance,
Co. V. Liberator,
8ocy.,
See above,
^
88
below.
Chap. XIX.
3.
62o
from the former mortgagee, as that secures the same priority over mesne incumbrances as the former mortgagee had.
But
in
estate to be
conveyed to
that incurred
legal estate
from and by a purchaser allowing an outstanding to be got in by the vendor. In the latter
very different
far less than
land,
presumably been in possession of the and has had both the right and the opportunity of creating mesne incumbrances. In the former instance
case the vendor has
land or of the
title
deeds
and
it
is
would estop the new mortgagee from claiming the legal estate. A fraudulent mortgage of this kind, induced by false title deeds, was in fact made by an intending purchaser of land in the case, which
a conveyance as
called forth the learned judge's remarks: but as the
mortgage deed contained no recitals at all, there was no estoppel as against the mortgagee from the pm-chaser.
He
defending
an action brought against him by the prior mortgagee. This shows that the only quite safe course is to follow
the learned judge's advice.
is still
But
the
common
practice
pursued in
many
its
is
an exceptional occurrence.
In connexion with the subject of getting in the legal Purchaser from a first mortgagee as a protection ^^^\^q^^ against mesne incumbrances, the reader may be reminded mesne iiuumestate direct
that, if the purchaser receive notice, actual or constructive,
money be
fully paid, of
some
w.
40
. :
626
safely complete
and further
first
and released
of
enjoyed by the
to
first
the
keep alive for his own benefit the charge created by In such a case, therefore, this first mortgage ((6).
conveyance, though
it
first
purchaser
(r)
As we have
fit,
the purchaser
is
entitled, if
he think
to
any mortgage existing on the property sold either by express declaration or by having the same transferred to a trustee for him, or to a new mortgagee advancing part of the purchase money, provided always that he
pay any increased expense thereby caused to the vendor. It may be thought that, where a mortgage is paid ofi^ out of the purchase money, it would always be desirable
to keep alive the charge, in order to protect the purchaser
he might,
without knowing
have received constructive notice (e) But it never was, and is not now, the practice to do this, the risk run being too small to counterbalance tlie inconvenience of always maintaining the charge (/').
it,
V. Clements, 1903,
Above, pp. 565, 566 Jared 1 Ch. 42f<. (b) Above, p. 481. (c) Above, p. 481. (d) Above, pp. 481, 624. le) This was the case in Toulabove, mill V. Steere, 3 Mer. 210
()
; ;
p. 480.
(/) See Davidson. Prec. Conv. ii. pt. i. 290, 324, 327, 4tli ed., from whicli it is obvious that it was uot the practice to keep alive a mortgage paid off out of the purchase money unless there were reasou to suspect the existence of some mesne iucumbrauce
vol.
627
And
under the present law a.s to constructive notice, the is no longer in danger of being affected with any notice acquired by his solicitor in some previous transaction of an equitable charge on the proj)erty (//).
purchaser
a
Where part of the purchase money is to be advanced by new mortgagee, who requires that the legal estate
conveyed direct from some already existing
shall be
mortgagee to himself (A), the purchaser must take care that the whole estate in the lands sold be conveyed to
the
the sale and a
self
new mortgagee by the deed of conveyance completing new equity of redemption limited to himby the same
deed.
He
tected against
unknown
same conveyance of the legal estate. But if he were to new mortgagee to take a simple transfer of the old mortgage and himself take a conveyance from the vendor alone, he woidd be exposing himself to all the risks attendant on the purchase of an equity of
allow the
redemption
It
(/).
is
of the present
work
complete account of
ought
to be observed in
framing conveyances on
sale.
A few
And
first,
as to Recitals,
should be recited
tlie title
:
that
any
made
himself absolutely
(i)
Above, pp.
See
;
47(i nq.
&:
;
(/)
5th ed.
ed.
P.
.')4.').
.'ilS.
Tth
40(2)
628
In such cases
{/).
may
The
old
we have
seen {n),
any
it
recital at all
be made,
that
all
time of con-
veyance, but
may
subsequently acquire
(o).
But
it
is
thought to be permissible to depart from this principle where the vendor's title depends on proof of facts, as
distinguished from deeds or other assurances
(j)).
Tn
such cases
it
is
order that on any resale of the land to be made after twenty years' time, the recitals may be used as jyrt'md facie evidence of the facts (q). For example, where the vendor became entitled to the land sold as the heir of an intestate, it is very useful to recite the various
(r)
and
this
is
particularly
is
tlie
case
to the title
negative, as
utility
issue
(s).
The
of
similar recitals
title
equally
mination of an estate
Where
land sold
is
deed of conveyance
{i), it will,
(1)
vol.
sq.,
i. p. 44 4th ed.
vol.
ii.
pt.
i.
pp.
'229
(p) See 1 Dart, V. & P. 619, 5th ed. 591, 6th ed. above,
; ;
p. 116.
(q)
(r)
140, 363, 1st ed. ; 192, 514, 13th ed. () Above, p. 622. (o) Sug. V. & P. 558.
(w.)
See above,
Above,
Above, Above,
see
also, p. 138.
()
(t)
p. 132. p. 620.
^i
629
parties claim
and
this
may
ment
by
the vendor
but in these cases also the same principle should be observed of not carrying the title further back than
deed.
is
to
frame a deed
For this reason it is desirable that the conveyance should show clearly the origin of
{/()
would be inconvenient
to produce or explain
on any
this
is
futui-e
when
For
Thus
circumstances
.
commonly
written
tioned
memorandum of the contract not being menAs we have seen (s), the vendor cannot be (y).
:
conveying
the
propeity
sold,
no
recitals {a).
With
perty sold,
() \x)
\ij)
up]ears
is
entitled to
(/),
Above,
p. 100.
(w).
ed.
See above, p. 531. Dart. V. & P. .V24, .Hli 1 595, 5ii6, 6lh ed. 550, 7th
;
[z)
Above,
Harthij
p. 616.
v.
(a)
Burton, L. R. 3
Ch. 365.
630
will
clearly
identify
the land
intended to be assured.
If, therefore,
the description of
the property sold contained in the contract be misleading, inadequate or obsolete, the purchaser should insert in the draft conveyance an accurate description of the
own
surveyor's report
and
it
is
thought that in
not
refuse
It
to
is,
could
by the new
description
(/>).
who has
sold
him
title
of
which possession
is
offered
title
(r),
by a
sell,
it
that
is,
and
is
new
We
the vendor
identity
;
under a double duty in respect of proving he is bound, first, to identify the land
and secondly, to identify the actual land by him in fulfilment of the contract with that It is thought that, where described in the contract (e).
title
deeds,
offered
See Davidson, Prec. Couv. The above nq., 4tli ed. passage in the text (p. 557, Ist
{b)
i.
beth's (Joidrnrt,
1910,
Ch. 741,
b2
749.
(f)
{d)
{e)
Above, pp. 43, 144, 171. Above, p. 619, and n. {x). Above, pp. 33, 41, 43.
^'"^l
entitled to
have such a
which he
to be put in possession.
But
if
the
comthat
submitted that
the purchaser
is
The important
entitled to
question, in
what
cases
is
is
the
have the property conveyed by reference to entitled to a a plan, can only rightly be solved by applying these couveyance principles. This question arose in two recent cases to a plan r
:
but in each of them the judge evaded the necessity of and Jamca^ Contyacf, iic Sparrow decidingIn Re Sparrmc ^ ^-^^ it(r/). and James' Harwell, J. (after remarking that it was unnecessary to Contract.
.
in
all
cases entitled
to
insufficient or unsatisfactory as a
means
of identifying
entitled to
su])i)leniented
plan
(//).
In
Re
Sonsoni
and
Narbetli's
Contract,
(/) See abovf, p. 0. Me H/J'irrvir and James' Contract, Ee 1910, '2 Ch. 60, 62 iSanaom and Narhetk'n Contract, U)10, 1 Ch. 741, 7oO, 7ol. [h) See the judgment in lie i'^parrow and James' Contract, 1910, Note however 2 Ch. 60, tii, 6.3. that in that case a plan was attached to the conditions of sale,
((/)
;
with a statement to the ettect that it was for reference only and its accuracy was not guaranteed. The purchaser proposed to take a conveyance by a general deseription referring to more particular descriptions in a schedule and a plan. The vendor desired to have the words "by way of elucidation and not of warranty"
()32
^ Samom and
Contract.
(/) ),
down
that
all
and that
is
purchaser
own
form
though the learned judge declined to say that in every case the purchaser is entitled to have a description
:
unsatisfactory in principle
and that a
J.,
is
sounder rule
viz., that,
is
without
may
to be
supplemented by a plan.
It
and
satisfactory identification
of
the
land
The
question remains
the
description
in the contract
of
itself
(without
the }3urchaser
is
shall be elucidated
On
by
this point
right to a conveyance
reference to
inserted before the reference to the plan and the point actuallydecided was that, the fact being that the verbal description w;ts of itself idone insufficient to identify the land, the vendor was not entitled to insist on the insertion of those words. (i) Above, p. 630, n. (6). Sansoin and Narbeth\'< (k) He Contract, 1910, 1 Ch. 741, 749, 750. In that case the contract contained only a general description of the property sold not defining the measurements or boundaries thereof and it seems clear that the purchaser (unless
;
;
precluded by the fact that the vendors sold as trustees see below, pp. 634, 635) was entitled
;
to
more
detailed
description
than was contained in the contract. In the latest title deed under which the vendors claimed the property was described by reference to a plan it was agreed before the summons came on for hearing that the purchaser should have a copy of this plan on his conveyance and the suimnons was only heard to determine the
; ;
question of costs. It was decided that the vendors must pay them.
633
But
it is
where the
land sold can be satisfactorily identified by a further or better verbal description than is contained in the contract,
and
the
it
vendor
does in
if
offers
trutli
to
convey by such a
description,
additional burthen
he be required also
(and pay) his own surveyor to check. x\.nd it submitted that the rule, that the purchaser
his conveyance in
fm'ther
may
take
what form he
pleases,
is
qualified
by
With
is
make
sufficient
In the present
any reference in the conveyance to a plan shall be solely by way of illustration of the verbal description of the property sold and not so as to make the plan any part of the description by which the vendor
that
made
conveys.
It
is
interest, Descriptiou
any plan,
to
See au Above, p. 620. on the subject above disbut it ciiHsed in -6 L. Q. R. 2()8 is respoctfully submitted that the learned author has overlonkcjd the vendor's double duty of identiti(/)
article
and the fact that in a contract to sell land the property sold may be described with suffication,
tho conenforceable, although the vendor may be obliged to resort to extrinsic evidence to prove that the actual land offered in fulfilment of the contract is the same as tiiat sold above, pp. 6, 630, 631.
cient certainty to
tract
specifically
;
make
634
sold
drawn
as
is
is
so described
by
made
a material
(//),
new
old.
descrip-
are conveyed
by
a nevv^
it is always desirable in framing the deed of conveyance to connect the new description with the old by stating that the lands were formerly known
by the old description (giving it) (p). Such a statement will in twentj' years become priuid facie evidence
Mortgag'ees of identity on sales {q). and trustees paid off, or trustees join in a convey by the
description
When
mortgagees,
who
sale,
are
conveyance on
they
under which
they took.
are
not,
as
a rule,
them
(r).
If in such eases a
new
description
be
and can be required by and the mortgagees or trustees will not abate anything of their strict rights, the conveyance must be so framed that the mortgagees or trustees convey by the old description, and that any conveyance of the
desirable for
the purchaser,
1 Dart, V. & P. 530, 5th 554, 7th ed. 601, 6th ed. Davidson, Prec. Conv. i. 85, 86, It i. 65, 66, 5th ed. 4th ed.
[ih)
;
11
M. &
1
W.
ed.
L. R.
hen,
H. L. 222 May
Ch. 616
;
v. Flutt,
v.
191)0, 1
Home
;
Sti-u-
may
may
scription
by measurements and
boundaries to be inserted in the conveyance, when the land sold is described in the contract by The writer reference to a plan. is not aware of any authority on only be deit can this point, but cided by applying the principles above stated see pp. 'iSO sq. {h) See above, p. 115.
;
Melhr v. 1902, A. C. 454 Walniedey, 1904, 2 Ch. 525, 1^05, For an example of a 2 Ch. 165. reference to a schedule of parcels and a plan controlling a general description, see Barton v. JJawes, 10 C. B. 261 Ec Brocket, 1908, 1 Ch. 185, 195, 196. For a case of an ambiguous general description being controlled by recitals, see Walsh v. Trevanion, 15 Q. B. 733. {p) Davidson, Prec. Conv. i. 83, 4th ed. i. 63, 5th ed.
;
{q)
{r)
Above,
;
p. 136.
(o)
For instances
of the effect
of a
Goodson v. Elitsson, 3 Russ. 583, 594 see Mostyn v. llostyn, 1893, 3 Ch. 376.
635
land by the
new
whom
must
own
part
and
this
may
(jt)
of
[t).
But
trust
there
is
that
by
It appears,
on proving to the
that part
is
now
Where
sold
Mortgagees cannot of course be required to their security any part of the land charged without the whole amount due to them being
release
from
()
Wins. Rful
2l8t ed.
{t)
Goodmn
v. EHinnoii, 3
Russ.
)8o.
(m) This is clearly established with regard to funds of money or Smith v. Snoir, ?> stock, &c.
:
recognised by Lord Eldoii in Goodson v. Elli^sott, ;5 Ru8s. o9(j, subject to the trust^n^'s ri<j:ht to be protected by the order of the Court in a case of doubt or difficulty.
Madd.
1
10;
301,
1
Lenaghnii
v.
Smith,
Pabnir,
Ph.
1
1892, 1907.
Ch. Ch.
302; 227
48()
:
Ite
;
Radcliffe,
it
Re and
.seems
from the decree ultimately made tiiat this principle was really
See Re Samoni and Narheth''s 1910, 1 Ch. 741, 749; above, p. 032, n. (X) though in that case it was considered that the tru.stees themselves took under a conveyance referring to a plan,
[v]
Contract,
636
paid
OF
(./).
thp:
But
being
sold,
that
the
for
remainder
the
the
to
lands
is
an ample
security
money due
them, concur in the conveyance to the purchaser to convey the legal estate and release their charge without receiving any part of the purchase money.
difficulty
No
the
can arise
when
this
course
is
taken,
if
mortgagees be beneficially entitled to the mortgage money, or if the purchaser have no notice that they
are not so entitled
{(/).
tion of his
veying to him at the mortgagor's request in considerapaying the purchase money to the mortgagor; and there
this consideration
is
as
own
use.
But
gagees
Trustee
mortgage
money, the
part
the
mortgagees
gratuitously their cedui-qtic-tnish, to release gratuitously any releasing part It is said that, at least where of their security. of their
security.
trustees
of varying investments,
the
property charged, provided that their security is not substantially'' impaired (the transaction being equivalent
The rule was that the only (,i) right enforceable by a mortgagor, and those claiming under him, against a mortgagee, whose estate had become absolute at law, was
the equity of redemption on repayment of principal, interest
mortgages, instead of reconveying, on the terms on which they would be bound to reconvey, and under mortgagors giving to mortgages made after that year
the right to inspect the title deeds of the mortgaged property but otherwise it remains in full force. See stats. 44 & 45 Vict, 45 & 46 Vict, c. 41, ss. 15, 16 Teevan v. Smith, 20 c. 39, s. 12 Cli. D. 724 above, pp. 124, 125,
:
and costs Buit.stan v. FatU-rson, Chivhentvr v. 2 Ph. 341, 345 Dvntgall, L. R. 5 Ch. 497, 502. This rule has been modified by enactments in the Conveyancing Act of 1881 obliging mortgagees
: ;
and
notes.
to
execute a
transfer of
their
(y)
Above, p. 238.
^^'*
and re-investment of the raonej'^ and tliat the purchaser is entitled to assume But that their power has been properly exercised (s). it must not be forgotten that trustees advancing money on mortgage of land have no right to release any part of the land charged for the mere convenience of the even in exercising an express power mortgagor (n) to release or compromise a claim, they are bound to act
the calling-in
seoured),
;
It
wliere
release
part
of
tlie
mortgaged lands
to
them, they
act,
prima
faclo, to
and the purchaser appears to take the failing risk of proving that the transaction was proper which the release would be invalid against the
rt'.sfiii-qiif'-frnxf-s,
;
beneficiaries
(r)
And
it
is
and
which he
As
is
it
practice in
pnirol-s,
to
General
number
comprehending
all
easements,
rights, privileges or
and enjoyed
v.
/><-
{(/).
ii.
(c)
See Pell
J.
lllnton,
see Dart, 347, n., 4th ed. 689, 6th V. & P. 612, 'r)th ed. 630, 7th ed. ed. (rt) See Lewin on Trusts, 49;'), fith ed. 706, 10th ed. See J{lm- v. Maishall, 3 (A) P. W. 381 Prniiiiu/ton v. Ifialei/, Re AUxand'r, 1 C. & M. 402, 407 13 Ir. Ch. 137.
pt.
i.
; ; ;
De G. &
ed.
;
13;
Dart. V.
;
&
P.
690, 6th
Wms. Real
13th
;
.)15,
m/. ;
vol.
ii.
pt.
i.
231,
638
as
by a con{e). But
words comprised any privileges or advantages nserl or onjoi/ed with the land conveyed, they might have the effect of an express grant by the conveying party, as a legal easement or right, of some
privilege or advantage previouslj' used or enjoyed, for
(./').
{g)
took
effect, it
omit general words from conveyances in provisions contained in the 6th section on the reliance These provisions resemble the general of that Act.
words formerly in
veyances a superfluous assurance of all easements and rights appertaining to the land conveyed, but also in
incorporating therein
an express
conveyance of
this
all
and
conveyance
may
operate, in the
same manner
enjoyed in fact at the time of conveyance for the benefit of the land assured over other land belonging to the
grantor
(/).
It
is
what
(e)
Litt.
8.
Williams
Bcddingfon
317, 326.
on
v.
Commons,
AtJee,
315; 35 Ch. D.
(/) Wfiftfi V. Kehon, L. R. 6 Ch. 166 Ka)i v. Oxlry, L. R. ! Q. B. 360 'Barkshirc v. Grubh, Williams on 18 Ch. D. 616
;
(A) This does not exactly follow the usual form of general words, which mentioned all rights, kc. now or heretofore enjoyed with the land. As to the effect of this difference, see Hall v. Byron, 4 Ch. D. 667, 671, 672
;
Wms.
(')
Commons,
324;
{a)
170,
315319,
323,
Wms.
wh'ich canle into operation immediatelv after the 31st December, 1881 ; see Wms. Conv. Stat.
v Wdliams, 189<, International Tea Stores see C'o. v. Hohbs, 1903. 2 Ch. 165 Q''>''' v. Chapman, 1903, 1 Cli. 659.
Brooniftcld
;
Ch. 602
60
sq.
639
,i
mention oi
the appurtenances,
. .
.
j-i
55
passes
P^^rcliaser (equally with a conveyance at common law of the leffal ~ ^ ^ require to be estate therein (/) ) only such rights, privileges or ease- conveyed to
ments as are legally appendant or appurtenant thereto and does not, in absence of special stipulation, entitle the purchaser to have conveyed to him any privileges or advantages which were used by the vendor in connexion
;
^"^'
own, but are not necessary for the enjoyment of the property as sold (/). And the (ith section of the Conveyancing Act of 1881 {m)
the sale of land
affects
only conveyances of
the
if
conveyance, as drawn on the purchaser's behalf, incorporate tacitly, according to the present practice, the
provisions of this enactment,
if
in the contract
(/.)
ed.
above, p. 638.
(/) Jiotton V. Bolton, 11 Ch. D. 968; linikshire v. Gntbh, 18 Ch. D. (ilO. 620 Jte Vvck and Londrm Sc/iool Board, 1893, 2 Ch. 31;") ]{< Hui/hrs (iiid Ashhifs (Jiititravt, But, of course, 1900, 2 Ch. 09.'). ifth(> vendor iudu<e the purchaser Xm enter intf> the contract by a representation that he shall have some privilege over other land of the vendor's, the vendor cannot the contract without enforce granting the same as a legal right: seethe last mentioned case. See also Bumingham, ^r. Banking Co. V. Ross, 38 Ch. D. 296
;
Lang, 1901, 2 Ch. 502 ^chwtppes, Ld., 1902, 1 Ch. 926 above, pp. 429. 430. So the sale of a house having windows overlooking land not belonginsr to the vendor imjjlies no warranty that the vendor has a riglit to the access of light through those windows: OrernItaly li v. BrindUij, I'JOl, 2 Ch. 324 but if the vendor were to represent (contrary to the fact) that he had such right, he coulil not enforce the contract, [m Stat. 44 i: 4.') Vict, c 41 (see sect. 2 (v) ) above, p. 63.S. {;<) Itr Prck and Lniiilun Srlianl Board, 1893, 2 Cli. 31.'), 318.
v.
;
Godwin
v.
I
640
for
the vendor
shall be inserted
its
And
enactment in
may
find,
by him
sale (p).
to
some easement
or other right
which he did
to bring
;
when he made
no remedy but
an
and
this
from fraud)
will
If, how(q). some privilege or advantage over adjoining land retained by the vendor be necessary to the proper enjoyment, as contemplated by the contract (r),
common and
of
to
the
way
of necessity
(.s),
a grant
it
was necessarily
is
accessory.
But
in
He
is
certainly entitled to
Hughes
and
Ashley'' s
'
Contract,
1900, 2 Ch. 595. {p) See Broomfieldv. Williams, Pollard v. Gare, 1897, 1 Ch. 602 Internafionnl 1901, 1 Ch. 834 Tea Stores Co. v. Hobbs, 1903, 2 Ch. 165. (q) 2 Dart, V. & P. 744, 5th ed. 838, 839, 6th ed. 742, 743, Maij v. Piatt, 1900, 1 7th ed. Ch. 616; see below. Chap. XIII.
;
;
(r) See Bmjleij v. Great Western Rail. Co., 26 Ch. D. 434, 441, above, pp. 429, 442, 452, 453 430.
;
See Wheeldon v. Burrows, 12 Ch. D. 31 Broomfield v. Williams, 1897, 1 Ch. 602, 610, 612; Pollard v. Gare, 1901, 1 Ch. Cable v. Bryant, 1908, 1 834 Ch. 259 and consider the case cited in the previous note. As to
(.s)
; ;
'2.
^^^
conveyance,
without
general words.
is to
And
it
to the contract,
thought that,
if
the conveyance as
drawn on the purchaser's behalf contain a grant defining accui'ately in express words some privilege or advantage impliedly sold b}^ the contract and to be enjoyed over some land retained by the vendor, the vendor
cannot object to execute the conveyance in that form.
As
ambiguous terms
(f),
so the purchaser
-is
not obliged to
(a description
which
but
is
conveyance
(ii) ),
and exactly
defined
(.r).
conveyance.
Reservations
dor's favour,
own
other right over the land sold, care must be taken that
due
effect is
it)
{t^)
See th(> cases cited above, p. 688, nn. (/), (h), (i). See Jlolfon v. Bollon, 11 (.r) Ch. D. 968 Iia,/,s/,irr v. GnM, 7iV /Vr/awrf 18 Ch. D. 616, 620 London School lioanl, 1893. 2 Ch.
;
:
Cotitract, 1900, '2 Ch. .")95 and consider Re Birmingham, S^c. Co. and AHday, 1893, 1 Ch. 342.
;
(//)
See Terbai/
Co.,
'24
v.
Manchestci-,
^-r.'
Rail.
Ch.
D.
.'J72
322:
31 A
/''
lliiiihes
mill
Ashleii's
w.
41
642
as
And
a vendor
may by
some adjoining land of his, which would otherwise have become subject to an easement or right (as to access of
light) in the purchaser's favour {a)
;
as
chaser
of
overlooking
{b).
But except by
such
own favour
of
land
where the exercise of some easement or privilege over any adjoining land of his would otherwise be necessary to the enjoyment of the property
sold, or,
own favour
of such right
acquisition
of
(c).
For
in
example,
if
by auction
windows
of
and land adjoining, which the the house overlook, and the land be sold
the house, the purchaser of
thereon so as to
the
the
access
of
light
to
windows
(d).
(z)
Baviex
v. Scar,
L. R.
Eq.
(c)
639,
640,
427.
See above, p. 6o9. See Birmitu/ham, 4-c. Banking Co. v. Ross, 38 Ch. D. 295
[a) [b)
;
LfL.
1902,
P. D. 13 JTheeldon v. Burrows, 12 Ch. D. 31 Bcddtm/Atlee, ton v. 35 Ch. D. 317 Rayv. Hazeldine, 1904, 2 Ch. 17.
Co., 2 C.
; ;
643
Wliereas,
if
purcliasor
(p)
we have
seen,
wi.th
manner
such an
easement
/*).
And
if
both
lots
were sold
at the
same
ease-
would acquire an
;
ment
for on a sale
to different
or conveyance at one
grant of
Where
two tenements belonging to one owner exercise each over the other some privilege necessary to their proper enjoyment, as where two houses are built together and supported by one party wall, then, on a sale or conveyance of one of the tenements, there will be implied, not only a grant of an easement of support in favour of
the purchaser or other alienee, but also a reservation of the like easement to the owner retaining the other
tenement
(A)
incumbrance, which
is to
? o'f^
incumbrance.
of course
[e)
;
Palmer
v. Fletcher,
Lev.
(^)
Swannborotigk v. Coventry, 9
; ;
Holt, C. J., Tenant v. 122 Goldwin, 2 Ld. Raym. 1089, 1093 Thesigcr, L. J., Wheeldon
:
V.
liurroHs,
12 Ch.
3.'>7.
1
D.
31,
.')1
;
Je8.sel,
M.
R., Allen
v. Ttn/lor,
(Jahle
IC
v.
Ch. D.
Itri/aut,
3.^/),
3;)S;
2.')9.
Bing. 305 Barnes v. Loach, 4 Q. B. D. 494 All>'^i v. Tai/lor, 16 Ch. D. .lah. Jiirhards v. Rose, 9 Ex. (/() 21K Tliosigor, L. J., IflieeUhn v. Ji>nrow>, 12 Ch. D. 31. r). and
; ;
1908.
Ch.
see
1908,
41
(2)
644
shall
be expressed in the
conveyance that he conveys the land sold subject to the incumbrance in question. And the conveyancer acting
for
him should be
;
is
done
which are
include
on
sale,
and
for
is
e.rptrss///
made
(/).
So that
if
the vendor omit to specify in the conveyance the incumbrance, subject to which he sold,
which his only defence would be to plead the terms of the contract for sale and counterclaim for rectifif'ation of the conveyance (/.). Where the contract
for title, to for sale contains the
common
stipulation
(/)
that the
rents,
property
rights of
is
and other
(if
other easements
all leases,
any)
tenancies
and occupations, whether mentioned in the particulars of sale or not, and to all rights and claims of lessees, tenants and occupiers, it may perhaps be argued that the vendor is in strict law entitled to insist that he shall
convey according as he contracted to
ject to these incumbrances
;
sell,
namely, sub-
and that none the less, where the purchaser has inquired whether there are any such incumbrances (/;/) and received the reply that the For as we have vendor is not aware of any {n).
&
(i)
Stat. 44
45 Vict.
c.
41,
s. 7 (1a).
See Ftiqe v. Midland Sail. May v. 1894, l' Ch. 11 Piatt, 1900, 1 Ch. 616; Great Western Ry. Co. v. Fi.sker, 1905,
(A)
Sug-.
V.
&
P.
&
;
P.
Co.,
ed.
Ch. 316 below. Chap. XIII. Astoobtainiagrectiiieation on this ground, see Coldcot v. Feildvr v. HiU, 1 Ch, Ca. 15
1
;
^2.
Above, p. 73, and n. (/). Above, p. 175. (h) It is submitted that if the vendor has answered positively that there are not any such incunibrauces, he cannot insist on
(/)
{in)
645
it is onlj'
was not aware of that this stipulation has any force and the vendor certainly appears to be entitled to limit
his liability
title,
so so
any
defects of
title
and has never been, the practice of conveyancers to insert in conveyances on sale any words qualifying, by reference to possible incumbrances
it is
But
not,
or the covenants
;
for
it is
under-
merely intended
title
on
account of incumbrances of
which
may
knowledge, and
may
title,
be discovered in the
when
And
it
would be
by such words,
especially
that
under an
innocent
conveyance
the
vendor
in
conveyance. {) Above, pp. 73, u. (<). 17."). {/j) This appears from an oxainiuation nf the precedents contained in Davidson, Prec. Conv.
vol.
ii.
n.,
pt.
i.
i. 611, 4th ed. i. 521 and 5th ed. Sec also 1 Key & Elph. Prec. Conv. 260, n. (c), 4th ed. 248, n. [</), 8th id. Dart, V. & P. 156, 5th ed. {(/) 176, 6th ed. 172, 7th ed. (;) Re Alms Corn Charity, 1901,
Ibid.
with reference tt) the fact that the stipiUation in question is one of the general conditions of sale
:
2 Ch. 750.
()
Above, p. 623, n.
().
646
same
{t)
But
it is
thought that
extend to indemnify the purchaser against any incumbrance, whether known or unknown, subject to which
the sale was expressly made.
It
is
common
it
condition of
insist
sale.
If in
any particular
case
it
were desired to
the
effect
on
the
statutory
covenants
is
and
not
by
be
is
made
subject to the
If
it
and
incumbrances
above mentioned
[x]
any other incumbrances than those subject which the purchaser expressly or impliedly (//) agreed
buy
(s).
.,
he has
m
.
i'liii-c
is
oi
But
if
land were
by a
{t)
Hardman
V. Child, 'IS
Ch.
J).
p. 642.
Sqiiier,
(s)
Re Monckton
\ ;
arid
Gilzean,
\. Child,
Gale V.
Ch.
D.
-11
Cb..T>. bob
Ilnrdman
;
226, 5 Ch.
{y)
D. 625.
the purchaser buys with notice that the land is subject to some irremovable incumbrance, and the vendor does
As where
28 Ch. D. 712 Musti/n v. Mostyn, 1893, 3 Ch. 376 Re Wallls and Barnard's Contract, 1899, 2 Ch.
.tI;').
^'^^
shall
is
accept
such
title
as
the vendor
dilfereut,
obliged to convey
Avithout
tlie
any words limiting the assurance to his actual interest therein (b) In such case, however, it is thought that the contract is equivalent to an agreement to buy
.
may
exist,
would therefore be
title so as to
against
defects
him by
(c).
such
incumbrances
or
It
may
by
title
paramount
;
own
predecessors in title
disturbance
by reason
some
act,
omission or incum-
whom
value
he derives
{(l)
.
title,
A disseisor,
not so
therefore, or even a
man having
(e), if
no
title at all,
much
(t-s
as a disseisor's estate
hcurficia/
which he had wrongfully entered or which he had his, would incur no liability
on the statutory covenants for
title in
ment
of the purchaser
by the
rightful owner.
Sale of land
restrictive
covenants.
(o) (h)
(f)
Above,
p. -202.
p. G44, u.
(rf)
[e)
This
is
an estate
ss.
Jiroirnvuff V. Wri(//if,'2B.ii
P.
\1
13; Hesse
P. 56.0. 574
;
v. Sleveunoti,
'.i
B.
Williamson
v. Ja,j, 9
Seisin, 7,
;
Ntnd
:
v.
Marshall,
;
Ch. D. 42, 44
51 Sol. J.
143.
648
of course not
bound,
similar
any
(./').
If lands be
by auction
or in
bought by him,
it is,
on consideration of
lot
there
bound by the
(//).
any
lot
remaining unsold
If
it
effect that
by
as
well as against
all
unsold
bound
if
But do not enter into any such express covenant (A). it appear that the vendor merely offered each lot
by each purchaser, and did not
offer,
advantage of the whole property put up for sale beingsubject to the same covenants, then the purchaser of
Ch.
-2
195
Roivcll v.
;
Satchell,
1903,
ley,
Ch.
2\-2
Osborne v. Brad-
(/() See cases cited iu previous note lie Birminq/iajii, ^^c. Co. and Allday, 1893, 1 Ch. 342 Davis
; ;
1903, p. 497, n.
ig)
2
(s).
Ch.
446
above,
;
V. Leicester, 1894, 2
;
Above, p. 494, aud n. [a) Nottingham Patent Brick, ^-c. Co. V. B/itler, 16 Q. B. D. 778, 784, CoUhis v. Castle, 36 Ch. D. 785
;
Ch. 208, 219, 227, 232 Hoi ford v. Acton Urban Rowell Council, 1898, "2 Ch. 240 V. Satchell, 1903, 2 Ch. 212 Elliston V. Reacher, 1908, 2 Ch.
;
243.
649
In any covenant in respect thereof (/). implied any case in which it is either an express or an term of the contract for sale that any land retained by the vendor shall be subject to any restriction in the
purchaser's favour, the purchaser
is
entitled to require
him
to that effect
(/.).
The
case
is
exactly parallel to
that of an
express or implied
contract to
(/).
grant an
The
estate clause
Estate clause.
in the land
conveyed (m), went out of use after the commencement the 6'3rd sei-tion of tlie Conveyancing Act of 1881 [n)
;
of that
Act providing that every conveyance shall by virtue of that Act be effectual to pass all the conveying
party's estate or interest in the property conveyed, but
this
if
and
as far as a
contrary intention
and have effect subject to the terms of the conveyance and the provisions therein contained. Having regard to this express saving and to the construction placed on
the estate clause formerly usual
(o), it
is
thouglit to bo
enactment upon conveyances assuring in proper terras less than the whole estate of the party conveying, such
Tucker v. rowles, 1J3, 1 Holfoid v. Avion Urban Reid v. Council, 1898, 2 Ch. 240
()
IQ.")
; ;
Ch.
Wms.
Hickcrstaff,
190<J.
11.
Ch.
S;c.
;J0;)
above, p.
(A)
()48,
(/').
Re Biriiiingham,
do.
and
Alldaii,
V.
(/)
(/)
David-son,
ed.
;
Proc.
94,
4tli
sec
Wms.
Couv. Couv.
Stat. 44 & 4.) Vict. c. 41. See BlundeU v. StanUy, 13 Jul-. 998 Hunt v. Remnant, 9 Ex. 635 Rooper v. Harrison, 2 K. &J. 86, 113: Xeamev.MourFrancis v. om, L. R. 3 Eq. 91 Minion, L. R. 2 C. P. 543 1 Davidson, Prec. Conv. 94, 95, 4th ed.
; ; ;
;
650
But
if
upon
whole
the sale of
estate in
tlie
some land,
stipulated that
for if all
mention thereof be omitted, the deed will take effect at law according to its terms, and the vendor's only remedy will be an action for rectification of the conveyance {q)
Liriiitatiou of
that,
although a contract
the purchaser' s
estate.
(r), this
sale, in which the estate to be taken by the purchaser must be duly limited or marked out, either by the use of the words necessary to convey the fee at common law, or by the exact expressions mentioned in the 51st section If, therefore, an of the Conveyancing Act, 1881 (.s). land must be conthe were sold, simple fee in estate liis heirs or to him in and purchaser the veyed either to will suffice to effect this words other fee simple, and no or (excepting the words proper to confer an estate tail)
on
will avail
to
convey a
it).
greater
it
estate
than
for
the
grantee's life
And
is
to
him an
estate in
Davidson, Prec. 1 [p] See Conv. 95 98, 4th ed., also showing the difference between an exception and a reservation. (q) Above, pp. 640, 041. (r) Above, p. 41. \J) Stat. 44 & 45 Vict. c. A\. (t) Ite Ethel and Mitclidh and BuUcr'n Contract, 1901, 1 Ch. 945, where the limitation was to the grantee in fee ; Wms. Real Prop. It may be noted 207, 21st ed. that it is sufficient if the proper
words
of limitation be contained habendum only of a deed, as where A. grants to B. All that farm called Blackacre To Hold the same unto and to the use of B. and his heirs, or in fee simple in the
;
Young, Cro. Oar. 230 <S'. C, nom. Meredith v. Ormrs Joans, Cro. Car. 244 Case, L. R. 8 C. P. 281, 295 ISpencer v. liegislrar of 298, 300 Williams Titles, 1906, A. C. 503 on Settlements, 4 7see Jeukina v.
;
;
651
own
life
and no more
the person
(^r
will pass
()
is
expressed that
But
if
through a mistake of
veyance a
less estate at
this
kind, acquire
by the con-
conveyance
lias
1
rectified accordingly
i.
(/y).
This consideration
-i.
T-
estate in lands is
would be
legal,
insufficient to
if
pass the
equitable estate.
law
any words
paaa the
an estate for the grantee's life if the deed show an intention to transfer the grantor's whole equitable interest in the land {a). Thus, if A. agree with B. to
fee,
will confer
it is
only
(;:)
But
otherwise
buy the lands of which C. is seised in fee on trust for B. in fee, or to buy B.'s equity of redemption in the lauds comprised in B.'s mortgage to 1)., and B. convey these lands to A. by a deed, in which the nature of the agreement between the parties is by recital or otherwise
()
{x)
\y)
ed.) 106
Prestou ou Estates,
;
ii.
04
91,
9.5,
Ch. 94.'), 948; below, Chap. XILI. 2. (;) See Jic U'lin^tuii'-s Sittleinmt, 1894, 1 Ch. 061, and the cases
Jiiitler's Contract,
1
^<.
WHH,
Gthed. 117, 10th ed. Wm^. Real Prop. 105. i;Jlh eL. 184,
21st ed. Trui(/haiii\\ li' Itv 1904, 2 Ch. S+f-; Irwin, ib. 752, 764 ; Re Ohver'x SeltUnunl, 1 Ch. 191 1905,
ISo,
;
Truntx,
^7
'
q1
there cited;
i'h.
7.')2
;
Re Irwin, 1904,
Farwell, L.
J.,
Re Ch.
Farwell,
L.
J.,
Re
Thitrsby's
Settleinrnt, 1910, 2
652
of
the purchase
money
is
A.
would be proper in such a case take a conveyance to himself and his heirs or
it
in fee simple.
Veiidurof
Every vendor
of land, besides
is
Ir^iTCthe
usual cove-
bound, unless
appear from
gagee
title.
(/*),
That
to
say,
the
free
from any
incumbrance, and
the property sold were leasethe rent has been paid and
fire
the covenants performed but all these covenants limited to indemnifying the purchaser against
dis-
some
act,
omission
or
his
or
of
any
of
land or the
subsequent to the last sale of the conveyance thereof for other valuable consideration whereon proper covenants for title were given (r), or of any persons claiming under him or
predecessors in
last
them.
self,
80 that
if
only of his
him.
own
under
And
(b)
See Worlv(j
;
v.
I'rampton, 5
pt.
i.
191,
;
261, n.
(),
29(j, n.,
Sug. V. & P. 69, Hare, 560 075; 1 Dart, V. & P. ooO, .Hh
573, 7th ed. 6th ed. Wms. Real Prop. 449, 13th ed. vol. ii. Conv. Davidson, Prec.
ed.
;
62'2,
4th ed. above, p. 76. (e) See Sug. V. & Davidsou, Prec. Conv. 1 Dart, u. {<,), 4th ed. 616, 617, 545, 5th ed. 568, 569, 7th ed.
;
P.
574
192, 261,
V.
P. 6th ed.
&
653
trnst for
him
or implied, to
absence
not bound to give, in the conveyance of the land, any manner of warranty of title other than is afforded by these qualified covenants (./') And no otlier warranty of title {{/) is implied on a sale of land made by one, who assumes to deal therewith as owner, and completed by conveyance and payment of the purchase money (h). Indeed, under the present law, no warranty of or covenant for title is implied by the mere conveyance, on sale or otherwise, of any land (a) except only in the ^^ warranty case of a demise for a term of years (/.), and in certain implied, a,s a ''"''"' ^^ ^^^ cases of statutory conveyance where the word (irai/f bv
is
.
force of
title (/).
some Act
of land,
ment
{d)
bound
to
show a
g-ood
Brotvniw/ v. IVrif/ht, 2 B. P. 13, 22;' Church v. Brown, Blakcsleij v. 15 Ves. 258, 2G3 Whieldon, 1 Hare, 176, 181 Dart, V. V. & P. 574 1 Susc. & P. 514, 545, 649, 5th ed. (il.i 567569, G17, 621, 6th ed. Davidson, Prec. 572. 7th ed.
&
branres see Expfe. Stanford, 17 Q. B. D. 259, 271. E.g., uo such warranty of {(j) title as is implied by the nuKlern law on the sale of j^-oods see
: :
Benjamin
2ud' ed. 16th ed.
(//)
;
on
Sah's,
'
511 52.!,
10
Wms.
v.
Conv.
vol.
ii.
vol.
i. i.
pt.
;
Clare
Lamb, L. R.
Wms.
;
above.
F(n-
C. P. 334. ^i) Co. Litt. 384a and note (1) stat. 8 & 9 Vict. c. 106, s. 4 Clare v Lnmb, nbi sup. Dchenham v. Nnwbridf/e, 1901, 2 Ch. 98, 100.
; ;
conveyance as
(/.)
See
Wms. Real
;
Proj). (ill,
prepared on the purchaser's behalf purport to assure the land to be held by hini "free from incumbrances," the vendor should strike out these words, as tliey iruport an uin-estrict<^d mifflit warranty at <'ommon law that the lauds were free from incum-
21st od. liiiilil - Svilt v. Dmiifll, 1902, 2 K. B. 351 Jaurx v. LuriiKjIui), 1903, 1 K. B. 253; Markhain v. Vinjei 1908, 1 Ch. 607.
(iTi,
;
(/)
See
Wms.
21st ed.
654
title
and
title
if
let into
money and
the
vendor's
upon a total failure of consideration, for the contract was not then completed {i/). And this appears to be the case, notwithstanding that the title had been accepted (o) unless the purchaser had expressly agreed to accept such a title as exposed him to the risk attendant on the defect and the title contracted for had been duly shown to him (p). If, moreover, one induce another to buy land by untruthfully representing him;
self to
hind sold.
the purchaser will be entitled to relief on the ground of the misrepresentation and according as
cent
{q)
it
or fraudulent
(r)
the
difference
either
this
but can
(m)
()
Above, pp.
Johnson
v.
Society v. Smithson,
&
P. 162.
(o)
See
S. C. ;
Re Haedickc and
1893, I Ch. hebtnham v. Sawbridge, 12 see also Endd v. 1901, 2 Ch. 98 Lascelles, 1900, 1 Ch. 815, 818;
1,
;
;
Lipski's Contract, 1901, 2 Ch. 6G6 and above, pp. 179 181.
below. Chap.
^
XIV.
1;
XIX.
0.
()
202207.
Bree v. Holbech, 2 Douor. Wilde v. Gibson, 1 H. L. C. 654 605, 63o; Selborne, C, BroimUe V. Campbell, o App. Cas. 925, 935-93S; Jolife v. Baker, 11 Q. B. D. 255 "Berry v. Peek, 14 App. Oas. 337 ; Onward Building
;
v. M'Leay, G. Coop. Swanst. 287 Hart v. Sivaine, 7 Ch. D. 42, as to which see Brownlie v. Campbell and Dern/ Joliffe V. Baker, ubi sup.
Bdtcards
2
30S,
XIV.
XIX.
>5
5.
655
(.s)
But
if
a trustee
thought, he
entitled to the
same covenants
(/)
.
as if
when
it
is
So a mortgagee selling as such By mortfrim-co only bound to covenant that ^'* ^"''''
(x),
but would,
it is
thought, be held on a By
Where land
by
ces/ ;,{-(,
iir.
is
sold
for
in
mortgagee concurring
covenfint against his
must enter into and the trustee or the sale is only bound to
title,
own incumbrances.
it
And
on a sale
is
by the mortgagor on the occasion of the mortgage (.r) If laud be sold by a trustee in By bankruptcy professedly selling as such under the power of sale given to him by statute (.?/), he can only be required to covenant that he has done no act to incumber.
.
trustee in
bankrupt
covenants are of
or no value
(-).
Where
ed.
;
lands are
{s)
t)
(k)
Stat.
46
&
66.
(r)
vol.
viil.
ii.
(.)
Davidson.
ii.
Conv.
pt.
;
i.
261,
4tli
ed.
Key &
& P. 575; I Diirt, P. 552, 5th I'd. 624, 6th ed. Davidson, 575, 7th cd. Proo. Couv. vol. ii. pt. i. 618
Sug. V.
V.
&
656
Sale under power.
by
or
by the
to
some
veyed nnder some power exercisable by himself or by others with his consent (such as the power of sale given
to a tenant for life
by the
Settled
Land
Act, 1882
{a),
or the
power
Act to
is
f/>).
title
person
is
tenant for
life
extend to the
title (e)
,
acts, &c.
any
of his predecessors in
it is
bj^
regards the
remainder or reversion expectant on his life estate, for any other acts or defaults than those of himself or his
own
or
him
them
And
it
would probably be
held,
where the
life
so selling or
entitled to insist
it is
on
But
thought that
contract,
where he has
Thus,
if
by an open
1882, or
a conveyance
which he proposed to carry out by by himself under the Settled Land Act, by trustees under a power of appointment
(c), it
is
submitted that he
would be bound to give vendor's covenants for title The case is analogous imrestricted by any such proviso.
to a sale
made by
trustee without
disclosing
his
1 Key & Elph. n., 4th ed. Free. Conv. 533 and n.. 4th ed.
;
(c)
Sth ed. (a) Above, pp. 300 xq. [b) Re London Bridr/e jicts, 13 Sim. 176, 179; Poiikit v. Hood, L. R. 5 Eq. 115 i2e Sawyer and Contract, 53 L. J. Ch. I!trri)/(/''ft 1104; Sug. V. &P. 575.
n.,
;
526 and
Dart, V. & P. 548, Sth 619. 620, 6th ed. 571, Davidson, Prec. Conv. 7th ed. n. (o), 4th pt. i. 261, 262, vol. ii. 1 Key & Elph. Prec. Conv. ed.
{d)
;
ed.
449, n.. Sth ed. 453, n., 4th ed. {e) Above, pp. 165, 282, 300 .?y. (/) Above, p. 655.
;
657
as such trustees,
{q),
it
good discharges
does
not
money
title
(/c)
to join in the
:
but
if
it
to insist,
sni JHrix,
that
they should
title
give the
usual
vendor's
It
is,
covenants for
(/).
however, usual on sales by trustees to stipulate expressly that the concurrence of the beneficiaries shall not be
required and the purchaser shall be entitled to no other
against incum-
by order of the Court, he must enter into the same covenants for title as if he himself had sold them but where on such a sale the legal estate is in trustees and a good title to the equitable interest is given by
;
or oblige
them
to
covenant for
The
present practice
title or
is t(j
covenants for
in conveyances on sale
cause such covenants to be " deemed to be included and to be implied " therein by virtue of the Conveyancing
{ij)
Above,
;
p.
288.
See C'vitrellv. Cottrcll, L. R. abiive, p. (55.5 and 2 J5q. 330 next note. Dart, {i^ Suff. V. & P. 574 1 V. k P. 545, 540, 5th ed. 617,
(A)
; ;
Prec. Couv. 264, u., 4th etl. 252, n., 8th ed. ; above, p. 76. (/) Above, p. 472. (/) Sng. V. & P. 574 Cottrell
;
v.
1
Cottrell,
Davidson,
pt
i.
L. R. V. & P.
ed.
;
Eq.
.')th
330
ed. ed.
54.i.
568.
7th
Wins.
;
6U9,
Davidson, Prec. Conv. vol. ii! pt. i. 270 275 and notes, 4th ed. It is usual, however, so to stipulate: 1 Davidson, Prec. Conv.
661, 4th ed.
{]
;
Davidson, Prec.
;
613,
4th ed.
Key &
Conv. Elph.
w.
42
658
By
this
Act
(o),
there
is
person or persons to
whom
the conveyance
is
made,
all
limited
and sufferances of the person who so conveys, anyone conveying by his direction and anyone through whom he derives title otherwise than by
him
or thera
(r).
And
is
And
is
Stat.
(1)
t4
&
(b).
45 Vict.
c.
41.
This section applies only to conveyances made sect. 7 (8). after the year 1881 (p) In this section "convey" conferring includes a deed ance the right to admittance to copyhold or customary land hut does not include any other customary assurance, or a demise by way of lease at a rent; sect. 7 (5). " Conveyance "' in the Act is
s.
(a),
Due
exceptions are
made
with I'egard to any estates, interests, or incumbrances, subject whereto the conveyance is expres.shj made, and the acts, &c. of persons claiming in respect
thereof
(i)
sect. 7 (3),
confined to assurances made by deed on some dealing with or for property; sect. "2 (v). (q) In a conveyance by way of mortgage, absolute covenants for title are implied on the part of any one, who conveys and is expressed to coTivey as beneficial
and is expressed to convey as beneficial owner and her husband also conveys and is expressed to convey as beneficial owner, there
are implied, besides the covenants implied as above mentioned by the use of these expressions, the same covenants as if the wife conveyed by the dii-ection of the
owner:
in
And
a conveyance by way of settlement there is implied on the part of any one who couve}\s and is expressed to convey as settlor a covenant for further assurance linuted to liimself and every per-
husband directing as beneficial owner, and also covenants by the husband in the same terms as the covenants implied on the part of
the wife
:
see
Wms.
Conv. Stat.
8791.
659
lunatic so found
by
own acts only (t). But no covenant is implied any conveyance by virtue of this Act where it is not expressed that some person conveys in one of the for characters particularly mentioned in the Act The instance, as beneficial owner or as trustee (ti). covenants implied by virtue of this Act may be varied
party's
in
;
or extended
by deed
(^).
considered, be limited in
on the covenant
is
void
(//).
An
covenants for
a tenant for
in convej'ances
life onlj;{3).
The
benefit of a covenant
and go with the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time
incident to
vested
(a).
This
is
These run
that
is
by
(/>),
(r).
But they
(m)
&
{c)
\y)
Williams
v.
Ilathmrmj, "
go(^,
2
.'',46.
6.')C.
\b)
Afidfllniinrf v.
&
lOrj.
42
(2)
660
Thus
if
A. conveyed land
should appoint
and
and
in default of
appointment
to the use of C.
and
his
heirs
for title,
and D. and
C. afterhis heirs,
D. could not sue on the covenants for title, for he took an estate which defeated C.'s estate in the land (r/).
Although
if
C.
had conveyed
to
D. his
if
estate in
title.
the
D.
made
to
(as
;
uses
D.
would,
by
Statute of Uses
in
the land
had
taken
and this would be the case, whether he by appointment or grant from C. (./').
title
Where
are employed,
to
the
This,
person
in
whom
where
the
conveyance conveyance
that
is is
made made
of
{g).
cases
the
to uses intended to
(e), is
be executed
;
by the Statute
if
Uses
so
conveyance include a
power
to
But
it
appears
tlie
the statutory as of
which they
relate, unless
he
j.
an equity
-i.
ot
redemption, an
l-
estate.
289
Roach v. Wadham, 6 East, Sug. V. & P. 578580. {e) Stat. 27 Hen. VIII. c. 10. Spoor (/) Sug. V. & P. 578
[d)
; ;
V. G)-ee)i,
113.
(//)
Above,
661
for
in his
own name,
covenant
tain
(//).
It appears
at
an action
For
the
land
But where
estate
may
is
own
name upon
thereon
the right
of
action
by force of the above-mentioned provisions of the Conveyancing Act annexed to the implied
(/.)
him
and
it is
is
covenants
estate,
effectually so
express Covenants
for
by
may
^'t^e
obtained
avoidance of
the
contract,
any action brought against him on the covenants by the original covenantee. But if the covenantee
assign over his estate in the land to a purchaser for
value
mthout
entitled,
as such, to
Jann. Onward
ijood,
Sug.
c.
V.
&
P.
;
.592, .'iQS.
Buildiiiff Sociefi/v.
1
Smilhso,\S9:i,
v. lioi/es, 4
(A) Stat.
8. 7 (6)
Ch.
(i)
;
1,
12.
41,
See ^pcncn;
Ves. Sim.
(/)
David
Ch.
Hom-
, ;
662
Purchaser
may
It seems to lie in the purchaser's option whether the take for title, which he is entitled to demand, covenants either express or the statushall be given by express words in the old form or by tory covenants
title.
for
nants
But, as
we have
seen
{ii)
to
take
If,
any more extensive covenant than the contract obliges him to give, he will of course be entitled to have the Thus it has operation of the statute duly restricted (o) been already mentioned that a tenant for life not bound to covenant against the acts^of the remaindermen or
.
(/j).
Again, we
have seen
title
(q)
that a vendor
is
bound
to covenant for
against his
own
acts
and the
decessors in title subsequent to the last sale of the land or other dealing therewith for value
covenants for
title
were given.
own
acts
and the
title
through
(r).
whom
If,
he derives
the
otherwise than
by purchase
therefore,
vendor derive
title
were given
1,
(s), it
appears that
Ch.
(r)
(.s)
Above,
It
p. 658.
13; see below, Chap. XIX. 5. 624. () Above, pp. 617, 622 The same principle appears applicable in determining whether any other rights, to which the
by some statutory form r.g. whether express general words shall be inserted, or recourse had
or
; ,
to the statute
(w)
Above, p. 658. (o) Above, p. 640. Ip) Above, p. 656. [q) Above, p. 652.
the year 1882 for the i?ettlor in a marriage or family settlement to give covenants for title qualified in the same manner as upon a sale Davidson, Prec. Couv. vol. iii. 59, 275, 634, 861, 1027, Williams on 1120, 3rd ed. Settlements, 126, 226. But since the Conveyancing Act of 1881 took effect, settlors have in many cases given only the covenant for further assurance implied under that Act by their conveying as settlor above, p. 658, n. (r)
:
; :
663
have the statutory covenants modified accordingly (^). In practice, however, vendors claiming under marriage
settlements whereon
title
were
On
the
sale
of
legal
estate
in
must be given by a deed separate from the conveyance of the land, which will of course be by surrender and admittance {x) as the covenants
covenants for
title
;
rolls.
This
may
be
form of a covenant by the vendor to surrender the copyholds to the purchaser's use and the covenants for
title
are added
was was doubted whether in the former case the covenants would run with the land, the covenantee having no legal interest
latter course
it
The
{//)
It should be
(z)
so that if it be preferred to
title
are
As
2 Key & Elph. Tree. Conv. 461, u., 562, o(i:5, 704, 710, 4th 4o7, n., o.')3, oo4, 67 i, 680, ed.
;
ed.
616,
6th
ed.
568,
sq.,
7th ed.
{x)
Wms. Real
Prop. 484
Da\ndsou's Concise Pre8th ed. cedents, oil and n., .rll, 17th ed. S Jann. {t; Sug. V. & P. o74 Conv. by Sweet, :{7o Davidson, Prec. Conv. vol. ii. pt. i. 192,
;
; ;
21st ed.
661; ifiW(y) Above, pp. 659 de/f v. liiddtU, 7 Sim. 529; Davidson,
Prec.
Couv.
vol.
ii.
pt.
i.
ed. (;) Stat. 44 & 45 Vict. c. 41, above, p. 658, and 7 (5)
Dart, V.
ic
P. 545,
n. {q).
664
whom
is
any part
of the estate or
interest
the
implied
covenantee,
and
it
appears
immaterial whether that estate were legal or equitable (a), there seems to be no doubt that, where such
For
sale
now
is
upon the
them
in a deed of covenant
It
must be borne in
oTcopyholds
money should
;
not be paid until the actual surfor a surrender only can confer
(c)
land is (</), where some definite incumbrance, legal or bTconvf ed*" ^^^^ subject subject to any equitable, whether it be a mortgage, charge, lease,
already mentioned
to
incumbrance.
,
As has been
,.,
i-
ii
is
And
this is done,
covenant for
title {e),
and
it
is
proposed to incorporate
title.
freedom from
or
interests
incumbrance, subject
subject
(/).
whereto
the
in
conveyance
such
cases
was
expressly
made
So
that
unless
(ff)
Above,
1
p. (iGl.
'ilst
{b)
Key &
475 and n., 8th ed. (c) See Davidson, Prec. Conv. vol. ii. pt. i. p. 206, 4th ed.
; ;
(./)
s.
7 (1)
665
be
title
expressly
will
it
;
in
against
the
vendor's
the
land
(ry).
The
the
incumbrance diminishing
conveyance.
If
this
the
estate
granted
to
ance
{Ji).
On
if
for
vendor's
title is defective,
covct Im"*^
by
apparent
and the defect appear on the face of the conveyance, it must be plainly shown, where the statutory covenants for title are applicable and are
relied on, that they are intended to cover the defect
might be contended that the defect, being an incumbrance subject to whicli the conveyance was expressl)' made, did not come within the terms of the Of course, if in this or any other case the covenants.
otherwise
it
title
by the
the
contract of sale
bound
for
guarantee indemnity,
statutory
covenants
else,
title
is
must
be modified
plan,
accordingly
or
which
title
the
better
the
must be given
in express
(/).
Where
covenants for
title
which
is
not
is
be
Jis
(y)
(//)
(t)
2 Uart, 1900, 1 Ch. ijlti T. 7S6, oth ed. , 8S7, 79.'), 6th ed. 7th cd. 794,
;
V^
&
Co.,
666
it
might be provided in the separate deed that the covenants thereby given were intended to
and
it
be additional.
I'uruhaser
agreeing to observance of
restrictions
deed of conveyance.
Thus,
if
the
contract
for sale
on the use
of the laud
bound, on comto
to
enter
;
into
covenant
observe
the
covenant to
that efPect.
restrictions (/)
contrary,
this
and in the absence of stipulation to the covenant must be absolute, and the
he
re-sell the
land
new purchaser
any such
restrictive
careful
is
no doubt can
the covenant.
It
is,
as
be decided on consideration of
was that the benefit of such a covenant with some particular land belonging to the run should this benefit was meant to be confined whether vendor, or
tracting parties
{/c)
Sug. V.
&
P. 573
Davidi.
Prec. Conv. vol. ii. pt. pp. 379, n., 381, 4th ed. {1} See above, pp. 493, 648.
son,
(m) See Pollock v.
Rabbits, 21
Ch. D. 466, decided on an express condition but it is thought that the stipulation implied by law is the same. () Above, pp. 491493, 648.
;
^67
The
pur-
intended by
effect
tlie
contract.
assigns of
that
land will be
as assignees
from the
When
act
the vendor
contract to pay
or
In wliat .asfs
\^>f "^'i'','^'"^^' iuik-nmifv
sold to be held
as
it,
remain personally
any future breach of the covenant or contract, which may occur after the sale and conveyance of the
is
bound on completion
to enter into
all
the
of these conditions
and
For example, on the sale of Ou which are subject to the payment of rent
salo
..f
and the performance of onerous covenants, the purchaser must, if the vendor will remain under any liability in
(o) See limalx Ch. D. V2b, 129,
v.
C'otvlisAaw, 9
11
Ch. D. 86G
Fri/,
Spicer v.
12,
Martiti,
14
App. Cas.
24
Iioi/er.s v.
lluseguod, 1900,
403408.
1
;
V. Jc B. S 1 JFi//,i/is v. Mer. 244, 26:3266; J/ox-hay v. Indrnric/i, 1 De G. i: S. 70S Sag. V. & P. 37, 3, 198 1 Dart, V. A: P. 557 nq., 5th ed.
Morri-.,
1
: ;
{p) See Pembcr v. Mut/iers, lyunuy Bro. C. C. 52, o4 Ward, 7 Ves. 332, 337; fitainoi
628
v. v.
Me
6th ed. 579 </., 7th ed. Poole and Clarke's Contract, 1904, 2 Ch. 173.
.<</.,
;
668
of conveyance thenceforth to
and covenants, covenant in the deed pay the rent and perform
of
pay the The purchaser must thererent or keep the covenants. fore give this indemnity, where the vendor is the original
liability
by reason
to
lessee, or
an assignee who has entered into a similar covenant on the assignment to himself, or the executor
or administrator of such lessee or assignee
(q).
But
in all
by the purchaser is to secure the vendor's indemnity against any future breach of the conditions on which the land sold is held and (except on the purchase of
;
leaseholds
'
the purchaser
is
be so ex-
him any
greater liability
than
this (r).
On
been given by
insist
but such covenants will be construed as having way of indemnity only, and not so as to
on the observance of the covenants in the lease than is necessary for the purposes of his own indemIf the vendor of leaseholds will not remain nity ().
liable,
to
the
is
an assignee of the lease who did nof covenant to indemnify his assignor generally against the rent and covenants, he cannot require the pm'chaser Where on a sale of to covenant to indemnify him {f).
{q)
Harris
'2
(.s)
Harris
v.
Boots,
(^r.
Ltd.,
V.
Boots,
(r)
Ltd.,
1904,
Cli.
above, p. 80. Fuole and Clarke''s (Juntract, 1904, L' Ch. 173.
376, 382
Re
244,
38
8ee Willcivs V. Fri/, 1 Mer. Sug. V. & P. 37, 1 Dart, V. & P. 558, 5th ed.
263266
669
the vendor
is
bound
to
is
it
is
nant
And
it
is
common
it
has been
hitherto
to oblige
usual
(//)
for this,
might be held
on his
him
to
covenant
but he should
insist
liability
being
If,
however,
is
630,
pt.
i.
6th
ed.
581,
7th
ed.
Davidson,
Prec.
Couv.
vol.
ii.
common form
placed
Note that the 217, 4th ed. assignee' .s liability independent of express contract to indemnify the original lessee (as to which see Buriiclt v. Ltpich, 5 B. & C. .589 Moule v. Garretl, L. R. o Ex. 132, 7 Ex. 101) extends only to omission to pay the rent or keep the covenauis during his
;
tion
own
tenancy, and not to any such omission occurring after he has assigned over: Sug. V. & P. 38. (m) Above, pp. 350 *</.
{x) This is fui'ther apparent from the fact that the '-ovenants for title, which the vendor is bound to give, include a covenant that the rent has been paid and see the covenants perfnrmed
;
assignment came under an immediute duty to perform the covenaut to repair, and he could not discharge this duty without remedying the whole breach of
to
above, p. 652.
(y)
Davidson,
ii.
vol.
Key &
the covenant. Thus his failure remedy the continuing breacli, which occurred after the assign-
8th ed. Gnoch v. Clntterbuck, (c) See 1899, 2 Q. B. 148, where the
ment, made him indirectly liable to indemnify the vendor against a breach of covenant which liad occurred before it.
670
who has
are
be obliged to
purchaser
against
nant to repair
to
any future omission pay the rent or keep the covenants (h).
as well as against
Indoinnity on
subject to restrictive ro veil ants.
When freehold or
covenants
'^
is
(e),
the
same
If the
him, for
him
otherwise not.
And
whether the
{(f).
in Jie
(d)
1903,
tract, 1904, 2
1 Ch. 287, are opposed to this view hut it is submitted that those judgments were delivered under a mistaken apprehension of the law see above, p. 354. {b) Apparently a covenant of indemnity in the common form would effect this object, where
:
hai/ v. Indertcick,
De
Gr.
1
&
S.
the breach is continuing, for the reason given in the previous note. But if the breach were not continuing the common form could not be relied on. Wliere the vendor covenants for title in the usual way, it seems impossible to construe the common form of purchaser's covenant as extending to past breaches of covenant.
(c)
Above,
p. G67.
Jur. N. S. 200, where there are dicta leading to the conclusion that, where land is expressly sold as being subject to restrictive covenants, but without an express stipulation that the purchaser shall observe tlie covenants, the pui'chaser cannot enforce the specific performance of the contract without entering into a covenaut with the vendor to observe the restrictions but if specific performance be sought bj' the vendor, the purchaser cannot be obliged to enter into such a covenant see Sug. V. & P. 38. But it appears that Mr. Dart's criticism of these dicta (1 Dart,
;
708
Lnkey
v.
Higr/s,
071
he was a party to
imposed
and covenanted with him to and to indemnify him against all future breaches thereof. But if the vendor were no party to the contract creating the restrictions and
restrictions
liim.self
them
or to indemnify his
(e)
,
grantor against
non-observance
there
is
no
These
results follow,
when land
is
tive covenants,
purchaser
so to covenant, is entitled to
express
terms to
/")
It is
however common
a vendor
who
is
selling
pur-
chaser shall
covenant to observe
against
this
tlie
restrictions
and
indemnif}'
him
if
any
them
and
"Where
subject
to
a covenant
not to erect
thereon
any buildings other than those of a parand also subject to " pro])er provisions f(U" securing the due observance and performance " of the covenant, it was held that the vendor was entitled to have inserted in the conveyance a power of re-entry,
ticular kind
p. .55i) r)61, 5th eil. 6;il Gth ed.) was correct; and T i.I 1 tlwit the distinction so suggested is unsound: and it is now establislicd tliat the true principle is AV I'oole tluit stated in the text
V.
&
(iiiii
, " \
():};5,
.1
1 iv.
i.-
(') '
06/.
(/)
tract,
Re
p. 668.
672
after, in
ease of
purpose oi pulling-
expenses of so doing
but was not entitled to have a term of years or a rentcharge limited to a trustee for the purpose of securing
the performance of
the
covenant
(r/).
This was
so
covenant
selling
insist
and,
without
such
stipulation,
vendor
for re-entry
Indemnity on
sale of land subject to a
the
So where land is sold subject to some charge, which vendor will after conveyance remain personally
charge for liable to pay, the purchaser is bound to covenant to which the indemnify the vendor against all liability for its nonvendor will remain liable. payment as where a mortgagor sells the equity of
;
redemption of the mortgaged laud (h), or land is sold subject to a rent-charge which the vendor has, either on
its
original creation or
(/),
covenanted to pay
to succession
duty
is
is
sold
Sale in conreiT-diarge^''
Wliere land
vendor
is
to
De G. 219. Warm(j v. Ward, 7 Ves. Bridqmnn v. D(ui\ AK> 332, 337; W. R. 253 Sug. V. & P. 198 1 Dart, V. & P. 557, 5th ed.
iff)
Exptr. Ralph,
Re Law
Courts
[h)
Co., 61
L. T. 669, 671.
582. 7th ed.
Dart,
ed. ; Davidson, Prec. Conv. vol. ii. pt. i. 453 aud n. (r/), 4th ed. The purchaser is liable in equity
629,
6th ed.
579,
7th
to indenmify
Waring
v.
{k) Re Repington. 1904, 1 Ch. 811, 814; Dart, V. & P. 557, 629, 668, 6th ed. 593, 5th ed. see above, 580, 1234, 7th ed. p. 407.
;
;
67'-'^)
ment
(/)
The vendor
is
also
entitled
to
have an
It
is
questionable,
however, whether he
express
stipulation,
is
entitled,
in
the
absence
of
to
secured
by a power
in default of
payment
to re-enter
tlie
rent
and
costs
usual,
although it has long been be satisfied (u) on conveyance of land in consideration of a rent(o).
But a
stipulation
would certainly
vendor to have
The
of
vendor
is
liave reserved to
tlie
him
a power in default of
payment
arrears
by sale or otherwise
(7).
And if no such
are
express
stipulation were
made
and the
to
be
now
(r),
usual,
by
Act
of
1881
insert a proviso
ment in accordance with his rights under the contract, and excluding the power to limit a term, which the statute would otherwise confer (s) The vendor is not
.
(/)
Bower
1
v.
Cooper, 2
Harp,
;
vol.
ii.
pt.
i.
Dart, V. & P. oG'J, .5th 08'), 7th ed. ed. 634, 6th ed. Davidson, Prec. Conv. vol. ii. 50'.), n., 4th ed. pt. i. {m) Sec Wms. Real Prop. 432, This is none the less so 21st ed. that a remedy by distress was g'iven for rent seek by stat. 4
408;
;
Wms.
Geo.
(w)
II. c. 2,
s. 5.
See
Expie.
Ralph,
Prec.
De
G.
210.
{())
Davidson,
Conv.
dents, 207, n. {a), 18th (h1. {r) Stat. 4 4 5c 45 Vict. e. 41 see Wms. Real Prop. 433, 436, 21st ed. "Wms. Conv. Stat. 216, 217. (v) David.son's Coneise Prerodents, 207, n. (</), 18th ed.
;
w.
43
674
OF THE COMPLETIO^ OF
Till-:
CONTKACT.
Sale partly in
of
power limited to him in default of payment of the rent to re-enter on the land and hold the same as his own. Where land is sold partly in consideration of an agroe-
an
ajj-ree-
it
'
is
mont by the
purc.ha.ser to
build.
that, uulcss the contract otherwise provide, tlie thous'ht r vendor is only entitled to have the purchaser's covenant
(/).
It
is
the vendor to insert in such a contract an express stipulation that ho shall, in default of
due performance of
sucli
power
to
be
against
perpetuities
and
it
is
sometimes
it is
advisable to
make such
a stipulation where
agreed
that the
purchaser shall
{it).
observe restrictions
on the
But
it
to liim
(.r).
Whether the
usual remedies for
express power of distress granted either in terms by the operation of the 44 th section of the Conveyancing Act of 1881 (//) is certainly not obnoxious to the Such a power is, as Ave have rule against perpetuities.
or
seen, of the essence of a rent-charge
;
An
it
merely confers
by express grant the same remedy as is annexed to rent service at common law and now b}^ statute to rent
seek
(z)
;
it
creates
(t)
(?()
in all cases, as the burden of restrictive covenants will in equity run with the land, and they may be enforced by action for injunction against any one acquiring the land with notice thereof while covenants to build are only
;
enforceable by action at law on the covenant against the covenantor personally and hi.s representatives in law see above, pp. 491 sq. Halp/i, De G. {x) See Rrpfe.
;
21!).
(y)
(;)
Stat. 44
&
4.")
Vict.
c.
41.
Above,
p. 673, n. (m).
675
time
(a)
is
onward
(/>).
It
is
submitted
tliat
of
his heirs
owner of the rent, and assigns to enter on the land charged in default of payment of the rent at any time and to liold the same until the arrears of the rent and all expenses shall be satisfied out of the rents and profits is not void
tion of a rent-cliarge in fee for the
g^tisfy fir^ars.
the duration
after
;
of
existing
is
lives
and
that this
by means
by way
of
For
it
remedy only
of the estate
merely a part
rent limited to
which the grantee of the rent has in the him the power passes bj^ a grant of the rent as incident thereto, whereas if it had been an independent interest or condition it would have been in;
alienable at
common
made
use of
it (c)
and no and
;
tion,
tenant
which does not divest the estate of the terre{(I), and confers no more than an interest to take
(e).
The
right
therefore, not to be
an
interest,
() Litt. 8S.
(//)
216218.
Ls
30.S,
4'<i,
402,
44.
21st
od.
Suir.
Tow.
The
:
writer
that its validity lias attaekeJ but in view of tlie modern extension of the rule againbt perpetuities, and the alarm inspired thereby amougbt the weaker bi-ethren, he has thought it wortli while to state tlic reasons fur maintaining the validity of such a power. {c) Jfairif/ii/ V. II fin; Cro. Jac. .ilO; see Wms. Real Prop. 33S,
The rent-owner entering {//) under sucli a power may indeed demise the land, but can only confer on the tenant an interest eo-extent-ive with his own, that is to say, determinable on paymeut or catisfaetion of
;
;
all arrears: llnnriiill v. see Litt. s. 327 Jtmmitt v. Jla re, Cro. J ac. .'ilO Cun/i/, 1 Lev. 170. {r) Co. Litt. 203 a.
43
(2)
676
and
so not
which
must conform with the rule against perpetuities (/). And it is submitted that there is no occasion, on conferring such a power of entry in connexion with the
creation of a rent- charge in fee, to confine the possible
some existing lives There appears to be no doubt, however, that a power given to the owner of a rent-charge in fee, in case of non-payment of the rentcharge at any time, to limit an aht^o/ufe term of years to a trustee on trust to raise the arrears by sale or mortgage tliereof, is invalid; for the creation of such a term would
exercise thereof witliin the term of
(g).
the
the rent
(//)
interest,
it is
by
If,
it
(/).
therefore, use be
made
Con-
(/) See Third Report of Real Property Commissioners, 37 Sug. Gilb. Uses, 178, 179; Lewis on Perpetuities, 618; Gray, Rule
;
now recommended
in
Key &
Elph. Prec. Conv. 365, n. (//), 498, It is submitted, 634, 9th ed. however, that notwithstanding
the case of Ec HoUis' Ifospita/ n ml Hague, 1899, 2 Ch. 540, the better opinion as to the law and proper practice is that expressed in the authorities referred to in the previous note. (h) See above, p. 675, n. ((/). (() Such a power, it must be remembered, could not be conferred by any common law disposition, but could only be created under the law of shifting use or executorv devise see Wms. Real Prop. 376 sij., 21st ed. (/) Stat. 44 & 45 Viit. c. 41, which is thought to confer no greater power of limiting a term
:
against
1886),
^
Perpetuities
(Boston,
the most eminent conveyancers has long been to limit such powers of entry as security for the payment of a rent-charge in fee without confining the time of their possible exercise within the period allowed by the rule against perpetuities and without expressing any doubt as to their validity Davidson, Prec. Conv. vol. ii. Wms. pt. i. 508 and n., 4th ed Real Prop. 337, 13th ed. 1 Key & Elph. Prec. Conv. 33."), n., 603, 4th ed. Davidson's Concise Pre;
cedents,
(r/)
-206,
The
is
t)<
tioned
(if
this
the period of
power of limiting a term therein menpower be not altogether excluded (/) ) to the duration of some existing lives or life
after.
With regard
on
tlie
*eiture.
non-payment
is
of the rent at
thencefortli
charged in fee as
reserved by
or
tlieir
own,
if it
such a power
way
of shifting use, as
must be
of
advantage
the
it (ni),
limited
to
{)i).
time
so
And
power of entry limited by way of shifting use to arise on breach of covenant (o). In either case the power is quite different from a power annexed to a
rent to enter and satisfy aiTcars
for a power to enter and hold the land absolutely defeats altogether the estate given subject to the power (p), the event in which the power is to be exercisable being a cause of forfeiture
;
of that estate.
gifts of
land at
As to conditions of entry limited on common law to tlie donor and liis heirs,
was heard of {q)y and the opinion of the Heal Property Commissioners was that, although these conditions came witliin the pollci/ of the modern rule against perpetuities, their validity was not affected by that rule, as it tlien
valid long before the rule against perpetuities
existed
(/).
Hecently, however,
(i7;>.
^<s.
;i2.'), .'il7, ;J4.s
;
;
tlie
(0 Above, p.
[di]
()
Sec
;21),
See Litt.
pp.
:>(),
'M
Butler's Co. Liu. -01, 214, 21.) notes to Co. Litt. 203 a, b above, p. 07"), and n. (<). of Real Prop. [ii) Third Kop. Commrs. 37 Jt'' UoIUs' IloK/Atal a)i(t Hai/>ir,l8W. 2 Ch.oiO, bid.
;
;
was aud it whs louj^ eoiisidend by very eminent lawyers that the
rule ajrainst perpetuities related only to future interest.s created by way of shifting use or executory devise: R.al see Wnis. Prop. 27(3, 277, 319 .s,j., 13th ed. Davidson, Pree. Conv. vol. iii. pt. i. 336, 3rd ed.
(o)
p. G71. (p) See above, p. G7o. Co. Litt. 201, (</) Litt. s. 32.5 ;
Above,
202.
678
common law
condition of reis
is
invalid unless
to arise,
must
If,
Baggallay, L. J., N(n-th, J., BiniH v. Flood, 25 Ch. D. G29 C, 28 Ch. D. 592: Ee IloUi.f' jrosjAtnl and Haijur, 1890, 2 Ch. 5i0. In the former ca.se the opinions expressed Avere vh'Ucr divld ; and iuic'ording to the report the power of entry was created by coveiiMUt only and in favour of the vendors, without mentioning- their If this be correct there could have been no objecheirs and assigns. for the power of entry would only tion on the score of perpetuity have been exercisable by the vendors themselves in their lifetime. In the latter case the point was not precisely determined. It was a vendor and purchaser summons raising the question whether it was an objection to title that the land sold was subject to a common law condition of reverter to a former owner's heir in an event which might occur at an unlimited time after the creation of the condition. Byrne, J., expressed the opinion that the condition was void, but decided that the title was too doubtful to be forced on an unwilling purchaser, since the person who would be entitled under the condition (which if valid w ould have come into effect on the conveyance completing: the sale) was no party to the proceedings and threatened The learned judge must therefoie litigation against the purchaser. have considered that it was reasonably open to doubt whether the person entitled in cuse of the validity of the condition had not a good
(s)
;
S.
cause of action. It should be noted that the opinion of the Real Property Commissioners (3rd Rep. p. 37) was not cited iu either of Byrne, J., in the latter case, admitted that there was no these cases. authority on the point and simply adojJted the view maintained in Lewis on Perpetuities, 61G, saying that, except in Challis on Real Property, 174 177, 2nd ed., he could find no definite statement of a It is submitted that on such a question the opinion contrary opinion. Property Commissioners is of greater weight than that of of the Real Mr. Lewis. But of course, as Mr. Justice Byrne well pointed out, instancing the analogous progress of the law as to contracts in restraint of trade, the boundaries of the rule against perpetuities have been of late considerably extended, and sever*! interests which formerly were only within the policy of the rule have been drawn see London and Sunth definitely within the ambit of the rule itself Itc Front, 43 Ch. D. 246 Western Rail. Co. v. Goiiiw, 20 Ch. D. 562 Wms. Real Pi-op. 4flG 417, 21st ed. If, however, covenants for the perpetual renewal of leases are to ba considered as outside the rule because their validity was established before the modern development of the perpetuity rule (and it is submitted that their exception cannot be well founded on any other principle see an article by the writer in 42 Sol. J. ()28), surely common law conditions, which are of much One very great, r antiquity, might be allowed a similar immunity. strong argument in favoiu- of the validity of common law conditions
of re-entry, though unrestricted as to time, is that by the common law, if an estate be given to a man and his heirs upon some conditiou subsequent, a right of re-entry on breach of the condition is implied in favour of the donor and his heirs Litt. ss. 328, 329, 331. It does not appear that the law has been altered in this respect. But if common
;
679
and a covenant
the
to build or to observe
covenants,
vendor
stipulate
for
the
by way
of forfoitiu'c
entry must,
if
it
is
to
be extended to the
of shifting use
by way
and
in
must therefore be limited to arise within some life in being and twenty-one years after {f). the present state of the law it would be unwise
a
lives or
And
to create
common law
time of
it is
its possible ^
same way
the
(^0-
And
I'ower uu
is
breach of . is ooveuunt, to
u"tUnorfornithereof.
sold
consideration
performance of
it
is
stipulated hucc
by a power
of re-entry
(.<).
and holding
this case also
till it
performance of
appears that a
the covenants
In
secured
by
a shifting
use
(//)
and as the
riglit
to
covenant
is
covenant
which a
like
which is, as we have seen {a), the ground on power of entry annexed to a rent is asserted
Another matter
hiw coudilious
.sliould
wliicli
may
be conveniently discussed
bo suV)ject
p. '
Om.
p.
{xj Above, p. 07;"). See Davidsoii.Prec.Conv. vol. ii. pt. i.p. ol I and u., 4th ed. 1 Key & Ei])li. Tree. Conv. 33.), n., 467. G04, 1th ed. 338, n., 4()4, r)<)4, 8th ed. Davidson's Concise Prceedentfi -210 and n. 1 (), ISth ed. --> /no 1 (i/j See above, p. 0<5.
;
; ;
(it)
See above,
37'J
and
n.
\:)
{(I)
(/).
Above, Above,
pji. 41)1 y.
p. G75.
680
Delivery of
ill
with
tliG
is
oncompletioii^ ^^ delivery to the purchaser of the title deeds or other muniments of title, and the vendor's duty to give or
documents of
of
title
the
vendor himself or
any other
(b).
person.
The
is
The vendor
bound,
ill
documents of
in his
which
are
or
should rightly be
own
or
possession
and
whatever be their
not
{().
date
and whether
abstracted
so
handed
of
any
such as
of
declarations as to matters
pedigree or as to the
an
official
search for
{e).
But
marriage settlement,
merely produced to show that they do not affect the land sold (,/') cannot be required to be given up to the
purchaser.
It appears that in general the vendor
is
not
hand over the receipts for payments made on account of any of the death duties {[/) for although
obliged to
;
these
may
be evidence
(especially
in
the
case
of
(b)
(c)
See above, pp. 34, 47, 48. Sug. V. & P. 407; Dart,
;
and Newcastle' s Contract, 1897, 2 Ch. 144, 148 Wms. Pers. Prop.
;
P. 673, 5th ed. 7G2, 6th ed. 693, 7th ed. {d) See Harrbigton v. Trice, o B. & Ad. 170 Fhilips v. Jlobinson, 4 Bing. 106 i?e WiUiams
; ; ;
V.
&
155, 604.
(
/')
(())
681
land
duty on
the
tlie
has been
satisfied,
who made
payment
from a personal liability or accountability to the Crown, and on this ground lie appears to be entitled to retain
them.
But
)
it
certificate (such as
may
duty
(//)
of the
from any
seen
we have
(/),
some particular death up to the purchaser. As the Vendor and Purchaser Act, 1874,
the
provides that,
in
any part
relate,
.
of
an estate
been held
title
he shall be
land, this
documents
{k)
It has
Act
so tliat
gagor's
life,
where a mortgage had been made on the raortand the mortgagee sold the land imder his
but not the policies,
Av Wiiiiums
"',','^tf/J^'
(^outruci.
power of
sale,
bound
to
This case appears to have (/). been argued and decided solely upon the construction of the enactment quoted but it is submitted that the
:
to
the
tliat
vendor,
it {in)
XXI.
(/)
lie
(t)
Above, p. 4..
Stat. 37
.,
,-
C'oM</-w<, 1897, 2
^^^.
-2
(A)
8. 2,
&
38 Vict.
c.
78,
ed.
Ch. 144. Dart, V. & P. 618, 4th AVms. Pers. Prop. 11, 11th
127, IGth ed.
nile 5.
cd.
(582
also a title
Suppose that land and personalty were vested in trustees by one deed of settlement, the land being
deed.
would the trustees be obliged hand over the deed of settlement to the purchaser? It is thought not. But if this opinion be right, it must rest on the abovesettled
sale,
on trust for
on a
mentioned principle
fact, tliat
deed,
is
on trust for
sale
deed,
it is
to retain the
deed of settlement on a
for this reason
it is
land
{n)
and
money by a deed separate from the conveyance on trust for sale [p). But in any case where land has been settled along witli personal chattels by the same deed either upon trust for or with power of sale, and in any other case in which some title deed of land sold relates also to personal chattels
retained
careful, so
long as
It does
not overruled,
it.
whu
to
^^^^
who
is is
deeds relate,
them
to
remain under a personal liability, the purchaser must covenant to perform the obligations which were so undertaken by the vendor and to indemnify him
[ii)
Dart, V.
;
i!c
P. G7o, oth
(o)
Davidson,
Prec.
;
Couv.
Williaui.-
od.
vol.
iii.
on Settlements, 125.
CON'l'KACT.
If
'Ji^'i
their
non-performance
to
_
{}>).
tlie
vendor Voudor
wlio
'
should
prior
the
sale
have
of
given
statutory
.statiTtory
document
retaining
liability
it
of
;
title,
that
is
course no reason
possession
document (y). The vendor is of course not bound to obtain and hand over any documents of title lawfully remaining in tlie possession of any
control
of
tlio
lias
no
more than a right to their production under a statutory acknowledgment or a covenant, or where the documents are in the possession of a mortgagee of other land, or a mortgagee who is not to be paid off.
Where
title
are put
up
ut"
laml
in lots, without
any
it is
considered that,
if all
the lots be
lots),
and that
lie
If
and
so
long as any
lot
But
;
it
is
make
s[)ecial stipulations to
been
sold,
V. & r. 431, 435; P. 561, 675, 5th cd. 6;{:;, 76:5, 6th ed. 584, 6<J4. 7th David.-oii, k1. Prec. Coiiv. vul. ii. pt. i. 6G4, u., 4th ed. see above, p. 607. (7) Stat. 44 & 45 Vict. c. 11, 8. 9 (2), (9).
{l>)
Su",'.
(>)
See
J.
Griffi(h.s
17",
v.
H.ileluinl,
Dart, V.
;
&
18; Sag. V. & P. 34 Dart, V. & P. 144, ()71, 5th ed. ; 162. 76-_', 763, 6th ed. 1 David158, 693, 694, 7th ed. son, Prec Cunv. 117, 589, 4tli ed.
1
K. &
;
(.v)
Above,
p. 681.
684
part in value
of the
lands
sold
Solicitor's
lien
(/).
It
lias
already been
considered
(ii)
how
far
the
on the
deeds.
may
be
an obstacle to their delivery to the purchaser {k). The vendor's solicitor can acquire no lien on the draft or
engrossment of the conveyance by reason of
its being-
for approval
;
on behalf of or execution
as both draft
whether the
(//).
As we have
seen
(;:),
the vendor
is,
as a rule,
bound
acknowledgments and
undertakinijs.
This rule,
it
will be observed,
ment
title
any document
rule
is,
of
for the
commencement
of title.
The
moreover,
First, it does not subject to two important exceptions. documents should public official custody or other documents in or to apply be included in a statutory documents, not being in the vendor's possession or
What
acknowledgment.
{/) 1
Davidson,
Prec.
Con v.
G21, 638, (i44, 4th ed. ; Davidson's Concise Precedents, 12.5, 1 Key & Elph. Prec. 18th ed. above, Conv. 33'2, Sth ed. Note that if it be utipup. 82. lated that the purchaser of the Itii-f/est lot shall have the deeds, the purchaser of the lot largest in area will be entitled to them
;
Hatchard, 1 K. & J. 17 and under a condition giving the custody of the deeds to the
Griffiths v.
;
purchaser of the largest lot in value, they will go to the purchaser of the one lot which has fetched the highest price, not to the purchaser of other lots, which have together realised a larger sum Scott v. Jack man, 21 Beav. 110. () Above, p. 128. (.() Above, p. 46. Esdaile, O.venham v. 2 {)/) Y. '& J. 493, 3 Y. & J. 262. {z) Above, pp. 34, 47, 48.
:
685
apply to
coui-t roll
forming part of the abstracted title, he must give an acknowledgment and undertaking with regard to
them(i).
part of the
It
is
strange that
it is
ment
for production
Of course an unproved
will
should
custody.
And
it
seems that, on a
should,
retained
;
by the vendor, be
an
the
is
as the probate, or
will,
and the
administrator's
It
an interest in or exercised a power over the land sold, as under the Land Transfer Act, 1897, or Lf)rd St.
Leonards' Act (/), the probate of the will, being the proper evidence of their appointment, ought, if retained,
to
1)6
and
it
this is
the case
of
an administrator.
And
may
(//),
be
made
it
ought always to be
Above,
subject of an
acknowledgment
;uliiiinistorcil
{")
\h)
^
p. 48,
!
and
^
n. {a).
-ox, oQo .iSS. Fh.
until
'-f-
he has fully
't\
'
n Cooper
'^
\. J: men/, "
/i\ (it)
(r)
It is submitted that,
on a
by the executor of a will, oi- by au administrator, he is entitled to retain the pmbate orlettersof administration, which it is necessary that he should have
sale of land
,/ Above, p. 161, n. (.)) Taylor on Evideuee, vS^ 420, 1;')S!), Uth ed. 2 Wms. Exors. ISSO,
;
Above,
p. 161, n. {.r\
; ,
^86
title
and
is
As we have
;
seen
and
good
evidence on a sale
and
may he put
under
may
{i).
For these
acknowledgment
but
it is
documents of
And
it
is
not
(whether attested,
any
documents, or
or receipts of
certificates of
payment
of
seems hardly to
the Court
(/).
conform with
St'itutory
'
principle laid
down by
'
hand over
if
if
land bouglit,
should,
retained
by
liim,
be the sabjeet of
an
acknowledgment.
any
(//)
,-\
.TA
,J^(,
"'
{k)
;
(i)
20
r &
,n T7-
21 Vict.
i.
e. /7,
-T
See Cooper v. Ejiier!/, 1 Ph. Prec. Conv. Davidson, vol. ii. pt. i. 66;i, 664. n., 4th ed. Conv. Elph. Prec. 457, n. 1 Key & 4th ed. 464, n. (c), 8th ed. S88
;
remain in the vendor's possession or power, on what i, j iprinciple can ne decline to give an acknowledgment for their proThe usual practice cerduction taiuly appears unjustifiable on principle iu the case of receipts for succession duty or certificates
receipts
i.
'r"
for
Cooper V. Emery, 1 Ph. 388. Of documents of which office copies are issued, a purchaser can of course obtain as good evidence himself, and copies of receipts for J aymeuts of death duties will be issued by the
(/)
stances
vol.
ii.
But where
these are good original evidence of the discharge of a lien on the land and remain in private and not official custody. It is submitted that any official .statement in writiDg, or certificate purporting solely to declare tliat the land sold together with other land is free or discharged from all claim of duty (see above, p. 681), ought certainly to be included iu an acknowledgment.
687
it
be in the vendor's
own
possession or
power (/>/).
tlio
but he
and the
on completion, the purchaser ment for ^" miction. is not entitled to demand that a fresh covenant or acknoAvledgment shall be procured for him from the
will pass to the purchaser
for that
would
him no
but he is entitled, if the deed of covenant acknowledgment hy which this right is conferred may be withheld from him, to have a statutory acknowledgment for the production of that document (i/).
or the
Hero
to
it
may
produce
deeds
will
run
at
but
it
is
now
is
It
affected
by
ed.
which he had not and th(> piirchaser would not have the benefit of a coveuant for production.
(o) See Anolrrbrrn/ v. Old/mm, 29 Ch. D. 7oO, 773. 775 7^8, 784 Farwell. J., J!of/rix v.
See Sug. V. & P. 4r>3, n. Gabriel v. Smith, 16 Q. B. .S47, 8,52854, S61, where note that the vendor had only the benefit of covenants for jiroduction of the bulk of the fitle lUeds, but that the objection made was that there were two title deed.s of
(w)
7M
;
Jloicf/ond,
:<5)6
1
Ivi.,
;>th
Key
A:
Elpli.
Prec. Conv.
11, n.,
4th ed.
H88
money
{p).
And
it
appears that,
where the ownership of any land held under one title is divided, whether by sale, settlement or otherwise, and the title deeds remain in the possession of the owners
of a part, the owners of the rest of the land
have an
to
equitable
right,
independently
title
of
any covenant,
any
lands
{q)
any other
equity,
may
in
be
lost, if
who has
acquired a legal
them
good
But the
on com-
deeds does not prevent him from claiming an acknowledgment for their production he is entitled to have secured to him either the ler/a/ right to enforce a covenant for production or the benefit of an acknowThe vendor is therefore bound to ledgment (;). procure such covenant or acknowledgment for the purand must, it is thought, use his best chaser, if he can endeavours to do so (-s). But if these fail, then by the Vendor and Purchaser Act, 1874 (/), the inability of the vendor to furnish such covenant or acknowledgment will not be an objection to the title, if the purchaser will, on the completion of the contract, have an equittitle
;
Where
{p) See An.sterbern/ V. Oldham, 29 Ch. D. 750; Sug. V. & P. 453 and n. 2 Dart, V. & P. 775, 5th ed. (f/) See as to a purchaser of jiart, Fain v. Ai/ers, 2 S. & S. 533 as to joint tenants, tenants in common, and co- parceners, Lambert v. Sug. V. & P. 443 Elton v. 489 Roffcru, 2 Mer. El'lou, 6 Jur. N. S. 13G Shore v. CoUett, G. Coop. 234 (after partiremaindermen, tion) as to
;
Lempster v. Tomfret, 1 Dick. 238 Davis V. Dy.wrt, 20 Beav. 405 and see Sug. V. & P. 442445, 453 and n.
(r)
&
S.
453,
Gabriel
v.
Smith,
16
Q. B. 847, 861.
2
(s) See Bay Ch. 320.
{t)
v. Sinqleton, 1899,
s. 2,
Stat. 37 rule 3.
&
38 Vict.
c.
78,
689
acknowledgment or legal covenant for the production of the title deeds, nor any equitable right to
statutory
obtain
their
production,
it
is
thought that he
;
may
by
special stipulation.
It
is
ack'uow-
(n),
^^'^?'"':",V^'^
he
is
now bound
to give a statutory
acknow-
ledgment and undertaking for the same purposes. And if he pr(jpose to do tliis, he is not bound to enter into a covenant in the old form for by that Act (//) an acknowledgment shall satisfy any liability to give a covenant for production and delivery of copies of any documents, and an undertaking shall satisfy any liability
;
documents
(~).
man
sell
bound
to furnish
title (exeei)t as
above
mentioned
purchaser.
(a)
which
if
But
i:
4.')
[tt)
Stat. 44
Vict.
41.
;
U-)
See Sucr. V.
&
P.
]>
4.V2
j"^'"
Dart
1
V & P
T>'
55:>
othed
Couv.
. ; .
T' J Davidson,
/t\
Pree.
.).!>'
221,
n.
ooj e.i\-> ifv. ,i (0, 226, 092, 4th ed. !/>. n 1 i>Conv. ct Stat. 9<, 102. '
(y)
\\T.. Wnis.
li'^gmei'ts and undortakings are better for botli parties than the ^ covenants in use under ^i the old _,i i i practice. Iho .^ "ivcr obtaiu.s the .,. .. .. - , { ,. ., limitation of his liability to the
, .
.
^f
Sect,
i)
(9),
(11).
time during
vendor is apparently at (;) liberty to covenant absolutely for production and safe custody in the old form, if he will; for his liahUilii is to give such a covenant, though that liability
and the receiver gets the benefit of the statutory obligation running with the documents
s.
may
at lnw: see .stat. 44 & 4.') Vict. c. 41. 9 (2), (9); above, p. GS7.
(")
be
satisfied
by his giving an
6.S(j.
w.
44
690
statutory undertaking.
that only the person
refdinn possession of documents undertaking is capable of giving a proper acknowledgment for their can only be given by the production and undertaking for their safe custody, which person retainThus, if a ing possession will have the right statutory eifect (d).
ment and
who
of the documents.
mortgagor
sell
who
concurrence.
who can
give a
acknowledgment and undertaking with The respect to them, and the mortgagor cannot do so. mortgagee does not, as a rule, object to give the acknowledgment but it is objectionable to him to give the undertaking, which involves a joersonal liability.
valid statutory
;
The mortgagor's
safe custody
is
liability to
by
his
but by
when
them
{/,)
Be Agn-nunlner, 25 Gh. D.
Davidson's Concise Prece-
Dt'dlui's
15.'.
Cull met,
IS!)3,
W.
N.
GOO
The reason
is
[e] If ho were to do so, tliat would apparently create a contract at common law fixing him
was considered doubtful whether they were obliged to do so; see Davidson, Prec. Conv. vol. i. 222, n. {t), 223, r)92, GI3; vol. ii.
it
with an absolute liability for the safe custody of the deeds, without the exception of fire and
inevitable
lSf<niJ\,nh
pt.
i.
667,
and
{d)
0.
See
s.
Stat.
44
Ite
&
45 Vict.
But such an undertaking would not have the statutorj"^ effect not oven if the deeds should afterwards come into the undertaker's possession.
41,
Piirsdl
mid
691
And
Conveyancing Act, 1881, having been for tlie mortgagor and safe custody of the title deeds {</). It would bo very unreasonable in such a case for the mortgagee to refuse to give an acknowledgment, which involves him in no personal liability
to covenant both for production
(//).
The mort-
mortgagee
give
but
if
an
acknowledgment,
the
purdiaser
title.
would,
it
For he would,
against
thought,
have an equitable
right
the
i)roduction of
(').
tlie
title
deeds for
all
proper pur-
poses
In such
purchaser should
(/) This
Stat. 44
(//j
is
hy a statutory acknowled^nent
&
4.)
Vift.
41,
s.
(9).
Davidson,
:
Prec.
Conv.
vol. ii. pt. i. 318, n. (rf), 321, n. ((], 4th ed. Rr J'ursr// and Jhiil:,Hst'uii(r,((t,\-^Qi,\W.^.\.yl.
{/), 7th ed., that a mort^ag'ee not fully paid off and retaininjr the title deeds hy virtue of his mortgage is bound to give an acknowledgment is not warranted by the authorities cited Iw/'v v.
n.
riit)hi\
Sm. i
Gitf.
174.;
;
The mortgagor's
:
liability
is
tf)
give an ab.solute covenant for safe custody but it is more bcneficial to both parties that he
Dart, V. .V P. 'j7S, 5th ed. 7C(J, Gth ed. 697, 7th ed.) for in that case the mortgagees were retaininy the deeds, not only in rijiht
; ;
should covenant tti give an undertaking and for safe custody in the see above, p. 689, meantime
:
n.
is
{:).
of their mortgage, but also aLd chiefly as owners of a larger estate of which the mortgaged lands formed part, and it was as
sui;h
(//) In Kiich cases the mortgagee usually under no contract with the mortgagor, and can refuse to join in thfc conveyance e.xcept on his own terms or on being paid off altogether. It is submitted thut the suggestion made in Key .% Elph. Prec. Conv. 461, 1
covenant for ])roduction. See now 1 Key & Elph. Prec. Conv. 483, n. (<), 8th ed. i'>20, n. [/i], 9th ed. Above, pp. 687 689; Davidson, Prec. Conv. vol. ii. pt. i. 321, n. (<), 4th ed.
liable to
; i
44(2)
692
regard to the
possession,
documents.
but
it is
submitted that a
man
retains
documents within the meaning of the 9th section of the Convej^ancing Act of 1881 (/), where the documents are in the custody of his solicitors as
possession of
bailees for him, notwithstanding that his solicitors have
And
having regard
clients' title
on their
deeds
vendor's solicitors,
who
him
generallj^ in the
title
matter of the
sale,
deeds,
acknowledgment
vendor with regard to them, without insisting on or giving notice of any lien thereon, they must be taken
to
rights conferred
have waived their lien as regards the creation of the by the acknowledgment and under(/O-
taking
The
regular practice
is to
take acknowledg-
(A)
(/)
(ill)
Above,
Stat. 11
{ii)
It
is
thouo^ht
that they
c.
Wms.
130; See above, pp. 128 Pers. Prop. Gl- 63, 16th ed.
41.
693
duction of
title
to be O-iven
,.,,,.
And
separate
document,
it is
may
relate
still
Where
these
was always desirable under Endorsement the old practice, where title deeds were retained and randum on covenanted to be produced, to obtain an endorsement conveyance,
be contained therein.
on the leading
title
but
if
it
was considered
not the
by
special
stipulation
tliis
(.v).
There
same
necessity for
acknowledgforce of the
as tliese are
by
may come
of the docu-
There appears to be no ('/) doubt thrtt a simple bailee of documents hits sucli a possession thereof as enables him to jrive an
statutory acknowled^'m(!Dt and undertaking, if authorized to do so by the bailor. Wli.ther he can do so without the bailor's authority and whether . , r 1 possessor ot (i('ua wr.n'''iiil * ^ , ments can do so are nice (lues^ ^, ^ , ^ ^ XV tions but the statute, in trie , J X 1 least. case of an undertakiu": at " . , ^ certainly appears to empower one who has tlie lawful possession, but only a limited owiu-rship of title deeds isucli as a tenant for life), to inipo.se a greater liaertectual
.
:
by virtue of
th(>
(
his
own
interest in
1 Dart, Davidson,
;
deeds.
^,)
Susf.
V. & P.
.5th
4-50
;
y.
.
A:
P.
'>.J4,
ed.
ii.
l>^.^,^.
Conv.
319^ .
,
vol.
{ri),
pt.
i.
2SS,
(/,)^
/ \ t ir s-i .-.u l-Jart, V 1 & r. o.)4, .)tn ('/) j j u.>r r,\ -.i j ed. 6'2G, Clli ed. ;>( <, lUi ed. /^ 1 t- t> 1 ^ JJavid.son s Concise I'rci cdetits,
. ; ;
n
'
id
,
;
4th ed.
i.
i.
,., , I''''.
,, ('';>
,0.,
lot" ed.
ax- 1 . \\ olsteii*
r>
q.v
(''^
G.S7,
OSS.
i.
(v
VJl
pt.
i.
GGIi n.,
4th ed.
694
nients
the endorsement of a
to himself for
memorandum
title
on the leading
to
he might
the
documents were
in
is
come
good
But
it
ment
Expenses of acknowledgment and
undertakiny.
to be
made
(//).
By
the
(;;),
such
the
vendor
on behalf of and by himself and all necessary parties This enactment is now other than the purchaser.
aj)plicable
Liability created by
statutory
acknowledgment
only
imposes
the
acknowledg-
and
;
deliverit
ment
or undertakinsf.
does
arising
(fr).
But
liability to
pay damages
(t)
Stat. 44
&
45 Vict.
c.
41,
pt.
i.
H.
9 (2), (9).
()
(.()
[z)
Stat.
c.
78,
(y)
s. 2.
&
(z).
45 Vict.
(10)
;
c.
41,
ed.
s.
9(4)-(6).
(/>]
783,
712,
7th
ed.
Sect. 9
(9),
see above,
Davidson,
Prec.
Conv.
vol.
ii.
I).
689,
and
n.
695
deeds
{a).
the
expense
additional
loss or
documents of
injury
{(/).
title,
(c)
took
effect, Eudorsemeut
^^eceipt.
other consideration
money
:
The
sent
to
;
draft
{(/),
the
conveyance
solicitors
is
prepared,
It
as
is
we
Settling the
have seen
behalf
to the
by the
if
purchaser's solicitors.
for
then
conveyance,
the vendor's
approval on his
parties
is
and
there be
the draft
of
Here
of
it
may
T
instrument
assurance drawn
by one conveyancer,
sent to another to be
1
whether counsel or
(f)
Cuuveyaiiciu-'eti(]uettea.s *o altering
solicitor,
is
Jiivicii
V.
Sciicll,
11
Hare,
IG Sim.
li).
(//)
Jforithij V. Midclidin,
oi').
44 & Vict. c. 11, reeeipt in the a deed or indmscd tlierecn siitticient evidence of payment in favour of a purcliaser without m>tice of non-payment. (./") For some time prior to tliat Act it was tlic practici' to indorse such a receipt and tlie absence of on indorsed receipt was considered sufficient to put a purchaser npon iiupiiry wlietlier the
(c)
Stat
4.)
s.
a.),
making a
liiidy
r)f
in the body thereof but not indorsed thereon, and comes from the custody in which it would naturally be if th(> money had been duly paid, it may, in the absence of any other fact tending to prove the contrary, be presumed tbat the money was paid as state<l in the body of the deed. See 3 Preston on Abstracts, 1;'); While V. Wnhfiihl. 7 Sim. 401, (iieoishidc v. Ihiie, 20 Beav. 417 284. 29-2; KettUurll v. Watson, 21 Ch. D. 685, 703 Rimmer v.
; ;
Webtc>\
1902, 2Ch.
(.c),
16.3,
173,
174;
Wms.
n.
money had
to entitle
in fact
him of payment.
and
61.).
627,
Wms.
p. 578. p. 61S.
Conv. Stat.
is
thought that
228230
(//)
above,
at the present time, where a title deed dated before 18S2 ha a receipt for considerutiou money
Above, Above,
696
drafts settled by other pructitioucrs.
on
all
belialf of
some party,
whom
the framer of
make
not
but he should
the
draft
further
or
otherwise
than
is
In
short,
his alterations
of form
should be directed to matters of substance only and not and it is a grave breach of conveyancing
;
amend
another's draft
any
point,
on
would not
to
really
be affected
stand
Engro
iiieut.
as originally
drawn
When
to be engrossed at his
own expense
Stamps on
couveyauce.
The deed of conveyance must of course be duly stamped according to the ad ralorvin duty charged on conveyances on sale by the Stamp Act, 1801 (/), as amended by the Finance (1909-10) Act, 1910 {m)
;
and unless the convej^ance be executed in pursuance of some contract made before the 29th of April, 1910, or be made for transferring on sale a lease of some separate
tenement,
flat
a building
Iiioremeiit
used for the purpose of separate tenements, flats or dwellings, either the contract or the conveyance must
bear the appropriate increment value duty stamp
(;/).
Stamp duty
on conveyances on
sale.
Let us
the
as such.
first
amount
is
sale
This
the
vendor
under no duty to see that it be done and the deed ma}^ well be stamped after its execution (o). The
V. & P. 564, 6th ed. 589, 7th ed. 638, {k) Ibid. 565, 5th ed. 590, 7th ed. 6th ed. stats. 54 & 55 Vict, {!) See c. o9, ss. 14, 5461, and First 58 Vict. c. 16, Pt. II.; Schedule Wms. Real Prop. 615, andu. (/>),
[l]
See
;
Diy-t,
21st ed.
())
s.
r)th ed.
6:37,
Stat.
73.
()
Stat.
Edw. VII.
sale
c.
8,
ss. 1, 4, 11.
[u)
Conveyances on
may
697
the liability
the
instrument of
which
therein
it
;
is
chargeable, are
such
and circumstances are not so set forth, or being employed or concerned in or about the preparation of any instrument neglects or omits so to set forth therein all such facts and circumstances, incurs a fine of ten pounds {])). Under the Stamp Act, 1891, as now amended by the Act of 1910, the duty on conveyances on sale is charged at the rate of one per cent, of the amount or value of the consideration except where the
;
amount
not exceed
contains a statement
the transaction
thereby effected does not form part of a larger transaction or of a series of transactions in respect of whicli
the
amount
amount
or value,
(y).
must be contained and not merely endorsed thereon. This is a point of great importance, and must be kept in mind in drafting conveyances on sales for
in the
body
of the instrument
first executiou; or if first executed out of the United Kingdom, within thirty days after they have been first received in tlie United Kingdom or if the Commissioners have been required to adjudicate upon the stamp, within foiirteen days after notice of the adjudication see stat. & o/i Vict c. li'J, 8.S. 12, lo, IT), amended
;
(//)
Stat.
10
Edw. VII.
in
<.
S,
s.
"Jii,
doubling (save
tlie
ecpted cases' the stamp imposed on conveyances on sale by the Stamp Act, 1891, stat. 54 & .ii) Vict. c. S'J, First Schedule, These were CtfL for every f)/. or
fraction
'2s.
exduties
.')
by
o.S
Vict.
c.
IG, s. 15.
(p) Stat. 64
s. 6.
&
5o Vict.
c. '69,
thereof up to '2.')/. for every 'lb/, or fraction thereof up to 300/.; and abovi' '300/. .Vv. for every -oO/. or fraction thereof; and they are still applicable iu the excepted cases.
;
Gd.
698
five
CONTKAC'l'.
as
it
apjiears that a
deed
sale,
and stamped
at the
(>),
may be
objected to on
ciently stamped
some subsequent investigation of the title, as insuffi(.s), unless it comply exactly with the
duty under the 8tamp Act, 1891, as above amended, include not only conveyances on >i((Ie in the strict sense of the word {t), but also all
vdlorciH
absolute
conveyances
of
any
or
property
{ii)
in
con-
(.r),
of
covenant to pay
and indemnify against some mortgage or charge on the property (//) or to pay a debt or other sum not charged
on
tlie
{z),
or of
the grant of a rent-charge or an annuity. contains (besides sect. 59 set out above
{a)
)
That Act
the follow:
(Sect. 54.) For the purposes of this Act the expression " conveyance on sale" includes every instrument, and every decree or order of any
on
Kale.
sale
[b)
thereof
is
transferred to
How
(id
(Sect.
;5.">
(1).)
Where
ruliifciii
duty
to be calculated in respect of
conveyance on sale consists of any stock or marketable security, the conveyance is to be charged with (id valorem duty in
ration, for a
stock and
securities.
Where
(r)
(v)
Co.
v.
Inland liccvnue
7.
Coiiiinrs.,
1899, 2 Q. B.
see
s.
As to
the stamp
c.
174.
{t)
Above, pp.
1, '26(1.
stat.
.)4
&
55 Vict.
o9,
See Great Northern Hail. Vu. V. Inland Mevmiie Comiiirs., 1901, 1 K. B. 416, 417. [x) G. W. Rail. Co. v. Inland lievenue Commrs., 1894, 1 Q. B. Fester v. Inland Eercnue 507 i'- Coata Coiinnr.s., ibid. 516 J. V. Inland lievenue Coinmrx., 1897, 4'23 Chesterjield Brewer 2 Q,. B. ij
()
;
'I'A,
iS'
[ij] Bristol V. Inland lievenue Commrs., 1901, 2 K. B. 836. Ilantinffton v. Inland lie(~) venue Commrs., 1896, 1 Q. B. 422 Bristol V. Inland liiveime Commrs., ubi sup. r. 28, u. ('). (,/) {I/} See notes (), (.*-), above.
;
t)99
conveyance
is
duty
iu
respect of the
and
interest
(Sect.
56
(1).)
Where
How
conside-
conveyance on sale consists of money paj'able periodically ration confor a definite period not exceeding twenty years, so that the total T)ei.iQ5j(.al amount to be paid can be previously ascertained, the conveyance is to payments to
ration, for a
ralurciii
duty on be charged,
Where
money payable
periodically for a
twenty years, or in perpetuity, or for any indefinite period not terminable with life, the conveyance is to be charged in respect of that consideration with ad valorem duty on the total amount which will or may, according to the terms of sale, be payable during the period of twenty years next after the day of the
date of the instrument
(3.)
(c).
Where
tlie
consideration, for
money payable
is
periodically during
any
life
amount
whicli will or
may,
sale,
is
to be eh irged
(Sect.
.')7.)
Where any
property
whole or part, as the case may be, of the consideration in respect whereof the conveyance is chargeable with nd valorem duty {d).
^Sect. r)8 (1).)
Where
the consideration
,
.
apportioned
fit,
**
SfC.
See UndenjroKiid KUclricliys. Ltd. \. Inland Revenue Commrs., 1905, 1 K. B. 174, 1900, A. C.
(()
, ,
'11.
(t)
roo
OF
'i'lIE
veyance
ltd
relating- thereto,
to be
charged with
property contracted to be purchased for one considerawhole by two or more persons jointly, or by any person rate parcels of for himself and others, or wholly for others, is conveyed in parts or pre )pert.y parcels by separate instruments to the persons by or for whom the boiight for one considera- same was purchased for distinct parts of the consideration, the contion by or for veyance of each separate part or parcel is to be charged with ud several valureni duty in respect of the distinct part of the consideration therein persons.
On
couveyance iu sepa-
Where
specified.
Where
(o.)
Where
com-
ment of conveyance only is of conveyance for completing other instruments are to be respectively charged with such other duty one sale. as they may be liable to, but the last-mentioned duty shall not exceed
the ad valorem duty payable in respect of the principal instrument.
instruments
property sold (/), the principal instrucharged with ad valorem duty, and the
(4.)
Where
Where
the
a sub- sale.
is
in consequence conveyed
by the
original seller to
in*
duty in respect only of the consideration moving from the sub-purchaser thereof, without regard
parcel
is
to the
amount
(6.) Where a sub-i^urchaser takes an actual conveyance of the subpurchaser has interest of the person immediately selling to him, which is chargeable taken a conwith ad valorem duty in respect of the consideration moving from veyance of the him and is duly stamped accordingly, any conveyance to be (//), purchaser's afterwards made to him of the same property by the original seller interest.
Where
duty as
it
may
be liable
to,
but the last-mentioned duty shall not exceed the ad valorem duty.
As
to sale of
(Sect. 60.)
Where upon
{i)
not created by
or conveyance, but
if
is
(_/')
(y)
62 U.
(/()
(t)
(r).
701
and
is
conveyancs on
(Sect.
61
(1).)
is
In the cases
instrument
(a)
manner
is
by several
:
(b)
conveyed by a ,, , Copyholds ,-,,, 1 deed(/), no surrender being necessary, the deed is to be (;ouveved deemed the principal instrument by deed. In other cases of copyhold or customary estates (/.), the sur- By surrender.
or customary estate
,,,.,
'
render or grant,
thereof,
if
if
made out
to be
of Court, or the
roll of
memorandum
instru-
deemed the
{()
Where
in Scotland there
seller,
is
by the
e.<ecuted for
is
comto
pleting the
be
deemed the principal instrument. ("i.j In any other case the parties may doterniine for themselves which of several instrumoats is to bs deemed the principiil instrument. and may pay the m/ ruloreiii duty thereon accordingly.
As we have
seen
(/;/),
on the
sale of
may
Sale of an
fut^restin
l^inds.
veyanoe
is
On
the conveyance
i.'^
only on the price, but also on the total amount due for
principal
and
interest
(o).
8o a
conveyance of the
to a
equity' of
redemption by a mortgagor
mortgage debt, is chargeable as a conveyance on sale with stamp duty on the aniouut of tlic debt (p). And a conveyance executed by a mortgagor in pursuance of an order for foreclosure absolute, obtained hy an
Above, pp. 235, IU6 xq. sects. 6.') 68. No stamp duty is chargeabh^ on an admittance Elton on Co[)yholds,
(/)
(h)
{o)
(/)
See also
:
60'.),
and below,
2S2.
WM,
n.
{b).
[p) See llrislul v. liilniiJ llrn ii'ir Cnmmrs., IDtll, 2 K. B. .J:?(i, and
ne.xt note.
{ill)
Above,
p.
2.S,
n.
(<).
702
mortgagor to
chargeable with
Jf
in the
(/),
was provided
that,
where ad raJorcm
stamp duty is paid upon such decree or order, any conveyance following upon such decree or order shall be exempt from the ad raJovcm duty. And it has since
been held that this enactment
is
retrospective,
and
As we
have seen
(.r),
may
be chargeable
sale.
;
Vesting
so
may
therefore be so chargeable
(;::)
.
and
may
Acts of Parliament
(^') Hnntingtmi v. InlandRevenuc Commrs., 1896, 1 Q. B. 422. See above, p. 698 Jie (?) LorcU and CoUard' s Ctiiitrart, 190',
;
Ch. 249,
(.s)
25.5.
Stat. 61
Stat.
;
&
62 Vict.
c.
10,
p. 6.
{t)
s. .54
{/>)
c. S9,
lie Lniell and ColhnrV.^ Con1907 1 Ch. 249. o i'ni 1, cno T) (.i) By Sect. 54, above, p. 698. ^ ',,,,,. '. 11 in includes instrument sect. 122, J every ^ written document.
/rart
/
\'
i.
'.
(//)
5;'.6,
561.
sioners.
~0-i
all
property assurofl
sale of
by the conveyance
timber or fixtures
so that
is
where on a
land the
{o),
or are sold
by valuation
the
con-
amount
veyance
business,
of
(fj).
tlie
So must the value of tlie goodwill of a where separately valued and assigned by the conveyance of any land or chattels forming part of the assets of tlie business, and also where it is separately
assigned
(n).
is
chargeable as
(c)
;
tion of a
I'fut-f'liajgf'.
and
if
lump sum bo
also.
duty
is
chargeable
on that
on the
But on
a sale of
land subject to an
as rent service of the rent
is
existing rent-charge or
purposes of
such payment
stamp
duty, notwithstanding
that
the
and
this is so
is
sold
By
made
the
for
(//),
a conveyance of sale
any consideration
with
fK/ ra/orriii
in respect
whereof
it
is
chargeable
improvement of or any
have been chargeable, with any duty in respect of such So where land is conveyed in further consideration.
(a)
(//)
Altovo. p. GO.
2 Dart, V.
'tl)
P.
(JO?,
'itli
ir)
(i9<).
od.
78S,
Otli ed.
(f) Seo I'littir V. Iiihiiid Rrniiiir Commrs., 10 Ex. 117; msps fitf-d above, pp. 2*t, :<(>.
v.
1
Iiihititl
lievriiiic
f'nmnns.,
(/,)
Q. B. 172.
s.
Stat.
b:j
Vict. c. 7,
10.
704
build
tliereon (/),
or
of
the
previous
erection
of
no
By
the
(/.),
made by
any other
distinctly
matters
if it
is
to
be
separately
and
charged, as
and an instrument
it is
made
for
any consideration
in respect whereof
duty, and
also
for
any
were
to be separately
and
distinctly charged, as if it
So that where a conveyance takes and also as a mortgage (/), it is chargeable with stamp duty on each of these transactions (>;?). Where one holding land subject to any kind of incumbrance {ii) sells the same free from incumbrances and on completion of the sale the land is conveyed to the purchaser by one deed, in which the vendor and the incumbrancers concur to assure their respective interests (o), stamp duty is only chargeable as upon a conveyance on sale, notwithstanding that the incumbrancers were no parties to the contract of sale and receive no part of the consideration for, although as between the incumbrancers and the vendor their conveyance be voluntary, yet as between the conveying parties and the purchaser, the assurance is for one valuable consideration (p), and is nothing more than the
tlie
considerations.
effect as
upon
sale
(i)
(/.)
Above,
?tat.
p. G74.
(ill)
54
&
")5
Vict.
ed.
c.
&
P.
70.5,
,5th
39,
(w)
{(>)
s. 4. (/)
627.
(p)
Above,
p. 636.
705
sale to
him of
But
if
if
some
which
is
of sale, as
owner
incumbrance either
the
on
such
(f),
(-s)
.
and the
Where
any instrument
to that object
is
leading and
The
custody of any
involve
(.r)
.
of
the
title
deeds
Expense of
*'
not
therefore
the
expense of
of
the
''"^P'"o-
amount
sale, as
duty charged
(//)
on
such
By
duty
the Finance
,
(a)
called Increment
Increment
^
"^"*'
I>nty.
2 (q) See Sujf. V. & P. riTO 79;"), Dart, V. & P. 70ii, Sth ed. 0th ed. See Alpo'a Stamp Duties, {)) 124, 8th ed. (.v) See above, p. 618. (/) Above, pp. 691), 700.
;
Revenue
211, 217.
(.i)
Commrs..
L.
R.
Ex.
;
See Su<j. V.
&
P. 571
ed.
;
Dart, V.
(ith
&
P. 70G,
.'ith
797,
ed.
Stat.
(</)
(.-)
r.
8,
(n)
Liinnin;
iljr.
Co.
v.
Iiihnid
s.
1, pa.s.sed
(rt)
'06
land,
Sale of a
sepM-ate'teneflat or
separate tenement,
. .
flat
or dwelling, being
.
part
of
ment,
dwelling-, part of a
larg-er
building.
('))
(c)
See See
it
ss. 2, PS.
2.532.
(exempting agris.
Vict.
41,
while
its
has no higher
%'alue
than
market value at the time for agricultural purposes only), 8 (as to small houses and properties in their owner's occupation). 9 (ass to land used for games or rjcreation), 10 (as to Crown lands), 36 (exempting land held by rating authorities), 38 (as to land held by a statutory company for the purposes of their undertaking). {(l) These (see s. 1) are (1) on the occasion of the grant, in pursuance of any coutrnct made after the commencement of this Act, of anj' leaue (not btiug a lease for a term of years not exceeding fourteen years) of the land (but see s. 22 as to mining leases) (2) on the occasion of the death of any person dying after the commencement of this Act, where the fee .simple of the land or any interest in the land is comprised in the property passing on the death ot the decea.sed within the meaning of ss. 1 and 2, sub-s. (1) (a), (h), and (c), and sub-s. ;i of the Finance Act, 1894 c. (stat. fu & .')S Vict 30), as
;
is not liable death duties, such periodical occasions as are provided in this Act (see s. 6, and s. 37 as to land held for charitable purposes). By s. 41, in this part of {(') this Act, unle-^s the context otherwise requires, the expres.sion "land" does not include any incorj)oreal hereditament issuing or gr^iuted out of the land; and the expression " interest " in relation to land includes any undivided share in a fee simple in possession and includes a reversion expectant on the determination of a lease, but does not include any other interest in expectancy or an iu'junibrance as defined by this Act or any fixed charge as defined by this Act or any purely incorpoieal heredita-
ment
or anj' leasehold
interest
under a lease for a term of years not exceeding fnurti en years or any tenancy whi(5h is, or is
to be, subject to statutory conditions under the Land Law (Treland) Acts and the ex.simple" means ])res.ion ''fee the f( e .imple in possession not subject to any lease, but does not include an undivided .shaie in a
;
deemed
by any subsequent and (3) wlure the fee simple ot the land f)r any interest in the land is lield by any body corporate cr Vpy any body unincorporate as defined by s. 12 of the Customs and Inland Revenue Act, 1S85 (stat. 48 & 49
enactment
;
amended
fee simple in po.sses.sion. As to the general meaning of the word /in/il in Acts of Parliament, see
70;"),
above.
707
to be collected
under
this
Act
(fj).
With
this exception,
any land or
is
any
interest in land,
to be assessed
(//)
Revenue
and
it is
made by them,
transfer
is
effected or agreed to
ment
of
duty thereon
(/.).
And any
in the
such instrument
is
Sec't. 11, excepting also tlic {ff) grant and the passing on death of any Nuch lease from the occasions on wliich this duty is t) be
effected,
payable.
(/*)
See
sect.
96
(2).
By sect. 41, the expression "the transferor '" does not include any persons who join
(i)
Sect. 4 (1).
or agreed to be effected, for the purpose only of conveying any estate vested in them as trustees or incumbrancers, or of ackuowledging the receipt of the consideration money, or of giving consent.
(/.)
sfe
s.
Sect, -1 (2 also imposing a fine for failure to 4 (.')), and the Commissioner.s' Regulations;
,
1!)10. By Regulation o, if the instrument itself be presented, the presentation should take place, if possible, after execution by the transferor. The instrument must be accompanied either by a copy, or by an abstract such (but containing the further particulars required) as is presented with an instrument lodged for adjudication under s. 12 of the Stamp Act, 1891. The abstract should set out fully, for purposes of identification, the description of the property sold, and if the instrument contains or refers to a plan, a copy of such plkn should be furnished. full statement should be made of any easements or reservations affecting the land, of any covenant restricting its use, and of any agreement or obligation to repair, or to pay outgoings. An}' covenant or undertiiking or liability to discharge any incumbrance, and any covenant or undertaking to erect buildings or to expend any sums upon the projicity should be set out in full. If the easement, covenant, A:c. is set forth in some other document than the in.strument itself, that document shoul I be presented as well. The official form (I. V. D. (A) ) of application for an Increment Value Duty stamp, duly tilled up and signed, .should also be lodsred. The official form of abstract (1. V. D. (B) ) can be \ised, if desired. By Regulation 4, the in>trument, the abstract and t)ie form I. V. D. (A s when presented, will be ret.-iined by the proptr officer of the (,^oinniissioiu>rs lor examination, a ticket being given by way of receipt to rlie per.son pre.sentmg tliem. By Regulation o, assuming that the various documents or papers are found on examinarion to cont;iin the particulars necessary for the purpose of enabling tlie Commissioners to assess tlic duty, and that if security has been re.|uired (see Regulation 14), such security has been jjiven, the instrument will be imjiressed witli one of
45
(2)
ro8
not to be deemed duly stamped vmless it is stamped The Increment Value Increment Duty stamps. either (1) with a stamp denoting that the Value Duty has been assessed and paid, or (2) a stamp
denoting that the necessary particulars have been delivered to the Commissioners
required, for
and security given, where stamp denoting that no Increment Value Duty was payable on the occasion but where an instrument is so stamped, it is, notwithstanding any objection relating to the Increment Value Duty, to be deemed to be duly stamped Where any agreement for a as respects that duty (/) transfer is so stamped, it is not necessary to stamp any conveyance or assignment made subsequently and in
payment
made
to
them
on the conveyance or assignment the amount of duty paid {di). If an agreement for a transfer is intended to be followed shortly by an actual conveyance, the Commissioners will not require the agree-
Act
{)i).
Increment
value dutystamp, when
required.
It appears
the Increment Value Duty stamps, and will be returned on presentation By of the ticket after the expiration of the time mentioned therein. Regulation 11, if the instrument itself be not presented by the transInirement Value assessment of Duty for tlie purpose of the feror thereon, reasonable particulars thereof in the form of the various documents mentioned in Regulation 3 must be furnished by him and a receipt will be given therefor. The form I. V. D. (A) duly And by Regulation 12, filled up should be lodged at the same time. provided the necessary particulars as above have been furnished by the transferor, the appropriate stainp will be impressed at auy future date, if the instrument and the receipt for the particulars are lodged for the requisite length of time at tlie Head Office.
;
(I)
Sect. 4 (3)
{//)
Commissioners'
Regula-
p. 28,
and
n. {e).
(7).
tions,
No.
7.
(m) Sect. 4
OF
Tilt:
COMPLETION OF
(o),
IIE
CONTRACT.
709
the
making
of the
orcasio)i
Duty
is,
or
conveyed
not give
it
be,
is
where
made in pursuance of a contract made before the commencement of the Act {p) or to effect the transfer
is
some such separate tenement, flat But it appears or dwelling as above mentioned {q). that, on sale after the Act of some property, which is merely exempted from being charged with the duty,
on
sale of a lease of
stamp appropriate
to
pay the
The vendor's
respect,
conveyance (accom[)anied in each case with the further information required) or else reasonable particulars thereof
in the required
the duty
(7).
But
form for the purpose of the assessment of it lies in his option which of these alter-
The most convenient course for him seems to be to present the required particulars,
;
him
tion
all
necessary parties,
the
particulars
for
presented (0-
If he
do
this,
(o)
See above,
See above,
p. TOti, n.
7(>'),
(r).
Commissioners'
Regulations,
p. 708.
(p) Abi>ve, p.
(y)
and
706
;
n.
(:).
No.
(v)
(t)
10.
p.
Com1.
(c)
See above,
mis.sioners' Kejrul;iti(ins,
{>)
No.
n.
Above,
p. 707,
and
u. (A).
See above,
p. 70(1,
710
under the
contract,
and
it
{ii).
But
the contract or the couvej-
the purchaser
is
in
no way concerned to
it
see that
be charged,
if
It appears
may be stamped with the Increment Value Duty stamp, or the contract may be so stamped and the conveyance may. be stamped with a stamp denoting the amount of duty paid (//). For the purconveyance alone
chaser, the
generally desired, as
we
on the face of conveyances to any written contract which preceded them. Where it If however the contract should contain any stipulation seems advisable to stamp giving rise to some obligation which will not be disthe contract. charged by conveyance and pajnient of the price {a) for example, an express stipulation providing for comto avoid all reference
(/>),
or a stipulation
own
;
it
to
Duty
suffi-
stamp
for
at least a question
stamped without
it {<).
See above, pp. GOC, TOo. See stat. !) Edw. VII. c. 8, s. 4 (4), making the duty assessed a Crown debt due from the transferor. But where Increment Value Duty is payable on the death of any person, it sef-ms to be charged like estate dutv on any property liable to the duty
(.i)
pas.sitjg to the e.Kei'utor administrator as such see s. 5 below, chapter on the Death Duties in Vol. II. (y) See above, p. 708.
and not
;
or
(-)
{(t)
Above,
p. 629.
1.
{/>)
Above,
p. C6.
|>.
(()
See
stat. 10
Edw. VII.
c.
8, s. 4 (3),
stated above,
7(18;
and
note that " such instrument " refers to the inslrument by means of
711
sale Conditions of
^
on a
to
make any
respect
protection
in
stipulation for the vendor's incTement of the Increment Value Duty Value Duty
stamp.
ance executed by
all
official
is
thought
no Increment
to stipulate
(r).
To
avoid
all
misunderstanding^
is
effected or tu/reed lo be effected; sec sect. 4 (2), Note also that the Aft does not precisely say
that the contract need not be stamped with an Increment Value Duty stamp, where the conveyan<;e is so stamped, though it makes express jtrovisi( in for the converse case; above, p. 708. On tlie other hand, where there is a contnut of siile followeil by ;i conveyau'C, it appears that the Act will be satisfied if the conveyance alone be stamped with such a .stamp and Regulation 7 assumes that this is the c:ise above, It is submitted tliat a contract for the sale of land is iu its \>. 708. inception sufticientlj' stamped, if stamped as required by the Stamp Act, 1891 above, p. 28, and n. [e) airl further that, whci'c the contract has not been completed by conveyatice, an Ini;remeut Value Duly stamp is not necessary to mal<e the contract available as evidence in any proceedings either to enforce it specifically or to recover damages The mere sale of land does not seem to be an occasion for its breach. on which such duty is payable, as the duty is cxpi'essiy charged on the occasion of "any transfer on sale" above, pp. 70(3, 707; and this expression seems to point to the conveyance completing the contract. The vendor, moi'eover, is oidy bound to present the required instrument or ])arliculars thereof on the occasion of any trau.'fer on sale above, p. 707. And it appears that in general an Increment Value Duty stiiinp IS only recpjired for instruments evidencing some transaction, whicli is an occasion for the ])ayment of .such duty sec above, Besides this, in any case where Increment Value I)utyhas p. 7(tS. been paid, but the transaction, in respect of wliich the duty wa.s paid, is subse<piently not carried into exe(!Ution, the iluty is to be icturncd stat. 10 Edw. VII. c. 8, s. 4 (G). Tiiis seems to show that in any proceedings for breach (before conveyance) of the contrai:t, no Increstamp be ment Value Duty can required on the contract. And it is submitted that any proceedings for specific performance must neces.sarily be brought on the assumption that the contract has not been completed by conveyance, an<l therefore that no occasion for payment of Increment Value Duty has yet arisen.
;
{(()
u.
(/. },
701).
(c)
See above, p.
71(i.
712
Increment Value Duty to become payable on the completion of sale and apply to liave the conveyance stamped with the appropriate Increment Value Duty stamp, and the purchaser shall, on
delivery to
him
own expense
ance to be stamped with the appropriate Increment If however the contract Value Duty stamp (,/).
should contain some stipulation which the vendor
possibly require to enforce after completion,
it
may
would
appear advisable to provide specially in the conditions of sale that the contract shall be impressed with such a
stamp
{;/).
It
is
Duty
to
become
ciatory
^ 4.
Of
the
^I'lJiiHtiiiciit
uf Acro/iJiis.
time for completion, the purchase money will be payable without interest (//), and the only matter in respect
of
is
may
it is
be neces^sary
oiitgoings
however,
exceptional
for a sale of land to be completed at the proper time so that an account has usually to be taken of
;
what
rents
is
and
received
and
/) See
Appendix A, below.
;
Appeii-
57
GO.
(*)
[h)
i^p.
.50,
2G,
40,
oO,
Above, pp.
"^^^
(/)
Besides
in
this,
the
amount
may
some
cases be
diminished or increased by a valid claim for compensation on the part of eitlier purchaser or vendor.
will consider each of these matters in turn.
We
First, as to the
apportionment of rent.
let,
Where
tlie
Appmtiua"IcJmpietiou.
and tlie completion of the solo does not fall on some rent-day, we have seen that the vendor is either by laAv or express
lauds sold or any part of thnn are
stipulation entitled to an apportioned part of the rent
time for
He cannot, accrued due since the last rent-day (/). however (except b}' express stipulation), require the
purchaser to pay this apportioned part him on completion but he must wait
:
of the rent to
payable; when
(if
from the tenant (ni) and the vendor to exact payment of For this his apportioned part from the purchaser (;/).
reason
it is
not
uncommonly provided
in conditions of
on completion
pay
to
him
of the
own
benefit
(V>).
1
1
As
to the
where these are apportionable between the parties and payable in advance, as rates and taxes usually are (/>),
(/>,
-1
outgoiugs.
AIhjvi', p.
ol.').
CuTiv.
.><peciiil
C)6().
4tli
cd..
wIrtc tho
Above, pp. oO, (17. {ill] Abovf, p. 401. () This is so provid<'<l by the Apportionineni Ai;r, 1S70 (stat.
(/)
'i'i
bwn
&
;i4
Vict.
f.
;5')),
Hs.
;},
4, iu
theabsenceof express stipulation. And it is thought that the same law applies where the contract of
contaiTis ati express stipulation for apportionment of the 1 Davidson, Prec. see reuta
.sale
:
uuuecessary if this wrn- nut. th; law; and cf. Jims/ilv. Tai/ij, I'.tOO, 1 Ch. TM, lih. () See Appendix A, bidow. [p] Above, p. 2.3. Before the year ID 10, the t)nly taxes (other than the death duties payable in res|)ect of land were land tax. property or income tax and iuhabited house duty Steph.
;'>
714
is
entitled to be recouj)ed
bv the
And
and
of apportionable outgoings,
which are
become
is
which ought
to
be
Coinm.
6th
e;l.
ii.
60S-()10,
all
25)
but
it
appears to be payable
amiual
charges aud, if payable pendingcompletion of a sale of the property, ill respect of which they ari,e, they are apportionable between the vendor and the purchaser under the usual stipulation f(jr apportionment of the outiroings see above, p. 523 and (.v). note The Finance (1909-10) Act, 1910 (stat. 10 Edw. VII. <^ 8), besides imposing Increment Value Duty on the occasions above mentioned (pp.70r),706,andn.(rf) ), imposed thiee other new taxes in
;
by the person, who is the owner, meaniug the person entitled iu possession to the rents and profits,
of the land at the time
when
the
duty becomes payable, and it is to be borne by that owner notwithstanding any contract to the
contrary;
see
ss.
19,
41.
It
seems therefore that, if such duty become payable pending completion of a contract of sale of the land, in respect whereof it is charged, it will fall entirely upon the party then entitled to the profits aud bound to discharge the outgoinsrs, and will not be
IJuty (above, p. 40
Undeveloped
apportionable under any express stipulation in the contract; s' above, pp. 49, 50, 520 52:{. Mineral Rights Duty is a yearly tax on the rental value of all rights to work miuerals and of all mineral wayleaves, and is payable by the proprietor of the minerals, where he is working them, and in any other case by the immediate lessor of the workAs between sucli ing lessee. lessor and lessee, the duty is to be borne by the lessor, notwithstanding any contract to the contrary, wliether made before or after the Act see ss. 20 -24.41. It appears that if any such duty should become payable pending completion of a sale of the land,
;
Reversion Duty, which will arise on the merger of the term (see ;ibove, pp. 367, 368), should be paid by the purchaser. Undeveloped Land Duty is a yearly ta.x in re.-pect of the site value of undeveloped laud (see ss. 16 19,
in respect
whereof
it
arises,
it
would be apportionable between the vendor and the purchaser under the usual stipulation for
apportionment of the outgoings see above, p. 523, and n. (.v).
;
15
This
(q).
And
it is
clear off
on completion his
law and not payable until after the time for completion.
As we have
seen
(.s),
bound,
not
may
become payable nntil after completion. In such if the amount of the vendor's liability be exactly
either
eases,
ascer-
discharge
the
off'
outgoing himself or
allow the
Works
title
Act,
make
(),
a good
to the
is
thought, refuse
to
money
sufficient
to satisfy the
incumbrance
siiall
be
off.
[I/] See La ires V. Gi/mii,!,. R. Eq. 135 above, pp. C7, 74, 523.
;
(<)
Jlr
Bcltc.stvorlh
an
liulur,
37 Ch. D. 535.
(^ See Oh. G83
{))
()
!Stock
;
v.
Mi;,l,u,,
1 -()(,
.wy.
iibove, p. 521.
7J6
Apportiontax and tithe rent-charge,
may
or
titlie
rent charge
{x)
:
is sold,
may
rent-
be apjiortioned
the
{z).
purcliaser
must
tlie
see to
it
So
must
com-
pletion that
property sold
land sold
Sale of land subject to a rent attaching thereon and on other laud.
is
subject
to
some
incumbrance
an objection to the
and
if
the
tioned
cases,
{h),
In such
cannot
therefore,
legal
apportionment
of
generally be
made by consent
it
the
vendor and
purchaser alone,
is
him from
the obligation
0.
See stats. 42 Geo. III. 116, s. 3o, as to land tax; 23 & -'4 5 & () Vict. c. .')4, s. 14 Vict. c. W.i, a. 11, as to tithe
(.()
;
to
particular
sums payable in respect thereof for land tax and tithe rent-charire.
In this case, he would, in the absence of stipulation to the contrary, be bound to procure a legal apportionment, if the whole of the lots were rated or charged together for these purposes. See 1 Davidson, Free. Conv. 616, 622, 689, 4th ed. 1 Key & Elph. Free. Conv. 310, 8th ed. () Above, pp. 167, 176, 177.
;
rent-charge.
(//)
Above,
p.
170.
^eo I{r Ehstcorlh and Tidij, If this were not 42 Ch. D. 23. so, special stipulations would be required on every sale of freeholds in lot.s but it is not considered that these are necessary, except where the vendor represents ill the particulars or iigreement for sale that the lots sold
(r)
:
301-363.
(/))
n. ().
7i:
(c)
Where
lease
at
one entire
irent is
stii)ulate that
and
tliat
apportionment (d) shall not be required (c). If the vendor should represent tliat the land sold were let at
tliis
was only
an estimated part of a larger rent intended to be apportioned, he would be bound to procure a legal apportionment of the rent and further, if in such case
;
/),
he would
{(j).
The
interest
pay
Purchaser's
'^
on the unpaid
purchase
seen
interest.
already stated.
arises either
As we have
of
this
obligation
by implication
at the
ment
price,
by the purchaser
ought only
be
and that
payment be
chargeable
implied by law in
In this respect the provisicms an open contract are far more Under
express stipulation
is
an
made on I^ondon
sales
by
auction, whicli
grossl}'
Dart, V. & P. 130, [c) See 1 143, 147, 6th ed. 131, 6th ed. 1 Davidson, Prec. Conv. 7th ed. :'.44, (iSt .s7., GOlt SI/., 4th ed.
; ; ;
;
ed.
1
4th ed.
{,/)
K.y
n.
A:
and
{d).
J.
& W.
(A)
(i)
above, pp. 81, 303. [d) See above, p. 405, n. (n). Dart, V. & P. 131, 5th I [e)
")I.">.
'18
vendor
Thus, under an open contract, where the in possession, the purchaser is only liable to
he delay in completion, from the
is,
pay
interest, if there
time when he
a good
may
when
and title has been shown (/) although a day be fixed for completion, and owing to
delay attributable to the state of the
to the vendor, a
title,
or otherwise
good
if
title is
day
(w).
And
or
the
no rent
so
{n),
then interest
is
by the purchaser
as such
from the date of the contract for Then under an sale or actual entry into possession (o). open contract, if there be delay in completion which is
commenced, that
is,
attributable
to
the
vendor,
the
purchaser
appropriating his
money
to the purchase
Under the
stipulation
pay any greater interest thereon than such, if any, as is allowed upon such appropriation. Though he cannot escape his regular liability to pay interest by making such appropriation, if there be delay But in completion which is attributable to himself {])).
of the liability to
usual on
London
sales,
under the usual stipulation for payment of interest iu ^g^g file contract shall not be completpd on the appointed
(/.)
()
[o)
and
{/)
n. {h), 8b.
Expte.
Above, pp. 26, 40, 50. {w) Jones y. Aludd, 4 Russ. 118
;
Rr Hnihctt cnid above, p. 00 Bird's Contract, \WI, 2 Ch. 214, 217 (which appeiiiH to be quir.e see above, right in this respect
;
v. Cocker, 12 Ves. 25; J.-O. V. Chrinlchiirch, VA 2 Part, V. & P. 029, Sim. 214 652. 630, 5th ed 711, 0th ed. 653, 7th ed.
410; Vltidyer
;
p)
Above,
p. 51.
p. 354).
719
the
tlie
rents
and
profits), if there
title,
And
his
by appropriating
money
to
the pur-
chase
(.v).
established
terms,
to the difficulties
attendant on making-
Where
the contract
is
to
pay
interest, if
considered
by the vendor's
pay
Contract to
gence
(^).
Where
the
interest if completion be delayed from any cause what- except <m^^ ever other than the vendor's wilful default, he must vendor's wil-
show that
further
the
vendor
that
has
committed
of
some
wilful
meaning
such
{n).
prove
default
was the
seen
(.r),
effective
As we have
the late
futility of
attempting
time he
would cmer
{q)
(/)
cases,
whilst
a*"
the
s;rne
Above, pp.
Sliencin
v.
(57, (iS.
(.v)
ft
Shak-spear.
;
(f)
(//)
De
2
ix. IVf.
&
li. ;')17
li.
1
Jri//iirms v.
;
Loii'lon
i
I
(i/riitoii,
L.
;V2
;
Miti/of of
Ln,tii:ii
iiikI
T'i'</>s'
;
Cli.
oM
lilt):!.
Ch.
,ii,'l
Ch.
I
ISeiinitl
.')(!.),
v.
.)_().
Sloiif,
.')2.)
;
:')()'.);
liK):;.
Ch.
;')lti,
Uk
liaijleij- II 'iiVthiiigloii
and (.'ohni'.i
("h. (i4S.
Cuntriict',
lyoy,
Above,
p. G8,
and
n.
(<).
720
And
adopted in subsequent
satisfactory guide
(//).
The
to
and
as
we have
judges were
divided
it
equally in
opinion
upon the
question, whether
insist
is
conveyance
{a).
The
it
to,
by the cases of Re Mayor of LomJon and Tahhi<' Couiract and Betuieti v. Stone already cited [h). In the first of these, it was considered by the whole Court that, even if there were wilful default by the
illustrated
vendor
as
to
which
they differed in
opinion
the
if
own conduct
in
making voluntary
requisitions
and
if
And
yet
pay
interest,
where the
was
his
own
inability
{y) See Re Ben/ley- W<irthi)ig1o)i and Cohen s Contract, 1000, 1 Ch. 664. 048, 657 (;) Above, p. 68, n. (.v). [a) Bennett V. tStone, 1902, 1 Ch. Ch. r)09. The pur220, 1903, chaser was by the contract en-
to
with the addition of the words " to far as they are now at l;iw or in equity entitled to
the benefit of these corenants without thereby warrantiug that such covenants are now enforceable by their assigns." See above, pp. 645, 652 and cf.
assi<;:n
;
to the benefit of certain covenants entered into with the vendors by a third party. The the that purchaser required benefit of these covenants should be expressly couveyed to him.
titled
Be Bay!ey('(iiitr((vt,
{ti)
Jl'ort/iinyton andCij/icn'x
1
1909,
Ch. 648.
6S, n.
(.s).
Above,
pji.
721
purchase money.
if
from any cause whatever other than " the default " of the vendor the sale were not completed on the day fixed, and completion was delayed on account of an objection to the title, which was not obviously apparent on the face of the title deeds and was not known to the vendor at the time of sale, Lord Bowen's explanation of the meaning of default (c) was adopted, and it was held that the purchaser was not excused from paying interest, for the vendor had not failed to do something which he ought Where the contract is reasonably to have done ((/). that if completion be delayed from any cause whatever 1 n " the purchaser in default 5> shall pay interest, he is not obliged to pay interest if there be delay arising from
agreed to pay interest
purchaser in
^efaulttopay
interest.
title
vendor
tract to
(r)
Where
there
was
in effect
an express con-
pay
it
unless
neglect or default of
delay
was
it
House of Lords was held to be untenable, was considered that the purchaser was in default in insisting on such a requisition, and must pay interest
appeal to the
accordingly
(,/').
The
may
charge-
for^^ndor
when
interest
become payable, have been stated in the preceding chapter (//) where we have also explained what claims
;
(c)
(d)
tract,
Above, p. 68, n. (). Re iroods and Lewis's Cow 1898, 1 Ch. 433, 2 Ch. Denning
v.
De
Gardiner, 1P02,
211.
(c)
Henderson,
689; Jomx v. Ch. 191. {/) Re Bayley-WorthinQton and Cohen's Contract, 1909, 1 Ch. 648. 523. (g) Above, pp. 515, 517
G.
& Sm.
W.
46
722
Deterioration
perty.
may
be
made
Compensation
for errors of description.
The Only
-
case in
compensation
for sale
is
IS
an act done
L^
j.
j.
make
or allow
pensation
as
it
is
stands, but
It will
enforce
its
performance with a
since
variation.
any claim
if
for
And
in all cases of
innocent misdescription
it is
the
make com(/).
pensation
for,
Claims to The position of the parties to an compensation under an open respect to claims lor compensation
i.j.i*i?
(/).
contract.
indicated
Any
must
law
for in
tliat
which he
at
and he
is
bound
law to
But
in equity
(A)
()
{k)
{l)
Above, pp. 512515. Above, p. 65. Above, pp. 65. 610. Above, p. 43,
{iii) See Mortlock v. Buller, 10 Hakey v. Grant, Ves. 292, 306 Clermont v. Tan13 Ves. 73, 77 bmyh, 1 J. & W. 112, 120; 2
; ;
723
is
is
an insubstantial error
innocently
the vendor
mado
may
and
mentioned in the
{)i).
where
is
copyhold or leasehold
This
relief,
however, will
It will be refused
if
the
amount
if
to
a wrongful
misrepresenta-
And
really
promised
by the
the
misdescription
were
innocently
made
or
not,
and
whether
it
As we have
inspection
seen
patent defects
those
(</),
compensation
of the property sold but may well be claimed for defects which are latent and interfere with
by the contract; and will not be allowed for defects, of which the purchaser had notice when he bought. It is thought that the doctrine
Dart, V.
&
r.
9/56,
;
above, pp. 43, 44. (w) Calcraft v. Roebuck, 1 Ves. Hal.tey v. Grant, 13 jun. 221 F.xdailc v. Stephenson, Ves. 73 S. & S. 122; Svi.tt V. Hanson, 1 1 R. & M. 128; Kiiiffv. in/son. 6 Beav. 124; Powelf v. Elliot, L. R. 10 Ch. 424 above, p. 170. (o) (;iermont v. Tasburgh, 1 J. & W. 112, 120; Price v. Macaulaij, Dimmock 2 De G. M. & (t. 339
; ;
; ;
D. 14, 29. (p) Seo Breue v. Ramon, G Ves. 675, 679 Hakei/ v. Grant, 13 Ves. 73, 78, 79 Binkn v.
32 Ch.
; ;
Jiokrbi/,
Swanst.
222,
225
;
;'
Lambert, 7 Beav. 546 Fry, Sp. Perf. 548 557, 3rd ed. ; Re Arnold, 14 Ch. D. 270; Jacobs v. Rerell, 1900, 2 Ch. 858; Re I'uckett and Smith's Contract, 1902, 2 Ch. 258. (In the last three cases there was a condition exchiding compensation.)
{q)
Peers v.
v.
Dyer
46(2)
724
compensation
is
is
a dcficienrn
compared with
tliat
described therein
specific
performance wdth
a
Thus,
man
sell
my
Broadlands,
contain a
specific
Broadlands
little less
may
if is
it
enforce
but
Broadthought
advertently and in
payment of a proportionately But where a vendor makes ingood faith a serious error to liis own
it,
him
to
purchaser
what
sell
The Court
case.
The
a mis-
contammg
i
of
l"
the
position.
or
the
11.,
property
rule
IS
;
sold
1
is
in
a different
1
1
.
that
(r) See il/fl'><*' V. 2?cX:. 6 Hare, 443, 447, 448; 2 Dart, V. & P. 645, 5th ed. 670, 729, 6th ed. 7th ed. (a) See Neap v. Abhutt, C. P.
;
Coop. (1837-8), 333; He/sham y. Langley, 1 Y. & C. C. C. 175; ^anser v. Back, 6 Hare, 443, 447,
448; Leslie v. Tompson, 9 Hare, 268 Alvtaiiei/ v. Einnatrd, 2 ^ac. & G. 1. 7 Scott v. Littlednle, 8 E. & B. 81.5; Webster v. Cecil, North v. Percival, 30 Beav. 62 1898,2 Ch. 128; 2 Dart, V. & P.
; ;
'
645, 5th ed. 729, bth ed. 7th ed. above, p. 45.
;
670,
725
from showing
The purchaser
turn
out
that
therefore
there
is
is,
as a
entitled,
mere
di'fciennj,
For example,
where a vendor described the land sold as containing a greater quantity than its actual area (m), where a vendor could make no title to a considerable part of
much
(./),
to
for
tenant
remainder subject
to
life
pnr dutrc vie (a), or to an undivided moiety only (b), he was obliged at the purchaser's suit to convey what estate he had and to allow compensation
estate (2), tenant for the deficiency.
to
The
:
be
the
following
The
Court will
not
enforce
specific
cliaser's suit,
where
sueli
or where
is
an
Mutlluck V. Biillcr, 10 Vcs. 6Vm// v. 315 mikinson, Rudil v. L. R. 5 Cti. .)34, o36
(I)
Chaton
v.
Gotcer,
I
Fincli,
2\)2,
Jioluifibroke'x caxr,
Sch.
i:
1900, 1 Ch. 81.5. SIS. 17 W's. () Hill V. liuckliij, 394, in wliich case it was also held that, where the contents of any laud sold are stated in the desiriptioii thereof, it must be taken that the pric^r was tixcd with reference thereto.
/,ff,sw//A'.s.
(.*:)
Lef.
19.
n.,
cited
ICr^'teni
V.
R'lsmll,
V.
&
B. 187, 192.
Eq. 4U4. (h) Hooper v. Smart, L. R. 18 Eq. 683 Horrocks v. Itit/bi/, 9 Ch. D. 180. (c) Thotiias v. Ihrnii/. 1 Keen, 729. 6 L. J. (N. S.) Ch. 267: inUniiitt V. Barber, 1.') Ch. D. 96.
:
720
ill
and
tlie
difference
is
incapable of
unincumbered freehold is subject to restrictive cove(rf) or where the vendor has innocently made a serious error of description to his own disadvantage and it would be a great hardship to enforce specific performance with compensation against him (e). And where
nants
;
Besides
this,
it
appears
vendor's
defect
of
title,
he cannot
enforce
:
specific
except
where the contract contained an express agreement that the vendor should show a good title or otherwise remove the defect (g) It is thought that if the contract for sale contain no stipulation at all respecting compensa.
description, but
to
the
purchaser's
on an unwelcome requisi-
under this clause rather than comply with a requisition for compensation on account of a serious error of
description innocently
{d)
made
1
to his
own disadvantage (i
Sudd
;
V.
Lascelles,
1900,
Ch. 815; Fry, Sp. Perf. 1276, 3rd ed. and cf. below, pp. 728, 729,731. (e) Durham v. Legard, 34 Beav. 611 liuddv. Lascelles, ubi sup.
;
;
TFilkinson,
above, p. 45.
(/) Manser v. Back, 6 Hare, Ee Hare and 0'More''s Contract, 1901, 1 Ch. 93, where there was an express contract to make
443
compensation. The purchaser is, however, in such. case entitled to rescind the contract, if he be
Sp. Perf. 1271, 3rd ed. Distinguish Barker v. Cox, 4 Ch. D. 464, on the ground that there the vendor expressly undertook to procure an assurance from all necessary parties, 1S7. {h) Above, pp. 64, 182 (i) Fry, Sp. Perf. 1269, 3rd ed. and see above, pp. 183, 187,
'
727
Where
annul the
_^
'
sale,
to
com-
(/.),
the contract
not pensationfor
errors of desoription.
offered
in
fulfilment
of
the
and the vendor may formance of the contract without compensation, notwithenforce specific per-
But
it
is
held that, as
whether in equity
and does
is
vendor
however,
purported to
The
is
better opinion
is,
precluded by
such a stipulation
from requiring
specific
(ii),
with compensation
whether the
.
description
(o)
and
also
the
usual
clause
enabling
the
vendor to rescind {p), and the purchaser claim compensation for a misdescription, made innocentl}^ but
involving a considerable error
to
the
vendor's dis-
him
{q).
Where
1
it
1
is
1
1111
allowing
is
be
enforceable
made or allowed therefor (r), the contract by the vendor with compensation either
equity, even
Yendor^s
at rights,
law or
specifically in
though there be a
pp. 727,
[ii)
Above,
See
(o)
cases
p. 725. cited
G4,
above,
(/)
p. 00, n. [b).
1 1
C. B.
[p)
\q)
Above, pp.
1S2 187.
196.
(in) Jacobs v.Jicve/l, 1900, -iCh. 858 He Pucketl and SmitWs Contract, 1902, 2 Ch. 258.
;
tract,
p. 732.
(>)
728
offered
to
be conveyed,
provided that
He
Fau'cett
this
different in kind
tract
(s).
"a messuage
and
and Holmes.
ing 1,372 square yards" really comprised 1,033 only, but otherwise answered the description,
with compensation
it
And
shall
be
entitled at
law
to
own disadvantage
{n).
own
by
the vendor's
price agreed
own
upon
But
it is
It
is
established that,
under a contract containing an agreement to give compensation for errors of description, the purchaser
is
not
The
from what he agreed to buy the rule being that the agreement in question has no application if there be a
;
misdescription which,
fraud,
is
'
in a material
and substantial
G.
268
cf.
point,
so
far
(s)
Price v. Macanlay, 2
G-.
De
M. &
Be Fawcett and Holmes, 42 Ch. D. 50 Re Brewer and HanMns, 80 L. T. 127. [t) Re Faivcett and Holmes, ubi
339
;
sup.
()
Leslie \.
Tompson, 9 Hare,
above, p. 724. See 2 Dart, V. & P. 61;') 647, 5th ed. 729, 730, 6th ed. Price v. North, 669, 670, 7th ed. 2 T. & C. 620, 626. (y) 2 Dart, V. & P. 646, 5th ed. 730, 6th ed. 670, 7th ed.
;
(.r)
729
may
purchaser
(z).
put up for
sale as
restrictive conditions,
made
for en-ors of
and the
more onerous nature than was so represented, it was held that the purchaser was entitled The to rescind the contract and recover his deposit (~ same law was applied where an essential part of prothe lease were of a
) .
where land sold as (b) where lands and where underlease (c) were held leasehold by sold as was freehold ground rent really property described as a a sum payable yearly under a covenant and not rent
{(I).
is
incapable of estimation at a
is
not applic-
And
it is
amounts
to a Avrongful misrepresentation
and
this
of
compensation,
(./').
if
the
misrepresentation
had been
innocent
In the cases above mentioned (g) where it was held Extent of the that the agreement to give compensation was not compensation.
,
[zj
Flu//il
V.
B00//1,
Biujr.
C.
A. 39 Ch. D.
(i),
110; above.
N. C.
&
A:
Beav. 23. {) Mddclei/ v. Hoot /i, 2 De G. This case was adSni. 718.
Aijlcs V.
('ujr,
1()
350. [d) Eranx v. Robins, S Jur. N. S. 846 see above, p. 398. Brooke v. Itoiiufhwuili o (/)
pp. 101, n.
;
Ilai-e,
"298;
Ridfiicau v. f'i<nf,
';
versely criticised by J esse], M.R., in ('ambirwell, i\r. Socif. v. Uolbut loian/, 13 Ch. D. 754. 7fiO
.
:
7'lit,
72G.
its
lit
of.
and Miistos'
Vuiifriict,
(/) Above, p. 723. and n. above, p. 187, and n. (h). [g] Above, nn. {z), [a), (b),
id).
730
was in a matter of right, and not of physical content. In all those cases the words of the agreement were large enough to include a mere deficienty of estate or right. The common form of tliis condition provides for allowing compensation if any error, mis-statement
or omission, be discovered in the particidars of sale {h)
;
and
it
made
dition
But where the con(1). was that compensation should be made for errors of description in the property, it was held that this was
only applicable to mistakes in describing the land sold
to defects of title, as
(./).
as leasehold
is
held by underlease
condition was in
common
to a defect of title so as to
But the
real
ground
of this decision
was
that,
of that wliich
been actually conveyed, the entire contract is discharged, and, in the absence of fraud, no compensation is afterDavidson. Prec. Conv. 1 (/;) 1 Key & Elph. 611, n., 4th ed. Prec. Conv. 255, 8th ed. in Ec Fawcett nnd (j) Thus, Hohnes (above, p. 728), it was held that the clause of compensation was applicable although the fact was that the vendor had no title to the land, which formed the difference between that sold and that offered in The fulfihnent of the contract.
;
vendor had formerly owned that land, but had parted with it
before the contract, and had inadvertently sold by the old description; and see Cann v. Catui, 3 Sim. 447. {j) Ik Bcijfus and Masters^ Contract, 39 Ch. D. 110; above, p. 729. {k) DchoiJiam v. !Sawbrhl<jc, 1901, 2 Ch. 98.
731
title,
except under
And
ease
there
appears to be no
doubt that
in
that
the
mistake
had been
With
an express
^
condition pro^'i^li^o
agreemeut
.
to
make compensation
for
compensation.
must of course be had to the exact terms of the agreement in each particular case but the right so given does not in general exclude, or add or subtract anytion, regard
:
His right
in
this respect
(o).
notwith-
standing that the piu-chaser had notice of the misdescription for which
it
is
is
claimed (p).
And
it
seems,
ground
of hardship than
open as regards compensation for misdescription {(j). And as we have seen (/), under the express agreement,
(0
{in}
G.Vi, (i53.
;Jr{i
ed.
;
6th ed.
p. 724.
(o)
&
;
Above,
cf.
730, n.(*)). In one sense it was a mistake in describing the physical contents of the property sold: but the deficiency was in botli cases due to the fact that the vendor had no title to part of tlie land described. Fry, Sp. Perf. j 1287, ()
71
liaiida//, 49 L. T. above, pp. 203, 353, 3.34. '</) See Painter v. Xcwbij, 11 Hare, 26 Fry, 8p. Perf. ^v^ 1290, 1291, 3rd ed. (/) Above, pp. (io, 610 but see
{p) Lclt
;
v.
p. 730.
^'^'^
may
claim
compensation
for
an error
innocently
tion
;
Where make
also
the purchaser
and the vendor some minerals included in the sale, it was held that he was entitled to rescind under the proviso on the purchaser's persisting in the
or requisition,
any objection
title to
(.s).
As we have
seen
(/), it
is
now
he
this
is
vendor to rescind,
any
requisition be insisted on
which
may
well exercise
exercisable, if the
error to his
own
make compensation
error be one
(;^).
for errors
of description
which would
But where
made some
material misrepresenis
he
is
power
specific
performance
Avith
com-
()
Maw-sdii V.
FlHcIicr,
L. R.
Contract,
32
Cli.
D.
14
Ash-
10 Eq. 212, 6 Ch. 91. {t) Above, pp. 64, 182187. Terry mid Whitc^n () Sec ]{'
bimier 410.
(x)
v. Scicell,
Above,
p. 187,
and
n. (j.
73m
Neither party
specific^perf ormance
land
liability,
sold be subject to some incumbrance or which the vendor cannot remove, neither the
lormanoe ot
shall give
tlie
contract on
specific per-
vendor
unless,
^an indemnity.
with
an express stipulation
and accepted.
of accounts, the Costs
a rule, each party ^*
^"
of the
may be mentioned. As
:
but, as
we have
seen
(r/),
and producing
to
all
evidence of
title in his
own
is
stipulation
the
contrary,
searching
title
for.
evidence of
which
is
possession.
The making
to
himself
but the
his
own
execution of
(//)
V.
Lmiilei/,
V.
&
3
1
B. 224, 226
19:5;
Cr.
1
05,
114; Xouaille
;V21
V. FHifht, 7
Beav.
V.
Mac.
t.
&
Ridgway G. 109; Rr
;
WestuH
1907,
(z)
1
iinil
Thomas"
Contract,
Ch. 24
Under the
c.
Solicitors'
(stat.
Re44
s.
&
6
Vict.
and
of the General Order made thereunder, the remuneration of either party's solicitor will he aciording till' srale prescribed by that t^)
Order, unless the solicitor has, before undertaking any business, elected by writing under his hand communicated to his client that his rennnicr.ition shall be a(;(ording to the previous system as altered by Schedule II of that Order; or unless the solicitor and his client have before or after or
in the course of the transaction of the business agreed in writing signed by the party to be charged for the remuneration of the solicitor in some other wav soe Re Frape, l^^i,-! C\x.1S\\' Re Earnxhaw Wall, 1894,3 Ch. 156; Re Xei/Ks. 189.), 1 Ch. 73 Re Bai/lix, 1896. 2 Ch. 107 also C'far'e v. Joseph, 1907. 2 K. B. 369: and for the Act and Order and cases thereon, see the Annual Practice, In order to be etfective, such election must be duly made by the solicitor before he does for the client in the particular matter any work, for which lie would be entitled to be paid Hester v. //^cc. 34 Ch. D. (iO" Re Sfruarf,
; ;
H
I
F',nis,
190.'),
34.
41,
4.'),
734
concur in
by the vendor,
mere conveyance of such estate as is his own or in his own power, and the outstanding estate be not got in or the act be not done before completion,
then the vendor must, in the absence of stipulation to
the contrary, pay the expense of the concurrence of
And,
as
we
have seen(rf), he
may
upon
to bear
of the
conveyance which
inciuTed
by reason
of j^art
than
himself.
fully
For example, the vendor being sui Juris and entitled, the purchaser must pay the expense of
;
in a register county
for in
conveyance
purchaser,
third parties
passes
the
whole
is
to
the
who
own
protection against
of
the
title,
situate in a
compulsory
dis-
trict
by deed upon a
but to
a
sale is
owing not
to
any
title,
[b]
[cj
[s)
sq. ;
Mit'
Above, pp.
,^,
{d)
Above, p. 620.
7^0
tlie
is tliat
tlie
purchaser pays
execution by the vendor (/). But where the vendor a tenant in tail selling the fee simple (r/), and the
must bear
for
he has
no power
entail
(//).
to
convey
tlie
And
where
married
woman
is
the vendor,
or
is
expense of
a defect of
acknowledgment
to
falls
on the vendor
So, on the
the vendor's
sale
to
of
copyholds,
fully competent
the purchaser
the the
execution
:
of
including the
on admittance
proper surrender to
vendor
(A-).
And
as
we have
seen
(/),
in the absence
must bear
in
to
whom
any mortgagees or incumbrancers or other persons, is vested any part of the estate contracted
It
be sold.
how
the
statutory
acknowledg-
to be borne.
the
liuid
sold
luive
been
transferred
to
any other
(A)
(A) Dart. V. \- P. 710, ,5th ed. 801, Cth ed. 717, 7th ed. above, pp. 349, 3-50.
:
7th ed. (t) Dart, V. & P. 707, Hh ed. 798, 6th ed. 714, 7th ed.
71
I,
;
(/) Above, pp. 3.), 4(;. and n. (w). 619621. (m) Pp. 35, 48, 694.
06,
73,
736
who
course bound,
if
convey the
whole estate contracted for and must at their own expense procure the conveyance to be executed by all
necessary parties.
And
if
by reason
of
any such
order
(o)
should be necessary in
who own
of
the applica-
also be a necessary
completed without
ance
{q)
,
specific
performhas
it
is
his
control,
as
by
his
death or
and no
ever,
costs will
the application
were made
If,
necessary
law
to
(.s) he had by a will made qfier the contract devised an infant the land sold and had died pending
{t)
5.
Of the
Completion.
We
have now arrived at the subject of the actual This usually takes place
iKG,
3 Drew. 632 ; Cresstutll v. Haines, 8 Jur. N. S. 208 Barker v. Vennbles, 11 Jur. N. S. 480.
;
()
,')60
.v<7.
lo)
( ;;)
(s)
(>) Hanson v. Luke, 2 Y. & C. C. C. 328; Hinder v. Strceten, 10 Hare, 18; Bannerman v. Clarke,
Wortham v. Bacre, 2 K. & J. Purser v. Darby, 4 K. & J. 41 Sanderson v. Chadtvick, 2 N. R. 414; Williams v. Glenton, L. R. 1 Ch. 200, 207, 211.
\t]
437
737
veyance
is
by
all
the convey-
that
He
must also ascertain, as we have seen (z), that there is no obstacle to his entering, immediately after completion, into actual possession or enjoyment of the property sold and of course this shoidd be done before payment of the purchase money. The vendor must see that he gets proper payment of the price.
;
As
it
is Attestation of
that on a a^^e byT' sale the purchaser shall not be entitled to require that witness of the
him be executed
in his presence or in
sliall
choosina-.
bo entitled to
have, at his
own
cost, tlie
(ii)
(x)
(y)
(?)
Above, p. 73. Above, pp. 713 "'j. Above, pp. 6S0 ,s/y. Above, pp. 609, 610.
Stat. 44 & 4o Vict. c. 41, applying only to sales made Before this after the year IMSl. enactment, the law was that, prima fecit', n purchaser had no right to require the vendor to execute the conveyance in the
()
s.
8.
presence of himself or his solicitor: but in special circumstances he mi^ht require the vendor to do so, and the vendor was obliged to comply with such a requisition, if it were reasonable to make it. Whether this were .so wa.s a queation of fact. See J'iiiri/ v. Chaplin, 2 De G. ic J. 468, 478 Efiser v. Dauiell, L. R. 10 C. P. 5.38.
;
w.
47
738
if
he thinks
be his
solicitor.
It
is
other neeessar}^
And where
unknown
solicitors are
it is
forgery
or fraud
{b).
The vendor
is
bound, as a
rule, to
convey
circumstances
Power
of
make
[c).
^^^^"
revoked^
any document by attorney is of course that a power of attorney is in general revoked by the death (d), bankruptcy {e), or (it
The
is if
said) insanity
(,/')
Even
is
revoked at
insanity
(/.)
:
(i)
but
appears that
power by death
And
if
made
of his
names
(*) See Kviff v. Smith, 1900, 2 Ch. 425, where a landowner's fraudulently procured solicitor liim to execute a mortgage of his land Jared v. Clements, 1903, 1 Ch. 428, a case of the forgery by a solicitor of a receipt for the money due on an equitable mortgage. (c) Mitchely. ISeaJe, 2 Ves. sen. 679 Noel v. Weston, 6 Madd. 50 Dart, V. & P. Sug. V. & P. 563 641, 642, 6th 569. 570, 5th ed. 592, 593, 7th ed. ed. [d) Wallace \. Cook, 5 Esp. 117 Watson V. King, 4 Camp. 272.
;
((?)
Dawson v. Sexton, 1 L. J. Ch. 185. (/) Story on Agency, 481. {g) Watson v. King, 4 Camp.
158
;
272.
(A)
Winch v.
Keeleij,
T. R. 619
325.
Alley V. Hotson, 4
(i)
Camp.
{k)
&
W.
743.
See Bromley
;
Ves.
3,
739
appears that
1.S82 in), a
it
would remain
(n/).
By
Conveyancing Act,
tliat
power
of attorney
given after
favour of
purchaser
(o),
And by
the same Act (p), a power of attorney given after that year and expressed in the instrument creating the power
to be irrevocable for a fixed time therein
specified,
not
is
j)ur-
or notice of them.
When
by
Execution of
ance
iiy
^ttofy-
money
entire control of the vendor's agent until he has received satisfactory proof of the validity of the
power
at the
time at which
purchase
tees,
it
was acted on
in the
(r).
And
in the
money
meantime
(s).
names
of trusis
This course
unne-
execution of
money to bo paid to the donee and tlie purchaser is satisfied of the due execution by the vendor of the power of attorney. But
as to the incauiii<r of imrchtncr in this Act. {p) Sect. 9.
{q) See note (o). above. (r) Siig:. V. P. ."JGS.
(m) Pearson v. Amicable Asmirauce Office, 27 Boav. 229, 233, S Jarm. Con v. Pt. I. 39, 234 3rd ed. 1 Davidson, Prec. Conv. 475, 476, n., 4th cd. 45 & 4G Vict. c. 39, (;/) Stat.
;
&
s. 8. (o)
Dart, V. & P. 661, flth ed. 748, 6th ed. 686, 7th ed.
(.)
;
See
above, p. 247, n.
(c),
47
(2)
740
it is
may
be
made
there
is
veyance by attorney.
upon
its
sufficiency
and
it
Execution of
some
title
deed by
attorney.
upon the invesany documents of title appear to have been executed by attorney, the power of attorney ought to be abstracted and produced, and evidence must be furnished, if necessary, of the validity of the power at the time when it was exercised {t).
It has already
if
tigation of title
To whom the
purchase money should
^ ^^^^
money
''
^
where the purchaser has notice of any incumbrance on the property sold, he must not pay the purchase money to the vendor, but must take
to the proper persons,
care
that
tbe
amount due
is
to
the
incumbrancers in
(ii)
;
and
tlie
not until
surplus,
if
all
As
a rule, where
to
money him
is
in person
other agent
(.r).
But on the
party's
completion of
sales
of
land,
the
conveying
{()
{'()
Cat-
vi?.,
V.
Cnndlish,
Ex. 91
&
mndle, L. E,. 2 C. P. 368; Withington v. Tate, L. R. 4 Ch. 288; xpte. Swinhank.s, 11 Ch. D. 525.
741
usually authorised
to
receive
the
money
Solicitor's
effect of the
1881
(y).
where
a solicitor produces a
1-
-,
deed having
the
m
.
the body
money on
production
money
or
other
consideration
(z),
deed
being
executed or the indorsed receipt being signed by the conveyance. person entitled to give a receipt for that consideration,
the deed shall be sufficient authority to the person liable
pay or give the same for his paying or giving the same to the solicitor, without the solicitor producing any other autliority in that behalf. It is considered that, under this enactment, the production by a solicitor of such a deed as above mentioned has the same effect as, and no greater virtue than, an exj)res8 autliority to tlie solicitor to receive the money and it was therefore held that, on a sale by trustees, the purchaser might On
to
;
a sale
it
would
to
money payable
was afterwards enacted by the Trustee Act, ] 888(b), now replaced in this respect by
(a).
it
them
But
(c),
money
may
appoint a
be liis agent to receive and give a discharge any money or valuable consideration or property receivable by the trustee under the trust, by permitting the solicitor to have the custody of, and to produce, a deed containing any such receipt as is referred to in section 50 of the Conveyancing and Law of Property Act, 1881 and a trustee shall not be chargeable with breach of trust, by reason only of his having made or concurred
for
;
(y) Stat.
(;;
44
&
45 Vict.
G9.5,
c.
41.
{bj s. 2.
(c)
Stat,
ol
ic
.32
Vict.
c.
59,
53,
Above, p.
and
n. (/).
Stut. 56
!c
57 Vict.
c.
a.
17.
742
in
of
money
to the trustees'
solicitor
by them
(d).
Where
the
Where a conveyance on
sale is executed
by attorney
(c)
Conveyancing Act, 1881, does exeluted by' ^^^ 56th section of the attoruey. not authorise the payment of the purchase money to
the solicitor
of
the attorney;
it
only operates as an
own
where the conveyance is to be executed by attorney, and the attorney is expressly authorised to receive the purchase money, it must be
paid to him in person
if
it
{e).
And
Here
it
may
be noted that,
by
obliged to go abroad
Crown
pletion
(,/*),
{g),
and should,
if
either
authorise
(in
the attorney to
the
purchase
which case it must be paid to him person) or appoint some solicitor therein named to in be the principal's solicitor to receive the money on production of the executed deed of conveyance.
principal be a trustee, he
money
If the
may
{d)
abroad
before completion,
that
tract, 1893, 3
would seem
(e) Above, pp. 738, 739. 740. If (/) See above, pp. 738 the vendor, being in the service of the Crown, were ordered to go
to be a case where the purchaser would be bound to accept execution of the conveyance by attorney. [g) Above, p. 740.
^43
him
(A)
(),
money on
producing the deed of conveyance under section 56 of the Conveyancing Act, 1881. This course, being authorised
by
statute, is free
from objection
for
whilst a trustee
may
receive purchase
money
him except
in a case of
necessity
(/.)
It
referred
to
in
(/), is
the Payment
in made to the
solicitor
money
sideration (m). \
>
money
./
is
is
money
may
be paid to
a deed Payment
by them.
as is
Where
to
ostensibly acting
glbly act^u^'^"
for the person entitled to give a receipt for the con- for a con-
sideration
money,
it
not entitled to
any independent proof that the solicitor is indeed authorised to act and is rightly acting as solicitor
HetlitK) and Merlonis Con1893, 3 Ch. 269, 280. (t) Above, p. 741. (k) Re Bellamy and Metropolitun Board of Works, 24 Cli. D. 387, 394, 400, 403, 404. Above, p. 741. (J)
(A)
Re
tract,
(i) Bat/ v. Woolwich, S^c. Socy., 10 Ch. D. 491 Re Hetlhig and Merton's Contract, 1893,3 Ch. 269,
;
280.
()
\o)
Above, Above,
p. 741. p. 741.
744
And
if
way
Kitir/v. Smith.
from proving that he did not in fact authorise the solicitor to receive the money on production of the deed. Thus, where a solicitor fi'audulently induced a client to
execute a mortgage of his land and obtained the mort-
gage money by producing the mortgage deed so executed and made away with the money, but it was proved that
the client placed such confidence in the solicitor that he
solicitor's
recommendashould be
was held that he was estopped from showing that the solicitor was not in truth empowered
to act as his solicitor in the matter of receiving the
money
The deed
must be produced at the time of payment.
But it does not appear that a purchaser (q). would be protected in paying money to a solicitor ostensibly acting under the authority conferred by section 56 of the Conveyancing Act, 1881, if the solicitor had no real authority so to act, and the person to whom the money was payable had not by his conduct or otherwise held out the solicitor to be his agent (r). In all cases where money is paid to a solicitor in reliance on this enactment, the deed must be actually produced at the time of payment to justify the purchaser in making payment to the solicitor (s). Where a creditor
or other
money
it
authorises
Payment
clerk.
to
the solicitor's
payment payment
made
(t)
;
to his soUcitor,
appears that
to the solicitor's
a good payment
[p) See Ec Hetling and Mertoyi'.s Contract, 1893, 3 Ch. 269, 280
;
King
432.
iq)
v. Smith,
Kmg
v. Smith, 1900, 2
Ch.
425.
See Re Hetling and Mertoti'ii Contract, 1893, 3 Ch. 269, 280 above, p. 743. (s) iJay V. Woolwich, ^-c. Socy.,
{r)
;
745
given by
With
securing
for
himself What
proper payment, he
take
of course only
bound
{x)
to accept
;
pl^y^'j^.^t
he
may
cheque
or
any other
negotiable
At
the
present
and inconvenience of carrying about but the vendor is not banknotes of large amount obliged to accept this mode of payment, and it should
;
be ascertained before the time fixed for actual completion that he will
make no
objection to
it.
purchase
Where a money or
any part
of
it
veying party
This
he
is
no objection
if
it
be
The
and
in
and he
is
Above, p. 7H. Cun'eut gold coiu i.s legal tender for any fimouut Bank of England notes for all sums above 5/., except by the BiiTik itself, but
(h)
(x)
Q. B.
not in
coiu
Ireland
current
silver
;
for not more than 40*. bronze ior not more than Is. stats. 3 & 4 Will. IV. c. 98, s. 6 8 & 9 Vict. c. 37, 8. (i; 3J Vict. c. 10, .S.S. 4, 20.
:
{c) See Copextake v. Uoper, articles by the 1908, 2 Ch. 10 author in 51 Sol. J. 478, 40fi, and b'l Sol. J. 510, .527 Wms. Real Prop. 206, 551, 2l!st ed.
; ;
Williams on
Seisin,
5,
54. in
On
(y)
i;c.
HI II III be i(/
(Jorpn.,
V.
l.tje
1
Interenln,
1897,
lifti/rx,
Ch.
171
Juhiixton \.
(c) i.e.
18'.)0.
2Ch.
7"5.
,diuftsdi"awn by bankers
the (juestiou whether chaser obtains a seisin an actual seisin where under the Statute of
the purlaw or
he is i Uses and
746
the
On
the
sale
of
copyholds,
admittance
title to
is
possession
the
surrender
not at common law, see Williams on Settlements, 1116; Wms. Real Prop. 175 and n. [l], 178,
n.
[z],
{d)
(e)
16 East, 208
128, 4th ed.
Wat. Cop.
125,
21st ed.
CHAPTER
XIII.
OF MISTAKE.
1. 2.
Of Mistake
formation
down
to its completion.
We
This
will
now
is
treat
may
take place
in
some
way
or because
the contract
is
or because the
full capacity to
parties or one of
them
.
are or
is
not of
buy
We
grounds
named.
And
I.
first,
of Mistake.
$^
Of 3Ii.sta/ii'
(//)
((.s
jjirrl/tdintj true
Comcnt.
We
and
have seen
it is
that,
in order
to
make
a valid
contract,
that
is,
consent unim-
fraud, duress or
undue
influence.
In
of
want
{aj
Above, pp.
I, 1.
{b)
Above,
p. 2.
; ;
'48
OF MISTAKE.
consent, let us
first
be
rectified.
And we
as a
ground
we have
considered
for
Now
tion,
in all cases
of a contract is
duress
undue
influence,
there
is
an
misrepreseutatioii, fraud,
&c., there is
At
fu'st
sight, their
always an
apparent consent.
minds are met. But the case of mistake appears to differ from the other grounds above mentioned for setting aside the contract in this, that where there is
mistake there never has been an intention
No
real
common
to
both parties
to
the one
what has been proposed b}^ the other. Apparently, an act which amounted in the law to contract but his mind did not accompany his overt act
to
he never intended
In the case of ance, misrepresentation, fraud, &c., there is real consent
do what, to
all
outward appear-
he did.
fraud, duress or
But in undue
which
is
to
act,
which
really
is
outwardly manifested.
to
means
;
expressed
only he would
by the other, either innocently or fraudulently, or if he had not been forced or influenced. The consequence of this distinction is very marked. Contracts induced by any mistake, which the mistaken party is not estopped from asserting, are altogether void from the beginning there never has been from the outset any agreement
OF MISTAKE.
between the
contrast
is
749
parties.
But
&c.,
by misThis
Contracts
^isrepresentatiou, fraud.
able only,
representation,
fraud,
voidable
only.
perhaps best illustrated in the case of negobill of exchange or promissory tiable instruments.
note,
void,
and
is
there-
But a bill or note course than a forged bill or note {(). procured to be made by fraud, though voidable by the giver or maker as against the party who misled liim, is
valid in the hands of a holder in due course, against
With regard
to mistake as a
ground
is
common law
appears
^in<7to^'^
make a
;
mistake the
are not at one,
^^^{^ ^\^
contract.
void; that
is to
say, there is
no agreement at
all (e).
(c)
Foster v. Mtw/chiiio/i, L.
;
R.
Lewis v. ('/(i>/, (57 704 L. J. Q. B. 224. As to forged instruments, see next Chapter. at end. 1 61, (rf) Stat. 4o & 46 Vict. c. Ttiltiiii v. inm/ar, ss. 29, 30, 38 23 Q. B. D. 345 Clutton v. AtteC. P.
,
l,orou(/h,
law) the alienor i.s estopped from Tims disputing the assurance. if one disclaim a conveyance of him, the lauds or goods made to conveyance is thenceforth void as from the time of its executioiv: but until disclaimer the estate or property passes to the alienee. See Bract, fo. 15 b, 16; Y. B. 7 Eiw. IV. 20 (pi. 21), 29 (pi. 14);
Litt. ss. 684, 685
nixe, 2
;
:
Siitith
V.
IliKjhvx,
L. R.
(i
Thorotujhiimd'
Benjamin on Sale, 42, 2nd ed. The same rule appears to hold good as regards the conveyance of any
Q. B.
.597,
607, 609;
there be no true a.ssent of the parties in parting with and accepting the thing assured, the conveyance is void. But as regards the conveyance oi lands or goods, this rule is subject to the qualification that the assent uf the alienee is presumed until the loutrary be shown, and in the meantime (if the conveyance were duly made in accordance with the formfl prescribed by
property
if
Rep. 9 liiitltr and Baker's case, 3 Rep. Shep. 25a, 26b Thompson Touch. 229, 267, 285 v. Leech, 2 Vent. 198, 202, 208 Sigyers 2 Brest. Abst. 226 228 v. Finns, 5 E. & B. 367, 380 .vi/. ; Peacock v. East land, L. R. 10 Va[. Exple. Cote, L. R. 9 Ch. 27, 17 Standing v. Bowring, iil Ch. 32 D. 282 Mallott v. TTihon, 1903, Edmunds v. Edmunds, 2 Ch. 494
; ; ; ; ;
;
JIuualson v. 362, 374 Ch. 537, 543 548, 1907, li'ii/nl v. affirmed, 1908, 1 Ch. I Chapmm, 1907, 2 Ch. 222.
1904,
P.
;
Jf'tbl/,
'50
OF MISTAKE.
Unilateral mistake.
And
it
may
in
some
cases hold
The rule is, however, subject to (,/'). the qualification, that " whatever he a man's real intenterms expressed
tion, if
upon
it
in
making a
contract,
In other words,
by the operation
is
man
own
words he is estopped from showing what he really intended was something different from what a man of ordinary intelligence would naturally and reasonably infer from those acts or words {//). And this qualification is of enormous importance
that
For the
is
instances, in
taken
much more common than those in which there is no such estoppel, that when we come upon a case where a
man's real intention
exceptional
may
we
it
as
(/) See Thoroughgood' s case, 2 Rep. 9 below, pp. 753 755. (g) BenjaminonSale, 45, 2nded. (A) Freeman v. Cooke, 2 Ex. 654,
;
N. 549, L. R.
()63
Cornish v. Abingtoii, 4
H. &
555, 556; Smith v. Hughes, 6 Q. B. 597, 607, 609 ; Smith V. Chadwick, 9 App. Cas. 187, 190; Little v. Spreadburij, 1910, 2 K. B. 658, 664, 665.
writer is aware that it is contended by eminent jurists that the law has no concern at all with the real intentions of the parties to a contract, but can only regard the intention which they have outwardly manifested O. W. Hohnes, The Common Law, 309 Holland, Jurisprudence, 246 252, 9th ed. It is nevertheless submitted that the common law of England is as stated in the text, and recognises, as a rul(^ of pure law (so pure that it rarely emerges from the region of abstract theory into concrete shape), that the true consent of the parties is necessary to make a valid contract. This precept of perfection is almost always obscured by the operation of the qualifying
(i)
;
The
OF MISTAKE.
Subject to
tliis
751
is that Mistake on some point or written going to the
contracts purported to be
made by spoken
whole subject
But
it is
con- of the
contract.
tended that the iirinciple, that true consent is necessai'y to make a contract, is exhibited in the case where the terms of a written contract contain a latent ambiguity with regard to the subject matter thereof. Thus in the well-known case of Rajflis v. tVichelhcKs, Raffles V. 2 H. & C. 906, where the plaintiff sued for breach of a contract for Wiehelhaiis the sale of goods "to arrive ex Peerless," it was pleaded that the defendant meant a ship so called which sailed from Bombay in October, but the plaintilf had not oflfered any goods arriving by this ship in f ulfilmeut of the contract, and had only offered goods arriving by another ship of the same name and this was held upon the plaiutitf's demurrer to be a good plea. This decision shows that where there is no true consent, there is no contract. But if the plea had been set up fraudulently, it would have been competent to the plaintiff to join issue thereon and to give evidence that the defendant really meant the same ship as the plaintiff see cases cited, below, pp. 760, n. (.v), 782, n. () Smith v. Thoinpson, 8 C. B. 14, oi), 60 Britffw Cunybcare, 13 C. B. N. S. 263, 274, 275. It thus appears that ultimately the law does regard the parties' real intention. If this were not so, and the law were never concerned with anything but what the parties have said, every contract expressed in terms similar to that in Raffles v. WiehelhuuH would be void for uncertainty so soon as it appeared that the description could be applied to more than one But that is not object, and no further evidence would be admissible. If I have two the law; see Re lluhhmk, 190'), P. 129, 132134. estates called Blackacre, one in Hampshire and the other in Northumberhmd, and I contract with J. S., who knows nothing of estate in Northumberland, but whom I have shown over my estate in Hampshire as an intending piu'chaser, to sell to him " my estate called Blackacre," this contract is not rendered void for uncertainty on my proving that 1 have another Blackacre in Northumberland, but J. S. is at liberty to give oral evidence that I took him over Blackacre in Hampshire and offered to sell that property to him, and so to prove that that property is what was really referred to or meant by both parties in the written memorandum under the deIt must be admitted, scription of estate called Blackacre." however, that there is authority for the tlieory that, in such cases, the question is not what did the parties intend, but is, what is the Parke, J., Richardson v. signification of the words they have used U'lilmn, 4 B. & Ad. 787, 800 and see L. Q. R. xx. 24.). This view is upheld by Mr. Justice O. W. Holmes, The Common Law, p. 309, where he maintains that tlie true ground of the decision in Raffles v. IFieh'lhaus was, not that each party nuaiil, but that each said a But condifferent thing see idso Harvard Law Review, xii. 417. sidering that each party, in so far as he said auytliing at all, u.sed the very same wt)rils, it could only be established that they said a different thing by showing that tlie word used signified to the mind of the plaintiff one ship and to the mind of the defendaut another, or held out to the defendant's mind one meaning and to the i^laintiff's another. Tlie difference between proving what was in the parties' minds as to the signification of the word used, and proving what was their intention, secMiis to be ver}- fine. And uj)ou either view of the matter, the plaintitf was at liberty to prove, if he could, that the parties' minds were at one as regards the meaning of the word Peerless.
;
;
my
"my
752
OF MISTAKE.
words apparently expressing a true consent are void if there be no real agreement of the parties' minds in
the law dncn sometimes take account of what and does in this instance require that the And it is submitted that, if the at one. were alone to be regarded, there could be all such cases, namely, that the parties have said what is ambiguous and therefore void for uncertainty. Again, where A. is induced by the fraud of B. to sign a contract for the sale of his land to C. in the belief that he is signing an agreement for a lease, A. would surely be bound, if the outward manifestation of his intention could alone be considered. But he is at liberty to prove that his intention did not accompany his apparent act, and is not bound, unless he be estopped by his negligence see below, pp. Irt'?, 7''i5. It may perhaps be more readily maintained in this case that A. is not bound because he and have not really said the same thing, have not in truth joined in the expression of consent see O. W. Holmes, The Common Law, 308, 309. But it may be replied that to all outward appearance A. and C. have said the same thing, for A. has himself affixed his own signature to the document but A. did not mean to do so and in the particular circumstances he is not precluded from giving evidence as to the state of his own mind at the time when he signed the writing. It is further submitted that, upon a general view of the law of England, taking in the rules of equity as well as of common law, we can hardly fail to recognise the principle, that there ought to be true consent to make a contract. It was on this principle that Courts of Equity would refuse to enforce specific performance of a contract wanting in the element of true consent, though valid, on the ground of manifested consent, at law. Not until the year 1880 was it decided that the law of estoppel through manifestation of consent may prevail over this principle in the matter of enforcing specific performance of the contract as it may in determining the validity of the agreement at law TanipUn v. James, 15 Ch. D. 215. And though the rule requiring true consent is now so qtialified, it is nevertheless still open to Courts of Equity to give effect to it by refusing specific performance where there is a want of true consent and it would work great hardship on the mistaken party to apply the law of estoppel. See below, pp. 774 776 and n. (:*), andabove, p. 724. The case of Re Meyer, 1908, P. 353, appears to support the author's position. In that case a lady executed by mistake a document intended to be signed by her sister as a codicil to the sister's will and it was held that the document was void for want of any true intention to execute it. Consider also i/^oorf v. McKinmm, 1909, 1 Ch. 476, where a deed exercising voluntarily and without agreement with any other person a power of appointment was set aside at the appointor's instance on proof that she had executed it in forgetfulness uf a prior appointment in favour of the same appointee and so under a mistake of fact. These cases prove that, as regards any purely unilateral act affecting a man's legal position or relations and purported to be evidenced by some document, the rule is that execution of the document must be accompanied with true intention to do the act evidenced. But if this be the law, it follows that the validity of a contract made by the unilateral mistake of one party only must depend, where the mistake is not averrable, on the principle of his not being allowed to depart from the consent or intention manifested or held out to the other party, that is, on the principle of estoppel.
It seems therefore that passes in men's minds, parties' minds shall be (lutward manifestation but one conclusion in
OF MISTAKE.
753
some point which goes to the whole substance of the contract (k). Thus on an apparent agreement for the sale of land, if the parties' minds be not at one, owing to an averrable mistake made on either side with
regard to the nature of the transaction, the personality
of the other contractor or the property to be sold, there
is
But
ji'i
if
ambiguity and are apt to constitute a valid contract vey to a man of ordinary intelligence, then he
accordance with his overt act
first,
'
_
estopped
To
of
in
nature of
tne trans
action,
may
accompany
It
seems
of the
fraud,
is
for
if
man
of
him,
(k)
lie
is
bound by
its
and, as
we
Kennedy v. Panama, ^c. Mail L. R. 2 Q. B. .080, 088 Ch. Honatson v. Webb, 1907,
Co.,
; 1
')37,
1
543549,
;
affirmed,
1908,
Chapman, 1907,
Above,
\m)
9
;
p. 750. T/ioroug/igood'Kcase,2'Rep.
Simons v. Orad Western Ity. B. N. S. 020 Foster v. 3fa<;kinnon, L. R. 4 C. P. 704 Lewis V. C/ai/, 67 L. J. Q. B. 224
Co., 2 C.
; ;
Hoivatson v. Wcbh, 1907, 1 Ch. 537, 543049, affirmed, 1008, 1 Ch. 1 Bagot v. V/iapinan, 1907, The law is the same 2 Ch. 222. as regards the execution under a mistake of a deed of conveyance Thoronghgoocrs or any other deed case, ubi sup.; Pigot's case, 11 Rep. 26b, 27b see below, pp. 756, 757.
: ;
;
()
T/ioroughgood's case, 2
Rep.
9 a.
MaunrrVK
fae,
Moore
W.
4b
754
shall
see,
OF MISTAKE.
the
party mistaken
nidy
be
estopped
by
misled
him.
But
the
rule
is
clearly
estab-
where the mistake Avas made in consequence of the other party's or by a third person's fraud. Thus if a blind or an illiterate man, or even a man free from any physical defect and of ordinary understanding, be induced by the fraud of some person minded to entrap
by the fraud of his own solicitor some stranger (without any negligence or carelessness on his own part), to sign a contract for sale of his. land under the impression that he is executing some document of an entirely different nature, the document
him
into a contract, or
or servant or
is
altogether void.
It
is
not
his
act,
for
he never
is
his signature
Or
it
may
send
it,
and a third
from
is
tlie
;
to the person
who made
the offer
which case
it is
In these instances
Shep. Touch. (K. B.), 182, 184 56 Anon., Skin 159, pi. 6; Albemarle V. Bath, Freem. Ch. 193, 194; S.C. nom. Bath v. Moioitague, 3 Ch. Ca. 55, 56, 59, 75, R. V. Lovfinor, 4 B. & Ad. 76 647; Mellish," L.J., Hunter v. Walters, L. R. 7 Ch. 75, 87 Tamplin v. James, 15 Ch. D. 215; Farwell, L.J., Hoicotson v. IVebb, 1908, 1 Ch. 1,3,4; Chnplb, S; Co., Ltd. V. Brammall, 1908, 1 K. B.
; ;
foro-ery, see
next Chapter,
1,
at end.
(;?) See above, p. 16. See Phillips v. Edwards, 33 {(j) Beav. 440, 445 HenJcel v. Pape, L. R. 6 Ex. 7 Baxendnle v. Bennett, 3 Q. B. D. 525 Chitton v. Attenlmrniigh 1897, A. C. 90, 96. The offer appears to be ostensibly accepted through the agency of a third person acting without tlie authority of the party purported to be bound and the writer of the letter is, it is submitted, no more bound than he would be if the third person had, without his
; ;
233,
234,
235;
Alliance
v.
Credit
Bank of London
Oiren,
Times
OF
there
is
mi!=;take.
755
no reason
why
;
he has not held himself out as expressing a contractual intention, nor has he been And it will be observed that guilty of negligence (>).
pany
Unilateral
where the mistake was caused, not by the other contractor's fraud but by the wrongful or improper intervention of a third person, the party mistaken is at
in the cases
liberty to prove that his intention did not
his
"^
^"
accompany
outward
act,
But
Estoppel
a man's
where a man makes a mistake of this kind solely b}'' his 0"vvn inadvertence, he ^\ill in general be precluded Thus we have seen that, where a fi'om alleging it.
own
carelessness,
man
it,
he cannot avoid
and
it is
submitted that
if
one in
accept-
absence of
offf^r
mind
he
is
bound (.s). So
it
also it is
who
his
by
own
inadvertence
or gives
it
to another to post,
he would
{t),
from
acceptance
solicitor to keep until performance of the required condition, and he fraudulently delivers the same without exacting performance of the condition, the person who executed the deed is not estopped from showing that it was not his act LloiiiVs Bunh, Lot. V. Hiillocl;, 1896. '2 Ch. 192, 191. It may be noted that where one has signed, but not issued, a negotiable instrument complete
;
and valid on the face of it, and the same is taken out of his possession against his will, and put into circulation, it appears that, as against a holder in duo course, he cannot avoid his liability on the ground that, owing to the want of any consent between himself and the other party to the instrument, there was no contract at all between them
;
see Cltittcm v. Atteiihorongh, 1897, A. C. 90, 93, 96 and cf Smith v. Prosser, 1907. 2 K. B. 73o. ()) See previous note. () See above, p. 753, n. [)i).
;
.
(/)
Above,
p. 16.
48
(2)
756
OF MISTAKE.
showing that he did not intend
to contract as expressed
Executing, without
inquiry, a
in the letter
{ii)
Similarly,
when
document
presented by one's
solicitor.
will
have some legal consequence on his part affecting his legal position or relations
will he
his
its
man knows
but he
exact effect,
solicitor that
he
is
content to execute
is
it
document
if
not mid;
though
of
may
And
it
in this
case
the validity
the
document, where
binds
the
accompany his act, but he is precluded by his own negligence from setting-up So also, if a man execute a document this objection. intended to carry out some legal transaction, of the general nature of which he is well aware, such as the
man's intention did not really
he cannot be heard to say that he did not understand the legal effect of the words used, or
sale of his land,
mean
undertaken or done
(//).
As we have
is
seen
{z),
the case,
between
transactions
void and
voidable.
man
truth was not argued or decided in the Court of Appeal. (.*) See Mellish, L. J., Hunter
V.
It is submitted that the of Collins, M. E,., in V((ii Praagh v. Everidge, 1903, 1 Ch. 434, 436, that it was not clear to him, whether the parties w^ere ad
8th ed.
iraltcrs,
L. R.
v.
1
remark
King
;
V. Smith, 1900, 2
idem,
in
sense adverse to the above conclusion. In that case the parties' minds were most certainly not in but the question truth at one whether the defendant was not estopped at law from proving the
:
Siiiitli, L. E. 14 Eq. 85 Tumplin v. Jatticx, 15 Ch. D. 215 Stewart v. Kennedij, 15 App. Cas. 108 Howalson v.
;
;
Jl'ebb,
(;)
ubi sup.
Above,
p. 748.
OF MISTAKE.
transaction entirely different
757
In the one case, if the man is not estopped from proving that his intention did not accompany his overt act, the instrument is void (a). In the other, he
plated.
or
conveyance
tlierein
if
he had
known
(6).
The document
therefore voidable
by him, but
(b).
it is
Attached
to Couveyauce
misrepresentation, fraud,
<Kc. not voidable as
important consequence, as
.
if
the person
who
has taken under such a conveyance dispose of the lands p^chLer for or goods to a purchaser for value {c) taking in good faith ^^lue without
by fraud
()
is
{d).
Above, pp. 748 753. Above, p. 748 JlniiUr v. WaHers, L. R. 7 Ch. 7o, 82
(i)
;
;
Onward
son,
JtfDi/,,
litiUdiitg Socicfi/ v.
1
189:5,
Ch.
1,
Smith15; Lloyd's
Ltd. V. Bullock, IS96, 2 Ch. 192, l'J6, 197. ((That is, a purchaser for
an equitable interest only Sturge v. i>t((rr, 2 My. & K. li)o rhillips v. PhiUips, 4 De G. F. & J. 208, 218 Hunter v. IFaltcrs, L. E.. 7 Ch. 75 Lindley, L. J., J\rt<iort^ J'rovincial Bank of England v. Jackson, 33 Ch. U. 1, 13 Lloiid\s Bank, Ltd. y. Bullock, IS9G, -I^Ch.
;
;
';
valuable consideration actually paid or executed Hardinijham v. Xicholl.i, 3 Atk. 304 Sug. V. & P. 789 above, pp. 566, 567, and
;
n.
[b).
{(l) In this respect the rules of law and equity arc the sauic so that the conveyance procured by fraud of uu equitable estate or interest in lands or goods is not voidable as against a bond Jidc purchaser for value without notice of the fraud and the conveyance so procured of a legal estate or interest cannot be avoided as against such a purchaser taking
; ;
Cave v. Caic, 15 As to the commen law rule, see White v. Garden, 10 C. B. 919 Kint/sford v. Merry, 25 L. J.N. S. Ex. 166, reversed on another ground, 26 L. J. N. S. Ex. 83 I'case v. Gloahcc, L. R. 1 P. C. 219, 229. 230; Cundy v. Lindsay, 3 App. Cas. 459, 464 Vihnont v. Bentley, 18 Q. B. D. 322,330; 12 App. Cas. 471, 473, 483 (this decision gave rise to tlie amending stat. 56 & 57 Vict. c. 71, s. 24 (2) ) stat. 56 & 57 Vict, c. 71, s. 23 Wms. Pers. Prop, 543, 16th cd.
192,
;
197
of.
758
Contracts
OF MISTAKE.
This doctrine, however, relates only to conreynnces proContmch induced by fraud may, as a cured by fraud.
rule,
be avoided, notwithstanding that the benefits thereof have been assigned to one taking in good faith and for
value without notice of the fraud
;
between his
assignor
rule,
and
the
other
con-
{e).
To
this
Where
a sale
of land is
executed by
an exception (./). But it should be noted, especially in connexion with contracts for the sale of land, that the
rule
tlie
is is
payment
money.
of
is
the purchase
benefit of
executed by payment
and entirely
no longer any lien on the land (jj). In this state of things the vendor is regarded in equity as having made a complete conveyance of the land, and not as remaining under contract to convey it; the parties' agreement has
in equity passed out of the stage of executory into that
of executed contract.
if
by the purchaser's
to a pur-
cuted
(/?)
the vendor could not set aside the sale as against such
subsequent purchaser
But
it
been reached,
remains,
an executory
Life Assurance De Gr. & J. Graham v. Johnson, L. R. 294 Ee Palmer's, ^r. Co., 8 Eq. 36, 43 above, p. 661. 1904, 2 Ch. 743 (/) Above, p. 749.
(e)
Athenceum
{g)
Society v. Pooley, 3
;
OF MISTAKE.
contract, the
parties' relations
(/.).
759
obligation only
Where one
and
tlie
whom
he
is
contracting,
as to
is
a
is
no true
unless he be and the contract is void (/) Thus if estopped from proving his real intention. A. be induced by means of personation or any other
is
contracting with
C,
no
real consent,
;
if A. signed the was a mortgage {n) and But if A.'s supposed act in the law is altogether void. B., acting in good faith and without any fraudulent intent, go to A. and olfer to buy A.'s land and A. sign an agreement accordingly, A. cannot, it is submitted, escape from the obligation so contracted by proving that he supposed that B. was C, if B. did nothing to induce that belief and a man of ordinary intelligence would reasonably and naturally suppose from A.'s acts and 'words that he intended to contract with B. (o), and provided that B. were not aware that A. contracted If with liim under the impression that he was C. (p).
parties (m)
the case
is
Estoppel from
fy the person,
(/,-)
See
Ko.sr
V.
IVtiLson,
10
H. L.
{[)
H.
oGl
;
Beujumin on
;
Sale,
4(>.
Smilh v. Whtatcyuft, 'J ed. X<ish v. Dix, 78 L. T. 223, 230 445, 448, 449. {ill) Jliirdiiiau V. Booth, 1 II. & C.
N. 2ud Oh. D.
}c
Street, 1899, 2 Q. B. (Ul, where the defendant only pleaded that the contract was voidable for fraud, but might, it seems, have alleged that it was void on the ground of mistake.
V. Fowkr, L. R. 7 Limliai/, C'uitdi/ v. 7o7 Ke Cooper, 20 3 App. CaM. 459 Gordon v. and see Ch. D. 611
803;
Hnl/hi.s
;
H.
L.
Above, p. loi. See above, p. 7<')0, u. (A). {)>) See Sinit/i \. Hughes, 1,. R. 6 Q. B. 597 see below, pp. 773,
(w)
(o)
;
774.
760
OF MISTAKE.
the latter be not a material element in determining his intention, he cannot avoid the contract on the ground
Smith
V.
of his mistake.
Wheatcroft.
ostensibly on his
Thus, where B. bought land of A., own account but really as agent for
price,
sell
C, and
person,
it
any other
Mistake as to
the property sold or the
price.
The same
same
qualifica-
tion, with regard to mistake in respect of the property to be sold or the price to be paid, if the mistake go to
(r)
Thus,
if
A.
sell to B. his farm called The Grrange, and A. have two farms of that name, one in Essex and one in Hampshire, and A. intended to sell his farm in Essex, but B. meant to buy the farm in Hampshire, there is no true consent and no contract between the parties. In this case there is a latent ambiguity in the description of the land pm-ported to be sold, and so parol evidence is admissible to prove what land the parties intended to sell, and it may be shown that they meant
different things
and
their
at
one
(s).
But
free
from ambiguity and completely identifies it, he will be estopped from proving that he really intended to buy a different plot, if his mistake were due to his own inadvertence, and his outward acts and demeanom- would
naturally and reasonably lead the other party to suppose
D. 223
Smith V. Wheatcroft, 9 Ch. Nash v. Bix, 78 L. T. Gordon v. Street, 445, 448, 449 1899, 2 Q. B. 641, 647. ()-) Above, pp. 748753.
{q)
; ;
that name)
;
See Althani's
;
M. & W.
n. ().
(s)
&
H.
of
Peer-
Doe d. 129, 139, 140 Hiscocks V. Miscocks, 5 M. & W. below, p. 782, 363, 368, 369
; ;
less,
there being
two ships
OF MISTAKE.
that he
761
(f).
meant
to
On
this
the
(Ik'tion
of Collins,
M.
'" P'-wyi'
dant in that
case,
own
inadvertence,
2,
him
for
accordingly.
He
memorandum of
it
the contract
him (.r). The memorandum so signed ascribed a The vendor sued for wrong date to the contract.
specific
by Kekewich,
In the Court of Appeal, however, the judgJ., was reversed purely on the ground that, as the wi-ong date had been inserted in the contract, there was no sufficient memorandum to satisfy But it had also been argued the Statute of Frauds (;:) that there was no true consent of the parties, their On this minds being directed to different things.
(//).
ment ment
of
Kekewich,
point, Collins,
M.
R., said
" It
<id
is
not clear to
;
my mind
f m-ther
idem
it is
case
fails
on the other
;
it
gives
suffi-
would nevertheless
because their
at
one
by recording
is
it
in the
But
it
Tamplin
1903,
1
v.
James, 15 Cb. D.
iu)
Fry,
215.
(m)
versing S;. a., 1902, 1 Ch. 266. {x) Bee above, p. 21, n. (*).
762
OF MISTAKE.
learned judge overlooked the qualification above mentioned to the rule of law, that true consent
to
is
necessary
make
from proving
if
his
real
And
it
is
contended that,
(as
the defendant
so conducted himself
meant to bid for Lot 1, then it was not open to him, if sued upon the apparent contract at law, to show that the intention which he had so manifested was not his
Mistake as
to price.
true intention
{a).
of land
may
owing to a mistake This may occur where one bids at an as to the price. auction under a misapprehension as to the amount of his bidding (h) but in any such case the facts woidd be
also be void for
want
were at liberty to prove his real intention or were estopped by his conduct and outward demeanour from
Mistake as to the property or price goes
to the rout of
doing
so.
It seems that
upon a
sale of lands, as
on a
sale of goods,
any mistake
quantity of the thing sold or the price, must necessarily go to the whole substance of the consideration at law since a contract is broken at law in case of the smallest
;
(c)
And
where one thought he was buying unincumbered freehold and the other intended to sell
of estate or title
;
as
covenants;
for,
as
we have
seen
{d), it is
an
essential
756, 759. () Above, pp. 750 It is further submitted that, according- to the case of Tamplin v. James, 15 Ch. D. 215, the fact that the parties' minds were not in truth at one, was not of itself alone a sufficient ground for the defen-
776.
&
C. 511, 512
Benjamin on
Sale,
43,
2nd
ed.
dant to resist specitic performance, the mistake having been on and that, in the his side only absence of hardship, he would
;
108, 121
(rf)
cf.
above, p. 727.
32, n. (5),
Above, pp.
194
197.
OF MISTAKE.
condition of the sale of land that the vendor
763
show a
as
^'
good title. But a mistake as to the quality of the thing Mistake ^^^ sold does not necessarily avoid the contract of sale for ^
;
"aT
warranty of quality
;
is
of
sale
it is
a collateral
it
engagement
^'
omitted from
It
may
be
thing sold,
the
if
was
(/").
With regard
quality of land
for
to mistakes in
sold, as for
Mistake as to
a 'th?n
<^^
example, whether
be
fit
sold!
growing whether a house or other building be in good repair or well drained, the reader must bear in mind the following
corn, grazing cattle, or for building, or
distinctions
:
The rule
make
{(j).
is
carcat emptor.
which he
is
buying
buys at
able
his
own
risk,
of defects in
by inspection and materially interfere with the enjoyment promised by the contract (A),_or by any representation which induced the contract, or be fraudulently In the case of the sale of land, defects J^Lfectof concealed (<). which are in one sense defects of quality, as interfering amouutiug to a defect of with the physical enjoyment of the land sold, may title.
See Scott v. Littledale, 8 E. B. 815: Benjamin on Sale, 45, 2nd ed. For an instance of a collateral warranty on a sale of
(e)
&
G
v.
(/) See Smith v. Hughes, L. R. Q. B. 597, 607611 Stewart Kennedy, 15 App. Cas. 108,
;
121.
land, see I)e Lassallf v. Guildfurd, 1901, 2 K. B. 215 (warranty that thedrainH of a house were in good
order).
hmiks, 7
Edwards- Wood v. MajoriH. L. C. 806, 809811 Sug. V. & P. 335 above, p. 610. (A) Above, p. 611. (i) See below, p. 769.
(ff)
;
764
OF MISTAKE.
involve a breach of the contract because they are inconsistent
showing a good title. Thus the existence of a right of way, not discoverable by inspection and interfering materially with the enjoyment of the property sold, is a good ground of objection to the title (A). But in tlie
absence of fraud, a defect of quality, not amounting to
'a
title, is
no
ground
on the purchaser's
vendor exj)ressly or impliedly warranted or promised that the property sold should have the quality, in Avhich
No
wan-auty
it
is
deficient.
And
no warranty
it
is
implied by the
mere
sale
(/).
of
land that
is if
fit
for
sell
any particular
a house which
is
pm'pose
For example,
one
human
in
good
repair,
well-
no legal
or
cause
of
complaint
{i)i).
This doctrine
by inspection
Where
, ,
Unknown
these are
,
unknown
,!
ji
to the vendor,
latent defects. --
vi
are no
any representation which induced the contract, they ground for the purchaser to avoid the contract
its
or resist
specific
performance
{ii).
And
the
same
3 Ch.
605,
where the
defect,
if
dis-
land; seeabove, p. 97, n. (). the case of a lease seems stronger than that of a sale, since occupation leases are generally taken with the object of using the land in some particular way,
sell
And
W.
52 Hart v. Windsor, ib. 68 Keates v. Cadoyan, 10 C. B. 591 Spoor y.Green,'L.R.9'Ex. 99, lOd; Wilson V. Finch Hatton, 2 Ex. D. 336, 342, 343. These are aU cases
; ; ;
of
agreement
to lease land
but
as farming it. (;) Keatcs v. Cadoyan, 10 C. B. 591 Cook v. Watty h, 2 Griff. 201; Cavalier v. Pope, 1905, 2 K. B. 757, 763, 764, affirmed, 1906, A. C. 428. (w) Ltieas\. James, THjaxe, 4.10,
;
OF MISTAKE.
rule
765
latent
sell
applies
to
at
law,
although the
Tlius
if
defect
his
be Latent
vendor.
defect
known
the
vendor.
one
at
house
the
knowni to the
law, unless
vendor sold the house as a residence for a respectable family or otherwise promised or represented that it was
fit
(o).
A fortiori,
(
if
land or a house
Sale of a
be sold with
in
thing with
its faults.
all
the description (q), the purchaser cannot reject it on account of a latent defect of quality, of which the vendor was aware. In equity, however, the rule has The rule in been suggested that a latent defect of quality, which is equity as to mere silence
prudent purchaser might reasonably be expected to make, and is known to and not disclosed l)y the vendor,
is
a defect of qualitj-.
formance
vendor's suit
(>).
But
it is
submitted
418 see Hope v. Jf'a/ter, 1899, 1 Ch. 879, 883, reversed, 1900, 1 Ch. 2o7 below, p. 770. (o) See Fiii/.hixon v. Ler, 2 East, 314, 322, 323, 324; Hi/xater v. Jtichardsot), 1 A. tt E. 508 Chanter Con/V. Hop/.liK, 4 M. .*e W. 399 fuot V. FowLe, 6 M. \- W. 358
:
thing- to order, when there is an implied warranty that it shall be reasonably fit for the purpose for which it i.s ordinarily used or specially ordered Jcjies v. Juxt^ L. R. 3 Q. B. 197, 203 Ben;
jamin on Sale, 525, 2nd ed. HorsfnU V. Ttiamax does not therefore support the proposition in Fry, Sp. Perf. 708, 3rd ed., for
^^
(the correctness of the decision in this case is discussed in the next Chapter but it sei-ins clear that
:
which
(
it is
vouched.
Jf"ulters,3Cdm^.
if
v) Baf/lchvliyf.
;
no
tion at all. there would have been (tause of action; (iomprrlz v. liartlett 2 E. & B. 849, 8.")o ; Jo)i,s V. Just, L. R. 3 Q. B. 197,
154 779 13
ed.
Benjamin on
:
Sale, 384,
2nd
202
Ward
v. Jfol,l>s,
App. Cas.
It is respect13, 21, 2.'), 26, 29. fully submitted that the dictum of .loyee. J., in Curlish v. Suft, WHU). 1 Ch. 33.'), 341, as to the vendor's duty of disclosure, is not well founded; see the writer's cuticisni in 50 Sol. .1 611. Note that the
P. 333, where note that the proposition stated at the beginning of 21 cannot be maintained see n. (r), below.
;
Sug. V.
&
('/)
Jiroirii/ir V. Cuiiipbe/t, 5
App.
statement in llornfull
I
v.
Thomas,
H. &
('. 9'),
Jartiircr's
duty
known
to
Cas. 925. {r) Lucas V. James, 7 Hare, 410, 118; Hopry. Walfrr, 1899, 1 Ch. 879, 883. Note that the rule there stated is qualified with " perhaps " and that the statement of the law in Sug. V. & P. 2, 333, which the rule purports to follow, was apparently founded on a case of Mcllish v. Molteux,
;
766
that this rule
suBject
to
is
OF MISTAKE.
too broadly stated,
and
is
properly
the
Lucas
James.
v.
or the concealment
V.
Jamosi.
(.s'),
own
of
He
broke
off
was
was
unfit for
The
brought a
Wigram, V.-C,
ground that no
dismissed the
bill
with costs on
tlie
contract had been formed: but incidentally he suggested But it appears that in the rule as above mentioned.
fit
known
known
to
for a gentleman's
and without making any promise or representation at all as to the character of the neighbourhood
or
the street,
why
should
specific
i)erformance
be
Lord
St.
Leonards main-
known
latent
be patent
so
{iC).
(f).
But
it is
not
The
is
a fraud; mere
tlie
silence
vendor
115, expressly overniled in Baf/lcholc v. IVaUcrx, 3 Camp. aDcl Fxclcv'mq v Doicson, 154 1 Dart, V. & P. 4 Taunt. 779. 101, 103, 6th ed. 93, 5th ed.
Peake,
;
Hare, 410.
Sug. V.
&
P. 333, 334
but
(o)
;
see p. 335.
{ii)
Above,
77'2,
p. 765,
and
n.
below, p.
;;
OF MISTAKE.
promised somo quality inoompatihle with tlio oxistpneo of tlie defect, or were uiidor a particular obligation to
tMScIose defects, such as arises iu the case of a coutract
767
of
insurance,
it is
which
is
a contract iilx'rrhmc
fidei {x).
by Sir Edward Fry in his treatise on Specific Performance that mere silence as regards a material fact, which one party is not under an obligation to disclose to the other, cannot be a ground for
And
stated
rescission
per-
formance
suit
And
one,
who kept
silence as to
to liim, but
Silence of the
considered that mere silence on the purchaser's part as about 'a fact to some fact known to Idm alone and enhancing the enhancinor the value of the property sold
valuable
minerals)
is
no ground in equity
time,
it
vendor to avoid or
contract
(a).
resist specific
performance of the
At the same
must be remembered
(.()
See
F.rpfe. irhi(tal:n\
;
L. R.
10 Ch. 44H
5
liii>w)iHc V. Cumpbell,
App. (Jas. 02o, 932. 937, 938, 9H, 9.')0, 9.')4. As t< the (//?<;
of Joyce. J., in (Jarlish v. Salt, 190G, 1 Ch. 335, 340, see above, p. 765, n. (o). 705, 713, (//) Fry, Sp. Perf. 3rd ed. Ttir'ier v. (hroi, 1S95. 2 Ch. (;) 205, where spe(nfic porforiiiauci' of an agn^i'iiioiit to (minpromise an action was ciit'orccd at suit of one. wlio had, o)i making the agrcciMciit, kcj)t silonc!"' as to tlic fact that he hail just hccudefeatcil in a step in the proceedings (irfcnhnliih v. llriiidlrij, 1901, 2 Cli. 324, where specific performauce was euforced at suit of a vendor, who had s'dd a house
access of light by the stranger's licence see above, p. 639, n. (/) Be Ward ami Jordnn'x Coutrnct,
:
19()-2, I. R. Ch. 73; Seddvu v. North Eastern Salt Co., Ltd., 1905, 1 Ch. 326, 334, 33o. (f/1 For \ Ma<krHh,-lBvo.C.C 400,' 420; Tiiruer v. Hnrrcij, Jac. 169, 178; IFaltirs y. Moniun. 3 Do G. F. & J. 7 IS, 723 Conkx v. lloswell, 1 1 Aj^p. Cas. 232, 235, 236 Ptrcirnl v. U'rif/ht, 1902, 2 Ch. 421, 426 Sug. V. & P. 5; Dart. V. & P. 106. 5th ed. IS. (itli rd. 114, 7th ed. Fry, Sp. Perf. ^S^ 713, 714. 3rd ed. It is submitted that the dirtnm of Kiudersley, V.-C, to the contrar}.
in
5 Jur. to the
Fnlchr v. Graii, 4 Drew. 651. N. S 645, ()46, is opposed main curreut of authority
^^'i
with
windows
laml,
overlooking
stranger's
and
lie
mentioned that
had
444
446,
768
tliat
OF MISTAKE.
in granting or
may
would be
no
accoiuit at
law
the contract
{h)
Thus the
Coiu-t
may
refuse
specific
formance
may
be refused on
performance at
suit of a
grounds of
unfairness or hardship.
wanting in good faith or fairness {b), or against a party whom the specific performance of the contract would and it seems that on these inflict a great hardship (c)
on
;
poH.nb/// decline to
grant specific
suit of either
known
to
him and
material to the
value of the property sold, notwithstanding that such concealment may not amount to positive fraud {d). In
a recent case, however, where a vendor kept silence in a manner which the Court considered to be unfair, that
tlie
was not allowed to stand in the way of his obtaining remedy of specific performance, though it was made But it should a ground for depriving him of costs (r).
be noted that non-disclosure, on the sale of land, of a fact material to the tit/c of the property sold stands on
a different footing from non-disclosure of a fact relating
to its quaUti/.
exclusively
to state
it
The vendor's title is a matter which is within his own knowledge, and he is bound
;
fairly
and
to the title
may, according
;
to the degree in
{d)
which
it
(*)
n.
(rf),
below,
778,
{c),
v. Adams, WatKon v. Marston, Falck'e v. 4 De G. M. & a. '230 Webster Gray, 4 Drew. 651, 659 Durham v. V. Cecil, 30 Beav. 62 Freston v. Legard, 34 Beav. 611 Fi'dd Lnc/c, 27 Ch. D. 497, 506 X. Ltiscelks, 1900, 1 Ch. 815, 820; Goddard v. Jeffreys, 30 W. R. 269, Van traagh v. Everidge, 270 1902, 2 Ch. 266, 271, reversed on other grounds, 1903, 1 Ch. 434 above, p. 39 below, p. 776.
(c)
Wedgwood
;
6 Beav. COO
See EUurd v. Llandaff, 1 B. 241, where a lessee for a life negotiating for a new lease concealed the fact that cestui que vie was at the point of death
Ball
&
FothcrgiU v. PhiUips, 2 Ch. 205 L. R. 6 Ch. 770, where a purchaser concealed the fact that he had wrongfully abstracted a large quantity of minerals from under Fry, Sp. Perf. the laud sold ^ 402, 715, 717, 3rd ed.
: ;
[e)
Greeuhalgh
v.
Frindlcy, 1901,
Ch. 324.
OF MISTAKE.
affects the title,
769
or for resisting
performance
(,/').
On
house
if
the vendor represent that a Representation that land is fit for a particular
good repair {y), or is not damp (/<), or that the drains are in good order (/), or the cellars dry (A-), or that a farm is in a high state of cultivation (/), or
in
sell
purpose.
land as being
preinises
fit
business
(//),
(o).
If,
ground that he must be taken to bought with notice of the defect {p). But any concealmont of defects which would otherwise be
Active concealment of
defects.
discoverable
by
inspection
is
(>)
a fraud
{q)
and
if
a pur-
he
may
(/) Eihvards v. TViclnrar, L. R. 68 Monti/n v. Vest Jfosti/ii <'oal and Iron' Co., 1 C. P. D.
1
Times
1907.
{k)
New.spaper,
10th
May,
!>.
Piq.
Lamare
414.
v.
v.
Dixon,
R.
Marsh and Earl Granville, 24 Ch. D. 11 Hey wood V. MalMieu, 25 Ch. D. 357
145
;
lie
H. L.
{I)
Dyer
Hargrave, 10 Ves.
505.
Tile
Co.
Rene
v.
;
Berridge, 20 Q.
:
D. 778 B. D.
v. Gates,
52.3, 528 Re Jhirin and Cavei), 40 Ch. D. 001 Re While and Smith's Contract, 189'.), 1 Ch. 637 Re Haedicke and Lipski\'! Contract, 1901, 2 Ch. 66G tJarlish v. Salt, 1906, 1 Ch. .'135, a.s to which case
; :
Re Pitckett and Smith\t Con1902, 2 Ch. 258; Dongherti/ 45 Sol. J. 119. () Re Davis and Carey, iOCh.T). 601 above, p. 205.
(>/)
tract,
(o)
Siig.
SCO the writer's criticism in 50 Sol. J. 611 above, pp. 73, n. [l), 77, 78. 196198, 205, 351, 608, n. (q).
;
V.
&
if/)
;
Grant
v.
Mnnl,
Gr.
Coop.
Camp.
Dyer v. Ifargrare, 10 Vos. 173 Cree v. Stone, Times News505 paper, 10th May, 1907. Strangicays v. Bishop, 29 (A) L. T. O. S. 120.
;
(J)
I)e
Lassalle
:
v.
1901, 2
K. B. 215
506, 508. (r) See Horsfall v. Thomas, 1 H. & C. 90, dissented from by Cockburn, C. J., Smith V. Hughes, L. R. 6 Q. B. 597, 605, and doubted in Benjamin on Sale, 385, 2nd ed. The decision seems, however, to be in accordance with
W.
49
770
accordingly.
OF MISTAKE.
Tims
if
craclcs in
be papered
them,
its state
who has
(.s).
inspected
it,
the contract
void-
able
for
fraud
And any
conduct calculated to
fact,
him from inspection or inquiry, which woidd discover a defect known to the vendor, is equally
fraudulent,
contract
Specific
at
{t).
specific per-
formance
I^erformance
may
be
may
where the
contract
be a good ground for the purchaser to resist the specific performance of the contract, notwithstanding that it be
insufficient to procure the contract to
cannot be
rescinded.
be rescinded
{u).
Tims
was
Hopr
V.
iralter.
by
forced to com-
plete,
would be
liable
Law Amend-
to be fined unless
principle, to tlie
Mall
Co.,
L. R. 2 Q. B. 580
;
Re
Ben/isier,
1900,
;jth
ed.
(.s)
See Sug. V.
IFalfem
v.
;
&
P. 333335.
Moir/an, 3 De G. Coaks v. BotF. & J. 718, 724 well 1 1 App. Gas. 232, 235, 2.;6. Faneima, S;e. See Kennedy v. ()
{t)
Ch. 257, reversintr the decision of Cozens-Hardy, J., 1899, 1 Ch. 879, as to specific performmice,
and affirming
point.
{y)
it
ou the other
OF MISTAKE.
immodiately ejocted, on pain of the purohasor becoming
liable to criminal proceedings, hardly fulfils the expec-
771
tation of enjoyment,
of
which
is
raised
by the
description
(s)
.
an
investment
Or
Specific
may
be put in this
specific
way
?ntd^
the
performance of a where
contract to purchase a thing, which is positivehj noxious positively in quality, notwithstanding that there were no warranty noxious in
of quality,
the description.
and that in other respects the thing answer For example, a house may be so illit
drained that
is
dangerous to
illness
live in it
the vendor
may
be aware that
and yet the purchaser may be unable to avoid performance of the contract. He buys at his own risk he ought to have the drains tested for himself; and drains may be tested and put right without any extraordinary danger to the workmen [a). If, however, a house were infected witli the germs of disease, such as plague or smallpox, so that any person entering it must incur the danger of catching the malady, and the vendor
;
it
is
was
dis-
life of
those
who
entered
to
do
its
so.
It appears therefore
mistaken impression as to
the vendor
quality,
he must in general
,'^'^taken
own
as
made by warranty
was known
v.
to him.
[z)
1
Walter,
1900.
Ch.
(<i)
767.
6
coutract
n.
(o)
;
see above, p.
\
76;')
[h)
Conifiiiit v. Fotrf.r,
M.
v.
and
Jl'ayd v. Huhhs,
App.
& W.
VoicelK
3X0, 3S1
Chr.stir
f^l
L. T. 722, 723.
But
49(2)
772
Vendor not bound to
disabuse purchaser of his erroneous
belief as to
or MISTAKE.
Not ouly
to
is
npon
a vendor
any
defects
known
him
vendor
as to
A vendor may
well sell a house, which has got dry rot in all the wood-
work and
is
tlte
contract
made no
is
And
tliis
purchaser suppose
be warranting the
purchaser
believed the
vendor to be
warranting' the quality, if the vendor did not know
this.
not aware of the purchaser's belief in this respect and had done nothing to induce it. So long as the vendor knows no more than that the purcltaser is mistaken as
to the quality, the purchaser's further
erroneous belief
is
is
no ground
does not
And
it
knowledge
is
vendor
(if
not
known
to the
tlie
specific
performance of the
unless he can
move
59i
V.
Hnffhes, L.
;
R. 6 Q. B. 597,
Ch. 205. {d) See Stmth v. Jhajhes, L. R. 6 Q. B. 597. cases cited See above, (p)
'\z).
607 Fry, Sp. Perf. 705, 713, Turner v. Greet), 1895, 3rd ed.
:
p. 767, n.
OF MIS'lAKE.
oi'
773
however, the vendor But
to be warranting ^f
if
If,
the
know
})urc'haser believes
him
^\^\^ belief,
the quality of the thing sold, and agree to the contract the
contract
of true
expectation,
but without
disabusing
the
"^^*'-
that case there is no true and on this ground the contract is void {(j). The same law seems applicable where one, Acceptance of who knows that tliere is a mistake in the terms of an twlce^^OT^' offer, accepts it unconditionally and without coiTecting knows to be the mistake, being minded to take advantage of the other's error. Thus if A. offer to sell to B. Blackacre and Whiteacre for 2,000/., and B., knowing that A. really means to offer Blackacre only or to ask 4,000/., but intending to hold A. to the letter and not to the
purchaser of his
belief, in
consent of
tlie parties,
offer, it is
from proving liis mistake, and the contract is void for want of true consent. For B. knew that A. thought that B. was promising to take Blackacre only or to pay 4,000/. and he ought not to have sought to take advantage of such a mistake (//) In a case like this the acceptance of the offer, with knowledge of the mistake
thought that A.
is
not estopped
in
its
terras,
ai)pears to be plainly
fraudulent
of
and
the
acceptor
may
not
take
advantage
therefore
liis
own
wrong.
of
The
other
party
has the
choice
two
alternatives.
He
tract
by reason of his mistake, or and enforce the contract according to the terms which he had really intended to propose,
as altogetlier void
he
may
affirm
((/)
man
Q. B.
[h)
is not bound by the exact terms of a desiripti<in or representjition whicli lie has put for-
See U'rlisfrr v. (Wif, 30 Beav. G'l, as explained in Tniiip/in V. Jatms, 15 Ch. D. "21.5. 'Ill Ttiijct V. Mitixhitll, 28 Ch. D. 'i;)."), The ease appears to be _'l)0.
;
ward or made to another, where the other has notice that its terms are iuaccuiate above, pp. Ol'i,
;
7(;<l,
andn.
(/y)
Cn/rriffi/ v. ll't/;
/(f//.v, I
governed
as
is
liy
tlie
same jirimiple
v.
74
OF
ISILSTAKE.
notice,
and claim-
terms.
And
if
want
of true consent as a
ground
tract, or
from objecting
to rectification
on the ground
made bj
to both of
them
(/).
So
far, in
we have
(/.).
dealt mainly
common law
Where
the
Unilateral
mistake in
equity.
same position in equity as at law. I'here can be no question of any order for specific performance of the contract, for this remedy is, as we have seen(/), only granted to enforce a valid contract. But where one party has entered into the contract under a mistake, which is not shared by the other, and the one is estopped at law from setting up his mistake and proving
his true intention, the
parties
same
position,
as
Thus where
the vendor makes a mistake in the preparation of the particulars of sale, and includes therein more than he
really
meant
so that a
man would
meant
what he actually
offered,
(i) See Garrard v. Fninkcl, 30 Harris v. Pcppcrell, Beav. 445 liloomrr v. Spittle, L. Ti. f) Eq. 1 ragrt v. MarL. R. i:^ Eq. 427 as explained kIkiII. '28 Ch. D. 'l'>h
;
7th cd.
(/)
sq.
in
.1/r///
;
V.
I'latt,
6Jo
roUock
Above, pp. 749 sq. {!) Above, p. 761. [ill) See Rr Fairrr'tt (Did Hulmrs^ 42 Ch. IJ. 150: above, p. 728; Maj V. I'liilL, V.m), Ch. 016.
I
OF MISTAKE.
tho contract
since he
is
775
would be estopped from proving his mistake (ii). The vendor is also estopped from setting up his mistake in equity to this extent, that he is not entitled to
the
rescission
its specific
claim
of
the contract
(o),
or
to insist
himself on
of
if
he be able to do so
(7),
have seen
ment
is
But
if
may in
up owing
This
of
remedy
specific
may
But
it is
not
may
own mi^take
as a defence to
the action.
defendant's
own
having done nothing to induce or contribute to the error, nor having sought knowingly to take advantage of it,
and
then
as
if it
will inflict
to enforce
it
him
to
from
(m)
avoiding
his
liability
at
law
\-
(s).
Thus
Above, pp.
^lliiiiilei/
7o(),7o-{,7.')-'),7o9.
nairU, 2 ilai-.
//)
CI.
1, S.
(o)
V.
7.
Kiiiiiiiini,
'1
Ma<-..
tc
tJ.
1.
Srof(
v.
Littlcdoh', 8 E.
&
B.
81.").
Aln)V(\ pp. ~T,i, 727720. (V) Abnv<>. pp. 39, 7('S. (v) Taniplm v. Jumcs, \h C\\. J). IXr^; G<>.id<inl\\Jcftejf/60\\\li. 209, 270.
776
OF MISTAKE.
where
the
vendor
has
in
these
circumstances
of
sale
in-
more
than he meant to
cally,
sell,
specifi-
and must convey the whole property described, if he can or if he cannot, he must convey what he can with a proportionate abatement of the price (/). So it appears that, in the like circumstances, a purchaser who has by his own mistake signed a contract to buy a property smaller than be supposed it was {it),
;
performance
against a party mis-
from that which he intended to performance on thegroimd But where it would be a great hardof his mistake. ship on the party mistaken to oblige him to perform
or
even different
resist specific
taken may be relief to the other party, but will leave him to pursue refused on the ground of Thus where one wrote a letter his remedy at law (//). hardship. offering by mistake to sell his land for l,2o0/., meaning
in
v. Jdincs set definite limits to the equitable rule expressed of old in the proposition that the Court will refuse specific performance on the ground of mistake (see Xcap v. Abbott, C. P. Coop. (1837-8), 333; 1 C. P. Coop. t. Cottenham, 382; Manser v. Back, 6 Hare, 443, 447, 448). The decision in Tamplin v. Jaiin-.s shows that the Court will not now Tniipliii
where
specific
performance was
and
that, notwithstanding
refused at the vendor's suit in exactly the same circumstances. ]?ut note that Kekewich, J., held that in the circumstances of the case bi'fore him it was no great hardship to enforce specific performance against the purchaser, and expressly recognised that, if this were not so, specific performance might have been refused see 1002, 2 Ch. 271, 272. It is respectfully submitted, however, that the learned judge was right
that the parties' minds in making the contract were not in truth at one, a defendant to an action in equity for specific performance of the contract may be estopped from saying so. See above, p. 762,
and
u. ().
Tumpl'iH V. Jamen, 15 Ch. D. Goddardx. Jeffreijs, 215, 217, 221 30 W. R. 269, 270 Van Vraaifh V. Kvcrldi/e, 1902, 2 Ch. 266, 271,
(y)
; ;
OF MISTAKE.
to say 2,250/.,
777
a(3cepted,
tlie tlie
and the
ofPer
was
Court
purchaser's
And
meant to sell, it appears tliat the Court may decline, on the ground of hardship, to order the specific performance of the contract at the purchaser's
elect
suit,
unless he
to
really intended to sell (n). So also we have seen that where a vendor has innocently made a serious error of
description to his
ported to
tlie
sell
own much
has,
this
would be a
one I'arty Whereonehas
And where
way to the other's mistake, as to ^}^^, other's the particulars of or contract for sale contain any mistake,
of ordinary intelligence using ordinary care, then
man
tlie
other party
may
resist
If the Wherconclias
iu the
particuhirs.
time of
really intends to
formance of
tion
;
tlie
for the
vendor
may
(:)
ii"2
;
irc/i^/n
V.
r,ci/,
30 Ben v. truod v.
,
(/;)
, \
Above, p. 726.
ir
2 Ihirliam v. 34 Beav. 611. 614; Uiidd v. LimvclU", r.XtO, (Jh. SI."), S20 above, p. 724.
v.
Alcauk;/
(J.
Kbniaird,
Mae. &
l.iyiird,
1.
7;
1
^Jf/ff'^^on^- Clowes, ,, \ es. . tiii.dislatid V. olO Diamleij, 29 Beav. 430 Tnmphn v.Jaiiiin, 1.) Ch. D. 21o, 216, 221; Gnddard v. .IvfTrei/s, 30 W. R. 2(!9, 270:
.'') ; ;
. -,-
/////
(li.
1002. 2
778
OF MISTAKE.
Iho parties' true iutentiou (d).
if
And
as
wo have
title to
seen
(c),
in
sucli case
the land
is
pensatifm.
he (sannot
as
take and
souo-ht totake
advantage
/').
Indeed in
this case,
we
have seen
is
(//),
it
may
void at law.
Common
take as to
mis-
the
parties,
is
it
may
also be void
where the
parties'
minds are
of contracting, but
ininfah-e
is
with respect to
of a contract. of a thing
si^nie fact,
On
this
ground a contract
void
(/).
made
is
for
life
estate,
tenant for
the
life to
is
be
alive,
when
;
in truth he
dead,
contract
its
altogether void
;
the
purchaser
may
resist
performance
and
if
it
may
be set
and the purchase money may be recovered as money paid under a mistake of fact(/i). The same
[d) Cahcrleij v. Wdlwutti, 1 Vcs. un. 'ilO lhiv)ish(iid v. Stamjroom, (5 Ves. 328, 311 above, pp. 729, 769, and u. {p); below, pp. 782^v/., 788. (f) Above, p. 72G.
; ;
(//)
{ft)
..'/.
IVrlister V. Cecil. 30 Beav. (./) 02, as explained in Tmnpliit v. James, lo Ch. D. 215, 221, 222.
Hitchcock V. GuiiliiHis, 4 Strickland v. Tiirtur, Price, 135 Cottturier v. Ilantie, 5 7 E.\. 208 H. L. C. 673. Oiddinys, (/,) See Hitclicuck v. IStricklaiidv. Turner, 4 Price, 135 Cochrane v. Willis, 7 Ex. 208
(j)
; ; ;
OF MISTAKE.
law applies
reversion
to the sale
79
of an estate in remainder or
expectant on
life
estate,
if
living,
dead
or to the sale of
tail,
a.
reversion or remainder
expectant on an estate
if
time of
existence
sale,
(/).
the
parties supposing
it
to be
still
in
So
appears that
if
a contract be
made
is
property
void
if
is
existing in
its
was made the land were washed away by the sea, or the house destroyed by fire (tn). In sucli cases, liowever, the thing sold must have been utterly destroyed so as to have ceased to exist at tlie time of sale mere deterioration in quality, though unknown to both parties, is not sutficient to
at the time that
;
if
And
by
in
the
the
sale
of
a house
destro3'ed
to
fire,
the
would appear
depend on the
sold.
Thus the
void
if
sale of a single
time of
But on the
that
comsome cottage or
farm house or building was burnt down before the sale appears to amount to no more than a depreciation in quality and to be insufficient to render the contract
altogether void on the ground of
common
mistake.
L. R.
l!)0;j.
Ch.
Cli.
")S;
Scvtl v. Couhoii,
Beav. 188.
(m) Tric^,
Hi(,/,cor/,13.j.
-1
J4'.);
1
Mrk'iii'.oii. l!)0;t,
v.
(iii/dui./s.
M.
A:
W.
780
Depreciiitiou in quality
OF MISTAKE.
mere depreciation
in
quality,
unknown
to
sale,
as
unknown
If,
however,
it
were an essential
state
in
some particular
of
then
it
in quality
unknown
tlie contract would be void on account of tlieir common error as to a fact which formed the basis of their
contracting.
'nniuiou
<
For
to
this
niistaki' a
private
rij :ht.
right, such as a
land, stands
if
it
man's title to some particular piece of on the footing of a mistake of fact. Thus
A. agree to sell Blackaere to B., both parties believing belong to A., and it turn out afterwards that the land really belonged to B., the contract is void, B. may resist its performance either at law or in equity, and if
to
it
may be
set aside
!^
2.
Of
Jlisfaki'
ill
if.s
Mistake
It has been already mentioned (r) that, besides mistake avoiding an apparent contract or conveyance on the ground of want of true consent, there may be
mistake in the expression of a true consent and that in this case the agreement may generally be rectified.
;
We will now
(o)
Ch. D. 779
Yes.
sen. \'1G
Bro/n/htoii v. Hntt, 3
Do
Huddersjicld Biiiikiug Sux, I.d., Allcurd v. M'alkcr, 1896, 2 Ch. 369; lie Huberts, 1905, 1 Ch. 704. (r) Above, p. 748.
:
tj-
OF MISTAKE.
781
is
'.'*
written
),
on the ground of
i.
its
i.
not
i.1
tlie
true
m-
is
a matter depending
Equity now
[t).
vested in
tlie
And
-A-n
exception
we
will
"'
that extrinsic
e^'i'lenceisnot admissible to
Law and
Equity
(),
that explain
or
i^uJt"^i]^ents^
written instrument
is
the
terms of
the
is
writing
general principle
prove by evidence outside the instrument that thn intention expressed therein was not their intention
;
or
more
tliey
briefly, tliat
parties) u/caiif
is
The
that
by
tlie
Courts in
of
the course of
construction or interpretation
Thus the Court will correct all errors which are apparent on the face of any written instrument as a matter of the construction or interpretation of its terms and without admitting extrinsic evidence to explain them (s). So
{.()
Correction of
errors!^
Above,
p. 3.
W.
Ball V. Storic, 1 Sim. & Stu. 210,211); sf>c Wms. Real Prop. 107, 21st ed.
(/)
{it)
374 Dnrd. Norton v. Webster, 12 A. cfc E. 442 ; linrlon v. Dawes, 10 C. B. 261 ; Abro/ v. Cru.r, L. R. 5 C. P. 37 Er'aris v. Ro,
; : :
383, 384; Rir/i v. Jar/.son, 4 Bro. Jlall C. C. r)14, 6 Ves. 334, n. V. Storii, 1 Sim. A: Stu. 210, 218, Rimniei/,:^ Itrailfordw 21!); Beav. 431.
;
(.r)
Rat land's
rase,
.i
Rep. 26
65
Adams
v.
L. R. 7 C. P. H'.S Henderson v. Arthur, 1907, 1 K. B. 10; see above, pp. G40, G41, 6()0. (y) J>oed. Templcmaxx. Marthi, 4 B. & Ad. 771, 783, 786 Doe d. (iwillim v. Gaillim, b B. & Ad. 122, 129 Ricknian v. Carstairs, ib. 6.')1, 663 above, p. 750. {:) foles y. Halme, 8 B. & C. .'>68 Ifilson v. Jnison, r, H. L.
;
; ;
782
also
OF
ISriSTAKE.
where the terms of some agreement embodied in a written instrument are upon the face of it ambiguously or inexactly expressed, the Court will not, as a rule,
admit extrinsic evidence of what the
parties' intention
instrument alone, and decide, on consideration of the words used therein, what interpretation shall be given
to them, or
all {a).
Eectification
to the rule, to
let
which
rectifica-
forms an exception,
us pass on to rectification
itself.
Sug. V. & P. 171, C. 40, 66, 67 lir DnnieVx Setf/ciiinif, note (1) Greenimod v. 1 Ch. D. 375 MoiirGnetmood, T) Ch. D. 951 ninndx. Le Clair, 1903, 2 K. B. 2 Hi; Be Dayrell 1904, 2 Cli.
; ; ;
onli/ admi.s.sible
lOT)
R<'
Alexander'' s
Sfiltlrinoit,
225
tq.
Norton
on
AHham's
;
case, 8
Rep. loOb,
Cronmc v. Lediard, 2 My. & Sanndersov v. Pijjcr, 5 K. 251 Norton on Bing. N. C. 425 Deeds, p. 98 see also Hic/j/yno)/ Cloues V. C/oices, 15 Ves. 516 V. Mic/ffiiisoii, I V. & B. 524 Sug. V. & P. 161 Jfarshall v. This Berridf/e, 19 Ch. D. 233. is hardly the place to state in full the rules, with their exceptions, as to the admission of extrinsic evidence in interpretation of written instruments. The reader is referred to Stephen on Norton Evidence, Arts. 9092 on Deeds, Chaps. VI., VIII. Wiu'ram on Wills; L. Q. R. xx. But it may be pointed out 245. that, whilst extrinsic evidence of external facts, of her than the fact of what the parties actually intended, is admissible to elucidate descriptions, apparently capable of being reduced to certainty by such evidence, of persons or thing.s mentioned in the writing, evideuco of the actual intention
155
; ;
;
:
turns out, after attempting to elucidate a desci'iption of the above character by proof of xi/ch exteniHl facts, that the description is equally applicable to several objects. Sef above, p. 760 Alt5 Rep. 68 aiifit/neii'' a ciine, Jones v. hani's case, 8 Rep. 155 Miller v. Xeu-man, 1 W. Bl. QQ\ Doe d. Travers, 8 Bing. 244. 248 Mor'/an v. Morgan, 1 C. & M. 235 Boedi. Gord v. Needs, 2 M. & W. 129, 139, 140; Doe d. Bibcocks v.
it
; ;
where
Hiseocks,
M. & W.
303, 368,
N. S. 578"; Lacei/, 17 C. B South Western Jfalpas V. London Bl/. Co.,!.. R. 1 C. P. 336; Morffan
V.
(S,-
R. 6 Ex. 70 Griffith, L. Erskine v. Adeane, L. R. 8 Ch. Lamarc v. Dixon, L. R. 6 756 H. L. 414 Angellv. Duke, L. R. 10 Q. B. 174"; De La.<<s(ille v. Gmldford, 1901, 2 K. B. 215; Frith V. Frith, 1906, A C. 254; Be Taiihr, 1910, 1 K. B. 502,
V."
;
572, 581.
OF MISTAKE.
written instrnmpnt purportino^ either to contain or to
'^^^^
783
"* express thp
carry out an agreement between the parties tJiereto, it parties' real ^^^ement. it be proved by clear evidence that the instrument as
or give
effect
to
their real
rectifi-
must be sliown
effect to that
antecedent contract in
common
is
intention of
embody-
That
this
an essential condition of
if
tlie
some term
give effect to
embody or by the
it is
may
be rectified
(r/)
and
no
lf>)
Uvidiife V. Hiilfpetiny, 2
y.' J.o),th,)i
.54.);
P.
W.
V.
1
151; Mottciix
1
As(Jo..
snrance Co.,
Jlui/(il
Atk.
llexkle
C. C. 02 rurtinorr v. Morris, 2 Bn.. C. C. 219; Toini-^hni'l v. StiDttjroom, 6 Ves. 328, X\'l, ;};j3
; ;
Kxchiiixjc
Axsurame
Voiii/lon
v.
Staifs, 2;i
L. J.
Cl.
4.")6
Ves. sen. 317; Baker v. I'liinc, ib. Ball v. Sinrif, \ Sim. & Stu. ;
87o.
210; Cowen v. Truefitt, Lil., 1899, 2 Ch. 309; above, p. 644, n. {k). {c) Mnrkeiizie v. (Joiihou, L. K. 8 E(j. 368 {dj See T'nultr v. I-'otrkr, 4 Do
(j.
c. 3, s.
Mortimer
v. Shorlall, 2
Dru.
& War. 363, in which ra.sc a loaso of land for life cxccutetl in jiursuanco of a jiarol atrrponu-iit was
rt'otiticd
:
&
(<-)
('owr/i
v.
Triafiti.
I.,l.,
sou.
Irnhainw
(.'hilil,
Bro.
784
antecedent
contract
OF MISTAKE.
was
one
wliicli
the
Statute
of
Frauds
(/-)
requires to be in writing,
made
word
b}'
word
of
mouth only
the
contract
;
(i).
of
mouth,
was not void, but and if the parties really such a contract and had also a common
(/.)
to fraud to
allow the
some material part thereof, and there were no common intention to put the whole contract into writing, the document cannot be rectified. If this were not so, the Statute of Frauds could never
contain the contract, but omit
be enforced.
(/>?),
a person charged
a written
memoran-
dum
is
memo;
by reason of its not containing the parties' Avhole agreement and it does not appear that this defence can be met by a claim for rectification, unless it can be shown that there was a common intention of signing a perfect memorandum and that the omitted terms were left out by mutual mistake. Thirdly, the antecedent contract and the common intention of embodying it or carrying it out by tlie writing must be proved by very clear eviinsufficient to satisfy the statute
Stat. 29 Car. II. c. 3,
3.
s.
randum
(//)
above, p.
(i)
Thomas
;
301, 303
(Z-)
the contrary of Alderson, B., in A.-G. V. Situ-ell, 1 Y. & C. Ex. 559, 583, takes no account of the
earlier
Above,
;
See Fitcairn v. Of/bourne, 2 Ve8. sen. 37o Tvmher v. Mathcm, 1 Bro. C. C. 52, :^\ Clarkex. Grant, Fry, Sp. Perf. 14 Ves. r)19, 524
(/)
;
and the preceding notes and not good law. [in) Above, pp. 4, 8, 9.
OF MISTAKE.
the rule is that, when embodying some legal agreement or act in writing, they are bound by the intention expressed in the writing and the whole
denoe
for, as
we have
seen
(n)
burthen of proof
tion
lies
For
this
reason the
whom
rec-
though
p)
it
overcome
for this
by
And
reason
where
rectified
it
is
shown
sought to be
HTifing,
was executed
pursuance of and
required to induce
is
In such
cir-
had come to a new agreement after they had made the agreement in writing, or had made a mistake in the
(w)
(o)
Above,
p. 7S1.
V.
jiarol
eNadence alone
to prove it. obviou.sly be
;
is
inadmis-
Royal K.rchnHffv AxHurancf Co., I Ves. sen. 817,319; Townxhetvl v. Stangronm, (J Ves. Fouler v. Fouler, 4 De 3i8, 333 T>icker v. BenG. & J. 2oO, 264 nett, 38 Ch. D. 1,9. I'itrairn v. Of/bourne, 2 Ves. ( p) Toicnuhend v. sen. 37o, 379 (5 Ves. 334 328, SluHf/room, Bloom-r v. Spittle, L. R. 13 Eq. It is 422, stated below, p. 796. submitted that there is no rule, as sug-gested by the dicta of Lord Leonards in Morfinnr v. St.
; ;
Htnkh
sible
Such a rule
would
to
Shoriall, 2 \)r.
& War.
B.,
363, 374,
and AJderson,
SUwell,
1
in
A.-G.
v.
C. 0.59, .5S3 (accepted in Pollock on Contract. .513, 7th ed.). that if the alleged niLstake be denied by one of the parties to the written instniment,
V/.
Y.
&
fraud and authority is against Lord St. Leonards' dictum. Parol evidence was admitted and prevailed in face of the defendant's denial in Pitcairn v. Oyhonruf, 2Ves. sen. 37'), 379; Garrard \ Fran/,rl,,iOBt'll\. 445 and I'aaet v .Marshall, 2S Ch. D. 2,55 And Baron Alderson's true meaning appears to have been that the Statute of Frauds prohibits the admission of parol eviden<te to pro\'e a aise for rectification in the face of the defendant's deuial. But as we have seen, this pr(i]>c>.>ition cannot be upheld al><)ve. pp. 7S3, n.
;
'
(.</),
784, n.
(i).
50
786
OF MISTAKE.
prior agreerapnt in writing as well as in the instrument
it.
who would
is
some term
in his
own
is
favour,
new term by the other party, there want of a consideration no contract between them
in this difficulty, that if tlie
to
{q)
though
it
if
new
term,
In the case of an
effect to
it,
the
plaintiff is in truth
and
These authorities
now proposed
to examine.
It has ever it has been clearly established from the earliest been held that of modern equitable jurisdiction that a man times one may claim
Now
may
rectification
as plaintiff.
common
to all
prove by extrinsic
common
seen
(s)
,
intention of
embodying
\vi-iting (r)
by the
And
it is,
as
we have
is
(Statute of
Frauds
but were
made by word
(q)
{r)
(s)
{b), {g),
(t).
OF MISTAKE.
well settled that rectification will be granted in equity
TS"!
Rectification
contracts, those
not only of written instruments in the nature of executed fnstruments which are meant to give effect to some embodying
p
. .
executoryas well as
t
tory nature
merely intended to embody an agreement of an execu- ^^^eem {f). For example, a written contract to sell
land
may
Fvu-thermore,
it
appears Claim
for
^JJJ^jft'ifJ''"
joinod with
be relief under ioined with a claim for equitable relief in respect of the the writing
.
And under
the rules
(//),
roctined.
by
the
Supreme Court
it,
is
before
any
may
appear to be entitled to in
respect of
any and every legal or equitable claim proby them respectively in such
may
be
all
multiplicity
any
of such matters
avoided.
Now
it
would appear
to be a necessary con-
man may
first
apply as
may
and
further,
{z).
he
may
18 Vos.
(.r)
o4().
V.
406; IJodykiiisoii v. Strdmau v. U'liutt, 9 Beav. 566 CollHl, 17 Beav. 608. (m) OUey V. Fisha; 34 Ch. D.
I'ahif.
ib.
See the last three cited in note (/), above. :{7 Vict. (//) Stat. 36 &
s.
oases
c.
6G,
24
(c)
(7).
^ ;J17,
p. 227.
Ist ed.
7S1, p. 346,
2nd ed.
50
(2)
788
OF MISTAKE.
On
this point,
is
at present uncertain.
The reason
Rule that
specific per-
of this
as follows
It
of
the
Judicature Acts, that a man is not entitled to enforce, formance of a written as plaintiff, the specific performance of a written agreecontract with This decision was placed a parol varia- ment with a parol variation. tion cannot on of the general principle above stated {<() the ground be enforced by a plaintiff. that, if one seek to enforce a written contract, he is
bound by the words used in the -writing in which it is expressed, and extrinsic evidence is not admissible to show that the parties' real intention is different from
Hich V.
Jackson
;
{h).
It
is
Woollnm V. Hearn.
principal cases so det?iding no express claim for rectification of the agreement appears to have been
made
but as the
was for the specific performance of a written agreement to grant a lease alleging a mistake in the amount of rent therein stated to be reserved and
bill
w^as
Davies v.
Fitton.
claimed
(c).
Besides
by Lord
St.
Leonards in a case where rectification was claimed of a lease, which had been executed in strict accordance with
an antecedent written agreement, on the ground of a
common
ment
distinction was, however, taken with The defendant respect to the assertion of a parol variation of a written
{(l).
in specific
performance
(!imtract as
may
parol
set
up a
And
it
variation.
Above,
p. 781.
Rich V. Jackson, 4 Bro. C. C. Woollam v. ol4, 6 Ves. 334, ii. Hearn, 7 Ves. 211, 218, 219; Davies v. Fiction, 2 Dru. & War. see also Squire v. 225, 232 Campbell 1 My. & Cr. 459, 480 Manser v. Back, 6 Hare, 443, 447 Thompson v. Hickman, 1907, 1
; ;
;
Ch. 550, 561. (c) See liich v. Jackson, 4 Bro. C. C. 514; Woollam v. Hearn, 7
Ves. 211. (d) Davies v. Fitton, 2 Dru.
&
War.
{e)
225, 232.
Above, p. 778 and n. (d). At law the defendant is bound by the writing and cannot allege any
OF MISTAKE.
establislied that a
insist that
789
may
parties' real
made
by mistake or inadvertence been omitted from the writing, and that it would therefore be inequitable for the plaintiff to enforce against him the extraordinary remedy of specific performance, except on
orally in his favour has
And
may adduce
if
And
party's disadvantage, he
may submit
to
it,
even though
;
performance as plaintiff
for he
is
some extraneous
fulfil to his
act or promise
which he
specific
offers to
do or
own
detriment
{(j).
But although
which refused
performance at the
were
it
was
by a common mistake been left out, as to enforce remedy against him without a term so omitted aud enuring to his advantage (//). As we have seen(/),
luid
the same
vai-iatioii
I'orvill V.
6 Ford v. 549.
;
;/)
-Uartiii v.
;
F;/erofl, 2
De G.
Luck,
M. & G. 78o
27 Ch.
cf.
PresUm
v.
497.
(/) Joytics V. iStathaiii, 3 Atk. 388 llamsholtom v. Gusdon, 1 V. * B. 16o; Witich V. Wuichester, London and Birniinyhain ib. 37') Jiy. Co. V. Winfer, Cr. & Ph. 57, Jfnnsrr v. Hark, 6 Hare, 443 6'i Smith V. Whcateroft, 9 Ch. D. 223.
; ;
(A) See Walker v. Walker, 2 Atk. 98, 100 Joynes v. iStatham, 3 Atk. 388, 389 Pembrr v.
;
;
Bro. C. C. 52, ;)4 Townslwnd v. Stanyroom, 6 Ves. Fry. Sp. Porf. 232 .sq., 328, 339
1
;
Malhrrs,
1st ed.
(i)
790
OF MISTAKE.
to the rectification of written instruments appear to lead
Mr.
Justice
(/.)
And
Fry
of
Edward
who
enactment
This sugFisher {n),
of the Judicature
Act
Olley V. Fisher.
by North,
J., in OUei/ v.
who
and
for specific
might well be enforced where (as in the case before him) the Statute of Frauds was not pleaded {o). An agreement to sell land of course stands exactly on the same
performance of the agreement as
rectified
May
V. Piatt.
The rule against granting specific per(/j). formance with a parol variation at the plaintiff's suit was, however, followed by Farwell, J., in Mai/ v.
footing
Plaft
{q^
:
v.
Msher nor
v.
Thompson Hickman.
v.
Sir
Edward Fry's
Fifton
J.,
(/)
who considered
was bound by them, but declared that he had great in following the reasoning on which they appear to be based, and pointed out that to refuse
relief to a plaintiff
rectification of a written
agreement
is
exactly contrary
of
rectification
0/lei/ v.
is
founded
In
this
case
again,
neither
Edward Fry's
opinion
{k)
Gillespie v.
;
Y. 58.5 Keis.selback v. Livingston, 4 John. Ch. N. T. 144. Specific Performance, pp. (J) 227 sq., Isted. 346 /., 2nd ed.
;
;
34 Ch. D. 367. See above, pp. 11, 12. {p) Above, p. 764, n. [l). 1900, 1 Uh. 616; see below, (-7)
[n]
(o)
p. 797.
{})
Above,
p. 788.
811 sq.,
(/)
Above, p. 787.
OF MISTAKE.
was eited. Having regard to these omissions and Mr. Justice Neville's pronouncement on the point
l)rinciple, it is
~91
to of
Ollci/ v.
and further that, if that no reason for not extending pleaded. it to a case where the Statute of Frauds For as we liave seen {t), it is settled that that statute can afford no defence to an action for rectification, if
Fisher
is
to
be preferred
is
/s-
Distinction
variation
is
proceedings
_
for
specific
performance
proved, and effectually sets ui) a parol variation of the written agree^ ^ i ^ where the ment from those in which, though pJeadhuj the same defendant's
defence, he proves no
really obliged
to
in
more ii than
the
vnis
own mistakeis
^^^^^^
is
proved,
resist
plaintiff's
claim
on the
contri-
[v).
In the former
is
really relying
insists
on a mistake
is
common
he
In the
latter,
his real
defence
that the
paiiies were not in truth agreed, though at Jmc he is estopped fi'om saying so, and he seeks to escape the
application of the
same rule
is
pleaded as a defence
granted
may
vary according to
it
by the
vary acrordfacts^proved
depends on the particular circumof each case whether the defence will merely
up
(//).
Thus if the
iij)
[x)
Above, pp. 783, 78G. Above, pp. 776, 777. See above, pp. 776, 777.
London
Birmxnqham
Jiy.
Co. v.
Winter, Cr.
& Ph.
57, 02.
792
OF MISTAKE.
tion be plainly proved, so that the Court
is satisfied
I
that
the agreement
so varied
was the
parties' real
it
-svill
agreement
not only-
agreement as so varied {%). But as a rule the Court will not make an order in the same action upon the plaintiff^ H application for specific performance with
the variation set up against him, unless he have
by
his
pleading or
(it
seems) at
the
opening of the
trial
abandoned his claim to enforce the agreement as contained in the writing alone and submitted to perform
it
own original
his claim, and the defendant do not ask for specific performance with the variation, then the Court will simply dismiss the plaintiff's action, but without prejudice, in
accepting an order for specific performance with the On the other hand, if the defenvariation claimed {h).
dant do not establish by the extrinsic evidence admitted a true agreement between the parties as to some supple-
mental terra omitted by mistake from the writing, but merely show that lie was under a mistake in making
the written contract, and that the plaintiff's conduct
it
would be a hard-
him
(the defendant)
to
(z)
3H8
546.
crufl, 9
Ch. D. 223
Marshall
v.
() Leyal v. Miller, 2 Ves. sen. Clowes v. Miyyinson, 1 V. & 299 Lindsay v. Lynch, 2 B. 524, 534 ISinith v. WheatSch. & Let". 1
;
; ;
Berridye, 19 Cli. D. 233; Preston V. Luck, 27 Ch. D. 497. {b) See Clarke v. Grant, 14 Ves. 019 liamsbottom v. Gosdon, 1 V. & B. 165.
;
OF MISTAKE.
plaiutiit" to his
793
remedy at law, but may, it seems, give him the option of having his action dismissed or of
having an order for
specific
as claimed to be varied
by the defendant
And
as
we have seen {d), where the defendant has by mistake innocently made a misrepresentation to his own detriment in the written contract and fails to prove the
plaintiff's real
the (Jourt
may
option of
rescinding the
contract or of completing
contention.
claim,
and
pLdntilf or
form the contract, the Court will order the specific performance of the written contract as prayed by the
plaintiff [e).
It follows
(,/)
Xo obtain
rectificatiou,
instrument, a mistake
common
to
all
parties thereto
must be proved. As we have seen {cj), there must be an antecedent confracf ; this necessarily involves the and there must be a common true consent of all (//) intention of embodying that contract in or carrying it It follows that it is in general out by some writing (/).
;
(c)
Ves.
'1
^^
Gordon v. Hertford, Madd. 106 Fry, Sp. Perf. above, pp. 773 %(/., 3rd ed.
;
; ;
See 51b
Hig(j'in.\ijn
v. Cloicea,
lo
and one
776, 777.
(</)
[e)
of tlieiu undertake to prepare the inxtrunieut ou behalf of all, it is his duty to prepare what is in all respects a proper instrument, and if the instrument prepared fall short of this, but be executed by the others in the
belief that
it
notes
((/)
was an in.strument
(/) Pp. 78
(A)
{!)
xq.
7.S().
Corleii v. Stafford,
;
be noted th.it, if several persons agree generally upon some act in the law to bo embodied in a written instrument
it
Here
may
228
;
(,'lark v.
Cii.
D.
1.
794
a
OF MISTAKE.
good defence to a claim for
rectification to
prove that
the written instrument carries out the real intention of the defendant and the intention manifhsfcd
phiintiff
;
(/.)
by the
in
rectification
(/).
however, in
which an exception to
rule
Thus
in
Garrard
v. Fraiiliel {ni),
memorandum
It appears
mistake.
amount
of the rent
was
left in
Gurrard
Frankcl.
v.
lease.
Afterwards the
plaintiff filled
up the blank, inserting the figures 130/. by mistake and the lease was thus engrossed and executed, without
the plaintiff's observing his error.
On
discovering the
mistake
he sued
for
rectification.
The
E,.,
defendant
however,
Romilly, M.
he found in
time of sign-
ing the
memorandum both
rent to be 230/., and that the defendant was aware of the discrepancy between the lease and the agreement.
But he
draft,
treated the
memorandvmi
as
if
it
had been
and held that the case was one where the document which constitutes the whole agreement contains in itself contradictory statements as to the amount of rent.
And
265, 273
Sm. 42
Fowler, 4
De G. &
J. 250, 264,
1 Dr. & Whitmore, J. & H. 268 1 Bradford v. Ronmeij, 30 Beav. 431, 438 May V. Flatt, 1900, 1 Ch. 616. () 30 Beav. 445.
:
Sells v. Sells,
Thompson
v.
OF MISTAKE.
795
supposed
tlie
was executing.
it
He
claimed or having
V.
In Harria Hants
for
v.
Pcppcrcll
{o),
memorandum was
in
signed
the
^^^^'^
sale of "
solicitor
sale,
two houses
Teddington."
The
purchaser's
and sent a plan showing wliat he supposed the In reply, the vendor's solicitor sent a correct plan of what the vendor intended to convey but the defendant's solicitor had the conveydefendant was buj'ing.
:
[)lan,
whieli
comprised more, and sent the deed for execution without calling attention to the
accepted the
[)laintiff 's
fact
that
he
liad
not
contention
as to the parcels
dis-
He
that
Ilia
and that the mistake, of the plaintiff alone was no ground for rectification. Romilly, M. E,., said that, as
the Court will not enforce specific performance of
contract
a
which one
so the Court
party has
made under
where
mis-
take
is
[})),
may
interfere
rectification
if tlio
and on
this
ground
rectification claimed or of
gave the defendant the option of accepting the annulling the contract. At
The defendant was a
L. R.
It
is is
;')
(m)
[o)
<
lady. '
tliis
p)
statement
and
in
the face of the decision in Tampliii v. James, l.i Oh. D. 'llh, cannot now be upheld; .see above, pp. 77o, 770. and n. (j).
796
the
OF MISTAKE.
same time,
lie
Bloomer
Spittle.
v.
thought that the defendant had behaved dishonestly. In Bloonwr v. iSpiff/e {q), the parties entered into an
sale
of
certain
land,
not
common
out the
mistake.
the mistake,
The vendor by his answer denied and alleged that the conveyance carried
real
parties'
agreement.
common
:
but on
representatives
set aside.
In
Pcifjef v. M(tr><h(ill[r),
him
the
first
which
offer the
and a lease was executed Afterwards the lessor sued for rectification on the ground that it was not intended that the
defendant accepted in writing
first floors
lease.
Upon
the
evidence given, Bacon, Y.-C, expressed a strong inclination to the opinion that
from the negotiations which led up to the plainthat he had no intention of letting the first But the learned judge hesitated to iDronounce floors. that the defendant's conduct was actually fraudulent, and so he followed Lord Romilly's decisions, declaring
notice
tifl's letter
that because of
[q)
()
cision,
reported,
;
was proJ.,
to
be
Beale v Kyte, 1907, 1 Ch. 564, 565, in which case the judge alyo pointed
out that the right rule is that, for the purpose of e.stimating: any laches in applying for rectification, time hrgins to run from the date of the discovery of the mistake.
OF MISTAKE.
sho'iM
b'^
797
tion claimed or
set aside
(.s).
These cases
liavc
criticism.
Thus
Criticisiu of
the learned editors of Dart on Vendors and Purchasers meatioired remarked (f) " It is difficult to understand the ground cases,
:
of
these decisions.
contract, in
one, or
there
at
been
no
contract, in
is
which
case
neither
law nor in
equity
there
anything to
enforce."
And
judges
who
tlie
as equiva-
and that, in the absence of fraud, they would have had no jurisdiction to grant the relief they
In Ma//
v.
did.
P/fift
sell
{.r),
Jfcj/ y. Pfati.
agreed in writing to
conveyance was
tlierein,
fendant assigning
this
plot,
title.
covenants for
On
want
of
title,
him
covenants.
The defendant
alleged
common
mistake
and alternatively unilateral mistake and counter-claimed for rectification of the conveyance. His case was that the plaintitf had notice that he did not intend to sell the plot parted with. Farwell, J., gave judgment for the plaintiff both in iiis action and upon the counter(*)
It
its
in
tliis ca.se
the
vol.
(,/)
.)tli
od.,
1
1
vol.
ii.
744
see
li.
the rectification. (/) 2 Dart, V. & P. 839, 6th ed. This criticism does not oinur in
1900,
U) 1900,
798
claim
lie
OF MISTAKE.
;
not to
sell
equivalent to a claim
canying out an antecedent contract in writing was made by a plaintiff for specific
of
performance
variation,
that
it
written
contract with
parol
was established by authority that As we have before such a claim could not prevail.
and that
pointed out
(//),
Edward Fry
upon the rule so laid down, nor the case of OlJo]! v. Fkher (^), was cited. And it is submitted that in this respect Mr. Justice Farwell's decision was wrong though he was right to refuse rectification for unilateral
mistake
(r/).
Thus the
that
is
in
And
which
rectifi-
the
dilemma put
b}'
the
editors of
Dart and
crowned with Mr. Justice Farwell's approval, that there must either be an antecedent contractor not, is sufficient It seems that the evidence to remove all difficulties.
offered
in
written instrument
may
any
Common
mistake.
(1)
An
ante-
In
Plaintiff
this case
antecedent contract, which (2) mistaken, but plaintiff alleges that he made by mistake, but the estopped at law. which bound him by estoppel at law (/^), followed by
his title to relief.
An
(y)
(z)
Above,
p. 790.
()
\b)
Above, p. 790.
See above, p. 750.
34 Ch. D. 367.
OF MISTAKE.
th (lef<^nd:mt contenrling that both the contract and
7f>9
the
subsequent
wi-itinf2^
expressed
his
true intention.
v. Marand Mdi/ v. Pl(tff{(l). Now the whole burthen of proof is on the plaintiH' claiming rectification {c), and if in such circumstances he fail to prove that the contract and subsequent Avi-iting did not express the
defendant's true
intention,
it
is
submitted that
liis
ought
to be rejected.
He
him-
What
error?
On
if
can by
to
extrinsic evidence
prove a mistake
common
both
parties
and occurring
writing,
it
subsequent
questionable
whether
to
this
On
is
no objection
com-
performance
as
If
be supported
r'
As
burthen of proof
liad not
and
as to rescission,
plaintiff's
the contract
mistake would
tlie
liave
rescission
although
it
might
luivc
(/).
If
on the
otiier
28 Ch. D. 255.
{g)
28 Ch. D.
25.-).
{d)
[e)
1900, 1 Ch. 616. Above, pp. 784, 785. (/) Above, pp. 78G 7aO.
(h)
(i)
800
allegationp,
OF MISTAKE.
why
its
performance with
rectifica-
The
truth
is
that in Paget
v. Mai'fihall {!),
as
Defendant
mistaken but estopped at law, and subsequent
correction of
which the judge there professed to follow (?n), the Court attempted to give an equitable judgment on the hypothesis that both stories were true, the plaintiff's allegation of fraud equally with the defendant's assertion of innocence. (3) There may be disclosed an
in the cases
the error.
and the
parties' true
agreement.
This
it
is
the case of
BJoomfif V. 8pfff/e{o).
Here again
is
on the
is
plaintiff
it
does not
he
still
is
bound
and
if
to
show that
all parties
the defendant
cedent contract as not being theii' real intention and determined to execute the subsequent instrument ac-
merely that the defendant entered into tlie antecedent contract by mistake and that the subsequent instrument expressed his own true intention and the plaintiff's
manifested intention, then,
See above, p. 773
below,
it
is
submitted, the
onu.^
[k)
()
[o)'
p. 802.
L. R.
796.
p. 796.
OF MISTAKE.
lies
SOI
on the
and showing that was that the subsequent instruthe antecedent contract
(7?).
made good
his claim to
rectification; if he succeed, he has; and if the defence were dishonest, he ought to succeed. There seems to be no place for the alternative relief granted in BJoome)V. Spittle
(5-),
There
may
this
Such,
is
Garrard
tlie
v. Fraiilrl (r), as
Jfarn'ft v.
Pcpporell
{h).
If, as
memorandum
v.
in
Garrard
statements as
to the
amount
were contradictory on
uncertainty
and
in that case, if it
tlie
lease executed
had
failed to
with the terms of the lease, and his claim for rectification sliould
liave
been rejected.
Whilst
if
it
were
knowing
it,
of the plaintiff's
named
in the lease,
was minded
In Harris
(;>)
\q) (V)
See above, pp. 784 786. L. R. 1:5 Eq. 427. 30Bcav.44.'); abovo,p. 794.
(.v)
L.
R.
.)
Eq.
1;
above,
p. 795.
(/)
Above,
p. 794.
w.
61
802
OF MISTAKE.
autecedent agreement in writing- to buy " two houses at Teddington " was either void for uncertainty (ii) or
In the
minds was
If the judge
ment in his favour. If he considered that the defendant was wrongfully seeking to take advantage of the
plaintiff's mistake, the option of rectification or rescis-
Frand.
(5)
It
may
be
shown that the defendant knew of the plaintiff's mistake, and yet accepted his oifer according to the literal terms thereof, well knowing that the plaintiff would believe him to be accepting tlie offer which the plaintiff supposed that he had made and not that which lie //rid made. Such a state of mind would certainly be fraudulent the defendant would have been wrongfully
;
mentioned
(z),
especially
{/)),
Garranl
all
v.
and Paget
v. Mar-'<//(i//
may
serve for
examples of this
state of things, if
we assume
that
tlie
be proved,
lished
his
it is
The defendant's
left
tlie
fraudulent acceptance of
two courses
contract
as
open
to
him.
He
and
n.
n.
might
treat
(h)
Above, pp.
G,
(f),
(s)
70G.
'^^^^
(.r) {!/)
[fi).
() ' ^
(A)
Above,
p. 760.
OF MISTAKE.
void
for
'^03
want
tlie
of
the parties'
true
consent
or
lie
miglit
hold
tlie
offer according to
that he believed
to
bo accepted
The rig-lit to obtain rectification of a wjitten instrument is a mere equity (d) and not an equitable interest (e)
.
Rectification
fraud (/).
PT/\TPip
conveyance induced by
any property be assured to any one by a conveyance liable to be rectified on account of a common
interest in
^^l^^^
and without
(//).
case of fraud
this
doctrine
applies only
pur-
and does
not, as a
of
a con-
veyance.
As we have seen (/r), upon the sale of land, rectification may be obtained oi an error common to lioth parties
^
^'^ sale of
couvcvance.
Ami
it
is
no bar to an action
convovance.
Ahove, pp. 77.'5, 774. Above, pp. 7Sl sq. VhUUps, 4 {e) See J'/iil/ip.s v. De G. F. & J. 2()S, -218 Care v. Cave, 15 Ch. D. G39, 647. (/) Above, p. 757. (^) See above, p. 757, n. [c).
(r)
{(i)
;
Thomas v. Darin, Dick. 301, (//) 304; Blackir v. Clark, lo Beav. 595; Garrard \. Fra)iki'1,'M'Rcn-v.
445.
(t)
[k)
786, 787.
51
(2)
804
rectification
OF MISTAKE.
cm this ground of a conveyance on sale that
(/).
The
case has
no
by
actual conveyance
according to
tlie
representation made(;).
Thus, where
by mutual mistake
conveyance
(ii),
from the
or too
by
or an exception
title
have not
been put in or have not been restricted as they ought to have been (.s), or any covenant not intended to be
inserted
(/),
the
conveyance
may
be
If in
any
any hereditaments
failed,
by reason
of the
to be assured
as agreed,
for
in
it
will pass
it
by the
limited
effect of tlie
manner
which
is
by the con-
veyance as so
{/)
rectified (r).
See Bcaiotwnt
;
v.
Bramlcy,
T.
and cases cited 41, rvi above, pp. 644, n. (/), 787, nn. [t), (), and in notes (w), (/;), (</),
(>),
& E.
Re
214
Jie
below.
(;)
6.')4,
730.
{u)
White, L. R. 15
1
Eq. 247.
(o)
[t)
Rob
V. Butteririck,
2 Price,
Ch.
190.
p. 803. () [x] White V. White, L. R. 15 Eq. 247; Hanle>i v. Feursoi/, 13 Ch. D. 545.
564.
(p) Cuweiiv. TrHc/itf,TAL,l899,
2
Above,
Ch. 309.
[q)
Cr. 321
805
CHAPTER
XIV.
DIJUE.SS
OF FRAUD, MISKEPKESENTATIOX,
AND
UNDUE INFLUENCE.
^1. Of Fraud tiud Misrepresentatiou. ^2. Of Duress and
Undue
Influence.
t.
LiKK
otlier contracts,
C'^"*'*''^''^
voidable for
may
say,
if
he were induced
is
to fraud or
ent(!r into
to
["t-o^,^'*^^^*"'"'
by a
is
false representation
made
to
him by
the other
Represen-
}arty, either
fraudulently or innocently.
A representato a proposed
fact
tion
a statement
relating
represcu-
thereto
(^/).
But
in
may
liave
whom
is
it
that
to
have induced
*^^ contract.
all,
but for
was
triu'
{l>).
statement
ihis
kind
it (').
may
be
made
withiu
Thus
the vendor of a
may
state
it
buy
luttj. 7
H. L. C.
-JS
7.')0,
775. 776
Proprtlij
A:
7r)l,
Smith
Corp.,
(,)
V. /.and
Mm
x. /ItinirKs, S B.
S.
806
OF FRAUD, miski-:pkesentation,
that the drains are in good order or the coUars dry
or he
{>/),
may make
;
tlie
particalars
of sale
and
in either
the
representation
{c).
may
The
^
-S
compound
of the prin-
equity.
It seems necessary,
false representations
inducing
common law and a contract were treated in equity before their jurisdictions were united in the High
courts of
Court of Justice.
Fraudulent
At coiumou
law,
if
contract were made fraudulently, that is to say, either a?coramoii'"" ^ law. with the knowledge that it was untrue or in reckless
ignorance whether
it
was true or
false
/"),
the party so
He
their former
only
pending its completion, but also after it had been completely performed (//), and sue for the recovery of any money paid or property conveyei thereunder, he on his
part surrendering any benefit received thereby
;
or he
and even
non-disclosure
any damages caused by the fraudulent misAnd the common law allowed the like statement A). not the same avoiding the Contract, though ^ o to p action of deceit, if a party to some contract of the class
(_
'
(d)
{e'j
Above, p. 769.
Gas. ^37.
See the cases cited at the (n), p. 782, above, as to the admissibility of oral evideuce in proof of a representation which has induced a written con-
end of note
tract.
See above, p. 654. {;/) Deposit and General Life (/() Assurance Co. v. Ayscoitgh, 6 E. &: B. 761 Oakes v. Tarquand, L. B. Cloujh v. London 2 H. L. 325 iV Xorth IVestern Rij. Co., L. R. 7 Ex. 26 Benjamin on Sale, 33G,
; ;
,fl
342, 359,
2nd
ed.
807
SLirauce)
by a
false repre-
Xlril^*^'^
/i;
sentation
of
made innocently or even by the non-disclosure some material fact (/). But apart from fraud and
in
_
Ett'ect of
except '
contract
the
case
at
of
contracts
iibern'md'
fidci, '
in"''nt mi,srepre.sentatioii
:it
representation,
if it
common
to a
amounted
commun
and
at all(/).
If
it
it
niiglit cither
that
is
to say,
it
might
be a stipulation, on the performance of which the performance of the rest of the contract was conditional or
;
might be a term independent of the parties' main agreement that is to say, a stipulation, on the performaiuic of which the performance of the rest of tlie contract was not dependent. In other Avords, the representation might be either a condition or a pure warranty [in) and this question was determined by the parties' intention to be gathered from all the circumstances of the case [ii). In the former case the untruth of the representation amounted to such a breach of contract by the party,
it
who made
In
if the statement proved untrue ho was obliged to perform the main agreement but he was entitled to damages for the breach of warranty
;
:
i()
\'.)0'):
Carter
v.
Buthiit,
\i
Burr.
;)r.
/)
llopkiii'<
i;ilt:
v.
Tuii'iiu lai/,
\'t
C. B.
[m)
[n)
Kmini/i/
v.
I'diiiiniii,
Mud
;
Co.,
L.
II.'
'l
Q. B. JoU.
1
Above,
p. 763.
London Assurance Co. v. Mnmel, 11 Ch. D. 363; Jlitaz v. Genussi, 6 Q. B. D. 222 above,
531
;
Fliijht v. Booth,
Bing. N.
A:
S.
7J1,
7<J3.
C. ftSI lianiierinan v. White, 10 C. B. N.S. 844 Jlrhnv. Jinrn'M,, 3 B. & S. 701 uud see J)e Lasml/c v. (JuUd/ord, 1901, 2 K. B. 213.
;
808
committed
if
OF FRAUD, MISKEPKESKNTATION,
(o).
And
even in
tlie
former
case,
moreover,
the
to
contract,
(i
unless the
representation
had
he
{q).
amounted
ipecial sfipiiiafi())t
its
be void in case of
non-fulfilment {p)
if
not,
fidei)
whereby they made a contract with each other, coii(tilioi)(iIhj upon the representation being true and that the contract was therefore avoided if it were untrue. On the contrary, the contract was treated as having been fully formed the imtruth of the repre; ;
part of it and even where it was held that the contract might be avoided after its execution in favour of the party misled, it was considered that this result was effected, not by an annidment of the parties' consent,
;
but by their
crprc^sa ityi-cciiioit
(;).
be so avoided
The common
law treatment
of mit-representation was a particular instance of its rules respect-
Here
it
may
(o)
R.
in the Sale of
Stat.
White, 10 {p) Bannernian v. C. B. N. S. 844; Bchn\. Buniess, 3 B. & S. 751, 755, 756.
i>j)
56
&
57 Vict.
;
53;
456.
{))
see Benjamin on Sale, 448, 741, abore, p. 32, 748, 74'j, -iud ed
u. {b).
Street V. Ji/ai/, 2
B.
& Ad.
809
contained in a contract.
At common
law,
if
the obligatlie
by the other either of his part of the contract some particular stipulation embodied therein, so that the performnncc of the latter party's duty under
fultilment
or of
the contract or the particular stipulation is a condition precedent to his enforcing the obligation incumbent on
the former, then a breach
by the
charge the former from his obligation under the agreement and the former may, if he choose (.s), rescind the
;
contract
any
But
some particular
stipulation in a contract
may
discharge
tlie
must
of
its
performance must be an essential ccmdition of his incurring liability under the agreement {i<). For example, we have seen that, upon a contract for the sale of land, the vendor's obligation to convey the land and the purchaser's (jbligation to pay the price are, as a rule, dependent on each other, and neither party can enforce performing or having tlie other's liability without
offered to perform his
own duty
(.r).
80 on a contract
He hHS the option of reHciuding the contract, or attirmin); it and i*uititf midrr the laiilinct for Miihiiel daniajLre.s for its brcHch V. Hart. 190-2. 1 K. B. 482. {() Fliyht V. Booth, 1 Bing. N.
;
null v. llcimn, 1900. T Ch. 2'J.S, Klhnger \ Mutual Life bisurnnfc Co. of Nru- York, 190."), (iiunal Bill Poslhig 1 K. B. '41 Co. v. Atkni.sou, 1909, A. C. lis': see 1 Wms. Saund. 320, n. (4
'MYi, :J04
; . \ ;
C. 370.
((/)
1
()
Smith, L.
:
C,
Dukr of St.
Bl. 270;
H.
15.
Campbrll
:
T. R. -MO:
Q.
D.
is;;
(.'oru-
notes to Cutter v. Poirell. (x) Above, pp. ')7S. o79 Gluzehruok v. Woodroir. S T. R. 3(i6. I'oo/c v. ///V/. (i M. I't Sue W. S35 Laird v. I'iiii, 7 M. iSc W. 474.
810
OF FRAUD, :\II8Kt:PKFSENTATION,
stipulatiou implied therein, that
tlie vendor i?liall show an essential condition of the purchaser's and if this sti[)idation be broken, he may at
a good
title, is
;
liability
tliis
under-
taking
sale,
(;:)
is
in general
and the purchaser may, when the property has not yet passed to him under the contract, reject the goods on breach of the undertaking and altogether repudiate the agreement {a). But, although a man bound by a
contract
may
refuse
to
till
the
other party
yet, if lie
lias
of that
which was
character,
and becomes
(A),
warranty in the
strict sense of
the word
that
is,
collateral
contract
agreement independent of the rest of the and non-compliance therewith will no longer
aiford a defence to
an action
on
damages
(r).
Thus where
specific
but
if
(//)
Above, pp.
32,
ii.
{//},
167,
is
see stat.
Such au undertaking
ui
o7 Vict. c. 71, .s.s. 11, f)2, and note that in the Act the tcriii
vr)vrt///is(!ontined to cases where
course
commonly
:
called
I
a war-
rantj^ of quality
ut
we avoid
usingihe word "warranty" iu the text on account of the strict sense in which the word is used iu the Sale of Goods Act, 1893; see next
uoto.
y(()
Cf. above,
Above,
K/la/
v.
p.
76'.).
Benjamin on
Ilffui
7-3.3
;
J^ale,
4)2,
2ii(l
ed.
Topp,
Ex.
B.
i24,
<V;
441
Stfvrl
V. /V/"v. 2
V. Jiiniic-s, 3
S. v.
H.
^:
Ad.
7'">l,
4o6,
463
llvttbnlt
4 jl
v.
;
Uu-knijii,
2)>ylvr,
L.
Ii. 7
C. P. 438,
Benjamin
811
damages
(d).
In the
same way,
if
one be induced to sign a contract for purfraudulently that the drains are
if
may,
if
he accept a con-
though he may sue for damages for breach of the warranty implied in the
(./),
{(/).
Let us now turn to the principles of equity. Couiis " ,. of Equity enjoyed a concurrent jurisdiction with the Courts of Law in the matter of fraud, but had a further exclusive jurisdiction to compel the delivery up and cancellation of written instruments, which had been forged or procured to be executed by fraud, duress or
.
.
Equitable
rules as to fraud or mis[^S;;^^-;"^''^'''"
contract.
undue influence
contract induced
rule of
(//).
As
a Contract
JraudmiHIit
be
^"
set
contract
by a fraudulent representation, the equity was the same as the rule of law the was regarded as, not void, but voidable (/) at
;
aiao
^'
^^^
He
might therefore
But,
him
the
agre<'menl
it
instrument
;
(;ontaining
delivered up to be cancelled
or after completion, so
Sfyret v. lihii/, 2 B.
& Ad.
(h] "VVin.s.
"Jlst ed.
:
406; Feujamiu on Sale, 741, 744. stat. 56 & 57 748, 753. 'ind ed. Vict. c. 51, 8. 11 (1 c).
:
p. 812, n.
(')
(fakcM v.
T/'n/iiaiid,
L. R.
181)9,
_'
(r)
Smith
V.
/-rtw/
ftiid
Hoicr
H. L. 325;
(/.)
Jir
Duncan,
I'ropert,, Corp.,
/
(
J.
(11)
llr
V.
Uxtldfunl,
& W.
112, 120.
1901, 2
K. B. 215.
m
|)(jsitiou,
OF FRAUD, MISREPRESENTATION,
to
set
aside
(/).
damages
for deceit
{nt)
demand
;
any
one,
representation induced
they would in
of compelling
;
way
make good his representation and him to recoup any definite pecuniary
part}'
by the
defrauded
[n).
person
law
that
is,
he might affirm
and claim
if
to
made good
and
(o)
But
by the representation were not capable of adjustment by some definite specific relief but could only be assessed at an uncertain sum of money, then he could only claim compensation in Courts of Equity pending the completion of the contract in proceedings brought either by or against him for its specific perfor there was no original jurisdiction in formance ( equity to give damages except as ancillary to some
his loss
/-i)
;
specific
relief.
If
in
chose to complete
the
or
did so before he
to
})roposed
retain
it
the
and not
to set
aside, lie
Edwards v. McLcoji, G. (/) Swanyt. l28S) 2 Coop. 808, Attwnod V. Smiill, 6 CI. & Fiu. 444 .sy., Ti-l, 330, ;VU, 338, 395, Loicll V. Hkks, 2 Y. & C. oO'i
'
L. R. 1 E([. 21.) T'eck v. Gi<rinu, L. R. G H. L. 377, 390; Low v. noiirrru; 1891, 3 Ch. 82, 94, ii.,
1
;
107
.sq.
Ex.
(o)
RawUns
v.
H'tckham, 3
De
G.
&
App.
('as.
187, 193;
Derr;/ v.
rc(l\ 14 App. Cas. 337, 3G0. Vu.s. () Juaits V. JiickncU, Iliiiroucti v. Luck, 10 174, 183
;
726, as {p) See above, pp. 721 tu the purchaser' M right to .specific perforinaufe with coinpeiisatiou.
^l furtiori,
he
lia.s
tlie
like right
Vos.
470,
475
Jlill
V.
Lane,
the fraudulent.
whci'C
rcpreseiitatioii
was
^13
law
(q).
it
was
Innocent
in equity.
inis-
some material
as
fact
by mistake
But
was
at the
that a
much
and
tlie
it
ff)r
even before
its
completion,
is,
misrepresentation must
or recklessly
;
be fraudulent, that
made knowingly
(s).
was not maintained and Courts of Equity afterwards held that, where one was induced to enter into a contract by a material misrepresentation, tliough made without fraud, the contract was voidable at his option, and he might sue to have it set aside and (if written) delivered up to be cancelled (0It had. No rescission liowever, been decided, before the Courts of Equity liad misrepresenabandoned their former position with respect to rescis- t"tiou after '
But
this position
completion.
(r/)
Xruhnm
Lviiti)
v.
Mai/,
\?,
Price,
Fin.
"i^-i,
749
J.
V. Hillas, 2
De G. &
oO'i; Lorellv.
110; JolifTe V. Bii/.-rr, 11 Q. Claiiton v. Lerch, B. D. 2io, 267 41 Ch. D. 103 Sug. V. & P. 235, 261; 2 Dart, V. & P. 904, 6th eri. 812, 7th ed. {)) Cadmaii v. Homer, 18 Ves. 10; Savage \. Jiiocl.sopp, \h. 3'6iS, THMe v. Gi/tson, 1 H. L. C. 338 Xew lirintsivick, 605, 632, 633 i^c. Co. V. ^fa(^f|tlldgr, 1 Dr. & Sm. La'nuire v. Dhon, L. R. 363, 383 6H. L. 414; above, p. 769.
:
46, ol
Barthtt
;
Salmon,
v.
(\
De
G. M. & G. 33
Urunswirk,
^-c.
(M)ii)hi'ar,-
Xrw
Co.,
Fii/.s/ord
v.
Richavdx,
17
Beav. 87,
96; Stanton v. Tattrrsall, 1 Sm. & G. 529 Abn-nman Ironicorks v. JFirkens, L. R. Reese Itirer Silver 4 Ch. 101 Mi/iin;/ Cn. v. Smith, L. R. 4
95,
;
;
H.
()
Attwood
V.
-Small,
6 CI.
&
v.
814
OF FRAUD, IMTSREPRESENTATION,
sion for innocent misrepresentation, that a contract for
where there
pleted
liad
it
of the
money
Diflference in principle
The
later rule so
differed in principle
Law
sentation
contract
as
consent in the
manner accomplished
common law by
fraud only
Practi(y).
To
of the transaction
ending in the formation of the contract, and must have induced the consent of the party misled to the
agreement
[z).
And
in
the
common
amount
and
to
in
commencement
rule in question
became enforceable in
of Justice
;
all
the
High Court
it
and
as a
branch
Wihlc V. Gibson,
()05,
632,
for innocent misrepresentation after the contract had been substanti-dly performed above, pp. 808, 810, 811 Seddon r. North Eaxtern ISalt Co., 1905, 1 Ch. 326. (.() Bee above, pp. 806, 807.
;
presentation unless made knoirbiglji (that is, fraudulently), accords with the rule of the common law, which allowed no rescission
V.
Bowen, L. J., Xcuhigqxnq 'Adam, 34 Ch. D. 582, 592.' {z\ See below, p. 821. (ff) Above, pp. 807,809811.
(y)
-^lo
law of contract,
.
it
common law (b) Any contract therefore of whatever kind may now be rescinded by any party, who has been
induced to enter into
it b}'-
a material misrepresentation
And
this right, if
by the
him under
the contract
(r).
But
has been held since the Judicature Acts, following equity to the same where a contract induced by misrepresen-
due
for
to
him thereunder
sale
the
of
by
conveyance and payment of the purchase money), he can no longer assert any right in equity to set the
agreement aside
sustained
(.7).
It has
may
still
by him
in
it amounted to a warranty (//). Otherwise he has no remedy, unless he can claim damages for a
sentation, if
(f))
Jic(fffritvev.
JIii)-(f,20Ch.TJ.
1,
12; Smith V.
Corp.,
v.
Land
'28
niid
House
7
Propertif
Ch.
D.
(r/) Selborne, C, Itrounlh- v. Camphfll, 6 App. Cas. U2o, 937, referring' the case of Jlarf v.
yeirhif/ffiiiff
Adam,
34 Ch. D.
affirmed, Xi'wbififiDiQ, 13
;
nom. Adam v. App. Cas. 308; l),rr>i V. Vcch, 14 App. Cas. 337. 34 7. 3.')y; Kmbrni'x case, 1892,3
582
Ch. 1, 13; Jrhittington v. Scale7/rti/w, 82 L. T. 49. and applied, lie (<) Admitte<l Hare and <)' ore's Contract, 1901, iCh. 93, 96; Jf'auton y. Coppard,
Ch. D. 42, to the 7 ground of fraudulent misrepreseiitation JuUff v. Baler, 11 Q. B. D. 2oo. 27J Cotton. L. J.. Sipcr v. Arnold, 37 Ch. D. i'C, 102; Clayton v. Lcceh, 41 Ch. D.
Swaiiie,
;
:
Laguuas Nitrate Co. v. 103; Laqnnus Syndicate, lS!t9, 1 Ch. 41G, 423 392, Farwell, J., Mai/ v. Piatt, 1900. 1 Ch. 61G, 623";
;
1899.
{d)
(e)
Jlebcriham
v.
190.).
Sau-hridi/e,
v.
1901. 2
n. (./).
Ch. 98
Salt
Sfddon
1
r).-)3,
See last note but one. See above, pp. 80S, 810,
().
tJo.,
pp.
fill,
6oJ.
Guildford,
21.')
{h)Dg
19ol, 2
Laxsalle
K. B.
above, p. Gil.
816
OF FRAUD, MTSREPRFPENTATTON,
breach of some eovenant for
title (/).
It
has further
heen
Acts that,
any other
To be fraudu- proceedings
lent, a false representation
(/.)
made
either knowingly
whether
it
was true
was
or false)
and that
if
a representain
made honestly
the
is
No
man making
such a statement
under no
it
true
(/).
What must
be proved to give
In order to give
rise to
for misrepresentation,
it
tation.
There must have been a false representation made as to some material fact by one party to the contract, or his agent, to the other, as a part of the transaction ending
in the formation of the contract
;
knowing that
(w).
it
and reason-
ably believing
1.
it
to be true
Falsity
essential.
no cause of action if the representation be Secondly, there must be a rcpresenfation, that 2. There must true {)i). be a represenis, a statement of fact (o) either in words or by conduct
there
is
,
tation.
(()
[k)
(l)
;
See last note but one. Above, pp. 806, 811, 812.
Derri/ v. Peek, 14
App. Cas.
337 Apff'us X. Clifford, 1891, 2 Ch. 449 ;ZcZ(>nrv. Gould, 1893, United Shoe, S;c. Co. 1 Q. B. 491
;
subscriptions for shares or debentures stat. 53 k 54 Vict. c. 64. {)n) See Pollock on Contracts, United Shoe, dfr. 561 sq. 7th ed. Co. V. Brwiet, 1909, A. C. 330, 338. [n) See Smith v. Chaduick, 20 Ch. D. 27, 9 App. Cas. 187 Bellairs v. Tucker, 13 Q. B. D. 562. (o) Above, p. 769.
; ;
;
817
As has been
not sufficient
which
(r).
some
fact as distinguished
mere expression of the party's opinion or belief as to some circumstance relating to the contract, or a vague
affirmation
sold of
(.s').
of
For example, a distinct statement by a vendor land that limestone embedded therein is capable of
first-rate quality
fit
producing lime of
for the
London
is
market
{f),
,
or
that
a house
erected thereon
is let
not
damp
false,
{u)
to a
most desirable
sufficient,
if
tenont
(.r),
amounts
avoid the
to
representation
(r)
.
to
contract
But the
incorrect
freehold [y) or of a small liouse as a desirable residence for a family of distinction (s) has been held not to
amount
With regard
{p)
{q)
Above, p. 769. Above, pp. 765 767. (r) Above, pp. 768, 807. () Fcnton v. Browne, 14 Ves. 144 Trower v. Ncucoinc, 3 Mer. 704 Scott V. JIanso)/, 1 Sim. 13, lo Power v. Barhani, 4 A. & E. 473 Benjamin on Sale, 500, 2ud ed.; Brf/uirsy. Tucker, 13 Q. B.D.
p. 813.
at the present time that such a misrepresentation would be sufficient to avoid the contract. (k) Utrangways v. Bishop, 29 L. T. 0. S. 120.
{x)
Smith
v.
562.
(<) Higyins v. Sameh, 2 J. & H. 460. The actual decision was that the statement was a misrepresentatiou sufficient to bar the
'
vendor from enforcing specific performance. The question whether the misrepresentation was .sufficient to avoid the contract was not decided though it was referred to as a difficult point. But at that time the equitable jurisdiction to rescind a contract for innocent misrepresentation
:
Property Corp., 28 Ch. D. 7 and see Tibbatts v. Boulter, 73 L. T. 534, where the representation was that certain licensed property was subject to mortgages for jiarticular sums, and that the mortgagees were willing to allow these amounts to remain on the security cases cited above, p.
;
709, iin.
(i/)
144.
(s)
Magennis
v. Fallon, 2 Moll,
561, 587.
(a)
w.
52
818
true
if
OF FRAUD, MISREPRESENTATION,
accepted in one
it
sense,
but false
if
taken in
Promise not
properlj' n
represPTitatinii.
must be shown, in order to found a right to rescission upon them, tliat the party, to whom the}^ were made, understood them in the sense in which the}were imtrue(/v). And it may be observed that a
another,
collateral
tivel}^
is
promise to do some
act,
tliough
it
may
effec(c),
3.
Therepro-
{/')
V. Chndiricli,
App.
Gas. 187.
(c) See cases cited at the end of note [a) to p. 782. above. id) Expte. Barren, 1 Ch. D. 537, .5,52. See next note. ''") It has been held that a reR.epresentation of inten- preseutatiou made by a party to a tion, wliether proposed contract of his intention to do some act, but not amounting a representation of fact, to a promise to do the act, may, if unfulfilled, be a ground for resisting the specific performance of the contract Mi/frs\. IVatsiOh,
;
representation as to the state of his mind, and may at least give rise to liability if made fraudulently. Thus it is considered that
a man contract to buy goods with the intention of not paying for them, that is a fraud sufficient to justify the avoidance of the contract on the vendor's part Load V. Green, 15 M. & W. 216 CJoii'/li V. London S; Xorth JVrster)i llil.'f'o., L. R. 7 Ex. 26; Expte. IJ'hiftaker, L. R. 10 Gh. 446, 449
if
; ;
7?^'
Enstf/afr, 190.5,
it
K. B. 465.
Sim. N. S.
;
.523':
S.
C, nom.
Uone V. TFt^fsoii, 10 H. L. C. 671, 681, 682 Lnmnrc v. DUou, L. R. 6 H. L. 414, 428; or even for avoiding the contract Trai/l v. Sori//fj, 4 De G. J. & S. 318. These decisions appear inconsistent with the law laid down in Jovflt-)! V. jrn)iei/, 6 H. L. C. 18.5; Maddisoii v. Ahlersoii, 8 App. Gas. 4G7, 473 and they are criticised in Pollock on Gontract, 52.5, 718 720, 7th cd. see also Atkinson, L.A., Caralier v. Pope, 190(), A. G. 428, 432. It certainly appears that in those cases it would have been more consistent with principle to treat the representation according to the common law doctrine as a collateral promise. And indeed it was stated by Lord Westbury in Eosr v. IVatson, 10 H. L. G. 681, 682, that the re; ;
has been decided that a false statement made knowingly (that is, fraudulently) by the
directors of a company invitiog subscription to debentures, that it trail intend/din apply the money so borrowed to a particular purjiose, was a statement of fa'-t and a good cause of action of deceit
And
^^
against them Edqington v. Eitzmanrice, 29 Gh. D. 459. As to a false statement of a person's motive in agreeing to buy or sell at a particular price, see Vernon V. AV//,v. 12 East, 632, 4 Taunt. 488, criticised in Benjamin on
;
Sale,
356358,
;
2Dd
ed.,
and
presentation was regarded in equity as a substantial part of the contract. But it has been held that a false statement as to a man's intention may be a representation of fact, since it is a
Pollock on Gontract, 563, 564. LAndsat/ Petrokiim Co. v. 7th ed. Ifnrd, L. R. 5' P. G. 221, 243. Statement of belief that some event will happen in the future must of course be ciirefulh' distinguished from statement that some event has happened in the B'-Unirs v. Tucker, 13 Q. past B. D. 562. By stat. 6 Edw. VII. s. 20 (3, 5), an untrue rec. 41, presentation as to a matter of
;
DURESS AND
and
pose
not,
it
UXDi:i: IXFLUEXCE.
819
this
/<
any
is
/')
',
But
ii
for
pur i
sentation
to
;
a matter oi
riglit is
a representation of fact
such as a statement
that one
for sale, or
ment
to
({/),
is
free
from
restrictive
covenants
And
it
.-^eems
that misrepresentation as
rise to
(/).
^-
made
in
deliberate
fraud
The
fact
(/.).
But
matonal.
whom
(/), it
a material
fact (m)
the
circumstance
alleged
reasonable person
intluenced
judgment
to
be
">. The representation
oxpcftatinn or belief may avoid a contract of marine insurance. Sucli a contract is, liowever,
iiheniDia; fidei
;
A'ifsnn,
13 Q.
B.
D. 3G0
v.
1
and
consider
Kettleirell
see sects. 17
(i).
19;
Refuge K. B. .04.'),
'l\'i
:
A. C.
19G,
cf.
/:
506.
da/f V.
Jieattie
Leicis V. Jones, 4 B.
;
'j12 (cf.
Above, pp.
197. 728,
729.
v. London, Hirschfield Brighton, ic' Ry. Co., 2 Q. B. D.
(i)
Ehiini,
7
L. R.
L.
102,
Ch.
130;
777,
800.
H.
Eaglesjirld v.
Londondemi, 4 Ch. D.
693,
1
7<l9; Halhut v. Lens, 1901, Ch. 344, 350; Harse v. I'earl, Co., 1904,
1
ffc.
K. B.
p.
558.
;
[g]
Above,
6
651
f'rippx
I, 5, G; Bowen, L. J., IVest London Commercial Bank v. Kitson, 13 Q. B. D. 360, 3G2, 363. (k) Above, pp. K16, 817. (/) See above, p. 805. (m) See Smitfi v. Kfig. 7 H. L.
V.
Jteade.
T. R. 606|
stated
;
below.
ee
Chap.
XIX.
and
Hume v. I'ocnek, L. R. 1 Ch. 379, 385, where the contract was held to be for the purchase of such interest as the vendor had
Richardson v. iruHamson, L. R. (! Q. B. 276 Mostyn V. Went Montgn Coal and Iron Co., Ld., 1 C. P. D. 145; ll'est London Commercial Itank v.
; ;
C. 750, 759, 769, 77u, 775 *'i/M v. Land and JIokm Property Corp., 28 Ch. D. 7; Cordon V. Street, 1899, 2 Q. B. 041. 646.
;
(w) See Magmnis v. Fathn, 2 Moll. 561, 587; Sentf v. Ilmison, 1 Sim. 13, in which case however it is doubtful whether the law laid down was correctly applied to the i)arti<'ular faets. Under the present law of misrepresenta-
02
(2)
820
must be made tatioii
the'contract*^ or his agent,
OF FRAUD, MISREPRESENTATION,
must be made by some party not by a third person (o)
;
to the contract or
^^^ agent
False representation
asrent.
by
made by
if it
the
authorised
it
is
did or did not give any express authority for the state-
ment
to be
it
or innocently {p).
rity of
And
it is
for
as to its quality
its
{q)
value
(r).
If,
however,
completion,
it
is
then only
(s)
made
by the agent in such circumstances as to give rise to a good cause of action of deceit against the principal {f).
tion (above, pp. 814, 815) the decision would scarcely be the
Miller, 22
Irn.s
V. V.
Ch. D.
194
Smith
same.
(o)
Corpn.,
Lmr/an''s
\
Troperti/ TFmito'n ;
;
ca.ic,
1902,
Ch.
707.
(j)) Abinger, C. B., Coriifocl v. Fowke, 6 M. & W. 3.58, 380 sq. ; Western Bank of Scotland v. Addir, L. R. 1 Sc. 145, 1-58 Benjamin
;
May,
(q)
(r)
()
1907.
on
2nd
ed.
1
Mul-
Above,
p. 815.
;
Cornfoot v. Foa'ke.
C. 605, 616, 617, 633, 634 Broicnlir V. CampholU 5 App. Gas. 925, 937, 938; see below, pp. 823, 824. It is submitted that the decision of Rolfe, Alderson, and Parke, BB., in (Jornfoot v. Foirke, 6 M. & W. 358, is good law if confined to the point that, where it is necessary to prove a /rff^rfwy^wi! misrepresentation as a ground for rescinding a contract, and the misrepresentation was in fact made innocently by an agent and not r.rpressli/ authorised by the principal, conduct actually fraudulent on the part of the principal must be shown. In that case the defendant, wishing to take a short lease of a furnished house, asked an agent employed to let it for the plaintiff, if there were anything objertionable about the house. The agent answered, " Nothing whatever " he honestly believed this to be true. The house was in fact next door to a brothel but the agent
;
;
JFilde V. Gibson,
H. L.
did not
know
this.
The
plaintiff
knew
it,
821
The
repre-
must have been made as a must be'a part of the transaction ending in the formation of the P-'^'^ of the
contract.
It
depeadently of
contract (u).
negotiation
preliminary
to
the
make
the contract
The
repie-
the agreement ^
' ^
on the
I'l^'i^^c'l
the
contract.
own judgment, there is no ground for rescinding the contract (//), or for main-
authorised the agent to make the statement. The defendant found out the untruth of the statement on the day after he had signed an agreement to take the house for two years, and immediately repudiated the agreement and declined to take possession. The plaiutitf afterwards sued for the rent due under the agreement and the defendant pleaded that he was induced to enter into the agreement by the fraud of the plaintiff and others in collusion with him. It was held, that to support this plea, it was not enough to sliow that the plaintiti's agent innocently made a false repi'esentatiou, which the plaintiff knew to be untrue, but did not expressly authorise but the defendant must show that the plaintiff himself had acted fraudulently. Substantially, however, the facts there alleged appear to have been sufficient to give the defendant a right to relief under the common law as to innocent misrepresentation. That is to say that, if he tiad relied on the agent's representation as forming a part of the contract, he might have e.stablistied the right to rescind it before it had been executed in his favour (and apparently it had not been so executed, 6iuce he had not taken possession see Mosti/n v. West Mosttjn Coal inid Iron Co., 1 C. P. D. 14.')^ or if the agreement had been so performed he might have recovered damages for breach of warranty that the representation was true see 6 M. it W. o69, IJT'i, 373 Xatmial Kic/i(in(/r Co. V. J)i-nt\ 1 Macq. 103, 108, 109, 145; Willes, 3 ., Barttivk V. Jui(//ish Joint. ^tocA- Bank, L. R. 2 E.x. 269, 202 above, pp. 807, 810, 81 1. Under the present law of rescission for innocent misrepresentadoubted tion, it can scarcely be that a party to a contract for the sale of lautl would be entitled, it misled in the same circumstances as the defendant in Cunifoot v. FowI.e, to rescind the contract before completion but if he were to claim rescission after completion, it appears that the decision in that case would still be iu point. It is thought however that he might, after completion, recover damages for breach of the warranty implied l)y the representation JJc Lassalle v. Guildford, 1901, 2 K. B. 21."). ,
;
:
() See llupkiim v. Taiiqiuruij, 15 C. B. 130; Way \. Hmrn, \'i Peek v. Gunny, C. B. N. S. 292 and of. L. R. 6 H. L. 377 814. above, p.
; ;
(.<)
Above,
[y)
De
G. M.
& G.
126, 138.
822
article before
it,
did not
ad
representation of
the agreement
{a)
But
if
an}^ artifice
were used to
it is
thought
Where
on the faith of a
false representation
made
to him,
it
is
no defence to any proceedings founded thereon that he mierht have found out the truth if he had made
8.
The parly
in(piiry
(e)
whom
the represen;
claimiuyr to
tation
known
was
was made must not have known that it was false he must reasonably have believed it to be true. We have seen that he has no cause of action if he were
aware of the true
facts of the case
(''/).
What
is
To maintain an
tion,
requisite to
maintain an
action of deceit for a false representation
contract
and
in
inducing a
contract.
addition to these,
it
false stateis,
either
without
without caring
these con-
were true or
it
false (/').
Where
is
{z)
Smith
187,
V. (JhadK-icli,
Cas.
[a)
195,
196;
9 App. Nash v.
Ch. 237. Eorsfall v. Thomm, 1 H. & see above, p. 769, n. (r), C. 90 as to this case. {b) See above, p. 770. 10 Ves. (c) Dijcr V. Hargrave, Dohell \. Slevens, .50.5, 509, 510; 6 B. & C. G23 licynell v. Spryc,
(Jidthorpe, 190.5, 2
; ;
G. 6GU, 710 Price Macauhiy, 2 De G. M. & G. Central lii/. Co. of 339, 346 Vniezuehi v. Kisch, L. R. 2 H. L. Redgrave v. Hitrd, 20 99, 120 Ch. D. 1.
1
;
De G. M. &
;
V.
Above, p. 769. Above, pp. 816 "fy. (./) Above, ijp. 806, 816.
[({)
(e)
823
made with
or wrongfully
;
gaining some
or recklessly, a fraudulent
(^).
80
also
where an action
(as
made by conduct
), it
an action ot deceit tor a lalse an action of representation made by his agent, if it were untrue or ^eeit for a '^ false reprcreckless to the knowledge of the jirincijxil and were sentation
*
may
A
PI
Pnucipal,
when
liable in
"^
c.rpir-s.s///
authorised by
him
(/i)
or
if
it
were untrue or
(though not of
^'
^^
^^raut
reckless to the
knowledge of the
((t/oif
made
employment
(/).
f)r
But
if
the prin-
recklessness of the
statement, and the agent were not, and the representation were
made by
was
true,
cj-press
(j)
lUltill
V.
;
iralter,
B.
A:
1
Com/w/
;
v. /iy/r,
Gibson, H. L. C. (i()'). ()33; I'cekx. diinin/. H. L. 377, -lOK Smi't/, L. K. V. ChiifhricI:, 9 App. Cas. 1S7,
114,
1L';5
Ad.
Wildr
v.
M. & W.
2.')9
;
3o<, 37:?
U'lnrick v.
Kih/IisIi
JouU
SIocIc Jinn/,;
L. R. 2
Ex.
Sirl// v.
ir,,ili>botliam,
201 Jtemi v. I'lcl:, 14 App. Ca.s. Le I.icir 337, 365, 371, 372, 374 V. Gonld, 1893, 1 Q. B. 491, 498, jOO. (/i) Above, p. 769. (i) Selbome, C, Coaks v. Jiuxtce/l, 11 App. Ca. 232, 236; see the casets cited below, p. 824, n. 767. (0), and <f. above, pp. 765 (k) Rolfe, Aldeisou, BB., Tor//foot V. I-'oirkr, 6 M. & W. 3.)8,
;
;
370,371.
(/)
Hem
V.
Xichol.s,
Salk.
L. R. S Q. B. '244; Mdcka^/ v. Coiiinurcutl liiiiik of Xtw Jiruiisinrk, L. R. T) P. C. 391 Swire v. Fntiuis, 3 App. Cas. 106; l{<iulds>rorth V. (Ttfif of O/axt/oir Ihm/,; fi App. Ca>'. 317 Geori/r WJiitechurvh, Ld. v. (Javunagli, Gibhn v. 1902, A. C. 117, 140; Xatioiiiil, ^-c. Cnion, 1903, 2 K. B. 6'. reaixon 4" Son, Ld. v. (>00 /hdlin Curpn., 1907. A. C. 3.51; .sec also Keith nrll v. Refuge Anmranc, Co., 1908, 1 K.'B. 545, 1909, A. C. 243.
; ;
824
OF FRAUD, MISREPRESENTATION,
agent's employment,
tlie
it
appears
tliat,
in order to cTiarge
,
employed him
of
to transact the
business with
the
object
it is
considered,
principal,
amount
for
to
an
active concealment
by the
which
he would
be
personally
liable (o).
But
unless such fraudulent conduct on the part of the principal himself could be
shown,
it is
would be no cause
did no wrong
him
for
the agent
nor would the agent's statement amount committed by the principal himself, if the principal did not expressly authorise it to be made, and did not in any way wrongfully conceal the truth {p) The
to a tort
.
principal
his agent
is
by
which
general authority
or
is
made by
own
liable.
The agent
is
he made the
false
(;h) See above, p. 820, as to the right of the party misled to rescind a contract so induced. () Above, p. 769. (o) Parke, B., C'ornfootv. Fowke, 6 M. & W. 358, 362, 373, 374 Ludgater above, p. 770, n. {t) V. Love, 44 L. T. 694. [p) It is submitted that this particular case is not covered by the remarks of Lords Loreburn and Halsbury in S. Pearson ^ Son, Ld. V. BuhUn Corpn., 1907, A. C. 351, 354, 357359, Avhere the representation made was actually fraudulent on the part of the
; ;
agent,
{q)
who made
it.
Burnett v. South London Trnmivays Co., 18 Q. B. D. 815 ; George TFhitechurch Ld. v. Cavanagh, 1902, A. C. 117.
,
British Mutual Banking Co. Charmvood Forest Ry. Co., 18 Thome v. Heard, Q. B. D. 714 1894, 1 Ch. 599, 1895, A. C. 495, 502 Georqe TVhitechurch, Ld. v. Cavanagh,'l^Q2, A. C. 117, 141 and see Ruben v. Great Fingall Consol. Ld., 1904, 2 K. B. 712, 725, 731, 1906, A. C. 439; and cf. Hambro v. Burnand, 1904, 2 K. B. 10.
(r)
V.
'
825
wise not
(s).
If
is
liable to
an
of
'^
Of
false representation
a"-ainsroifo
may be brouo-ht, not only against a party to the con- "*^ '^ P^'^ty to the con-^ ,. 11 , 1 J 1 , tract or his agent, but also under similar conditions [u) tract.
.',
against
(.r)
made
to
in a
whom
the statement was made, should act upon it or manner apparently calculated to induce him to act
it (//).
upon
(z)
for
any building thereon, in the class of contracts ?^/>^>v7>rg ^V/r/ ; the vendor is under no obligation to disclose any such defect, and if he merely keep silence regarding it, there is no ground for the
of
the land
itself
or
it is
thought,
is
performance thereof.
title to
The law
Except
in
however,
;
a yreLion^of
(\efects of
defect of title
lie
as a
man's
within his
own knowledge
alone,
and
is
not generally
{(().
to
be
ascertained
if
by independent
investigation
Thus
it is Suppression
some only of
that
is
tlie rest,
free fi-om
M. & W.
al'J, 4
M.
\-
W.
.537;
Q.
see Cann v.
ll'i//so)i,
oveiTuled on tlie representation there made was not fraudulent Lc Lxvvre v. Gould, 1893. 1 Q. B. 491, 498.
;
499 oOl.
(;)
(a)
u. (/).
826
OF
FKAiri), miski:i'j;ksentation,
such covenants or
the contract, he
is
(//)
may rescind
makes a
some defect
it
but
to the pur-
may
the
nevertheless resist
in equity,
the
specific
performance of
contract
it {d).
though he
Misrepi'esentatiou as a defence to a elaini for
specific
may
be unable to rescind
Any
cent,
which
to avoid a contract
(r)
is
a good
perfonriancc.
/).
But, further,
has innocently
the Court
may
who
made
This
is
owing
and
to
may have
and
ness or hardship
conduct, which
We
have already
(//).
It
appears
an innocent misrepresentation
See above, pp. 41, 195, 728,
Flii/ht
may
;
be a good
pi?.
Ch. D. 601
n.
above,
o8, 7o,
72<J.
(()
V.
liooUi,
Biug.
and
N. C. :57(): P/iilUpn v. Caldcleinjh, L. R. 4 Q. B. 159; above, pp. 195, 351 and n. (m), 728.
Eduanh v. Wickunr, L. R. {(i) Eq. 68 Henwood v. Mallaluii, 25 Ch. D. 857 Nuttuigham Patent lirick nnd Tdc Co. v. liutlei; 15 Q. B. D. 261, 16 Q. B. D. 77S lir Mnrsli and Earl Granville, 24 Itc Davis and Cavcy, 40 Ch. D. 11
1
; ; ; ;
Above, pp. S16 nq. if) Above, pp. 811, 813. Laiiiarr v. Dixvii, L. R. 6 ((/) H.' L. 414, 428; Mr Baiiutrr, Broad v. M>nito,i, 12 Ch. D. 131,
142, 770.
(A)
147,
149;
above,
p[..
U9,
cited above, pp. 37, 38, 190 204207, 768, 770, 776.
199,
DURESS AND
cause for
resisting
L'NDIJK
IXKLUENCK.
altlioiigli
it
827
specific
perfornianee,
may
make
to
to
was true
(/).
of mis-statement in Sale by
"^"^
connexion with the sale of land, which has not exactly through the true characteristics of a misrepresentation inducing fraud of
the contract, but partakes of the
land
same nature.
That
is vendor has
^'^ '''*^-
where a
to dispose
man bv
(/r).
fraud, sells
coarse of
some property, of which he is not entitled In this cas'3 there will, in the ordinary things, be a breach of his obligation to show
a good
title.
We
have seen
(/)
the vendor's obligation under the contract will justify the purchaser in rescinding
stances the right of rescission
fact that the
it
:
is
con-
At
making the
and
it
is
on the ground of his estoppel by this representation that the Court allows the purchaser to claim specific performance with compensation, where the vendor has
go(jd right to a part, but not the whole, of the pro[)erty
sold
(ii).
And
if
this
implied
represeuttition
were
if
words of the
(i) Sec previous note; und cf. above, pp. 80.'), 821. (k) Above, pp. 724, 7-S, I'M.
(/) Above, p. SI 0. [m) See Re Hair and 0\)f ore's CoiUtact, 11)01, 1 Ch. 93, where the contract was rescinded in a
828
OF FRAUD, MISREPRESENTATION,
vendor's ownership, and that representation had induced
the other to enter into the contract
(o).
Election to
loscind oi" affirm a conti'iict
As
before mentioned
p)
a person induced
by mis-
induced by misrepresentation.
rescinding or affirming
only, not void,
it
is
voidable
(y).
Purchaser's right to
specific
If
formance with compensation for the deficiency and the limits of his right in this respect have been already
;
explained
(r).
the contract, his election to do so must be made within a reasonable time after the discovery of the misrepresentation
;
(.s)
may be And
.
evidence of
his election to the
must be communicated
other party
is
{t).
jurisdiction of
aside
and cancelled
he
is
he
is
relief until
{o)
Ip)
(<;')
Cu.
v.
Brunct, 1909, A. C. 330, 339. ()) Above, pp. 724732, 812. Clouyh v. London and North (s) Western Rij. Co., L. K. 7 Ex. 26, 34, 35 ; Morrinon v. Universal
Marine Inmrance Co., L. li. 8 Ex. 197, 203 Lindsay Petrotenm Co. V. Hard, L. R. 6 P. C. 221,
;
Fin. 714, 720; v. Trmtecs, ^c. Corp., 13 R. 287. If the party misled point out the misrepresentation, and the other make proposals for removing its eifect, the right of rescission is only suspended and may be exercised, if 'Libthe proposals fall through l/att.s V. Botilter, 73 L. T. 534.
relijan, 11
CI.
k.
Lmpertal Ottoman
Bank
[t)
239 nq. ; Erlangcr v. AVw tiomhrtro Fhoapkate Co., 3 App. Cas. 121S, Me Liuncan, 1899, 1 Ch. 1277 HedUon v. North Eastern 387, 390 Salt Co., 1905, 1 Ch. 326; United
;
;
Co.
V. Bai/nes,
case,
Ashley's
and
Shoe, ^v. Co. V, JSrunct, 1909, A. C. and see Charter v. Tre330, 33y
;
() Above, pp. 811, 813815 Hoarex. Brcmridgc,'L.'R. 8 Ch. 22, 26 Londonand Brovmeial Insurance
;
829
Election may be evidenced
acts.
affirm
the
agreement
may
not only be
may
(.r),
by a purchaser's
exer-
bought
tlie
{>/)
When
tlie
And
where through the act of the person entitled otherwise Nor where to avoid the contract it has become impossible to restore by the act of
the parties to their former position, the contract can no
the party
claiminir to rescind
reMitiitio in
longer be rescinded
(a)
tliougli
integrion
has
become tract voidable for fraud will not prevent the rescission impossible. of the contract, if a payment in money would be an
(A).
Thus
if
one in-
duced to purchase mines by a fraudulent misrepresentation have entered into possession and worked out the
mines,
it
contract
but
if
in
such
circumstances
mines or
''.
V. fif'i/inour, Li.
R. 17 Eq.
v. Jlnrd,
8").
[z)
If sued, he rescission
;
may counter-claim
J{<'d(/rar/'
;
for
"Jd
34
Law
v.
(Jh.
lloitsr
140, 158, 159; rnitrd Shoe, ^c. Co. V. Biinict, 1909, A. C. 330,
7. But a claim to rescind the for misrepresentation contract cannot be made in a vendor and /'/ lliujhi s jjurchaser summons (Hid Ashlei/x i'outrart, 1900. 'JOh.
;
389.
[a) Clarke v. Didson, E. B. & E. 148 ffesfcrn Bank of Scotland V. Addic, L. R. 1 Sc. 145, 159, 165 Julant/cr v. Xcir Sombrero I'hos/jhatc Co., 3 App. Cas. 1218, 1278 Romer, J., lins v. Di lier; ;
595
(.()
fl'i'tfr))) lii/.
:?7
;
Co..
L. R.
7 E.\.
1
2().
iiardi/,
(A;
Lfiir v.
Lmr, 1905,
Jhiffi/s,
Ch. 140,
1
Erlanger
Laijunas
v.
Xcic Sombrero
158, 1.59.
(y)
I'hosphate Co., 3
Kxpti.
L. R.
Kij.
1278;
Lai/una.s
488
(Jo.
of
Si/ndica(r,
v.
See
Vii/er."
8 CI.
A:
1905,
Ch.
:5J()
cf.
above,
830
OF FRAUD, MfSREPRESENTATIOX,
in taking the accounts
{(f)
deterioration
(r)
These
pfd'f//
t/tf
cJ(tii))i))g
made complete
restitution impos-
sible.
ground that
restitution
(
/').
Thus on a
sale of
vendor's instance, he
may
No
rescission
As
by fraud cannot be enforced, either at law or in equity, as against any person who has acquired the land sold, or any part thereof or interest therein, as a purchaser for valuable consideration in good faith and without
notice of the fraud
(h).
In the
case
No
since
it is
tlie sale
misrepresentation after
completion.
by innocent misrepresentation cannot and the plea of purbe set aside after completion (/) chase for value without notice cannot be set up by an
of land induced
;
it
remains
land may,
induced by
completion
(/).
And
as
we have
seen,
an action can be
law for a
made
in con-
Id)
()
/")
(
((/)
Above,
I)e G.
v.
&
J. 78.
(A)
(/)
llarlmont, T) Ch. D. 394, 448, 449, Uces v. Dr Jtmnmbj, 1896, 2 452 Ch. 437, 446.
;
(/)
(/)
Above, p. 757. Above, pp. 813-81.0. Above, p. 758, Above, pp. 653, 654, 811,
812.
'^'31
the
representation
amounted
to
a warrant}'
The
riglit to
on the ground of misrepresentation, fraudulent or innoto tlie conti-actinsf party cent, is not personal ^
,
PI-
it
;
may
and
and the benefit thereof will belong to his heir or So also the contracting party's assigns in (y/). liis lifetime by operation of law, who take the benefit of the contract, as his trustee in bankruptcy (o), have the same election to avoid or confirm it as he had himself.
devisee
The vendor's
by fraud appears
it is
to
devisable
by
an
in
and
(
will pass
.
all his
real estate
p)
It
a^siarnment
bv
for fraud
and
be
therefore void
(7)
may
Assisfnei' of a
made by
]irovisions of the
Bankruitcy laws
(;)
If either the
vendor or
tlie
of the contract
pending completion
it
(.s)
without being
'-""'FJleti'^'i-
to
appears
that
tli(^
assignee, for
whom
tlie
Above, pp. (ill. SI 0. 811. See Tieciii/an v. ll'/iilr, 1 Boav. 588; Chiiih-r \. Trevrhi'iii,
(ill)
Edmonds,
ffoi/liton v.
Y.
&:
(;/)
C. Ex. iSl;
.Uonn/,
7U; Sttimp vJ/n/ii/, De G. M. & G. 625, 6:J0 De (Jr. & J. (,'iii>/i'i/ V. Mitiin/ri/. 4
1 1
CI.
&
Fiu.
2 Ch. 1(51, 109; Hi// v. Fitzrui/ L. R. 4 Eq. 260 v. VWr*, lOOo. 2 K. B. a64, :171.'
L.
It.
lioi/le,
78.
<):'>;
iilxivo,
((/)
Ali'ive,
SI/., ry,i').
.'t')!.
See
() Secfir v. Lairsou, 1.) Ch. ]). 42fi: f/m/ v. f'/nnr/ii/l. 40 Cli. I). 4Hi; and Hfo fii I'm/.- d'li/r frui/i/mi
also. p. 004.
//'"// *'"..
II,
17 Cli.
p.
D. 284.
{p)
Gii-s/iii V.
De G.
[s]
Above,
.'>()8.
&J.
78,
9:$.'
832
all his
OF FRAUD, MISREPRESENTATION,
rights under the contract, would have the benefit
and
of
But if the assignor were aware of the when he assigned over the benefit of
it
misrepresentation
the contract, then
would be evidence of an election to and in such ease it appears that affirm the contract {t) the assignee could no more rescind the contract than But the assignee would have the assignor himself {u).
act of ownershi}),
;
(.r)
Against what
persons right of
tlie
The
right
of
rescission
is
exercisable,
with the
rescission is exercisable.
it
remains a mere
chose in action
assigns,
law
(3)
or
by
his
own
act,
{a)
or
of the property
An action of
whereby
is
tahmble after
main-
under
stat.
Edw.
III.
c.
{c),
by his But an
damages
Above, p. 829. Above, p. 829. (.() Above, pp. 806808, 810 813, 828 and see below, p. 833. (v) Above, p. 758. (z) Load V. Gree, 15 M. & W.
(t)
{11)
;
Re EmU/afe, 1905, 1 216, 221 K. B. 465; Tilleij v. Bowman, Lcl., 1910, 1 K. B. 745. (a) Bridgeman v. Green, Wilm.
;
Tnvclya)i v. Whitt, 1 Beav. v. Trevelyan, II CI. & Fin. 714. (c) See Wms. Pers. Prop. 148, 16th ed. {d) Twyvross v. Grant, 4 C. P. D. 40 and see Hatchard v. Jleijfc, 18 Q. B. D. 771 Oa/ro/ v. Baffon, 35 Ch. D. 700.
{b)
588; Charter
833
?"* ."?* * (e) be maintained after the death of the deceivino' o party ^ \ / deceiving If, however, the wrong were done within six calendar party,
v'
(,/'),
it is
thought
&
4 Will. lY.
as
42,
s.
(g).
For
may
wrong done,
(A),
it
appears
a vei-ong done in
The
to be void
on that
account
(/.)
But
may
whole benefit of a contract induced by fraud has been assigned over in good faitli and for value, pending
completion and before the discovery of the fraud
the assignee should be entitled,
contract, to succeed
if
(/),
he
by subrogation
and should be enabled to sue the wrongdoer for damages at law in the assignor's name in the same manner as an insurer, who has paid compensation for damages caused by a
rights to compensation for the fraud
Gurnnj, L. R. 6 Ee Duncan, 392 It appears 1899, 1 Ch. 387. from the latter case that the contrary suggestions the to thrown out in Twycross v. Grant, 4 C. r. D. 40, 42, 46, 47, were not well founded in law. (/) See Kirk v. T<M, 21 Ch. D.
(e)
Peek v.
377,
H. L.
484.
(<7) See 16th ed.
Wms.
The
within
(i) See also Erskine v. Adeane, L. R. 8 Ch. 7.56, 760 Morgan v. Raveij, 30 L. J. Ex. 131 Jenks V. Clifden, 1897, 1 Ch. 694. (^) Above, Co. Litt. p. 831 368b Vin. Abr. Maintenance Prosser v. Edmonds, 1 (B., C.) Y. & C. 481 Be Hoghton v. Moneii, L. R. 2 Ch. 164, 169; Ball V. Warwick, .50 L. J. C. P. D. 382 James v. Kerr, 40 Ch. J). 449 Guy v. ChurchiU, 40 Ch. D.
; ; ; ; ;
;
brought
mouths
after the
calendar executors or
administrators have taken upon themselves the administration of the deceased person's estate. See Re Jni/iamrs, 52 L. T. 41. {fi) Note {d), p. 832, above.
481, The question, to wliat extent a right of action in tort is a.ssignablo, is discussed by the writer in L. Q. R. x. 147 sq., and Wms. Pers. Prop. 15316.5, 16th ed. (/) See above, pp. 831, 832.
48.5."
W.
53
834
wrong,
OF FRAUD, MISREPRESENTATION,
may have
On what
terms the
contract wiU be rescinded
befoi'e
of misrepresentation,
com-
is
plehion.
ments made and expenses inciuTed by him in the discharge of any obligation imposed on him by the contract, and to be indemnified against all liabilities assumed by him pursuant to any such obligation but
:
he
is
misrepresentation
was
be
may
not occa-
Thus
money
4/.
paid by
per cent,
where
is
amount
so
and he has a lien on the land due to him until repayment (p).
;
But
if
tation innocently
made
that
it
is fit
some particular business, and enter into possession pending completion, but pursuant to the contract, and
{m) See Randal v. Cockran, 1 Ves. sen. 98 Mason v. Hainshury, Yates v. Whyic, 3 Doug. 61, 64 4 Bing. N. C. 272, 283, 284 Simpson v. Thomson, 3 App. Gas.
; ;
Smith
V.
Land
and.
House
7,
279,
284286, 290295
;
Castcl-
Re Hare and 0''More''s Contract, 1901, 1 Ch. 93, 97 Cree v. Stone, Times Newspaper, 10th May,
1907.
{p)
lain V. Preston, 11
Q. B. D. 380,
;
King v. Victoria 388, 403, 404 Insurance Co., 1896,' A. C. 250 "Wms. Pers. Prop. 154, 155, 16th L. Q. R. x. 160, 151, 156, ed.
:
^fgthes
V.
Ler,
396
Rose v. JFatson, 10
;
Drew. H. L. C.
157'
(n)
Aberaman Ironicorks v. 671, 682 Wickcns, L. R. 4 Ch. 101, 109, 110 Ml/cock V. Beatson, 13 Ch. D.
;
liedgrave v.
;
Kurd, 20 Ch.
v.
;
384
Adam, 34 Ch. D. 582, 589, 593595, 596 Adorn V. Neichigging, 3 App. Gas.
D.
1
Ncwbigging
1901,
Co.
v.
1
Watt,
1902,
Ch.
835
W.
N.
21
and
1
308,
324,
33 1";
Whittington
v.
Fowler, 1904,
835
the untruth of the representation and rescind in consequence, he cannot recover compensation for his losses
in the business (q)
tract,
it is
.
pending completion, because of misrepresentation, submitted that, on the principles above stated, he
is
title
contract. But it seems questionable whether either party rescinding for innocent misrepre-
agreement
this
loss
by reason of the representation rather than outlay made in discharge of an obligation imposed by the contract (r). If, however, the representation were fraudulent, the defrauded party would be entitled to recover all damages attributable to the fraud, and he would certainly have the right to be re-imbm*sed these expenses and it appears that, in
suffered
(.s-)
;
damage
them
(t)
{{/)
JVhittington v. Seak-Hayne,
S2 L. T. 49. It is submitted that this case and those cited above, p. 81.5, n. [h), show that it is no bar to the right to rescind a contract for innocent misrepi'esentation that the purchaser has taken possession, pending completion, in pursuance of the contract and that under the present law the case of Blarkbiirti v. Smith, 2 E.x. 783, is no longer of authority on thispoint; and see above, pp. 190, 191. The mere occupation of land is not considered, in equity at least, to prevent restitutio in inteyruni : and even the commission of waste, as in working mines, may not have that effect above, p. 829. Wliere a contract for the sale of land is rescinded for mi.sropresuntation, innocent or
;
fraudulent, before completion but after the purchaser has taken possession under the contract, it is thought that the like accounts would be ordered to be taken, for tbe purpose of replacing the
parties in their former position, as are directed when the contract is set aside for fraud after corapletion see below, p. 836. As to the expenses recover(*) able as damages for breach of the contract, see below, Chap. XIX.
;
2.
Edwards v. McLeaij, G. () Coop. 308, 318, 2 Swaust. 287, 289 Berry v. Armistead, 2 Keen, Hart v. Swaine, 7 Ch. 221, 229
;
D.
42, 47.
;
[t) See Mycock v. Bealsoti, 13 Ch. D. 386 and the cases cited
53
(2)
836
On what
terms the
contract will
OF FRAUD, MISREPRESENTATION,
If a contract for the sale of land be set aside, on the
ground of fraud,
is entitled,
vendor rescinding
of the rents
amount
and the purchaser must account for which he has received, and will be charged with an occupation rent for any part of the The vendor is land which he has occupied himself {i()
in possession
;
and was
all
profits thereof
rents
and
profits,
in con-
(r),
such as
On
chaser
^vill
necessary
outgoings and
lasting
improvements
is
rescinding
money
but must account by him and pay an occupation rent for any land in liand, and compensation for any deterioration caused by his use of the and he is entitled property, as in working mines (a)
(r),
and
profits received
repairs
and improvements
(//).
But
it
seems that,
if
an
()
165 588
&
so paid by the vendor may off, in case of the piu-chaser's bankruptcy, against the vendor's obligation to return the
money
be set
price.
{y)
320, 330.
See Silkstone,
^-c.
Co. v.
Edey,
McLeay, G. Coop. 308, 318, 2 Swanst. 287, Armistead, 2 Keen, 289 Berry v. 221, 229; Hart v. Swaine, 7 Ch. D. 42, 47. (.r) See Tilley v. Boivman, Ltd.,
{v)
Edwards
v.
4 per 1900, 1 Ch. 167, 171. cent, still appears to be the rate see also of interest chargeable Ee Hinit, 1902, 2 Ch. 318, n. Be Davy, 1908, 1 Ch. 61.
; ;
(c)
(V/)
1910,
K. B.
^37
any claim
If the
amount chargeaccounts
tlie
may
the
rests, so that
may
be applied
the principal
for
(c)
might, but
it
charo-eable on
but for
appeal's
default, have
received
*^-?/l'J"J^
?^
that
circumstances
(e).
must
be shown
special case
is
the party
defrauded {/). But where the fraud was his, he would, it is thouglit, be more readily charged on
that
footing
(y).
The purchaser
But where
is
is
not
chargeable
accountable
(/),
(//).
the vendor
is
entitled
to rescind
the pm'chaser
in
depreciation
the
value
of
land caused
by
(/))
Edwards
v.
McLcaij,
G.
Coop. 308, 318, 2 Swanfit. 287, 289 see also Baii'ih v. Fikr, 1 Wils. K. B. 320, 322 Haygarth v. Weariiir/, L. R. 12 Eq. 320, 330. Frickcr, Jac. v. (c) Donovan
; ;
165.
{d)
Necxom
v. Vlurhno)!, 4
Hare,
97, lOo.
[e)
(m), {v),
My. &
where however the decree made does not accord with the judgment GihsuD v. I)' Est,, 2 Y. C. C. C. 542, r)81; reversed, Wilde V. Gibnon, 1 H. L. C. 605, 636 Frees v. Coke, L. R. 6 Ch. 645, 651 above, p. 516.
;
<!c
(/) Such an account was directed as against a purchaser held entitled to rescind in Gilmon v. D' Este, 2 Y. & C. C. C. 542, 581. reversed as mentioned above, n. {c). But it is submitted that this was clearly wrong see lEowcll v. Hourll, 2 My. & Cr. 478, 486. (;,) See Houcll v. Eotall, 2 My. & Or. 478, 486 Adain v. Swordrr, 2 De G. J. & S. 44, 61 Tate v. WiUiaimoti, L. R. 2 Ch. 55; Seton on Judgments, 2320, 6th Silkstom, ijr. Co. v. Edey, ed. 1900, 1 Ch. 1G7. (A) See cases cited above, p. 836, nn. (), (c); HilAstoiie, 4-c. Co. v. Edn/, 1900, 1 Ch. 167. (i) See above, p. 830.
;
. ;
838
OF FRAUD, MISREPRESENTATION,
any
act of waste or deterioration,
(A-)
.
mitted
rescinding
seen
the purchaser
similar allowance.
Forged
In connexion with the subject of fraud, it may be mentioned that a forged document, whether it be a deed
or a simple writing, If
it
it
is,
as a rule,
an absolute nullity
(w)
(w?)
;
if
be a power of attorney,
if
it
confers no authority
(o)
take the form of a contract, it imposes no on any party whose seal or signature thereto is forged (j!?). And if it assume the shape of a negotiable
liability
and
instrument,
it
strictly speaking,
But the
seal or sig-
may
be adopted by him
as his own and may acquire validity as against him under the doctrine of estoppel by conduct (s) Thus if one admit or represent a forged document to have been signed or sealed by him, he will be liable there.
Eq. 134; Re Cooper, 20 Ch. D. 611 Barton v. North Staffs. Ry. Co., 38 Ch. D. 458; Jared V. Clements, 1903, 1 Ch. 428.
;
389 Corp. of Staple v. Bank of England, 21 Q. B. D. 160 Ulivcr V. Bank of Em/land, 1901, 1 Ch. 652, 654; affirmed, 1902, 1 Ch. 610, and nom. Starkcy v. Bank of England, 1903, A. C. 114. '\p) See note [ni), above, and next note. [q) Esdaile v. La Naiize, 1 Y. & C. Ex. 394 Fearn v. Filica, 7 Man. & Gr. 513; Burchfield v. Moore, 3 E. & B. 683 Bohbett v. Finkctt, 1 Ex. D. 368, 374; Arnold v. Cheque Bank, 1 C. P. D. 578 Capital and Counties Bank v. Gor; ;
don, 1903,
()
Ex.
89.
(.s)
(o)
Bank of Ireland
Charities,
v. Trustees
Above,
of Evans''
H. L.
C.
839
So
if
one endorse
a forged
bill of
Money
document is genuine is paid under a mistake of fact and may in general be recovered back (x) but if the amount payable under a forged bill of exchange or promissory note be paid by a person liable thereon to a hand fide holder in the belief that it was genuine, the sum paid cannot be recovered from him,
:
of a forged
document.
him
(//).
at once
If
an
agent innocently make use of a forged authority from pounding his piincipal or supposed principal, he is liable under forged
the doctrine of implied warranty of authority to
make
authority.
whom
he has
the
authority being
genuine
(s).
55
2.
Injliieme.
We
have seen
that, in
order to
make a
contract,
there must
undue
influ-
ence arc
voidable.
226
M.
i:
W.
1
54
Re
;
Bod^ija
and see Re Biihiu and 101, 10!) Hun Fruucixco Rij. Co., L. R. 'i ISiiiiiti Angluv. Q. B. o84 American Ti'legraph Co., Q. B. Shaw v. I'orr. rhilip D. 188 Gold Mhniiy Co., i:{ Q. B. D.
;
'>
Baker Ch. 276 V. Conraye, 1910, 1 K. B. 56 and as to the recovery from an agent of money so paid to him, see I'oUard v. Bank of Enqland, L R. 6 Q. B. 623,630; Taylor
Co., Ld., 1904,
;
103
Shejfield
!
Corp.
v.
;
Banlfii/,
Ruben \. K. B. 08O 1903, Great Ftinjall Con.so/., Ld., 1904, 2 K. B. 712, 1906, A. C. 439. () Bunk of EiKjlund v. Viu/liiiHo, 1891, A. C. 107, IIG. Taunt. 488 [x) Junes V. Rjide, Wilkinson V. John>>ton, 3 B. & 0. Gtirneij v. Il'omrr.slei/, 428, 434 As to the re4 E. & B. 133.
;
V. Metropolitan Ry., 1906, 2 K. B. 55, 63. (y) CockH V. Master man, 9 B. & 902 London and Rwcr Plate Bunk V. Bank of Liverpool, 1896,
C
1
Q. B.
(;)
7.
(a)
Above,
p. 2.
840
OF FRAUD, MISREPRESENTATION,
wanting in
there
is
this
element of validity
entire
by
fraud,
is
not the
of
absence of
(/^).
consent which
characteristic
mistake
Duress at
unduly influenced does really consent to the proposed only he would not have done so had he agreement been a free agent (c). Contracts induced by duress or undue influence are therefore not void but they are voidable at the option of the party whose consent was The common law did not go beyond so procured {d).
;
:
common
law,
is,
actual
And
it is
by wrongfully taking or withholding goods, or and that if actual force were not threatening to do so) used, there must be the fear of losing life or limb, or of unlawful imprisonment. Thus battery was duress, but And the duress not the mere threat of battery (e). must have been used to the party to the contract him(as
;
Equitable
doctrine of
undue
influence.
In equity, or to his wife, child or parent ( /) however, a far wider jurisdiction was assumed to set
self
.
aside contracts
made without
free consent
and
it
was
adjudged to be
veyance
if
party making
{g)
(Zi)
(c)
425,
436;
FieWs
3Iarriagc,
;
(d)
(
396b
Scott v. C. 48, 5862 Sebright, 12 P. D. 21 Cooper v. Crane, 1891, P. 369, 376; Ford 1 Black. V. Stier, 1896, P. 1
H. L.
Comm.
which
433
436
P. 263, 271 sq. [e) 2 Inst. 483; Bac. Abr. Duress (A) 1 Black. Comm. 130, 131, 136; Skcate v. Bcale, 11 A.
Mos!<, 1897,
;
&
le).
841
at
common law
And
;
by
no means confined to the inducement of consent by outward force or fear it extends to every case in which
such influence
is
own
free will
is
(/).
wliether
who
alleges that he
own untrammelled
and
he did
not,
he
may
The
into
cases, in
two
classes.
The
is
''
first is
exercised
^^^^f
mind
{k).
independently
relaMon^^^^^^ between the
.,
and
it is
The second
where it is claimed that (oidue influence should be implied from the fact that there was a confidential relation between the parties, which invested
is
2.
.^,
Where
the one
mth
imposed on him a special duty of advising the other (/). In both classes the question to be determined is the
same
as to interfere witli
But they
differ
with
A.-O.
V.
'Sot/ion,
Vem.
,
497 Ifuffurnin v. Buseley, 14 Vea. 273, 294 Peel v. 16 Ves. 157, 159; and (^ Chester;
Jifld V. Janssoi, 2
Vcs. sen. 12-5, 155 157, where this jnrisdictiou is alluded to as a branch of the equitable jurisdiction to relieve against fraud. (t) See previous note; Dent v. Bennett, 4 My. & Cr. 269, 277,
licaiis v. Bayley, L. R. I H. L. 200, 212, 219 Lord Penzance, Parfitt v. Latdess, L. R. 2 P. & M.' 462, 468, 469; AUcard v. S/ciiinn; 36 Ch. D. 145, 183 186, 190; Morlcij v. Loughnan, 1893, 1 Ch. 736, 751, 752. {k) Jfi/liaiiis v. Bayley, L. R. 1 H. L. 200. (/) Alleard v. Skinner, SGCh.D. 145, 171, 181 ; Morky v. Loiiffhnan, 1893, 1 Ch. 736, 751, 752.
;
842
OF FRAUD, MISREPEESENTATION
respect to the burthen of proof.
class, entirely
This
lies,
in the
first
set
the trans-
plaintiff
must
:
but
when
this has
been established,
and it on the defendant of proving was not unduly influenced and that
lies
his consent
was quite
free
{>/).
is
,
where
influence is
(o)
presumed.
(7;),
{q),
confessor
other
spiritual
(/),
and penitent or
disciple
and doctor and patient (s). But the doctrine is not confined to any particular set of confidential relations. If any relation be established between the parties, of which the natural consequence would be that the one would come under the other's influence, the same rule applies, and the onus is on the party occupying the
[m) Blackie v.
Clark, 15 Beav.
with
;
whom
;
sister
was
living)
595
Toker v. Taker, 31 Beav. 629, 3 De G. J. & S. 487() Gibson v. Jeycs, 6 Ves. 266, 276 Bent v. Bennett, 4 My. & Archer v. Hudson, Cr. 269, 273 Lyon v. Home, 7 Beav. 551, 560 L. R. 6 Eq. 655, 681 Parfitt v. Lcntless, L. R. 2 P. & M. 462, AlUard v. Skinner, 36 468, 469
;
; ; ;
;
Ch. D. 145, 171, 181185. (o) Gibson V. Jeyes, 6 Ves. 266, 276 278 Eclwurds v. Meyrick, 2 Holman v. Hare, 60, 6870 Loyms, 4 De G. M. & G. 270 Savery v. King, 5 H. E. C. 627, 656; Spencer v. Topham, 22 Beav. Gresley v. Monsley, 4 573, 577 De G. & J. 78; Pisani v. A.-G. for Gibraltar, L. R. 5 P. C. 516, }Fri()ht v. Carter, 1903, 1 536 Ch. 27. {p) Archer v. Hudson, 7 Beav. 551 Harvey v. Mount, 8 Beav. 439 Hoyhton v. Hoyh(elder sister) Sharp ton, 15 Beav. 278, 299, 300 v. Leach, 31 Beav. 491 (brother
Savery v. Kitty, 5 H. L. C. 627, 655 Turner v. Collins, L. R. 7 Ch. 329 Knnpson v. Ashbee, L. R. 10 Ch. 15 Bainbriyye v. Browne, 18 Ch. D. 188 Pou-ell v. Powell, 1900, 1 Ch. 243. As to the principles ou which the Court act.s in setting aside or upholding family settlements or resettlements made between father and son of the family estates or property, see Hoghton v. Hoghton, 15 Beav. 278, 298, 300 sq. ; Hatherley, L.C., Turner v.
;
Collins, L. R. 7 Ch. 329, 339; Fane v. Fane, L. R. 20 Eq. 698 Hoblyn v. Hobli,n, 41 Ch. D. 200. {q) Hatch y.' Hatch, 9 Ve^9i-,
;
(r)
Lyon v. Home, L. R. 6 Eq. Allcard v. Skinner, 36 Ch. D. 145 Morley v. Loughnan, 1893, 1 Ch. 736, 752.
246 655
;
(s)
Dent
V.
;
D. 587, 589.
843
unbiassed consent
(t).
It
is
manager
Hiisbaudaud
^^
^'
(i<)But there is no presumption of undue influence on the part of a husband in transthough of actions between himself and his wife (.r) course undue influence may in fact be exerted by a husband over his wife with respect to her making some contract intended to bind her (y). The equitable rules as to the avoidance of transactions induced by undue influence apply, not only to contracts and conveyances for value, but also (and of course more readily) to voluntary conveyances, settlements and gifts, when made infer vivoH {z). But the presumption of undue influence from the establishment of a confidential rela-
of his property
Voluutaiy
'-""^^y""'''^''-
by
will
and
Gifts by will,
(t)
Uridffemanv.Grcetiy'lVeii.sen.
:
man-y
-ITt
;
Payt- v.
Home,
11
Beav.
Wilm. 58 Hioiier v. Atkins, 3 My. & K. 113, 136, 140, 141 J)cnt V. limnctt, 4 My. & Cr. 269, Smith v. Kaij, 7 H. L. 277, 279
627,
;
Cobbctt v. Brock, 20 Beav. 524, 530; and in special circum.stiinces betweeu a man and a he has g'onc woman, with
whom
Morlc;/ v. Louyhnari, C. 750, 779 1893, 1 Ch. 736, 752. {u) See Hugueitin v. Basiley, 14 Ves. 273; Himtrr v. Atkins, 3 My. & K. 113 Tate\jrilliamson, 2 Ch. 55 Morlei/ v. LoughL. nun, 1893, 1 Ch. 736. 752.
; ;
through a marriage
ceremony,
{x)
Griybi/ v. Co.r,
;
Ves. sen.
517, 51.S
2
Nedbii V. Ncdby, 5
De G.
1899,
Ch. 578, 585 (reversed on the Hours v. facts, 1902, A. C. 271) liishoi), 1909, 2 K. B. 390. It has been held that a fiduciary relation of the kind above mentioned may exist between a man and the woman, whom he is engaged to
F. & J. 521; see Fanner Farmer, 1 H. L. C. 724, 752. Turnbullv. Duval, 1902, See [y) A. C. 429, 432435; (Jhaplin df Co., Ltd. v. Drammall, 1908, 1 K. B. 233. {z) Huyuertin v. BaseUy, 14 Ves. 273; Allmrd\. Skinner, 'i&Ch.'D.
v.
De G.
v.
De G. M.
844
Undue
influence
l^resuined from confidential relation on the ground of public policy.
OF FRAUD, MISREPRESENTATION,
It is on the ground of public policy that contracts and conveyances are presumed to be voidable by one
party,
if
As
whom
it is
incum-
What
the
bent
bound
if
duty of
advising-
another
imports.
them
as
third person
The burthen
is
therefore laid on
him
any
own
favour
and reasonable
such, in fact, as
him
to accept
(c).
The duty
stance
the duty of
known
to the person
bound
to advise
and it follows of course that the mere non-disclosm-e of any such circumstance is sufficient to avoid the
sale
{e).
This principle
is
case of a purchase
also
by a
solicitor
from
where land
is
Hall V. Hall, L. R. 1 P. & M. 481 Tarfitt v. Lawless, L. R. 2 Baudaim P. & M. 462, 469, 470
; ;
Richardson, 1906, A. C. 169, 184, 185. {b) Above, pp. 842, n. (o), 843, n. {t). (c) Above, p. 842, n. (o). \d) See Fopham v. Brooke, 5 Russ. 8 Edwards v. Meyrick, 2 Hare, 60, 6870, 74, 75 Mohnan V. Loyncs, 4 De G. M. & G. 270. It was held in Edwards v. Meyrick that a purchase by a solicitor
v.
; ;
his client was not avoided fact that he had not pointed out to his client, that it was possible that a railway might at some future time be made near the land sold, which would in-
from
by the mere
Tate v. Williamson, L. R. 2
845
management
of
liis
property
(r/),
any person who has undertaken to advise him as to and wliere a share in a partnerliis financial affairs (/) ship business is bought from one partner by another, who knows and is aware that he knows more than
;
(/.)
And
by
Purchase by
centui-que^''"''
a purchase
a trustee of his
coHfiii-que-ti'usfs interest in
the trust
adviser
to
property
(/).
Where
solicitor
or
other
what he has
is
that
gave were fair and reasonable, that good as could have been obtained from any one and if this be made out, the circumstance tliat the else client was not advised by a separate solicitor or adviser
terms he
as
;
Ho^^; far a
buyino- from
^^^ (^^^^^^ must see that the client has
actinff '^
itself
avoid
But
it
appears that
is
;
proper course
^"*
be so separately advised
done
this, will
and the fact, that he has not be weighed in connexion with the other
evidence and so
sale ()
.
may
tell
And
by a client
(o)
.
If
[ff)
Cane v. Alien, 2
Dow.
289,
XVII.
294,
299; Molon;/
v.
Kernan, 2
[m) Edivards-v.Meyrick,2'H.wcc,
Dr.
& War.
31.
(//) Selseij V. Rhoa(ks, 2 S. & S. 41, 49, 1 Bligh, N. S. 1. (i) Tate v. Wtlliainson, L. R. 2
Ch. 55.
[k)
Law
V.
Late,
190').
Ch.
140.
[l)
Exptc.
Lacey,
626;
Coles v.
234, 247; Denton v. Donmr, 23 Beav. 285, 290 Luff v. Lord, 34 Beav. 220, 227; Cairns, C, Thomson v. Kuxtirood, 2 App. Cas. 215, 236; Plonright v. Lambert,
:
Spencer v. Tophain, 22 Beav. r)73; Pisaniy A.-G. for Gibraltar, L. R. ;5 P. C. ol6 and see cases cited above, u. (/), and Cane v. Alle, 2 Dow, 289. (w) See Harrison v. Guest, 6 De G. M. & G. 424, 432 Barnard v. /f/^w<r>-, 2 Jur. N. S. 1213; /Vw<ow v. Jtonner, 23 Beav. 285, 291; Pisani v. A.-G. for Gibraltar, L. R. 5 P. C. 516, 540. [o) Rhodes \. Bate,!,. 'R. \ Ch. 252 Lilrs v. Tirr;/, 1895, 'i Q. B. 679; Barron v. Willis, 1900, 2 Ch. 121, affirme<l, 1902, A. C. 271 Wright v. Carter, 1903, 1 Ch. 27.
.
846
Solicitor or
OF FRAUD, MISREPRESENTATION,
a solicitor or other
adviser
adviser buy-
ing from
client after
the relation
has been
severed.
wards,
and purchase the property at some time afterwhen the relation between them has been
is
nevertheless voidable
if
the pur-
And
by a
buying from
cestui-quetrust.
trustee
from
Examples
of undue influence.
of
The following
exercise of
further examples
influence as a
to
may
be given of the
for setting
the exercise
undue
ground
aside a sale.
They appear
fall
principally within
(r)
;
the
first
we
presump-
They
all illustrate
that
TFiniffuis V.
some instances the conduct of the party in fault amounted or approximated to fraud. A contract has been avoided where it was procui-ed by
giving the contractor to understand that, unless he
it,
Bayley.
Ellis V.
made
Barl-er.
StU7-ge V.
Sttirge.
A would be prosecuted for forgery (s). conveyance was set aside, which had been made under pressure of the threat of preventing the grantor from being accepted as tenant of a farm this being a necessary condition of taking a benefit under his father's will {t). A sale of land was rescinded where it had beentibtained
his son
;
Fin.
{p) Carter v. I'almer, 8 CI. & 657, 705 sq. ; HolmaH v. Loynes, 4 De G. M. & G. 270; lAiddii's Trustee v. Teard, 33 Ch.
Land Go's
244, 247
(?)
;
Contract, 1902, 1
Ch.
below, Chap.
XVII.
D.
n.
500,
{q)
;
517520.
(o) Clark v. Clark, 9 App. Gas. 733, 737 Re Boles and British
p. 841. Williams v. Bayley, L. R. 1 H. L. 200 see also Kaufman v. Gerson, 1904, 1 K. B. 591. {t) Ellis v. Barker, L. R. 7 Ch.
(s)
;
Above,
104.
847
their
eldest
brother without
money, ignorant
of
liis
rights,
and either
Tlie
whom
he was dealing.
brother was in
whole of the
land as tenant in
the true facts
tail,
entitled to one-fourth of
(?/).
So a
sale will
be
set aside
where
Inequalitj' of
betweoti
partif>'<
tlif
i,
(,r).
and unfairness
the
11-p
in
the terms
is
! that
to
couplefl with
unfaimoss.
advantage of
other's
position
Thus
minded man was avoided by his heir after his death (//) and so was a sale made by a poor and illiterate man on terms very disadvantageous to him in his last illness And in and without any independent advice (s).
several
sales
Clark
'
v.
"
^"'^'
Equity have
set
aside
made
condition of
So
sales of
an
equity of redemption
made by
mortgagee have been avoided where there was pressure and inequality of ])ut upon the mortgagor to sell
position,
is
although there
no general
(m) Sturgc V. Stiirye, 12 Beav. 229, 245; see also iJumifif/r v. White, 1 Swanst. 137, lol. (j) Kvanx V. LUwelltu, 1 Cox, 333, 340; Woofi v. Ahr.i/, 3 Madd. 417, 423. (y) Loiigiiiatr v. Ledger, 2 Giff. 157; affiniied, see 4 DeG. F. & J. 402. (z) Clark v. Malpas, 4 De G. F. & J. 401.
'
V.
De
(6)
445.
461 645.
848
OF FRAUD, MISREPRESENTATION,
buying the equity
circumstances
position
as
of
redemption
(e).
Where
such
of
inequality
and absence
it
then
sale, to
make
fail'
out that the terms of the transaction were in fact and reasonable and the other party acted freely in accepting them (c).
It will be observed that in all the
above-mentioned
not
suffi-
cient.
sale
sale.
Inadequacy of
consideration alone is not
sufficient.
A contract of sale is not voidable merely on the ground that the parties occupied unequal positions, as that the buyer was rich and well advised and the seller was poor or in a humble way of life, or old and ill, and had no independent legal advice (,/') although it appears that these circumstances are sufficient to cast upon the buyer the burthen of proof of fairness (g) In the same way, inadequacy of consideration is not of itself alone a ground for avoiding a sale and further, if no more be proved than this, it does not appear that the party
;
.
challenged
is
bargain
(h).
The
(c)
Knight
v.
MarJoribmiKs,
;
Mac. & G. 10, 13, 14 Ilelbourne Banking Corpn. v. Brougham, 7 above. App. Cas. 307, 315
:
(A)
p. 486. n.
[d)
{r).
[c) Bal-cr v. Monlc, ubi sup. Frees v. Coke, L. R. 6 Ch. 645, 649 FryY. Lane, 40 Ch. D. 312, 322 and other cases cited in notes (y), (s), {a), above, p. 847. (/) Harrison v. Guest, 6 De Gr. M. & a. 424, 432, 433, affirmed, Rosher v. Wil8 H. L. C. 481
;
:
Feacock v. Evans, 16 Ves. 512, 517 TFoodv. Abrei/, 3 Madd. 417,423; Stilwelly. Wilkins, Jac. Cockell v. Taylor, 15 280, 282 Beav, 103, 115; Harrison v. Guest, ubi sup. (i) Litt. s. Sturlyn v. 344 Albany, Cro. Eliz. 67 Bolton v.
; ;
383
Madden, L. R. 9 Q. B. 55, 57 Carlill V. Carbolic Smoke Ball Co., 1893, 1 Q. B. 256, 264, 271, 275,
849
capacity
and no con-
straint be iiut
they please
make -what bargain between themselves (./). But the fact that
upon
their wills, to
is
it
may
guilty of fraud or
undue influence
and where
it
is
sought to
set
may
possibly be so
no other inference than that the bargain was obtained by undue influence or fraud (/).
for
is
room
It
also
of
specific
In
performance of a contract for the sale of land (/). specific P*^'""r"ance. this case, as in that of the rescission of the contract,
is
undervalue
along
And
notwith-
may
it is
thought to be settled at
remedy
in
(//)
(//), above, p. SIS. See Gicytiue v. llcatoi, 1 Bro. C. C. 1, 9; Uiido-hUl v. Huncood, iO Ves. 209, 219; Htilircll V. Jn/liHs, Jac. 2^0, 2S2 /iJfVf V. r?o*7/o;/, 11 Beav. 2().i, 270; Summers v. (hijlitlin, 3.) Beav. 27, Lord Westbury, Trinuiit v. 33 Tcntients, L. R. 2 Sc. App. 6, 9. V. Broun, 1 Cox, (/) Collier 4 2K White v. Damon, 7 Ves. 30, 'ii Voh'K V. Trccotliiclc, 9 Ves. 234, 246; Jtmroucs v. Loc/~, 10 Ves. 470, 474 U'r.^fiin v. Rit.ssill^ 3 V. A: B. 17, 193; ]}urcll v. /, o XI KM i-n III 44 /hiiiii, 2 Hare, 440, 4.t0; Aliuott V. Suorder, 4 De G. & Sin. 448; /fai/iniiid V. Co/If, 2') Beav. 140.
;
;
; ;
Seen.
ground
specific
<'lerh\
Yoiiuq
Jhiij
v.
v.
v.
Havile,
1*.
W.
Cox,
74 5
;
and tlie 77 earlier nile was re-asserted by Kindersley, V.-C, in Falcke v. (iraii, 4 Drew. G.')l but this case is said by Sir Etlward Fry. Sji. I'erf. ^ 44;}, 3rd ed., to break tlie current of the later authority. ., -. -_. ("'I Above, pp. (68, ,(,). *^' ^
2
: , > '
Ncwmuu,
()
44(;,
I'.rd
cd.
w.
54
850
raise,
OF FRAUD, MISREPRESENTATION,
wlien considered in connexion with the circum-
an
irresistible inference of
fraud or
undue pressure
(o).
Inadequacy
exception to tlie rule, that of considera i p llconsideration is no reason tor setting tiou on sale of a reversion. specific performance of a contract, was
-
An
mere inadequacy
of
aside or resisting
l-
formerly admitted
of estates in
by private contract
(
remainder or reversion
perty
that
;
j))
wliere the
oini.<t
was on
purchaser to prove
lie liad
given the
thing sold
(7).
catching bargains
a
similar
made
Avith
{r).
expectant
heirs
or
persons in
position
The exception
was, as
we have
seen
(-s),
by statute as from the 1st of January, 1868 since when no purchase made hoiid Jidc, and without fraud or unfair dealing, of any reversionary interest in
abolished
;
real
or
j)ersonal
tJic
estate
is
to be
opened or
set
aside
nirir/f/ 0)1
the effect
ground of undervalue [t). It is held that of this statute is simply to place sales of
mere inadequacy
;
of
that
catching bargains
still
it
is
tioii
'l''Vl\
v.
?,
Madd.
Piacock v.
;
J'Jirois,
16 Ves.
nor where the reversion was sold toj^ether with the estate in possession whereon it was expecH'oad v. Ahrrtf, ib. 417: tant and see Vnrdlc v. Cavtir, 7 Sim.
;
ol2; (jloiiiand v. Be luiria, 17 Ves. 20 Ilinckmnan v. Siiiit/i, 3 KnuMl v. r,ecl:rtt, 2 Russ. 4 33 Russ. & My. 88, 90. This doctrine was not applied where the reversion was sold by public auc;
490.
(/
)
Chcsler field
;
v.
A:
J(nissni,
Ves. 125
White
Tudor L.
C.
Eq.
(.v)
Above,
(<)
851
sale of
reversion on other
;
grounds than that of undervahie alone as, for instance, where the claim is based on inequality of position and
absence of legal advice, coupled with unfaii'ness in the
{u).
to
sell
or
bu}-
land,
which have
been
Contracts
dia-csscir'^
influ-
the option of the party coerced or unduh' influenced in ""due the same
tracts
induced by fraud
"tsame limits
(~),
as well as himself;
and
against
party,
the
representatives
after
and
all
or
pur-
And
they
any
() Aiihsford V. Morris, L. R. 8 Ch. 484, 490, 401; O'liorlr v. Jl(i/i)if/firu/.r, 2 App. Cas. 814, 822, Fri/ v. Lmir, 40 823. 833, 834 Ch. D. ."iri; Brenchlfj/v. Hifigina, 83 L. T. 7ol.
;
(n)
voluntaiy
settlement
made
.sons
and indueed, as ro<rards one of them and th(> intenst taken by himself alone, by undue inHucnce is not voidable ajraiiist the
others
;
(.r)
(y)
Ifrii/hf v. Cart<
r,
190:5,
Eq.
Ch. 27.
But the
ca.se is
different
461.
[z)
where
a .'settlement is
procured by
Holman
;
78 Lamhfrt, 52 L. T.
ri(.wri<iht v.
(340.
Where
the undue influence of one party in favour of himself and other.--, for whose beneht, as well as his own, the imdue influence was exercised see ne.xt note,
;
liVes. 273. 289 Kciiipxo)! v. Anhbee, L. R. 10 Ch. lo Baiiibriqgc v. Ilroinie, 18 Ch. D. 18S, 197 Mnrleii v. Louglnian, 1893, 1 Ch.
(/>)
Jfiif/i/ciiin v. Jlasrlei/,
;
730, 7o7.
fc)
;
p. 831
Tomson
v. Jitdf/r, 3
Drew.
liluchic v.
Clark,
v.
306.
15 Beav. Browne, 18
54
(2)
852
OF FRAUD, MISREPRESENTATION
conveyances
pliedly
in
;
may
the
as those induced by and long acquiescence therein may be evidence of an election to affirm them {e). But of course any such express confirmation must be quite free from all taint of the duress, undue influence or breach of duty which it is intended to condone (,/') and it must
same manner
fraud
(/)
not be
made
set
aside the
original
{</).
transaction
otherwise
it
will
be
Terms
of sotting aside
sales induce!
l>y
equally voidable
or
by duress
undue
duress
like
terms
those
induced
by
fraud,
the vendor
interest
or undue influenee.
and
by him
including an occupation
own
possession,
having the
like allowances
made
to
him
for necessary
outgoings and substantial improvements and repairs, and being charged, where the relief is claimed against him, and in a proper case where the relief is claimed by him (/;, with the loss caused by any acts of waste or
&
9
(d) Stump V. Gaby, 2 De G. M. G. 623 Jftrratt v. Aldnm, L. R. Eq. 463. [e) Edwardfi v. Meijrick, 2 Hare,
;
60,
"i^
IFrif/Iit
.\^
v.
Vinidcrplank,
;
De G. M.
Skhini'r,
193.
(/) Bn'a//i V. rri-r, 1 Wils. (K. B.) 320 Savery v. King, 5 H. L. C. 627, 664; Moxoi v. Payne, L. R. 8 Ch. 881, 885. Prhr, 1 Wils. v. [g] Bangh (K! B.) 320, ;'22 lumpson v. Ashhee, L. R. lOCh. 15. It iseonceived that there can be no doubt that, as a rule, knowledge cf the party's rights is necessary to make an But in effectual confirmation. MifrhcH V. Homfray. 8 Q. B. D.
;
;
was confirmed by the patient's deliberate assent thereto persisted in during-i^everal years after the relation betAveen them had been severed, although it was not pi'oved that the patient knew that the original gift was voidable. The ground on which this judgment really rests appears to be that such assent was equivalent to a new gift made at a time when there was no cjnfidenrial I'elation between the parties to invalidate it. It may be noted that, as the chattels given were already in the donee's possession, nothing was required to make a new gift to him but the expression of the donor's intention to yi\e: Wms. Pars. Prop. 09, 16th
cd.
{],)
587, it was in special cii'cumstances lield that a gift of money to a medical man by a patient
(I)
853
{k).
Aud
the Whether
and
profits
to account for the rents aecountable "" the footing (/), unless a
{/n),
;
special case be
made out
against hrni
or unless he
as
default,
where he
him
It
is
(), or
incapacitate
where the fiduciary relation was such as to him altogether from purchasing the estate(o).
is set aside for any undue an actionable wrong, the to
party in fault
is
any loss sustained in the nature of collateral damages and not attributable to any outla}- incurred or act done But in the case of a in pursuance of the contract {p). sale induced by duress (such as false imprisonment, battery or menaces of loss of life or limb(y)), which amounts to an actual tort (/), it is conceived that the party so coerced can recover all damages attributable to
the wrong, as in the case of fraud
Expte. Hiighex, (i Ves. fil7, (/.) E.epte. James, 8 Ve8. 624, 625
;
(*).
hcrt,
I'loirriijht v.
t)4fi.
Lnn-
E.<pf<\ lioiiiclt, 10 Ves. ;i:57, 3;)! Robinson v. RkIIcii, 381, 400, 401 LoiKjmate v. I.nUjii-, 6 Madd. 2 Greslei/ v. MoKxlei/, 2 GiF. 1.57 4 De G. & J. 78, 100-102. (/) See previous note. [m) Above, pp. .)1G, So7. Tdtc V. irilliiinixii}!, \j. R. 2 (//) Setou on Judirmeiits, Ch. 00
; ;
J.
&:
De G.
('.
v.
Edeiu
11)00,
Ch. 167
see below,
Chap. XVII.
{p) See above, pp. 834. 835; and cases cited in note (/}, above. Above, p. 840. (y (r) W Black. Cnmi. 120, 127. y>) Above, p. 835.
854
CHAPTEK XV.
OF ILLEGALITY IN THE CONTKACT.
There must be nothing imlawful in
the object of the agree-
We
have seen
(a)
that
it is
the agreement.
simple sale
{h)
:
of
land
is
not in
ment.
Sales fur
illegal pur-
prohibited by statute
it
and a
sale of land
('/).
is
it'
be
made
Ag-iin,
a con-
poses void.
some
\\u-
agreement to convey the land on payment of a jtrice in money, and any such other term be illegal, the whole
contract or the illegal part of
it
lawful term.
from the
illegal
part or not
{'').
And
if
the unlawful
may
What
con-
be, the
(,/').
With regard
what contracts or
stipu-
tracts or
f-tipulations
are unlawful.
{(')
{/))
IFditi:
;
v. Joncf^, 1
{()
(V/)
B. & P. 5ol, .556; Gas Light and Coke Vo. V. Turnc)-, 6 Bing. N. C. ;5i4 FiSiher v. Brah/rs, 3 E. & B. 642 Smith V. Whiir, L. R. 1 Eq. 6'26 T'enrce v. Jiri^ols, L. E. 1 Ex.
Tcinmt,
;
:
21.3.
(t)
F<ii(]urx'(jn
V.
Uiilcliuisdii,
Cccjc,
Cro. ElJz.
109
Bridge v.
Bing. N. C. 6.5G, 662 SlwcMl v. Rosier, 2 Bing. N. C. 634 luir V. Lrciium, 6 Q. B. 308, 322, 9 Q. B. 371. 39.5 lIopkxuH v. Freacoll, 4 C B. 578 Lour.d v. Griinmide, 39 Ch. D. 605, 613. (/) Median v. Mai/, II M. & W. 653 IMcr v. Greni, 16 M. & W. 346 NichoUs v. Ktrclton, 10 Q. B. 346; Vndcnrood v. Barker, lcS90, 1 Ch. 300.
;
;
OF ILLlXiALlTV
of course governed
IN
THE CONTRACT.
of contract {n).
.^'^"5
That can
present
1
:
maybe
given.
1
In the
1
some contracts are particularly prohibited and are void on that account. Thus tlie sale by , n J auction 01 an advowson apart irom any manor or land was made unlawful by the Benefices Act, 1898 (//), and And the sale of any land byway is therefore void. -1 of lottery is expressly prohibited and made void by
place,
>
statute
11
Sale by
way
o^ lottery,
statute
(/).
illegalitv,
f-""*^''^*.-^-
rulJ'
In
this
"*
^^"
if
is illegal
they contemplate the com- eontomplatiug by conniion law or "" illegal act.
civil
wrong
void
if
(/),
by
statute on pain of a
lieiialty or
otherwise
to
(/).
sale of a
house
is
therefore
made
object
of using
manufacturing
whicli
any manner
as
place of entertainment
on there any
ness
(;>)
;
illegal process of
manufacture
it
{(>)
or busi-
up
for sale
by
Sec Pollock ou Contract, ((/) Ch. VII., pp. 27;J v'/., 7th ed.
();
Lhijd
;
\. Johii^mi,
v.
340. 341
1
SmUh
:
ll'hitr,
B. & V. L. K.
Wms.
(//)
I'crs.
IVop. 170
p.
4!:'..
vy.,
KJth cd.
Ki|.
1
62 G
Above,
Stats.
s.
;
L. R.
p. 770.
E.\. _'1<;
(i)
e.
S8.
17,
1,
&
"B.
(/.)
10 & II Will. III. 12 Geo. II. c. 2K, Fisher V. Jlrii/ffts, 3 E. J (542, 64S. Co. Litt. 20iib and ii.
1
; " 1
;
See Stephen. Dijrest of (;/) Criminal Law, Art. 1!>7 - 207, oS8, 408 sq. Li'jhl muf <'<,l;r ('. v. i) (inx
Tiinin:
/')
(>
Biufr-
N. C.
324.
2
See
f'o//c v. Jiijii/<iii/>,
M.
;
Jinisl,;/ V.
:
A.
3 to
Cnp'
R. vS: V. Rnii/tuiils. 2 M.
Jlir/)ii,//i,
.")
vt
W. HO
Unlicensed broken
E\.
:
Tui/lui- \. I'r.iii149, 157 10 Ex. 293; and land Uiis Cii 8ec lUioth V. l{inl; of Einjlaitil, 7 CI. & Ein. 509, -VtO.
: ,
& W.
203
^r.e
Ho
a
or
a sale of
land
is
void
if
or the comto
mission
contract
or
of
(.s),
fraud on persons
not
parties
the
an
illegal transfer of
a public
office {f),
any
(ii).
stipulation
which
is
illegal as
tending to en-
law
Such are
(^\'ithout
marriage) between a
man and
(//)
woman
(.r)
or
some oifence, which cannot be the subject of an action for damages, or and stipulations in is an ofenc3 against the public {z)
for stifling a criminal prosecution for
;
{a).
And
it is
thought that
which are in general or unlimited restraint Here it may be of alienaUon, are of the same kind (b).
((/)
;
Fisher v. Bridi/es, 3 E. & B. see above, p. 85.5. (rj Shackell v. Itoslrr, 2 Biua". N. 0. 634. (a) 16 Jlal/cihea v. Hodyson, Begbie v. Fhosphatr Q. B. 689 L. il. 10 B. Co., Q. 491, Hcwdffc 499 Scoit v. Brown ^- Co., 1892, 2 Q. B. 724 Jie Mi/ers, 1908, 1 K. B. 941, 9i3. [1] H'lpklns V. IVcscotl, 4 C. B. 578. See Beiijamiii on Sales,
by the writer
(h)
642
loir,
G. 647
201
;
Gloucester Curpn., 7 De G. M. & F" Qnin. 8 Ir. Ch. 578 Billimjv. Welch, I. R. 6 C. L. 88,
; ;
415, 437,
('0
2ndcd.
4
H. L.
(.()
L 123 125,
v.
;
160, 195.
1
Walker
Perk,i,s,
W.
.">
Graij v. Miith'ms,
McKai/, L. R. 5 P. C. 327, 334, 335 Pearson, J., Be Rosher, 26 Ch. D. 801, 810, 811, 819, 820; Chitty, J., Be fTJliot, 1896, 2 Gh. 353, 356 but see Co. Litt. 206 b, and Mr. Smith's criticism thereon, 1 Smith, L. C. 185, 2nd ed. 435, 11th ed. These authorities are all seated and discussed by the writer in 51 Sol. J. 64 S, 650, 669, 670, in an article criticising the
v.
;
McLean
Voliuix V.
1
decision
341
of Warrington, J., in Worthing Corpn.Y. Heather, 1906, see also other articles 2 Ch. 532
;
by the writer
t)50,
iu 42 Sol. J. 628,
D.
605.
(r)
Keir
321,
v.
Lccniiin,
308,
Q.
;
B.
371,
Fiilicr V.
10 Ch. iwpion,
Q. B. 395; L. R.
and 54
Jones V. Merionethshire, ifo. Bdtj. i>oci/., 1892, 1 Ch. 173. () Loire V. Feers, 4 Burr. 2225. As to couditions iu general restraint of marriage, see an article
Eistern Bi/. Co. v. As^oForthind, l^-c. Ltd., 1910, In these articles it is 1 Ch. 12. submitted that contracts to make some conveyance, which if actually made by way of shifting use or other executory limitation would be void as breaking the rule against perpetuities, are in general or unlimited restraint of alienation and should on that
iSiiuth
clntcd
857
trade are
roi(/
law
(r)
|,*bie"reliramt
If,
therefore, such a of
sale of
trade,
laud,
it
may
be
(Jontracts to Contracts
inhabi'-
buy
1
or sell land
.
made with
-,-,
.
states
kings
commercial intercourse between the king's subjects and the inhabitants of an enemy's country is prohibited {c).
licence.
>^'"t? "*'
by royal licence
hostile states.
all
And
state,
t(j
all
who
by carry-
/)
Sales iu-
of maintenance or champerty, or infringe the principle mainteiiance of legal policy on which those offences are founded, and '^'" ''"amperty.
which
that
is
stir-
ring up of lawsuits
at
Here
a
it
may
be mentioned Saleofaright
t<i
common
law,
if
man were
i'*-'*'"^''-'!"
l"''d-
see
K.
4SK,
>i:
B.
76;5,
779
Juiisu/i
v.
notes
J)ricf'ontiui, i\r.,
.)02, .509
;
(//).
yf)
See
3/fi.iiin,
J,
v.
Xor-
1
{
1894, A. C. o3.i Khr.mtii v. liuiDwIniww, 1898, 1 Ch. 671 i'liderwoml Ch. 30 Barker, 1899, 1 V. Toirimiii V. Jarnuiii, 1900, 2 Ch. ()98, 702: JJvudn, v. I'oo/,; 1904, 1 K. B. 45.
deitfe/l,
1
189
;
Ch.
G'-MK
P. li:}
S.
h'i'i
ic
&
Malhdi V. May, 11 M. cV W. 6i3. 609: Green v. I'ria, 13 M. & W. 695, 699: affirmed, 16
(r/)
M. & W.
346, 3.J3;
;
and cases
Beujatnin
Uuadcii,
7
cited in previous note on Sale, 408, 2nd ed. See Expositu v. ((')
Albntchl v. Su-ihiikdui, 2 V. A: B 323 J,uix v. Drufo,,tein, 1902, A. C. 484, .)0.), .')06. ItcijHttl v. Spri/e, 1 De G. (</) Spryr v. IM. ^: G. (560, G77, 686 I'urUr. 7 E. \- B. .)8 HatUii v. Jli(H<y,L. R. 8 (J. B. 112; j'umts v. A'r //, 40 Ch. D. 449, 456 7f/y( v. Ik limiardii, 1896, 2 Ch. 437, 446: l.-tinmt'x case, 10 Rep. 46b, 48a Co. Litt. 214h, 26.')a, n. (1) 6/tf///cy v. /o/its, 7 Biug. 369, 377.
; ; ;
858
lie
OF ILLEGALITY
could nut afterwards
;
IN
THE CONTRACT.
or dispose of bis interest of his edate
{/i),
sell
therein
for he
and
the case(/),
Sale of pretencecl right
or
title.
and neither
able
(/.).
By
any hereditaments, unless the vendor or his predecessors in title had been in possession of the same or the reversion or remainder thereof, or in receipt of the rents and
profits thereof for
one whole
}'ear
and any promise or covenant to liave any such {/h) right or title was equally forbidden unless the prumissor or covenantor, or his predecessors, had been But so in possession for a year before the contract (//). hereditaments were any of possession lawful in persons was made
;
jx'rmitted to
titl(?
buy
It
was considered
thill, if
liis
man were
a pretenced right or
title
And
c.
it
appears that
way
of
Vict.
(ill)
65,
s.
11.
v.
Jonvi<,
Litt.'
See Jenkins
9 Q.
Absi. 3b8
Tinjlersuii,
[i)
1
nq. ;
1
Culhy
v.
Doc
d.
A. &
See 3 Black.
ed.
B. D. 128, 134. [ii] It was held that this Act did not prevent the sale, pending the completion of a contract for the sale of land, of the purchaser's Wood v. interest in the land sold
:
(ifijtilli,
Swanst. 43,
;
i^b,
5()
Rights of kh%. 419, 420. entry are now devisable under the IV. & Will. Wills Act, Stat. 7 Vict. <. 26, s. 3 and see above, The right of a copyholder p. h3 1 wrongfully ejected was equally unassignable Kile (aid Qneiiitoii''
I'reist.
1
; .
Sug. V. & r. 356 or the sale by an expectant devisee of his interest under the expected devise Cook v. Field, 15 Q. B. 4t.O,
:
471.
(</)
Stat.
32
Hen. VIII.
;
c.
9,
s. 4.
cfur, 4
(/i
Rep.
25, 26.
iikbis
JoiicK,
Stat.
s. 2,
now
v.
Liiell,
15
OF ILLEGALITV IN TlIK
coalract dealing' with
it
COXTKAC'l'.
So'J
of
poti.si/ji/ifir.s
uot
assignable
184-3
(s),
at
law
(r).
By
the
we
are considering
was held that, since that Act, a lawful right of entry could no longer be properly described as a proteuced right or title, and might well be sold, not only to the person in possession, but to any stranger (0- And now, as we have seen (u), the enactment prohibiting the sale of pretenced rights and titles has been repealed. Under the present law,
therefore, a
man may
is
lawfully
sell
his interest in
any
land, of which he
And
it
aipears that
may
so
lawfully
it
sell
a part of his
jjart of tlie
interest in sufli
Lmd,
long as
be no
assist
The law
of
him chamlitr
any property,
it,
whicli
is
or realise
be
to
empowered
litigation
sell
costs of the
And
it
(7)
Wood
V.
Loiriirs,
18
Vcs.
2
Tit);
('holnuiiidelcit
v.
Clinton,
J.
A:
W.
1
1,
Tr),
43-45,
/'///</:,
(.)
Y. See Wrufht v
;
Jen/.iiis v. Join.i,
(^1.
M.J).
(J.
128;
/
1.)
H.
Above,
;
..
p. S.IS, n. (A. - V, . /,
'
U'ruj},!,
2 l>rest. Ab-t.
204.205.
8 & y Viet. e. IOC, () Stat. (> held not ti) extend to rig-ht or title of entry upon a forfeiture Hnut v. for eouditioii broken /;i.v//o;<, 8 Ex. G75, (580 Ilnnt \. (hnm Remnant, 9 Ex. 635, ()40 V. Batten, 2 Conira. Law Rep KiOfi, 23 L. T. O. S. 220; Wms. ou Seisin, 125; Jen/.ins v. Junex, 9 Q. B. D. 128, 131 above, pp. 404, 405.
s.
;
l; \T ! ^J",,^' J-"^ 1'"'- ^ j^f:" f' Oh. 43 <, J-/''i''""'''!^' 446, 41/.
(//)
'^'"'''''
JFood v.
;
Grijfi//,,
Swatist.
43,
S.
5(i
Hurtleii v. Unite//, 1 S.
;
&
2
244
Hnmnglon
;
v.
I.onq,
42(,
v. linni/ r, 2
445;'
7
lo Heav. 103, 117; Kniijlit De G. & J. 421, 443 Myers v. rnif,d, \e. I',,.,
v.
800
iiuiiutiiiii
There
is
solicit(jr
the litigation,
who cannot
lawfully
purchase the thing sued for from his client while the
though he is permitted to take a is pending {a) mortgage or charge thereon by way of security for a
action
;
loan
Sales made void or
iiueiiforce-
(//).
Of
or
able,
but not
prohibited.
way
of
gaming
wagering so made,
and if any
it
will
be void accordingly
So we have
to
seen that contracts for the sale of land are not enforceable unless put into writing
[r).
contracts are
void.
no proceedings and if
;
agreement as
be be
rule,
Property
transferred tlicreuuder cannot be recovered back.
a defence
It follows that if
an
illegal contract
maintained to
recover any money paid or property Tims if land be sold for an transferred thereunder (/').
{z)
Above,
p. S59,n.(//)
andsee
uitidersKH V. Radclifr,
E. B.
806. As to the question, far this doctrine is apphcable to an action to recover damages for a wrong, see Wms. Pers. Prop.
l.H,
Ifitli
& E. how
E. & B. 904 Re Gitre, 1899, 1 Q. B. 794. Above, pp. 3 14. {(') f) See VijU'uis v. lihoifvrn, 'I Hohiiaii v. Jo/nisitit. 1 Wils. 341 Cowp. 311; cases cited above,
;
ed.
and an
article
p. 8.)4, n. {d)
Tn/lor v.
;
Vhcxlcr,
by the writer
147
84.
(/')
sq.
()
Atidcrtion v. RadcHjI'c, E. B.
& E.
[c)
80C.
Stat.
8
\-
Vict.
c.
109,
s.
Sliua-l Kimj, 18; Bi/amx v 1908, 2 K.'B 696. {d) Consider Roitihr v. Short, b
Ai/cml v. L. R. 4 Q. B. 309 Jad-lHs, L. R. 16 E(i. 275 Unman V. Jciu'hncf, 15 Q. B. D. ')6I Kcarley v. Thomso)i, 24 Q. B. D 742; 'Scutt v. Brown S; Co., 1892, Gedgc v. Royal 2 Q. B. 724 y.Xi-haiiye Ash. Corp., 1900, 2 Q. B. 214; nurse V. Pearl, i?r. Co.. 1904. 1 K. B. ;3o8; Re Myers, li 08, 1
; ; ;
K. B. 941.
861
purpose and the contract be completed, the venthe purchaser pay the whole or part of the
if
conveyed to him,
eitlior to
(./')
;
vendor
may
a bar to
any action by
purchaser
compel
if
and
the
directly, or indirectly
or note given to
be
payment of the price, either by suing upon any bond, covenant secure such payment (v). Here it may
land
is
11purchased
Sale for
illegal
pin-
be used for an
if
only void
(//).
* ^9*''
such purpose be
known
buy
If one contract to
illegal
for
an To
one party
own unlawful
enforceable
by the vendor.
And
it
is
may
not actually
aware of any definite intention so to use it (/). If the purchaser's unlawful purpose were at first unknown to
tli(>
it
in effect voidable
at
he
may
contract
so.
(/)
but
llic
j)urchas('r
cannot
do
money
Excoptions
xh&t property
paid or property delivered under an unlawful agree(/; See last note. Fithry v. lUidyrs, 3 E. & B. 042. oases oitccl above, pp. See (/i)
[g)
8.')4,
(i)
li.
& A.
y.)
867.
L/oi/il\. Ju/tiiyoii,
I
Sue
r. :U0;
I
/V,yv
v.
Jfri,u/:s,
B. & L. R.
_'
Ex.
(/)
"213."
n. 'd), S5r..
l>oe d. Hohrrtu v.
r,r,i v.
-'{0.
MUlmnni, L. R.
Uobnl^,
'1
Ex.
862
parted with under an illegal contract cannot be recovered.
Thus
if
paid
money
ment repudiate
it
be accomplished, he
may
criminal or immoral
(;).
But
apply
if
where one has made an unlawful bargain, which would (except for its illegality) be voidable by him, as if he were induced to enter into it by fraud, duress or
And
undue
rule
is
influence, he
may
(o).
recover back
transferred thereunder
where
it is
sought to recover
of
which the
plaintiff is
one
(]>).
And money
}ierty deposited
witli a stakeholder or
other agent in
may
be
recovered back,
before
it
if
it
be given
tlie
agreement
Tappenden v. RandnlK 2 B. Tahinrt ^.-mkie, 6 M. & S. 290 T(i]ihr v. Tlou-er.% 1 Q. B. D. 291 see Hermann v. Charlrm:oHh, 190.'), 2 K. B. 123.
{i)
National
Ltd.,
plaintiflF
J'nion
Inrefitmenl
Co.,
&
P. 467
1907,
above
relief
(hhorne v. inUiams, 1 8 Vcs. v. Spryc, 1 De G. M. & G. 660, G79 ;' AtJdnson v. Deiihi/, G H. k N. 778, 7 H. & N. 934 and see Hamc v. Tear/, iS,-r. B. 558, 563, 564: Co., 1904, 1 Pollock on Contract, 384-^386, 7tli ed.
(o)
379; Reynell
condition of havintr it restored to him. The three last cases relate to property mortgaged to an unregistered moneylender see above, p. 487.
;
[p) Barclay v. Pefirxon, 1893, 2 Ch. 154, 165168; Boinuird v. Doft, 1906, 1 Ch. 740 Chapman
;
V.
MlchaHmi, 1908,
1
2 Ch. 612,
Lode/c
v.
1909,
Ch. 238;
cf.
Hisfrhif v. Jack-son, 8 B. Bone v. Ekiesx, 5 H. 221 925 harclaif v. Pearson, 1893, 2 Ch. 154, 168170 Strachiin V. Universal Stock Exchanqe, 1895, 2 Q. B. 329, 1896, A. "C. 166; Hhoolhred v. Roberts, 1899, 2 Q. B. 560, 1900, 2 Q B. 497, 500; Bunie v. Ashlo/, 1900. 1 Q. B. 744.
(7)
& C. & N.
'
863
is
Proporty
that
money paid
with a full knowledge of the facts, though under a mistake of law, cannot be recovered back (.s). And where
is
is
is
at
tlie
received
to
him thereunder
Thus
contracts which
illegal
made void by
as contracts
same footing
If therefore a void
agreement be whoUj- or partly executed, the l;iw will leave the parties in the position in which tliey stand,
and
is
performed
he do
at liberty to
this,
if
undo what has actually been But a party to a merelj^ void contract repudiate it before it be performed, and he may recover any money or propertj(.r).
And
property transferred
tlie
to a stakeholder or other
ai)plied
agent for
pur^jose of being
may
be recovered
()
Aliove, p. 860.
/scr. Co.,
-1
-.
L. R. S
(}.
P.
HIO,
'.)
(s)
II u. 4Ij9
;
liMie
V.
I.nwiii,
:
U.I.
,-
'^^
,,-,. ['((icrll., Do
,.,.
(.J.
,
,,
.,-,
77
V.
II iilsh,
Q. B. D. 189,
l)i.
Fuul.H. J). 742, 743; v. Trat,,; 190.5. 1 K. B. 4-27: ami 71'). see Seyiiiotr v. I'ukett, ib.
a.
n Q.
t.
B.
T^
-^
','\
tt
ti;
w->
an exception where paid under a mistake inouey of law to u officer ..f the fourt i Iv./ i (I Ti It rsunmotKis. J:.i lie. 10 y. B. J^. -.m; Re Op^,.,, U., 18.1, 2 Ch. Itc Tj/rr, 1907, I K. B. l;54;
There
is
is
..
..
W"
upr.
{t)
^V ^ '"': Stiaihnii
(i97,
v.
(nunsnl
189."),
'^ '^-
I'^'r^
H"
Stink 2 Q. B.
V.
Liverpool Maritie
G99, 702,
70.5,
706.
864
back,
if
it
be given before
or
it
be
delivered over
may
able
also be recovered
{z)
.
And
if
made
void
by a
of
statute passed
for
certain
class
persons, a
member
may
recover
the agree-
Frauds
(f).
{b)
are governed
by
rules peculiar to
them-
selves as regards
the
recovery of
under
but
is
the
law
regards the
ance to be meritorious.
(though not perfectly binding), and deems its performThus if one buy land with
the.
And
is
delivery of
possession
upon an
oral sale of
land
for
good consideration
the
is
price (./).
in
party who pleads the statute iu bar [g), yet he is under an obligation qud^i ox coidrada to return money paid or
to
pay
for
if
{h)
Thus
{;/)
money be paid on an
(()
oral
and See previous note v. H\ggs, 2 Ex. D. 4'2'2. Re Gluhh, '{z) Above", p. 844 and see Harse 1900, 1 Ch. 3.'i4 V. rearl, ^-c. Co., 1904, I K. B.
Viric/le
;
See
Pollock on Contract,
p. 11.
1
Above,
Dairson v. Ellis,
J.
v^'
W.
6
524.
M. & W.
84
and see
2a9.
Lavci-if
v. Tirrleif,
Ch.
166168
.see
above,
o.
H. & N.
(g)
C.'ir.
IT.
(h)
20.
I.inrrfi^
I
above, p.
?..
Q. B. D, 284.
865
an action to enforce eon\'eyanee, the purchaser can recover the price (/). And where a deposit is paid on such a contract, the vendor pleading
statute as a defence to
the statute
is
it (/).
But the
better oi)inion
that
the
agreement under cover of the statute cannot recover the deposit from a vendor who is willing and able to complete the
contract
for
such
contract
cannot
be
rescinded
by
an
illegal or a void
and if one partj-, having paid a agreement may (/) deposit with full knowledge that there Mas no writing
to
the other
him
to get
{u/}.
Mortmain Act
of Geo. II.
(ii),
Sale of land
of a charity,
by
that
present
Act (o). But we have seen that, under the Mortmain and Charitable Uses Acts of 1888
(
and 1891
sell
p), it is a question
whether a contract to
is
an
a-s-surancc
required
tlie Act and therefore void, if not so made (7). There seems to be no doubt however that, where a sale of land to a charity is completed on payment of the purchase money by an assurance not made in compliance with these Acts, as by a deed attested by one witness onl}',
to be
made with
tlie
formalities prescribed
by
of 1888,
is
void,
(i)
Aiwii.,
;
(w)
/,
c.
36. n. (m),
case G64 b
(A)
Sug. V.
&
1'.
l.y.i.
Gosbelf V. Jrc/,e,; 2
A.
_
A:
4r,--
"
^\^K^.o.e, pp.
(//()
Thomas
V.
714,
dis.sentinjr
I>.
\.
"
'"
7."^.
('_('/)
Above, pp.
liuhrrfs' 31
15ea\. HIM.
''
00
866
lie lias
him
Where
man
it
own money, but directs the conveyance to some charitable use, intending to give the land to the charity, and the conveyance is not made in accordance with the Mortmain Act, the assurance of the legal estate is void, and the charity has no equitable
for
with his
be
made
the purchaser,
Illegality-
supervening
.since
the
formation of
the contract.
dissolved,
And
it
their
impossibility of
per-
formance
[ii]
and the
property
recover
or
validity (x).
(>)
See
above,
(<?), (/),
])p.
-iio
;
and notes
staii V.
(w). 456
449 Thur-
{t) Brewster v. KitcheU, 1 Salk. 198 Enposito v. Bowden, 7 E. & B. 763 Baibf v. Be Crespxgmj, L. R. 4 Q. B.'l80, 186.
;
;
(m)
K. B. 740;
Soci/. v.
Co., ib.
1904.
Tliompsoi) V. Jl'illifims, 68
X. H.
XVIII.
(r)
1.
248, cited in Keener on QuasiCon tract, 270, 271. Ffiec V. Ilathaivaij, 6 Madd. 304.
(.S-)
Furtado v. Rodfjers, 3 B. & P. 191, 201: and see The Tcutonia, L. R. 3 A. & E. 394, 417.
; .
OF ILLEGALITY
But
this doctrine of
IN
THE CONTKACT,
supervening applies only
867
illegality
to cases
where the
jyorfoniunire of the
is
primary ohligatiou
illegal
created
by the
;
contract
rendered
by some
the
agreement
it
Illustrations of
formation
(r
some foreign
State,
the contract was made, but has become hostile before the time stipulated for performance of the agreement
ill)
See
Flitidt
:
v.
Waters,
1.)
'z)
BrcicsUr
v. Kitchell,
note to Clfmontnun V. BlcsHtf/, 11 Ex. l-lo Janson v. Briefonte ill, ^-c, 1902, A. C. 484;
;
198; Baibj v.
4
Be
1 Salk. Crespigny, L. R.
Q. B. 180, 186.
: ;
see
{a) Esposiio V. Buwdeii, 7 E. S: B. 763 see above, p. 857 and next Chapter iindei- the head of
.537.
Aliens.
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