The particulars should fairly and accurately describe the estate; if, although grammatically correct, they are so obscure as to be likely to deceive an ordinary purchaser, the sale will be liable to be set aside (q).

An agreement to sell land, is, in the absence of any restrictive expressions, an agreement to sell the whole of the vendor's interest therein (r); and such interest, if not described, will be inferred to be an estate in fee simple (s); and, unless the contrary be expressed, the interest offered for sale, (whether it be absolute or qualified,) will be presumed to be accompanied by all those advantages which are legally incidental to it. Therefore, an infringement of the rule, Cujus est solum ejus est usque ad coelum, is, (if not mentioned in the particulars,) sufficient to avoid the contract as against the purchaser (t).

Sale stated to be without reserve, no bidding allowable on behalf of vendor.

Particulars.

Description of property in, to be fair and clear.

Agreement to sell land, what it includes.

All legal incidents are presumed to ac(m) Manser v. Back, 6 Ha. 443.

(n) Meadows v. Tanner, 5 Madd. 34.

(o) Robinson v. Wall, 10 Beav. 61; 2 Ph. 372.

(p) See Thornett v. Haines, 15 Mees. &W. 371, 372.

(q) Taylor v. Mart indole, 1 Y.

& C. C. C. 658; Symons v. James, ib. 490; Martin v. Cotter, 3 J. & Lat. 496.

(r) Bower v. Cooper, 2 Ha. 408.

(s) Sug. 339; Hughes v. Parker, 8 Mees. & W. 244; and see, Cattel v. Corrall, 4 Y. & C. 228, 236. company the property.

But an agreement to sell land to a Railway (u) or Waterworks Company (v), if subject to the provisions of the late Consolidation Acts, does not include the minerals, unless they are expressly comprised in the purchase.

So, any charge upon the estate, or right restrictive of the purchaser's absolute enjoyment of it, and the release of which cannot be procured by the vendors, should be stated; or the omission may, in many cases, avoid the sale as against the purchaser (w); e.g., a right of sporting over the estate (x), a right of common every third year (y), a right to dig for mines (z), a liability to repair the church chancel (a), or, (it is conceived,) a liability to heriots, or any other right or liability which cannot fairly admit of compensation, would, if undisclosed, have that effect.

Rights of way (if any) should be referred to; for although a mere non-disclosure of their existence, might not, in general, avoid the contract (b), the Court would readily lay hold of anything in the particulars, etc, at all inconsistent with their existence, as a ground for relieving a purchaser.

So, if the vendor's interest be in any way determinable, the fact should appear; for when a redeemable annuity was offered for sale, simply as an annuity (c), and leasehold houses were sold, without any mention being made of a private Act of Parliament which gave a Company the right to purchase them (d), the sales were held invalid.

Minerals, unless named, not included in sale to Railway or Waterworks Company.

Particulars or conditions must notice permanent charges, or rights restrictive of absolute enjoyment of property.

Rights of way.

And anything which may determine vendor's interest.

(7) Pope v. Garland, 4 Y. & C. 403.

(u) 8 Vict. c. 20, s. 77.

(v) 10 Vict. c. 17, s. 18.

(w) Sug. 352, 353.

(x) Burnell v. Brown, 1 Jac. & W. 172.

(y) Gibson v. Spurrier, Peake's Ad. Ca. 50.

(z) Seaman v. Vawdrey, 16 Ves. 390.

(a) Forteblow v. Shirkley, 2 Sw. 223.

(b) Oldfield or Bowles v. Round, 5 Ves. 508.

(c) Coverley v. Burrell, Sug. 29.

The vendor, however, is not bound to mention in the particulars any matter affecting the property, and of which the purchaser has notice: e. g., on the sale of leaseholds, the fact that the covenants and restrictions in the lease are unusually stringent, need not be stated: for the purchaser, having notice of the lease, should satisfy himself as to the contents before he buys (e).

So, on the sale of copyholds, the particulars need not refer to the fines or customs of the manor; these being generally incidental to copyhold tenure (f).

So, where, on the sale of freeholds, it distinctly appears by the particulars that the land is held of a manor, it is conceived, that the vendor need not refer to the existence of quit rents, or even heriots (g); the fair and proper course, however, would be to mention the fact: so, where land is sold as Fen land, the particulars need not refer to Embanking and Drainage Taxes, to which it is subject under a local but public Act of Parliament (h).

So, on the sale of lands within the mining districts, any reference to the rights of mining (i), under the local customs, would, it is conceived, be unnecessary; as their existence is matter of notoriety.

But the particulars must contain no misrepresentation; e. g., if, on the sale of leaseholds, the terms of the lease are misstated, the sale may be set aside; even although the auctioneer read the lease at the sale (j).

But not matter of which purchaser has notice; e.g., stringent covenants on sale of leaseholds.

Or fines or customs on sale of copyholds.

Or quit rents, etc, on sale of manorial freehold.

Or statutory-local taxes.

Or notorious local customs.

But there must he no misrepresentation; e.g , misstatement of terms of lease, although read at sale.

(d) Ballard v. Way, 1 Mee. & W. 520.

(e) Hall v. Smith, 14 Ves. 426; Pope v. Garland, 4 Y. & C. 394; Paterson v. Long, 6 Beav. 590.

(f) See and consider, White v. Cuddon, 8 Cl.. & Fin. 766.

(g) See Damerell v. Protheroe, 10 Q. B. 20; showing that heriots may be due in respect of freeholds.

(h) Barraud v. Archer, 2 Sim. 433; affirmed, 2 Russ. & Myl. 751;

(i) As to which see Rogers v. Brenton, 12 Jur. 263.

(j) Flight v. Booth, 1 Bing. N. C. 379; Jones v. Edney, 3 Camp. 285, and see Van v. Corpe, 3 Myl. & K. 269; Flight v. Barton, ib. 282.