books



previous page: American Law Of Real Estate Agency | by William Slee Walker
  
page up: Real Estate Books
  
next page: The Law Of Land Contracts | by Asher L. Cornelius

A Compendium Of The Law And Practice Of Vendors And Purchasers Of Real Estate | by J. Henry Dart



The object proposed by the author of the following pages has been to produce a work which, without being a mere elementary outline on the one hand, or a mere index of cases on the other, may supply the student with a concise and connected statement of the present law and practice affecting vendors and purchasers of real estate, and the practitioner with a portable book of reference to the recent, and the most important early authorities on the subject.

TitleA Compendium Of The Law And Practice Of Vendors And Purchasers Of Real Estate
AuthorJ. Henry Dart
PublisherV. & R. Stevens and G.S. Norton
Year1851
Copyright1851, V. & R. Stevens and G.S. Norton
AmazonA compendium of the law and practice of vendors and purchasers of real estate

By J. Henry Dart Of Lincoln's Inn, Esq., Barrister-At-Law

Stevens And Co., Printers, Bell Yard, Lincoln's Inn

-Preface
The object proposed by the author of the following pages has been to produce a work which, without being a mere elementary outline on the one hand, or a mere index of cases on the other, may supply th...
-Chapter I. As To Restrictions On The General Capacity To Buy Or Sell Real Estate
1. As to who are generally incompetent to sell. 2. Who are relatively incompetent to sell. 3. Who are generally incompetent to purchase. 4. Who are relatively incompetent to purchase. The ...
-1. As to incapacities to sell of the 1st description
A proposed vendor, although having a good title to, and being the absolute owner of property, and standing in no situation of trust towards the proposed purchaser, may yet be under some personal incap...
-Power Of Committees
Married woman can in general only convey under 3 & 4 Will. IV. c. 74. May be restricted from selling, although the entire estate be given to her. May convey in exercise of a power. May dispos...
-2. As to incapacities of the 2nd description affecting vendors
These may be considered to consist of, 1st, the want of a transferable (k) title to the property proposed to be dealt with; and, 2ndly, the existence of some relation on the part of the proposed vendo...
-3. As to incapacities of the 1st description affecting purchasers
Purchasers must, necessarily, be either individuals or a corporation: corporations, of whatever description, may purchase, but cannot, in their corporate capacities, hold lands, except under a licence...
-As to incapacities of the 1st description affecting purchasers. Continued
Marriage of female alien to a natural-born subject. Infant purchasing may elect when he comes of age. What amounts to confirmation. He may be bound by simple acquiescence. What time allowe...
-4. As to incapacities of the 2nd description affecting purchasers
The remarks which we have already made (k), as to undue personal influence, seem to be as applicable to purchasers as to vendors. It is also a general rule in equity, that no person who by being e...
-As to incapacities of the 2nd description affecting purchasers. Part 2
Committee of LunaticCounsel Creditor of Bankrupt, who had advised as to sale. Executors and administrators Guardians Governor of Charity. Mortgagee(c) Ex parte Bennett, 10 Ves. 381. ...
-As to incapacities of the 2nd description affecting purchasers. Part 3
Son of disqualified purchaser. Tenant for life on sale by Trustees with his consent. (d) See Edwards v. Meyrick, 2 Ha. 60, where the earlier cases are cited and reviewed: see Rudd v. Sewell, 4 J...
-As to incapacities of the 2nd description affecting purchasers. Part 4
Where the decree directs a reconveyance, and an account and payment of the balance to the purchaser, but does not in terms give him a lien for such balance upon the estate, the reconveyance must be ma...
-Chapter II. As To Sales By Fiduciary Vendors
1. As to the time of sale. 2. The manner of sale. 3. The consideration. 4. General points relating to sales by fiduciary vendors. Under the term, fiduciary vendors, we may comprise agents ...
-1. When ought they to sell?
An agent for sale, should, subject to a reasonable exercise of discretion, sell with all convenient speed. On sales by Fiduciary Vendors. As to time, consideration for, and manner of sale....
-2. How ought they to sell?
An agent or trustee, simply authorized to sell by public auction for a given sum, cannot, whatever may be the price offered, sell by private contract (w). And an express authority to sell by privat...
-How ought they to sell?. Continued
(7) See Matthie v. Edwards, on appeal, 11 Jur. 761; and (as Jones v. Matthie) 11 Jur. 504, reported below, 2 Coll. 465: and see Grugeon v. Gerrard, 4 Y. & C. 119. Money paid for expenses by mortgagor ...
-4. As to general points relating to sales by fiduciary vendors
As a general rule, fiduciary vendors must show a marketable title, and are in all respects liable to a purchaser as if they were absolute and beneficial owners (k); except that they ordinarily enter i...
-Chapter III. As To The Relative Duties Of Vendors And Purchasers Prior To The Sale
1. As to the disclosure or concealment of defects, incumbrances, etc. by the vendor. 2. As to commendatory and other similar statements by vendor. 3. As to the disclosure or concealment of advan...
-1. As to the disclosure or concealment of defects, incumbrances, etc, by a vendor
Defects in an estate may be either patent, that is, such as might be discovered by ordinary vigilance on the part of a purchaser; e. g. the existence of an open footpath over the property (a), or the ...
-2. As to commendatory and other similar statements by a vendor
It may be laid down as a general rule, that mere expressions of praise or affirmations of value, such as, that an estate, sold as a renewable leasehold, is nearly equal to freehold (e); or that land...
-3. As to concealment and disclosure of advantages by the purchaser
A purchaser need not disclose any fact, unknown to the vendor, which increases the value of the property itself; e. g. the existence of a mine (w). But anything, even a mere word, which tends to mi...
-4. As to depreciatory remarks, etc, by the purchaser
A purchaser who has misrepresented the property to a third person desirous of purchasing it, cannot enforce the contract in Equity (a). A purchaser, however, is not liable to an action at Law for h...
-Chapter IV. As To The Particulars And Conditions Of Sale
1. General matters relating to particulars and conditions, and their construction. 2. Preparation and contents of particulars. 3. As to the conditions. 4. As to what special conditions are ge...
-2. As to the preparation and contents of the particulars
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 b...
-As to the preparation and contents of the particulars. Continued
So, where property thirty-three feet in depth was described as forty-six feet deep, the purchaser was allowed an abatement, although he was the occupying tenant (k). And the effect of what would ot...
-3. As to the conditions
In the absence of stipulation, a bidder at an auction may, audibly, before the fall of the hammer, retract his bidding (y); a condition negativing this right is almost always inserted, and is recommen...
-As to the conditions. Part 2
Restrictive of purchaser's right to abstract, when expedient. Abstract, in conditions as to time, means perfect abstract. Effect of non-delivery of, on conditions as to time. Condition fo...
-As to the conditions. Part 3
As to misdescription and compensation. Does not extend to misdescription, it wilful; or affecting the substantial subject-matter of the con tract; or caused by gross negligence. (w) Bullen v. De...
-As to the conditions. Part 4
Whether trustees can use condition as to misdescriptions. As to deeds; prima facie liability of vendor to produce, and deliver up on completion, or furnish attested copies. (p) Sherwood v. Robin...
-As to the conditions. Part 5
That abstract shall commence with sperci-fied document. Does not preclude objections. Sow to be framed when early title lost or defective. Production (k) Duke v. Barnett, 2 Coll. 337; and ...
-As to the conditions. Part 6
Satisfactory means marketable title. Not to be relied on by vendor knowingly selling with a defective title. Nor as against purchaser willing to complete without compensation: but will hol...
-4. As to what special conditions are generally requisite in various specified cases
Upon a sale of lands held under an Inclosure Act, it will often be expedient to negative the purchaser's prima facie right to evidence of the validity and regularity of the award (j): and attention mu...
-5. General remarks on special conditions
Upon sales by trustees, mortgagees, and other persons filling a fiduciary character, great care is requisite in the use of special conditions; since, if improperly used, they may not only involve the ...
-Chapter V. As To The Sale And Matters Connected Therewith
1. Auction, what it is. 2. Auctioneer, his liabilities, power, and remuneration. 3. Agent, his liabilities, power, and remuneration. 4. The deposit. 5. As to puffings and reserved biddings...
-3. An to Agents
An agent, either for purchase (b) or sale (c) of an estate, may, unless the principal be a corporation (d), be appointed by word of mouth; but a verbal appointment, of course, is Agent. How may ...
-4. As to the deposit
The deposit is a payment in part of the purchase-money (c); and the purchaser cannot elect to forfeit it and avoid the agreement (d). Even the deposit should not be paid to a mere agent for sale, w...
-5. As to puffers and reserved biddings
Unless the property be expressly or impliedly offered for sale without reserve (q), it appears settled that the employment of a bidder to prevent its going at an undervalue is allowable in Equity (r);...
-Chapter VI. As To The Agreement
1. As to the general necessity for a written agreement. 2. The preparation of formal agreements. 3. What informal documents may constitute an agreement. 4. The signature. 5. The stamps. ...
-2. As to the preparation of formal agreements
Upon formal agreements for sale, few questions arise distinguishable from those which have been already considered with reference to the particulars and conditions. In framing such agreements, it i...
-3. As to what informal documents may constitute an agreement
Informal agreements give rise to questions of greater difficulty. We may lay down as general, although not universal, rules, 1st, that any writing signed by the party to be charged, or his agent, ...
-As to what informal documents may constitute an agreement. Part 2
Canal Company, 1 Rail. Ca. 257. (t) Whaley v. Bagnel, 1 Bro. P. C. 345: (the decision was upon the Irish Statute of Frauds, which corresponds with the English Act:) Cooke v. Tombs, 2 Anst. 420. ...
-As to what informal documents may constitute an agreement. Part 3
(n) Lord Middleton v. Wilson, Sug. 118. (o) Sug. 121; Hinde v. White-house, 7 East, 558, 569; Kenworthy v. Schofield, 2 B. & Ad. 945; and see Coles v. Trecothick, 9 Ves. 234. (p) Clinan v. Cooke...
-4. As to the signature
It has been long settled that a party signing an agreement is prima facie bound by it, although it be not signed by the other party (f): but if only one be bound, he may, it would appear, require the ...
-5. As to the stamps
The agreement, if under seal, is a deed, and chargeable with duty as such (d); if not under seal, and if the subject-matter be of less value than 20l., no duty is payable; and if, on a sale by auction...
-6. As to illegal agreements
And as a general rule, no agreement can be enforced, at Law or in Equity, which is entered into for an illegal purpose (u); and there are certain agreements which the Legislature has pronounced to be,...
-Chapter VII. As To The Effect Of The Contract On The Rights Of The Parties
1. Purchaser entitled to estate, and vendor to purchase-money. 2. Purchaser's general rights under contract as against vendor. 3. Vendor's general rights under contract as against purchaser. ...
-2. As to purchaser's general rights under contract as against vendor
It is sometimes stated, in general terms, that by the contract the purchaser becomes, in Equity, the owner of the property: but this rule applies only as between the parties to the contract, and cann...
-3. As to vendor's general rights under contract as against purchaser
The vendor has a lien upon the estate for the unpaid purchase-money (a); if therefore, before payment, the purchaser be in possession, equity will restrain him from any act, - such as felling timber, ...
-5. Death of vendor before completion: its effect on relative rights
(5.) Death of vendor before completion: its effect on relative rights of his real and personal representatives, under old, and under new Law. Upon the vendor's death, the unpaid purchase-money form...
-6. Death of purchaser before completion; its effect on relative rights
(6.) Death of purchaser before completion; its effect on relative rights of his real and personal representatives, under old, and under new Law. Upon the death of the purchaser before completion, t...
-7. As to the effect of contract in various special cases
It has been recently held, that the fact of a mortgagee, with power of sale, having contracted to sell part of the mortgaged estate for a sum exceeding the amount due on the security, is no ground for...
-Chapter VIII. As To The Abstract
1. General matters relating to the abstract. 2. When perfect; - what it must contain and show. 3. What should be furnished, in various specified cases. 4. As to its preparation, contents, and...
-2. As to when the abstract is perfect; - what it must contain and show
For the purpose of conditions, etc, as to time, an abstract is said to be perfect, if it be as perfect an abstract as the vendor is able to furnish at the time of delivery (k), although the title sh...
-3. As to what abstract should be furnished in various cases
If one tenant in common purchase of another, he is entitled to an abstract of their general title (e); the rule, however, may perhaps be different in the case of a partner purchasing his co-partner's ...
-As to what abstract should be furnished in various cases. Continued
Of enfranchised copyholds. Of leaseholds - freehold title must be produced. (q) Sug. 436. (r) See Dav. Concise Prec. 79. (s) Ibid. 75, 79. (t) Sug. 433: but as to cases where the enfran...
-4. As to the preparation, contents, and delivery of the abstract
The abstract must always commence with a document, of at least the requisite age, if the vendor have one (o); but neither can a purchaser require, nor would the vendor's solicitor be justified in furn...
-As to the preparation, contents, and delivery of the abstract. Continued
Nor with document which throws a doubt on earlier title. Need not in all cases commence with a document. But evidence of possession is not sufficient, if modern deeds are lost or destroyed. W...
-5. As to the examination and perusal of the abstract
The purchaser's solicitor is entitled, if he please, to compare the abstract with the deeds before investigating the title, and the vendor (assuming that there is a binding contract) must pay the cost...
-6. As to the verification of the abstract
Assuming that an apparently good title is deduced by the abstract, the next matter for consideration is, the evidence which a purchaser may require in support of it;and this subject naturally divides ...
-As to the verification of the abstract. Part 2
Of deeds. (a) Scriv. 493. (b) 1 Y. & C. Ex. 303. (c) Scriv. 494; Sug. 476. (d) Sug. 442. (e) Doe d. Counsell v. Caperton, 9 Car. & P. 112. (f) As to mutilation of deeds, and defec...
-As to the verification of the abstract. Part 3
Proceedings in the Courts of Law and Equity are regularly proved by exemplifications under the seals of the Courts, or authenticated by the signature of the Judge, (in cases where the Court has no sea...
-As to the verification of the abstract. Part 4
In deducing title to chattel interests Probate must be seen to have been granted by proper Court. Will need not be proved in equity. Documents not part of the title must sometimes be produced as...
-As to the verification of the abstract. Part 5
Of the formalities of deeds. Notwithstanding mutilation. Of livery of seisin. Of appointment of Inclosure Commissioners. Of deeds having been duly stamped. But not of forms required by ...
-As to the verification of the abstract. Part 6
Where, however, a will had been executed in favour of (inter alios) the medical man and solicitor of the testator, and the heir at law disputed the will and brought an ejectment, but a verdict was giv...
-As to the verification of the abstract. Part 7
Of identity of individuals. Of seisin. (f) S. C, 12 Jur. 476. As to the identity of lands of Ecclesiastical and Collegiate Corporations, see 2 & 3 Will. IV. c. 80; of Enfranchised copyholds, see...
-As to the verification of the abstract. Part 8
(s) Page 121. (t) Major v. Ward, 5 Ha. 604; supra, p. 166. (u) Sug. 550. (v) See Co. Litt. 244. a. (w) Parish of St. George v. St. Margaret, 1 Salk. 123. (x) Burg v. Phillpot, 2 Myl....
-As to the verification of the abstract. Part 9
So, also, on an adverse claim to property, the Court will, from general circumstances, draw its own conclusions upon the question of survivorship between parties who are supposed to have perished at a...
-As to the verification of the abstract. Part 10
Births, marriages, and deaths; proved by extracts from parochial and General Registers. (g) 2 Atk. 19; see 12 Ves. 252. (h) As to recital of death of cestui que vie in renewed Ecclesiastical Lea...
-As to the verification of the abstract. Part 11
Whether admissible in proof of collateral matters. Such declarations must be made ante litem motam - extent of the rule. (c) Slane Peerage, 5 Cl. & Fin. 40. (d) See Shields v. Boucher, 1 D...
-As to the verification of the abstract. Part 12
Composition, modus, or exemption, how proved. Proof of, how far facilitated by 2 &3 Will. IV. c. 100. (w) See Estcourt v. Kingscote, 4 Madd. 140; Dent v. Rob, 1 Y. & C. Ex. 1. (x) See 1 Mac. ...
-As to the verification of the abstract. Part 13
To rights of common, etc. Period for which possession must be proved in evidence of title. (m) See 1 C. M. & R. 222. (n) Dewhurst v. Wrigley, 1 C. P. Coop. 329. (o) Liberty for grantee, hi...
-As to the verification of the abstract. Part 14
All actions, etc, to be commenced within at do not arise until after the passing of it: Ex parte Hasell, 3 Y. & C. 617. (e) Filing of bill, not service of subpoena, is the commencement of suit; Cop...
-As to the verification of the abstract. Part 15
(r) Sect. 25; Att.-Gen. v. Flint, 4 Ha. 147. (s) See 4 Ha. 153 - 155; and see, Att.-Gen. v. Kerr, 2 Beav. 420; Att.-Gen. v. Brettingham, 3 Beav. 91; in neither of which cases was the statute relied...
-As to the verification of the abstract. Part 16
(h) Sect. 12: this clause is retrospective: see Culley v. Doe d. Tayler-son, 3 Per. & Dav. 539; 11 Ad. & E. 1008; Doe d. Holt v. Horrocks, 1 C. & K. 566; Doe d. Daniel v. Wood-roffe, 13 Jur. 1013, H. ...
-As to the verification of the abstract. Part 17
Equity of redemption, when to be barred. Acknowledgment. If mortgagee is entitled to possession as being interested in equity of redemption, time does not run. (w) Sug. 634. (x) See sect. 28....
-As to the verification of the abstract. Part 18
Purchaser compelled to accept titledepend-ing on Statute of' Liuri-tations. (r) Du Vigier v. Lee, 2 Ha. 326. (s) Harrisson v. Duignan, 2 Dru. & W. 295; Hughes v. Kelly, 3 Dru. & W. 482. (t) H...
-Chapter IX. As To The Production And Examination Of The Deeds
1. As to the place and time for, and expenses of, production of the deeds. 2. Production of - may be compelled by whom. 3. Non-production of - how far important. 4. Examination of - matters t...
-2. Production of deeds - may be compelled, by whom
Where an estate is held in undivided shares, the owner of any share may, in Equity, compel the owner of auy other share who holds the deeds to produce them for the satisfaction of a purchaser (o). ...
-3. Non-production of deeds - how far important
The non-production of the deeds is material, not only as it deprives the purchaser of the usual means of verifying the title deduced upon the abstract, but as inducing a suspicion that they may have b...
-4. Examination of deeds - matters to be observed in
In the examination of the abstract with the documents, the most scrupulous care is requisite on the part of the solicitor; the object of the examination is to ascertain, 1st, that what has been abstra...
-Chapter X. As To Matters Arising Between Delivery Of Abstract And Preparation Of Conveyance
1. Time when essential at Law and in Equity. 2. Objections to title - negotiations upon and waiver of - when possession taken amounts to waiver. 3. General rights and liabilities of purchaser in...
-As To Matters Arising Between Delivery Of Abstract And Preparation Of Conveyance. Continued
And, at Law, where no time is fixed for completion and the purchaser does not require the title to be produced, and none is produced before an action has been commenced by the vendor, it is sufficient...
-2. Objections to title; - negotiations upon and waiver of;- when possession taken amounts to waiver
We have already (p) adverted to the effect which negotiations upon the title may have upon the vendor's rights under the ordinary conditions limiting a time for taking objections, and giving him the p...
-3. As to the general rights and liabilities of a purchaser in possession
It appears to be clear that a purchaser, when in the authorized possession of the estate, may, to a certain extent, act as owner without thereby accepting the title; he may take a fall of underwood in...
-4. Vendor in possession, by altering property avoids the contract
And, on the other hand, any alteration of the subject-matter of the contract by the vendor, in any particular which does not admit of compensation or reinstatement, as the fall of ornamental timber (r...
-5. As to entry and possession by Railway Companies before completion
By the clauses of the Lands Clauses Consolidation Act, 1845, which relate to the entry upon lands by the promoters of the undertaking (u), it is, in effect, provided, that the promoters shall not, wit...
-Chapter XI. As To Searches For And Inquiries Respecting Incumbrances
1. What inquiries should be made of vendor's solicitors; and of supposed incumbrancers, trustees, and tenants. 2. What searches should be made for incumbrances,- law respecting judgments, etc. 3...
-2. What searches should be made for incumbrances;- Law respecting judgments, etc
A solicitor is said to be liable to his client for any loss which may be occasioned by his omission to make any one of the numerous searches which, may by possibility disclose matter affecting the tit...
-Incumbrances;- Law respecting judgments, etc. Part 2
Dockcting was necessary as against purchasers. Bat purchaser was hound in Equity by notice of undocketed judgment. Equity aided judgment creditor against equitable estates. Judgment, how affe...
-Incumbrances;- Law respecting judgments, etc. Part 3
Extended equitable remedies of creditor under new law. (s) Sug. 665. These provisions leave no doubt as to the rights in Equity of a judgment creditor of a tenant in tail. So, in case of bank...
-Incumbrances;- Law respecting judgments, etc. Part 4
Is a charge on annuity issuing out of land. And probably on legacy charged on land. So, on unpaid purchase-money, and on surplus proceeds of sale by mortgagee. Certain decrees and orders have...
-Incumbrances;- Law respecting judgments, etc. Part 5
Judgment docketed but not registered, or registered but not registered presumed to be satisfied. Crown debts and accountantships. (k) Coote on Mortgages, 50. (l) Sug. 667. (m) Beere v. Hea...
-3. Time for making searches and inquiries
Whatever searches and inquiries are deemed necessary, should, of course, be brought down to a point as close as possible to the time fixed for completion: some practitioners make the search immediatel...
-Chapter XII. As To The Preparation Of The Conveyance
1. General matters relating to, and to the form of. 2. As to the parties. 3. The recitals. 4. The consideration - words of conveyance - and parcels. 5. The covenants. 6. The draft and e...
-2. As to the parties
All persons whose concurrence is necessary in order to give to the purchaser the full benefit of the contract, must, of course, be parties to and execute the conveyance. And if the title be such th...
-3. As to the recitals
A difference exists among conveyancers as to the legitimate use of recitals: some practitioners employing such only as will give an insight into the interests and objects of the parties to the deed, s...
-4. As to the consideration - words of conveyance and parcels
Care must be taken in preparing the deed to state truly the consideration paid by the purchaser, and upon which ad valorem duty will have to be paid; as the omission to do so, although it will not aff...
-5. As to the covenants
The covenants for title are that part of the draft upon which disputes and questions of difficulty most frequently arise; they are of considerable, although, perhaps, to a purchaser, of rather over-es...
-As to the covenants. Part 2
Upon a sale, by husband and wife, of the wife's unsettled freehold or copyhold estate, the husband, since he either does or may receive the purchase-money, covenants for title as upon the sale of his ...
-As to the covenants. Part 3
The vendor's covenants, if the estate be freehold, should be entered into with the grantee, releasee, or feoffee to uses (if any): if the estate be copyhold, it appears to be the preferable practice, ...
-6. As to the draft and engrossment
When the draft has been approved, any alteration made in it should be communicated to the other party before engrossment (t); where the alterations merely consist in omissions of passages introduced b...
-Chapter XIII. As To Matters Relating To The Completion Of The Purchase
1. The execution of the conveyance: - by married women, etc. - conveyance of trust estates under the Trustee Act, 1850. 2. As to the discharge of incumbrances. 3. As to purchaser's liability to ...
-As To Matters Relating To The Completion Of The Purchase. Part 2
Upon a sale of copyholds, a surrender to the use of the purchaser, by the copyholder's wife, with his consent, after she has been privately examined, will bar her right to free-bench, if any exist by ...
-As To Matters Relating To The Completion Of The Purchase. Part 3
An assignment of leaseholds, or any other chattel interest in real estate, by one of several executors or administrators, is valid (q): so, also, is an assignment by an executor who dies before probat...
-As To Matters Relating To The Completion Of The Purchase. Part 4
(c) As to the effect of which, see Hill on Trustees, 275, et seq; and Coote on Mortgages, 3rd ed. 359, et seq; and Sug. 225. (d) See sect. 1 for the extended meaning given throughout the Act to the...
-2. As to the discharge of incumbrances
Until the conveyance is executed by all necessary parties, the vendor remains liable in respect of all defects in title: he must, for instance, refund the purchase money, if the purchaser having paid ...
-3. As to purchaser's liability to see to application of trust purchase money
The law as to the liability of a purchaser from trustees to see to the application of his purchase money cannot be considered as settled; the following remarks are made with hesitation, but under the ...
-As to purchaser's liability to see to application of trust purchase money. Part 2
(m) See Wms. on Executors, 743. (n) Tylden v. Hyde, 2 Sim. & St. 238; Jones v. Price, 11 Sim. 557. (o) Sug. 834. (p) 3 Myl. & K. 630. (q) 12 Sim. 546. And it appears to be consistent with authority...
-Purchaser's liability to see to application of trust purchase money. Part 3
Improper sale by Executor to purchaser with notice confers no title. (z) 1 Ph. 717. (a) 1 Ph. 721; Watkins v. Cheek, 2 Sim. & St. 199; 4 Myl. & Cr. 427. The distinction here suggested does not a...
-4. As to the amount payable in respect of purchase-money; - how increased or diminished
The amount to be paid in respect of the purchase-money may in the several ways hereinafter noticed be increased or diminished. The most ordinary mode of increase is by the accrual of interest; as r...
-As to the amount payable in respect of purchase-money; - how increased or diminished. Part 2
Sim. 214; Fludyer v. Cocker, 12 Ves. 25. (p) Ex parte Manning, 2 P. Wms. 410. (q) Fludyer v. Cocker, and Att.-Gen. v. Christ Church, ubi supra. (r) 2 Sw. 226; and see Portman v. Mill, 3 Jur. ...
-The amount payable in respect of purchase-money. Part 3
When it appears that some considerable time must elapse before the title can be perfected, and the purchaser agrees to take possession and pay interest, he cannot, (unless there be great and unexpecte...
-The amount payable in respect of purchase-money. Part 4
Purchaser failing in making payment. (b) Esdaile v. Stephenson, 1 Sim. & St. 122; see Matson v. Swift, 5 Jur. 645, R. (c) Sug. 807. (d) Monk v. Huskisson, 4 Russ. 121, n.; Birch v. Podmore...
-The amount payable in respect of purchase-money. Part 5
And even where there is a condition for compensation to the vendor, his rights, in any given case, seem far from clear: as is observed in a recent work on conveyancing (u), It must indeed be a very s...
-The amount payable in respect of purchase-money. Part 6
The purchaser will be entitled to compensation for a deficiency in quantity, even although the estate be not sold professedly by measurement (l); and although, of course, he could not claim compensati...
-5. To whom and how purchase-money should be paid
The agent (c) or solicitor (d) of the vendor, cannot, without special authority, receive and give a discharge for the purchase-money; and the usual indorsed receipt is in Equity no conclusive evidence...
-6. As to purchaser's right to deeds, attested copies, etc
The purchaser, upon completion, is entitled (subject to the exceptions hereinafter noticed) to all deeds and other muniments of title, however ancient, which are in the possession or power of the vend...
-7. As to matters necessary to insure the full effect of the executed convenyance
(7.) As to matters necessary to insure the full effect of the executed conveyance. - Registration, enrolment, etc. If the property be subject to the operation of any of the local Registration Acts,...
-Registration Acts
Copyholds. Leases at rack-rent - to what the exception of extends. Whether to building or repairing leases. Leases for twenty-one years or under. London not affected by registration act. ...
-Registration Acts. Continued
On sale by tenant in tail - disentailing deed to be enrolled. Consent of Protector. Assurances on sale by legal or equitable tenant in tail of copyholds: what entries and enrolments necessary. ...
-8. As to the stamps
It is also necessary that the conveyance should be duly stamped: the want of a proper stamp, does not, however, affect its validity, but merely renders it inadmissible in evidence (f). A deed not s...
-As to the stamps. Part 2
The following scale of duties is payable under the late Act (a); viz., where the purchase-money does not exceed 25l., a duty of 2s. 6d.; where it exceeds 25l. and does not exceed 300l., a duty of 2s. ...
-As to the stamps. Part 3
And it is provided, by the 55 Geo. III. c. 184 (o), that where any deed or instrument operating as a conveyance shall operate also as a conveyance of any other than the property sold, by way of settl...
-9. As to the costs
The purchaser (in the absence of any express agreement) prepares, and pays for the preparation of, his conveyance (g); but the costs of perusal and execution by all necessary conveying parties fall on...
-As to the costs. Part 2
The purchasers from mere statutory owners under the above Act arc also liable to pay the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof (x), oth...
-As to the costs. Part 3
(k) See In re London Bridge Acts, 13 Sim. 180. (l) Sug. 690; Jones v. Lewis, 1 De G. & S. 245; 11 Jur. 511. (m) Reeves v. Gill, 1 Beav. 375; and see note to 9 Jarm. Conv. by S. 30. If, howeve...
-Chapter XIV. As To The Effect Of The Conveyance On The Relative Rights Of Vendor And Purchaser
1. Vendor's lien on estate for unpaid purchase-money. 2. Whether he has any remedy if estate has been sold at undervalue: or more has been conveyed than was intended. 3. His right of pre-emption...
-As To The Effect Of The Conveyance On The Relative Rights Of Vendor And Purchaser. Continued
Where the sale was expressed to be made in consideration of the purchaser's subsequent covenant to pay an annuity and a gross sum of 3000l. in the event of his own marriage, there was held to be no li...
-2. Whether the vendor has any remedy if estate has been sold
(2.) Whether the vendor has any remedy if estate has been sold at an undervalue; - or more has been conveyed than was intended. The vendor, after conveyance, has no remedy, if the property prove to...
-Whether the vendor has any remedy if estate has been sold. Part 2
We shall hereafter see (f) that, upon the purchase of an estate in possession, mere inadequacy of consideration, unless shown to be the result of fraud, surprise, misrepresentation, or improper concea...
-Whether the vendor has any remedy if estate has been sold. Part 3
What circumstances will deprive the heir of his special protection- rules laid down in King v. Hamlet. Sir. E. Sug-den's comments thereon. (t) Addis v. Campbell, 4 Beav.401; but the case would b...
-3. Vendor's rights of pre-emption under Lands Clauses Consolidation Act, 1845
By the Lands Clauses Consolidation Act, 1845, the promoters of the undertaking authorized by the special Act, are required, within the periods thereby prescribed, or, if no period be prescribed, withi...
-4. Vendor's remedies at Law and in Equity on purchaser's covenants
We have already seen that covenants are occasionally entered into as well by the purchaser with the vendor, as by the vendor with the purchaser; and that such covenants will, in Equity, bind a purchas...
-5. Purchaser's remedies on vendor's covenants
With some few special exceptions (m), a purchaser, after the conveyance is executed by all necessary parties, has no remedy at Law or in Equity in respect of any defects either in the title to, or qua...
-Purchaser's remedies on vendor's covenants. Part 2
Will run with incorporeal hereditaments. Remedy on covenants in conveyance of equitable estate. Assignee may sue in name of covenantee. As to breach of covenants for title. Statute of Limi...
-Purchaser's remedies on vendor's covenants. Part 3
default; neglect or default; permitted or suffered; party or privy to. As to covenants against known defects. (d) See a note to 9 Jarm. Conv. by S. 380, where the learned edit...
-Purchaser's remedies on vendor's covenants. Part 4
Restrictive words, effect of: Sir E. Sug-den's propositions respecting; how far maintainable. (e) Sug. 759. (d) Id. 759. (e) lb. 761. (f) Sug. 762; and see Young v. Raincock, 7 C. B. 310; ...
-Purchaser's remedies on vendor's covenants. Part 5
(w) Smith v. Compton, 3 B. & Ad. 189, and 407. (a?) See Duffield v. Scott, 3 D. & E. 377. (y) See 3 B. & Ad. 408; Lewis v. Peake, 7 Taunt. 153. (z) See Gillett v. Rippon, 1 Mood. & M. 406;...
-6. Purchaser's remedy in Equity, under special circumstances, if title prove defective
A purchaser, after conveyance and payment of his purchase-money, may obtain relief in Equity against a vendor, who, by fraudulent misrepresentation, has induced him to accept a defective title (r); no...
-7. As to purchaser's right to pay off incumbrances out of the unpaid purchase-money
After the conveyance has been executed, the purchaser may (n) discharge, out of any purchase-money which remains unpaid, (although secured,) any incumbrances which either have been created by the vend...
-8. Purchaser's remedy in Equity if he buy his own estate
(8.) Purchaser's remedy in Equity if he buy his own estate - or if lands are omitted from conveyance - and as to further assurance in Equity and by Statute. If it appear that the estate belonged to...
-9. As to the general rights and liabilities of purchaser under the conveyance
If the conveyance be executed during the existence of a tenancy, the purchaser of the reversion thereupon becomes entitled to the accruing (m) and future rent, and may recover it by action, or (after ...
-Chapter XV. As To The Effect Of The Conveyance On The Adverse Rights Of Third Parties
1. Purchaser without notice, protected by legal estate against prior claimants. 2. With mere equitable title, postponed to prior equitable claimants. 3. How far protected against defective execu...
-2. Purchaser with mere equitable title, is postponed to prior equitable claimants
Where the purchaser has neither taken a conveyance of the legal estate, nor such a conveyance of the equitable estate as would seem to give him an absolute and indesioners, and will probably eventuall...
-3. Purchaser, how far protected against defective execution of powers
(3.) Purchaser, how far protected against defective execution of powers; - against prior claimants who have encouraged him to purchase; - and by Statute in various cases. Equity will supply the def...
-Purchaser, how far protected against defective execution of powers. Continued
Assignees of Insolvent, not asserting their rights for nineteen years, yet not postponed in Equity. Purchaser how far protected against vendor's assignees in Bankruptcy and Insolvency, or against h...
-4. As to priority under the Registration Acts
The existing registry acts purport to render any deed, affecting either the legal or equitable estate, void as against a purchaser or mortgagee claiming under an instrument of an earlier date of regis...
-5. As to notice - what it is - how it may be proved
(5.) As to notice - what it is - how it may be proved - and its effect - of void or voidable estates and voluntary or fraudulent conveyances - equitable relief against purchaser with notice. Notice...
-As to notice - what it is - how it may be proved. Part 2
Purchaser, whether affected by notice of construction of doubtful instrument. Constructive notice - nature of are capable of extension - semble. (l) Farrow v. Rees, 4 Beav. 18; and see Lacey v. ...
-As to notice - what it is - how it may be proved. Part 3
(c) Neesom v. Clarkson, 2 Hare, 163; see p. 165. (d) Malpas v. Ackland, 3 Russ. 273. So, notice of the land being in the occupation of a person other than the vendor, has been held to be notice ...
-As to notice - what it is - how it may be proved. Part 4
(y) 3 Bos. & P. 578; Sug. 1044. (z) Hodgson v. Bean, 2 Sim. & St. 221; affirmed, see Sug. 1048. (a) See and consider 2 & 3 Vict. c. 11, s. 5. (b) Bugden v. Bignold, 2 Y. & C. C. C. 377. (c) S...
-Effect Of Notice
(d) Sug. 1062; but where land was recovered in ejectment, the solicitor of the defendant was held bound in equity to state to whom he had on behalf of his client delivered the title deeds; Banner v. J...
-Effect Of Notice. Part 2
But it seems clear on principle, that if a vendor possess any such right, the substituted security for the rent and covenants should be given to the purchaser before the commencement of litigation aga...
-Effect Of Notice. Part 3
Upon the first question, (considered merely as one of principle,) it is submitted, that where the limitations over are in favour of the collateral relations or connections, not of the settlor, but of ...
-Effect Of Notice. Part 4
Chap. xv Settlement by widow, valid. Consideration not expressed may be proved. Settlement may be supported by matter ex post facto. Whether heir or devisee can set aside voluntary or frau...
-6. As to contribution to paramount charges
Where an estate subject to a paramount charge becomes divided amongst several bona fide purchasers, it becomes a matter of some difficulty to determine the proportions in which they are to bear it as...
-7. As to the rights of third parties after conveyance in various cases
The Lands Clauses Consolidation Act, 1845, contains provisions which enable the promoters of an undertaking, upon the discovery at any time of the existence of any outstanding estates or interests, to...
-Chapter XVI. As To The Rights, Under The Conveyance, Op Joint Purchasers, And Persons Other Than The Nominal Purchasers
1. As to joint purchasers. 2. As to purchasers in name of nominal purchaser. (1.) A conveyance of land to two or more persons, without words indicating that they are to take as tenants in common...
-2. As to purchases in the name of a nominal purchaser
Where, upon a purchase, either by one or several, the conveyance is taken in the names of strangers; or where, in the case of a joint-purchase, the conveyance is taken in the names of some, but not al...
-As to purchases in the name of a nominal purchaser. Continued
But although, where property is purchased in the name of a wife or child, the purchase is, prima facie, an advancement, still, the relation between the parties is only evidence of the intention of the...
-Chapter XVII. Remedies At Law For Breach Of Contract
1. Purchaser's remedies against vendor. 2. Vendor's remedies against purchaser. 3. Plaintiff how far bound to perform his part of agreement before action. 4. As to the agreement - how far aff...
-2. Vendor's remedies at Law against purchaser
Upon default by the purchaser, the vendor, or, if he be dead, his personal representatives, can sue the purchaser, or, if he be dead, his personal representatives, or his real representatives, if the ...
-3. Plaintiff how far bound to perform his part of the agreement before action
As a general rule, the mutual engagements of the parties will be considered dependent on each other; and either must, (unless discharged therefrom by the other,) (x) perform his liabilities before he ...
-4. As to the agreement; - how affected by parol evidence
We have already considered (l) what is a sufficient agreement within the Statute of Frauds: we may here remark, that the doctrine acted upon in Courts of Equity as to parol agreements being taken out ...
-5. Production of agreement, when compelled
If the only executed copy of the agreement is in the hands of a defendant (c), or of a third party (d), either party can, as of course, procure an order, before trial, for its previous production for ...
-6. Grounds of defence at Law, the agreement being admitted
Supposing the agreement and its breach to be prima facie capable of proof against the defendant, he may, by way of defence to the action, show, either that the agreement was originally invalid, or tha...
-7. Action, when restrained in Equity
Equity will restrain an action at Law which is inconsistent with a prior decree between the parties in a suit for specific performance (t); or an action by a vendor whose bill for specific performance...
-8. General matters relating to the action
In an action by the purchaser for non-performance of the agreement, the vendor can require to be furnished with a particular of all matters of fact, (but not of Law,) which the plaintiff means to rely...
-Chapter XVIII. As To Specific Performance
1. Matters relating to the jurisdiction generally. 2. By whom specific performance may be enforced. 3. Against whom it may be enforced. 4. As to the parties to the suit. 5. As to the Bill....
-2. By whom specific performance will be enforced
Equity will enforce specific performance of the contract for sale at the suit of the purchaser himself, or of his representatives in interest, - such interest, it must be remembered, being the right t...
-3. Against whom specific performance will be enforced
Equity will enforce specific performance of the contract for sale, against the vendor himself, and also against, first, persons claiming under him by a title arising subsequently to the contract; (exc...
-4. As to the parties to the suit
In general, it is only necessary to make those persons parties to a suit for specific performance who were parties to the contract (h): for instance, a purchaser cannot join as co-defendants the recei...
-As to the parties to the suit. Continued
(x) See Cooke v. Cooke, 2 Vera. 36; Cope v. Parry, 2 Jac. & W. 538. (y) See and consider Fulham v. M'Carthy, 1 H. L. C. 703. (z) 1 Dan. Ch. P. by H. 205; Taylor v. Salmon, 4 Myl. & Cr. 134; and ...
-5. As to the Bill
A suit for specific performance may now be commenced by Bill or by Claim under the orders of 22nd April 1850; these orders (y) are not compulsory, but their practical effect will, probably, be, to sup...
-6. As to proceeding by Claim, under the Orders of
April, 1850. Under the Orders of April, 1850, any person seeking Equitable relief may, without special leave of the Court, and instead of proceeding by bill in the usual form, file a Claim in the R...
-7. As to how the Plaintiff's case may be sustained in the absense of a written agreement
(7.) As to how the Plaintiff's case may be sustained in the absence of a written agreement: - fraud, - part performance: - admission by Defendant of parol agreement: - parol variation of written agree...
-As to how the Plaintiff's case may be sustained in the absense of a written agreement. Continued
In the modern case of Mundy v. Jolliffe (a), the defendant, in pursuance of the parol agreement for a lease, had laid down a field in pasture, and executed draining and repairs; acts which are referre...
-8. As to grounds of defence negativing plaintiff's right to specifici performance
(8.) As to grounds of defence negativing plaintiff's right to specific performance except with a variation of the original written agreement; viz., fraud - mistake-misrepresentation - unfulfilled prom...
-9. As to grounds of defence negativing in toto plaintiff's right to specific performance
(9.) As to grounds of defence negativing in toto plaintiff's right to specific performance; viz., personal incapacity - nature of contract, or fraud, etc. etc. attending its execution; - matters relat...
-As to grounds of defence negativing in toto plaintiff's right to specific performance. Part 2
(l) Smith v. Garland, 2 Mer. 123; Johnson v. Legard, Turn. & Russ. 281. (m) Cooth v. Jackson, 6 Ves. 12, 30. (n) Mortlock v. Buller, 10 Ves. 292; Ord v. Noel, 5 Mad. 438; and see other cases cit...
-Grounds of defence negativing in toto plaintiff's right to specific performance. Part 3
And an agreement, fair as between the parties, is not invalid merely because it may have been concocted and brought about by a third person with a fraudulent intention of benefiting himself (d). Wa...
-Grounds of defence negativing in toto plaintiff's right to performance. Part 4
Nominal contractor. Insertion of penally, no defence. Inability to recover damages at Law, how far a defence. (g) Adams v. Broke, 1 Y. & C. C. C. 627, 630. (r) Fellowes v. Lord Gwydyr, 1 R...
-Grounds of defence negativing in toto plaintiff's right to performance. Part 5
(n) Howel v. George, ubi supra. (o) Sug. 231, and cases there cited, but the point seems very doubtful; see Sug. 232. Where the want of title is only partial, - i. e, where it affects only part ...
-Grounds of defence negativing in toto plaintiff's right to performance. Part 6
Vendor, when com- , pelled to convey partial in- , terest in the estate, with an abate-meut. (e) See Att.-Gen. v. Day, 1 Ves. 218, 224. (f) Williams v. Edwards, 2 Sim.78 (g) See Dyas v. Cruis...
-Grounds of defence negativing in toto plaintiff's right to performance. Part 7
Vendor how far bound to make good in-terest contracted for, out of his own higher interest. Want of title, where a defence for purchaser declining an abatement. As where estate is of different t...
-Benefit Of Defence, How Lost To Purchaser
Defects in title, which are not available as a defence to purchaser: limited right of common; small quit-rents or rent-charges; tithe-when the freedom from tithe was no part of the in-ducement to the ...
-Inadequacy Of, When A Vendor's Defence
Sale by auction; (x) Oldfield or Bowles v. Round, 5 Ves. 508. (y) See Sug. 377; but see also contra, Martin v. Cotter, 3 Jo. & L. 506. (z) See Sug. 310; Poole v. Sher-gold, 2 Bro. C. C. 118, ...
-Sale Of Unascertained Interest
Consideration uncertain in amount- whether question of inadequacy is thereby excluded. (g) White v. Damon, 7 Ves. 30, 35; Ex parte Latham, ibid, 35, n.; Borell v. Dann, 2 Ha. 450; supra, 357, n. (c...
-Inadequacy In Sales Of Reversionary Interests
Failure of contingent consideration, in general no defence. Excess of purchase-money, when a purchaser's de-fence. Remarks on the doctrine. (n) Supra, 353, el seq. (o) See Sug. 312, 314; R...
-10. As to the proceedings in the suit; - viz. payment of purchase
(10.) As to the proceedings in the suit; - viz.payment of purchase-money into Court; - reference of title and proceedings thereon - decree for plaintiff - conveyance-decree dismissing Bill. Where t...
-Frivolous Defence
May be disposed of ou motion - terrible. Objections to title, what are. for purposes of motion. (s) Sug. 416; and see cases there cited. (t) See Blyth v. Elmhirst, 1 Ves. & B. 1; Withy v. Cot...
-Questions Of Law More Readily Decided Against Purchaser Than Questions Of Construction
(z) Sug. 506; Dan. Chan. Prac. by H. 1088; it appears that in the first instance the plaintiff selects the Court; Walton v. Holt, 13 Jur. 355. (a) Sheffield v. Lord Mulgrave, 2 Ves. jun. 526'. (...
-Questions Of Law More Readily Decided Against Purchaser. Part 2
313; Seaman v. Vawdrey, 16 Ves. 393; Bainbridge on Mines, 41. (s) Flower v. Hartopp, 6 Beav. 476. (t) Esdaile v. Stephenson, 6 Mad. 366. (u) S. C. as reported in Sug. 412. (w) 6 Mad. 367; ...
-Questions Of Law More Readily Decided Against Purchaser. Part 3
Report against title, and no exceptions - bill dismissed on motion. Exceptions taken and allowed - reference back when directed. If no exceptions, decree will be made on hearing, if vendor can t...
-Questions Of Law More Readily Decided Against Purchaser. Part 4
Where the plaintiff in his bill offered to perform an ambiguous agreement, according to the true intent and meaning thereof, but uniformly up to the hearing insisted on his own construction, as the ...
-Questions Of Law More Readily Decided Against Purchaser. Part 5
The usual course is, for the Master to take the opinion of some conveyancing counsel upon the draft conveyance and objections, as in the case of an abstract (k). If an appeal is pending, the Master...
-11. As to costs
In Equity, as at Law, the party who fails is, prima facie, liable to costs (g): and, although the question of costs rests entirely in the discretion of the Court (h), yet it is for the unsuccessful li...
-As to costs. Part 2
8; Aislabie v. Rice, 3 Madd. see 261; Thorpe v. Freer, 4 Madd. 466. (e) See Fenton v. Browne, 14 Ves. 144,150; Dakin v. Cope, 2 Russ. 175. (f) Anon. v. Collinge, 3 Ves. & B. 143, n.; Wilson v. C...
-As to costs. Part 3
Where the defendant submits to the whole demand of the plaintiff, and to pay costs, he may at once stop all further proceedings (r); and, if the question of liability to costs be the only one remainin...
-Chapter XIX. As To Sales By The Court Of Chancery
1. As to the time for, conduct of, and manner of the sale. 2. As to the rights and liabilities of the highest bidder, after the sale but before confirmation of the Master's report; - and as to open...
-Payment Of Deposit-Arrangement Respecting
Advertisements of sale. Expenses of sale. Highest bidding by a person incompetent, or of insufficient means - effect of. (g) Dan. Ch. P. by H. 1194; Shaw v. Simpson, cited 1 Jac. & W. 392; as...
-2. As to the rights and liabilities of the highest bidder
(2.) As to the rights and liabilities of the highest bidder, after the sale but before confirmation of the Master's report; - and as to opening biddings. The fact of being, and being declared, the ...
-3. As to confirming the Master's report of the purchase
(3.) As to confirming the Master's report of the purchase; - and as to the purchaser's rights and liabilities after confirmation. The person who eventually is the highest bidder, and who wishes to ...
-4. As to the investigation of the title; - payment and application
(4.) As to the investigation of the title; - payment and application of purchase-money; - possession; - and preparation and execution of the conveyance. Delivery of the abstract may, if necessary, ...
-As to the investigation of the title; - payment and application. Continued
(m) Ouseley v. Anstruther, 11 Beav. 399. (n) Hutton v. Mansell, 2 Beav. 260; Rutter v. Marriott, 10 Beav. 33; Dempsey v. Dempsey, 1 De G. & S. 691. (o) Wilding v. Andrews, 1 C. P. Coop. N. R. 38...
-5. As to the purchaser's rights after completion
Upon the execution of the conveyance the purchaser is, as a general rule, entitled to have the title deeds delivered to him; and an order for their delivery, if not provided for in the order for payme...
-6. As to the practice, when the purchaser fails to complete
Where the purchaser refuses or neglects to complete his purchase, and is supposed to be a responsible person, the solicitor of the party conducting the sale should procure the Master's report, and the...









TOP
previous page: American Law Of Real Estate Agency | by William Slee Walker
  
page up: Real Estate Books
  
next page: The Law Of Land Contracts | by Asher L. Cornelius