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A Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real | by T. Cyprian Williams



This book is intended for the use of those engaged in the practice of conveyancing, whether as counsel or solicitors.

TitleA Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real
AuthorT. Cyprian Williams
PublisherSweet And Maxwell, Limited
Year1910
Copyright1910, Sweet And Maxwell, Limited
AmazonA treatise on the law of vendor and purchaser of real estate and chattels real

Intended For The Use Of Conveyancers Of Either Branch Of The Profession.

By T. Cyprian Williams Of Lincoln 'S Inn, Barrister-At-Law, Ll.B.: Formerly Lecturer On Conveyaning To The Incorporated Law Society Of The United Kingdom. Editor of " Williams on Real "Property" and " Williams on Personal Property."

Second Edition. In Two Volumes.

To the memory of My Father And Master In The Law, Joshua Williams, Sometime One Of The Conveyancing Counsel To The Court Of Chancery, And Afterwards One Of Her Late Majesty's Counsel, Whose Wish It Was That His Son Should Keep His Name In Remembrance In Lincoln's Inn. This Book Is Affectionately Inscribed.

-Preface To The Second Edition
In this edition are incorporated all the changes made in the law since the first publication of the book (a), and the whole of the text has been carefully revised. Besides these emendations, the autho...
-Introduction To The First Volume Of The First Edition
The writer can hardly put forward a treatise on the law of Vendor and Purchaser of Land without an apology for adventuring upon the field successively occupied by so eminent a Real Property lawyer as ...
-Introduction To The First Volume Of The First Edition. Part 2
(d) P. 21, n. (r) . (e) P. 32, note. (f) Pp. 51-53. (j) P. 109. (h) P. 385 and n. (p). (i) Pp. 435, 436, 674 - 679. (k) Pp. 310 sq. (l) Pp. 314 - 316. (m) 1903, 2 Ch. 150. (n) See p. 319, n. (i). (...
-Introduction To The First Volume Of The First Edition. Part 3
(l) See above, p. xi. (m) See pp. 750, 75l. and note (i). (n) 1902, 2 Ch. 266; 1903. 1 Ch. 434. (o) Pp. 761, 726, 776 and note (x) p) See pp. 764-768. (q) Pp. 786-791. (r) Pp. 793 802. (s) 1900, 1 ...
-The Law Relating To Vendor And Purchaser Of Lands. Chapter I. Of The Formation Of The Contract Of Sale
The subject of the present treatise is the sale of real estate and chattels real, or the formation and completion of contracts for the conveyance of land or other hereditaments in consideration of a p...
-Of The Formation Of The Contract Of Sale. Part 2
The whole agreement must appear from the writing. (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 ...
-Of The Formation Of The Contract Of Sale. Part 3
(a) Bleakley v. Smith, 11 Sim. 150, where note that the only question argued and determined was as to the sufficiency of the vendor's signature. (b) Plant v. Bourne, C. A., reversing Byrne, J., 1897,...
-Of The Formation Of The Contract Of Sale. Part 4
(f) Hinde v. Whitehouse, 7 East, 558, 569, 570; Kenworthy v. Scho-field, 2 B. & C. 945; Peirce v. Corf, L. R. 9 Q. B. 210; Rishton v. Whatmore, 8 Ch. D. 467. (g) Western v. Russell, 3 V. & B. 187. Se...
-Of The Formation Of The Contract Of Sale. Part 5
Signature of party to be charged, or his agent, sufficient. Memorandum subsequent to the contract. Cases where agreement enforceable without compliance with Statute of Frauds. 1. Sale by Court. 2....
-Of The Formation Of The Contract Of Sale. Part 6
Offer and acceptance. Communication. (x) Cooth v. Jackson, 6 Ves. 12, 38 ; Thynne v. Glengall, 2 H. L. C. 131, 158; Maddison v. Alderson, 8 App. Cas. 467. (y) Britain v. Rossiter, 11 Q. B. D. 123; ...
-Of The Formation Of The Contract Of Sale. Part 7
The whole of the correspondence will he looked at. Oral agreement. Oral acceptance of written offer. Constitute a contract, the reference to the approval of the formal contract being considered to ...
-Of The Formation Of The Contract Of Sale. Part 8
Under the present law, if a puffer, that is, a person engaged to bid on the vendor's behalf in order to prevent a sale at an undervalue or to force up the price, be employed without the vendor having ...
-Of The Formation Of The Contract Of Sale. Part 9
Liability of auctioneer advertising a sale without reserve. Liability of the owner of property advertising a sale by auction without reserve. Advertise -ment of a Bale by auction is not an offer, op...
-Of The Formation Of The Contract Of Sale. Part 10
(e) Stat. 54 & 55 Vict. c. 39 (Stamp Act, 1891), ss. 14, 15, replacing 33 & 34 Vict. c. 97, ss. 15 - 17, and 17 & 18 Vict. c. 125, ss. 28, 29. Under the Stamp Act. 1891. agreements under hand only are...
-Chapter II. Of The Parties' Rights, Obligations And Remedies, Generally
Having considered the formation of a contract for the sale of land, let us pass on to examine its terms. As we have seen (a), such contracts generally contain special stipulations varying the rights a...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 2
(c) Sug. V. & P. 406; Re Johnson and Tustin, 30 Oh. D. 42. (d) Stat. 37 & 38 Vict. c. 78, s. 1. (e) Sug. V. & P. 406, 414 et seq., 447 - 460; 1 Dart, V. & P. 142, 143, 310 et seq., 47, 5th ed., 159,...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 3
Unfairness. Remedies for breach of the contract. 1. Rescission and restitutio in integrum. 2. Action for damages. Damages (x) The remedies for breach of the contract are fully discussed below, Ch...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 4
(6.) The purchaser shall not require the production, or 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...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 5
(c) This is a consequence of the vendor's right to enforce specific performance with compensation, and of the prevalence of this equitable right over the purchaser's rights at common law; see Reynolds...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 6
Vendor to deliver over the muniments of title on completion. Or give proper statutory acknowledgments and undertakings as to any documents of title rightfully retained. (t) Church v. Brown, 15 Ves. ...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 7
(l) Carrodus v. Sharp, 20 Beav. 56; Midgley v. Coppoek, 4 Ex. D. 309; Re Bettesworth and Richer, 37 Ch. D. 535; Tubbs v. Wynne, 1897, 1 Q. B. 74; Barsht v. Tagg, 1900, 1 Ch. 231; Stock v. Meakin, ib. ...
-Of The Parties' Rights, Obligations And Remedies, Generally. Part 8
4(2) (v) P. 185, 6th ed. (w) P. 476, 5th ed. {x) 5 Ch. D. 388. (y) In Benjamin on Sale, 2nd ed. 1873, pp. 649, 655, it is laid down that the cases decide expressly that the vendor has no right to re...
-Chapter III. Of The Usual Conditions Of Sale
Having thus given an outline of the main duties imposed upon the parties to the contract and their remedies for its breach, and attempted to state the terms of an open contract, we will now endeavour ...
-Of The Usual Conditions Of Sale. Part 2
(!) Marshall v. Powell, 9 Q. B. 779. (m) See above, p. 36; Berry v. Young, 2 Esp. 640, n.; Wilde v. Fort, 4 Taunt. 334; Hanslip v. Padwick, 5 Ex. 615; Sug. V. &P. 257-9; Dart, V. & P. 417, 944, 945, ...
-Of The Usual Conditions Of Sale. Part 3
Limiting time for making requisitions on title. (d) See Re Marsh and Earl Granville, 24 Ch. D. 11. (e) See above, p. 58. (f) 1 Davidson, Prec. Conv. .539, 614, 4th ed.; 449, 5th ed.; 1 Key & Elphin...
-Of The Usual Conditions Of Sale. Part 4
Errors of description; compensation. (t) 1 Key & Elphinstone, Prec. Conv. 266, 4th ed.; 266, 8th ed. (u) Above, pp. 33, 43. (x) 1 Davidson, Prec. Conv. 610, and n., 4th ed.; 520, 5th ed.; 1 Key & E...
-Of The Usual Conditions Of Sale. Part 5
It is not the practice, in settling conditions of sale, to stipulate expressly that the vendor shall show a good title, or verify the title by the production of the proper evidence, or produce a prope...
-Of The Usual Conditions Of Sale. Part 6
(n) The last words are inserted to remind the parties of the fact, that the appointment of a valuer is. not completely made until it has been notified to the opposite party; Tew v. Harris, 11 Q. B. 7....
-Of The Usual Conditions Of Sale. Part 7
As witness my hand this------day of------. Rents, outgoings, etc. Interest. Power of resale. Memorandum to be indorsed on the conditions. Conveyance of necessary parties other than the vendor, it...
-Of The Usual Conditions Of Sale. Part 8
Special conditions of sale. (l) Sec above, p. 76, n. (d). (m) Best v. Hamand, 12 Ch. D. 1 ; Re Davis and Cavey, 40 Ch. D. 601,607; Re National Provincial Bank of England and Marsh, 1895, 1 Ch. 190;...
-Of The Usual Conditions Of Sale. Part 9
Purchaser to give the usual covenant of indemnity. And execute at his own expense a duplicate of the conveyance. Sale of land held by underlease. (b) See below, Chap. X. Sec. 2; 1 Key & Elph. Prec....
-Of The Usual Conditions Of Sale. Part 10
Sale of land by auction in lots. Custody of title-deeds to several lots. Sale of leaseholds in lots. Sale in lots of freeholds subject to a rent. (o) As to the incidence of such charges in the abs...
-Of The Usual Conditions Of Sale. Part 11
Vendor's reasons for not desiring an open contract. (m) Above, p. 62. (n) Above, p. 67. (o) Above, p. 58. (p) See above, pp. 26, 33, 41, 47, 50. In settling a private contract then, the object of t...
-Of The Usual Conditions Of Sale. Part 12
The purchaser ought to try to obtain some relaxation of his obligation to bear the expense of procuring and producing all evidence of title, which is not in the vendor's possession (g). He should ask,...
-Chapter IV. Of The Vendor's Obligation To Show A Good Title And Its Discharge
Sec. 1. Of the general nature of the proof required. Sec. 2. Of the abstract. Sec. 3. Of the verification of the abstract. Sec. 1. - Of The Vendor's Obligation To Show A Good Title And Its Discharg...
-Of The Vendor's Obligation To Show A Good Title And Its Discharge. Part 2
(l) Barnwell v. Harris, 1 Taunt. 430; Cooper v. Emery, 1 Ph. 388; Hodgkinson v. Cooper, 9 Beav. 304; Moulton v. Edmonds, 1 De G. F. & J. 246; Sug. V. & P. 365, 407. When earlier title could be requir...
-Of The Vendor's Obligation To Show A Good Title And Its Discharge. Part 3
(A) Bug. V. & P. 372; 1 Dart, V. & P. 289, 6th ed. Enfranchisement under the Copyhold Acts, Mi, 1852, or 1894, makes the land freehold, irrespectively of the validity of the Lord's title: which is the...
-Of The Vendor's Obligation To Show A Good Title And Its Discharge. Part 4
(k) Gosling v. Woolf, 1893, 1 Q. B. 39. (l) Above, p. 97, n. (m). (m) Stat. 37 & 38 Vict. c. 78, c.78, s. 2, r. 1;; Jones v. Watts, 13 Oh. D. 574. (n) Stat. 14 & 45 Vict. 0. 11. 8. 13. (o) 1 Dart,...
-Sec. 2. Of The Abstract Of Title
Evidence of title on sales being for the most part documentary (e), and such as can be weighed only by skilled legal advisers, it became usual to facilitate the task of judging of the effect of the ti...
-Of The Abstract Of Title. Part 2
Conveyance of equity of redemption. (l) This follows from the principles laid down in Phillips v. Caldeleugh, L. R. 4 Q. B. 159; Re Cox & Neve's Contract, L891, 2 Ch. 109, 117, 118. (m) Ante, p. 102...
-Of The Abstract Of Title. Part 3
What documents should be abstracted after the root of title. (q) Cotton, L. J., Re Marsh and Earl Granville, 24 Ch. D. 11, 24. The contrary is stated by the editors of Dart, 1 V. & P. 339, 6th ed.; ...
-Sec. 3. Of The Verification Of The Abstract
Besides delivering an abstract of title, the vendor is further bound, in order to discharge his obligation of showing a good title, to verify the abstract by producing all the evidence which is necess...
-Of The Verification Of The Abstract. Part 2
The strict right of a purchaser of land in the matter of requiring proof of the execution of the title-deeds has never been exactly defined. Under the old common law practice requiring strict proof of...
-Of The Verification Of The Abstract. Part 3
(y) See Stat. 45 & 46 Vict. c. 39, s. 8; below, Chap. XII. Sec. 5. (z) See Stat. 45 & 46 Vict. c. 39, s. 9; below, Chap. XII. Sec. 5. (a) See note (x), above. The documentary evidence in support of...
-Of The Verification Of The Abstract. Part 4
Proper place for verification of the abstract. Expense of examining title-deeds (m) Sug. V. & P. 414, 417; 1 Dart, V. & P. 318, 5th ed.; 361, 6th ed.; 1 Davidson, Prec. Conv. 550-2 4th ed.; Halkett ...
-Of The Verification Of The Abstract. Part 5
Deeds, of which the vendor has a mere right to production. Right to production under statutory acknowledgment. Enforce repayment of the mortgage money, or has sold or taken possession of the mortgag...
-Of The Verification Of The Abstract. Part 6
Where the solicitor acts for both vendor and purchaser. Solicitor's lien is commensurate with his client's right to withhold the deeds. Subject to the old solicitor's lien thereon; Colegrave v. Man...
-Of The Verification Of The Abstract. Part 7
Evidence that certain events, which would certainly have affected the title, did not happen. (u) See Stephen, Evidence, Arts. 25, 31. {x) Sug. V. & P. 418; 1 Dart, V. & P. 347, 5th ed.; 393, 6th ed....
-Of The Verification Of The Abstract. Part 8
Expense of proof of facts. There are, however, certain facts, of which a purchaser is not entitled (except by special stipulation) to require proof, unless he can show ground for discrediting the sta...
-Of The Verification Of The Abstract. Part 9
(t) Carpenter v. Butter, 8 M. & W. 209; Taylor, Evidence, Sec. 84, 85, 653 sq., 5th ed.; Stephen, Evidence, Arts. 15 sq. (u) Fort v. Clarke, 1 Russ. 601. (v) Tall v. Owen, 4 Y. & C. 192. (x) Doe d....
-Of The Verification Of The Abstract. Part 10
(e) Berkeley Peerage Case. 4 Camp. 401; Reilly v. Fitzgerald, Dru. 122; Gee v. Ward, 7 E. & B. 509; Sheddern v. Patrick, 2 Swa. & Tr. 187; Sug. V. & P. 418; Hubback, Ev. Succ. 68, 69; Taylor, Evidence...
-Of The Verification Of The Abstract. Part 11
Importance of the examination of the title-deeds with the abstract. Besides verifying the documents and facts stated in the abstract, the vendor is bound, in the absence of special stipulation, to pr...
-Of The Verification Of The Abstract. Part 12
Award of inclosure. Award as to inclosure of common lands made under the General Inclosure Act, 1845. Proved by a copy purporting to be sealed with the seal of the Board of Commissioners under the Ac...
-Of The Verification Of The Abstract. Part 13
(l) Stat. 44 & 45 Vict. c. 41, s. 3 (6). (m) Above, p. 122. (n) Taylor, Evidence, Sec.1378 - 1391, 5th ed.; Stephen, Evidence, Art. 78 (o) R. S. C. 1883, Order 37, rule 4. Taylor, Evidence, Sec. 1...
-Of The Verification Of The Abstract. Part 14
(q) R. S. C. 1883, rr. 7, 9, replacing R. S. C. April, 1880, rr. 45, 46. (r) See stats. 8 & 9 Vict.c. 118, ss. 147, 150; 9 & 10 Vict. c. 70, ss. 9 - 11: 10 & 11 Vict. c. Ill, 88. 4, 6; 11 & 12 Vict. ...
-Of The Verification Of The Abstract. Part 15
Presumption as between vendor and purchaser. (m) See stat. 3 & 4 Vict. c. 92, amended by '21 & 22 Vict. c. 25; Taylor, Evidence. Sec. 1354, 5th cd. (n)Above, p. 131. (o) As to the evidence admissibl...
-Of The Verification Of The Abstract. Part 16
This presumption arises, although the husband and wife be separated by mutual consent, and even when the wife is living in adultery with another man (d); and it extends to all children born within due...
-Of The Verification Of The Abstract. Part 17
Will. (q) Burt. Comp. pl. 118-436; Coventry, Conveyancers' Evi-dence, 275, 276; Welcomev. Upton, 6 M. ft \V. 536, 540, 542; Moulton v. Edmonds, 1 De G. F. ft J. 246, 248; Bristow v. Cormican, 3 App. ...
-Chapter V. Of Advising On Title Generally
In the preceding chapter we endeavoured to give a general view of the vendor's obligation to show a good title and its discharge. We will now consider the same subject from the point of view of a conv...
-Of Advising On Title Generally. Part 2
(l) Johnson v. Evans, W. N. 1889, p. 95. 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 ...
-Of Advising On Title Generally. Part 3
Purchaser must at once repudiate the contract if he wish to insist on the objection. (u) Lewin v. Guest, 1 Russ. 325: Forrer v. Nash, 35 Beav. 167, 171; Brewer v. Broadwood, 22 Ch. D. 105; Lee v. Soa...
-Of Advising On Title Generally. Part 4
Here the reader may be warned of a pitfall, which the writer has several times encountered in practice; namely, the omission, since the Conveyancing Act of 1881 took effect (i), to limit an estate in ...
-Of Advising On Title Generally. Part 5
Stamps. (q) Above, pp. 131 sq. (r) Above, pp. 45, 136. (s) Above, p. 132. (t) See the chapter on the Death Duties in the second volume. (u) Above, p. 143. Besides the requisitions, properly so call...
-Of Advising On Title Generally. Part 6
(h) Jones v. Rimmer, 14 Ch. D. 588. (i) See Chap. XII. 5 2, below. (k) Stat. 16 & -47 Vict. c. 61, ss. 29-32 repealed and replaced by 8 Edw. VII. c. !8, ss. 15-19, (l) Stat. 38 & 39 Vict, c. 55, see...
-Of Advising On Title Generally. Part 7
Time for making requisitions (a), Above, p. 11. (b) see above, p. 166. (c)See below, Oh. XII. Sect. 2. (d)Above, p. 62. (e) Above, p. 63. 12 (2) Want v. Stallibrass. Re Tanqueray-Willaume and La...
-Of Advising On Title Generally. Part 8
Where the vendor has no title. (e) Re Weston and Thomas' s Contract, 1897, 1 Ch.244; see above, p. 90. (f) S. C. (g) Bowman v. Hyland, 8 Ch. D. 588, commented upon in Re Deighton and Harris's Contr...
-Of Advising On Title Generally. Part 9
Waiver of objections or requisitions. (o) Re Jackson and Oakshott, 14 Ch. D. 851; see above, pp. 164, 165. (p) 1 Dart, V. & P. 160, 5th ed.; 1 Davidson, Prec. Con v. 564, 614, 4th ed. (q) Re Deight...
-Chapter VI. Of Stipulations Limiting The Obligation To Show A Good Title
We will now turn our attention to various particular points, which constantly arise in advising on title. And first, as to the effect of stipulations limiting the vendor's obligation to show a good ti...
-Of Stipulations Limiting The Obligation To Show A Good Title. Part 2
The effect of the above enactment. (h) Sect. 3, sub-s. 9. (i) Sect. 3, sub-s. 11. (j) Nottingham Patent Brick and Tile Co. v. Butler, 15 Q. B. D. 261, 272; 16 Q. B. D. 778. (k) Above, pp. 38, 39. (l...
-Of Stipulations Limiting The Obligation To Show A Good Title. Part 3
778. 786, 789 (e) Above, p. 195. (f) Ser above, p. 197. (g) See above, pp. 37, 88, and oases stated below, pp. 204 -207. (h) On this point see the writer's argument in his Conveyancing Statutes, ...
-Of Stipulations Limiting The Obligation To Show A Good Title. Part 4
Difference in purchaser's position when resisting specific performance, and when seeking to recover deposit. Best v. Hamand. (t) Ogilvie v. Foljambe, 3 Mer. 53, 64; Re Gloag and Miller's Contract, 2...
-Of Stipulations Limiting The Obligation To Show A Good Title. Part 5
Purchaser under usual condition as to identity requiring further evidence. The proper course for the purchaser's counsel to adopt in matters of this kind appears to be to require the vendor, in the f...
-Chapter VII. Of Devolution On Death
Devolution of lands on death is a fact of title which is constantly brought before the conveyancer. As the law on this subject has lately been altered it is deserving of special consideration. We will...
-Of Devolution On Death. Part 2
Succession to freeholds after death before 1898. (l) See W'ms. Real Prop. 307, 21st ed. (m) Ibid. 316, 318; Cooper v. Maedonald, 7 Oh. D. 288; Hope v. Eope, 1892, 2 Oh. (n) Wms. Real Prop. 74-76, 2...
-Of Devolution On Death. Part 3
Equitable estates. (k) Brazier v. Hudson, 8 Sim. 67. (l) 2 Wms. Exors. 932-943, 946 sq., 7th ed.; Re Whistler, 35 Ch. D. 561; Re Venn and Furze's Contract, 1894, 2 Ch. 101. (m) Wms. Exors. 679, 137...
-Of Devolution On Death. Part 4
Devolution of real estate held in trust or mortgage after 1881. (d) Re Spradbery's Mortgage, 14 Ch. D. 514. (e) Stat. 44 & 45 Vict. c. 41, s. 30, (f) These appear to be his general, and not his spe...
-Of Devolution On Death. Part 5
(y) See Wms. Real Prop. 293, 294, 21et ed. (z) See Price v. Price, 35 Ch. D. 297. (a) Ibid.; and see Corser v. Cartwright, L. R. 7 H. L. 731. (b) Lewin on Trusts, 391, 392, 515. 6th ed.; 515, 733, ...
-Of Devolution On Death. Part 6
(k) Above, p. 223. (l) Stat. 22 & 23 Vict. c. 35, passed 13th August, 1859. (m) Sect. 14. The powers thus conferred extend to all persons in whom the estate devised shall for the time being be veste...
-Of Devolution On Death. Part 7
Personal representatives' assent to devise of real estate. (i) Sect. 2 (2). (k} Sect. 2(3). (l) Sect. 3 (1). It is not the writer's purpose to make an exhaustive comment on this Act: but its most im...
-Of Devolution On Death. Part 8
(p) See above, pp. 217, 218, 228, n. (x). (q) Re Pawley and London and Provincial Bank, 1900, 1 Ch. 58. Renunciation of probate by one appointed executor is eqiuvalent to a disclaimer of any interest...
-Chapter VIII. Of Notice Of Trusts And Sales By Trustees
Sec. 1. Of Notice of Trusts. Sec. 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 ...
-Sec. 1. - Of Notice Of Trusts
We have seen (a), that whenever the purchaser's adviser obtains notice from any document or fact appearing on the abstract or produced or elicited in the course of investigation of the title that a pe...
-Of Notice Of Trusts. Part 2
(e) ReHarman and Uxbridge, etc. Rail. Co., 24 Ch. D. 720, a very strong instance, as the recital which the Court compelled the purchaser to accept was not made by one who otherwise appeared to be abso...
-Of Notice Of Trusts. Part 3
Circumstances may make disclosure of a trust unavoidable. (k) See Mats, it; & 17 Vict, c. 51, s. 3; 57 ft 58 Vict. c. 30, ss. 1,2 (1). (l) See Stats. 16 & 17 Vict c. 51, 8. 2; 57 & 58 Vict. c. 30, s...
-Of Notice Of Trusts. Part 4
Sub-sect. 2. - This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrume...
-Of Notice Of Trusts. Part 5
The law previous to the Conveyancing Act, 1882. (k) Kennedy v.Green, 3 My. & K. 699, 720; Cave v. Cave, L5 Oh. D. 639, 645; Berwick & Go. v. Price, 1905, 1 Ch. 632-610. (l)Sharpi v. Foy, L. R. 4 Ch. ...
-Of Notice Of Trusts. Part 6
(h) Kettlewell v. Watson, 21 Ch. D. 685. (i) Espin v. Pemberton, 3 De G. & J. 547, 554; Kettlewell v. Watson, 21 Ch. D. 685. (k) See the cases cited in the three preceding notes and above, pp. 250 -...
-Sec. 2. - Of Sales By Trustees
The first observation to be made with regard to sales by trustees is that trustees holding the legal estate in lands under a simple trust for the benefit of some other person or persons have no power ...
-Of Sales By Trustees. Part 2
(e) Cuff v. Hall, 1 Jur. N. S. 972; Devaynes v. 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 ...
-Of Sales By Trustees. Part 3
(p) Re Horsnaill, 1909, 1 Ch. 631, 635. Executors' power of sale under the Land Transfer Act, 1897. (q) Above, p. 228, n. (.r). (r) above, p. 228. (s)Stat. 60 & 61 Vict. c. 65, s. 2; above, pp. 228...
-Of Sales By Trustees. Part 4
(c) Re Cotton's Trustees and the School Board for London, 19 Ch. D. 624; Re Sudeley and Baines .\ Co., 1894, 1 Ch. 334; Re Jump, 19 1 Ch. 129; Re Horsnaill, 1909, 1 Ch. 631, 635. (d) Taite v. Swinste...
-Of Sales By Trustees. Part 5
Trustees for sale must sell for money. (o) Dance v. Goldingham, L. R. 8 Ch. 902. (p) Rede v. Oakes, 4 De G. J. & S. 505; Dunn v. Flood, 25 Ch. D. 629, 28 Ch. D. 586. (q) Stat. 56 & 57 Vict. c. 53, ...
-Of Sales By Trustees. Part 6
(0) Sec note (k). above. (p) Cholmely v. Paxton, 3 Bing. 207, 5 Bing. 48; S C. nom. Cockerell v. Cholmeleu, 10 B. & 564, 3 Russ. 565, 1 R & M. 418, I CI. ft Pin. 60. Trustees should not sell at a v...
-Of Sales By Trustees. Part 7
As to trusts or powers coupled with an interest. Survivorship of the trust. Disclaimer. New trustees. (c) So enacted as to trusts constituted after or created by instruments coming into operation ...
-Of Sales By Trustees. Part 8
II. When a bare power was given to two or more executors, 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 deat...
-Of Sales By Trustees. Part 9
Release of power, where a breach of trust. The law as to the exercise 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 t...
-Of Sales By Trustees. Part 10
(y) See stat.45&46Vict. c.38, ss. 2 (5), (7), 58 (z) See Re Newcastle's Estates, 24 Ch. D. 129, 139 sq.: Re Clitheroe Estate, 28 Ch. 378: 31 Ch. D. 135; Re Atherton, 1891, W. N. 85. (a) See note (x)...
-Of Sales By Trustees. Part 11
Modern statutes have in effect abolished the old rule of equity, that any person paying money or assigning other personal estate to a trustee thereof was bound to see that the same was duly applied pu...
-Of Sales By Trustees. Part 12
Trustees authorized to purchase land to be held on trust for persons entitled in succession, as tenant for life and remainderman in fee, should take care that the property they buy is of a nature to c...
-Chapter IX. Of Title Under The Exercise Of Powers
Where the title depends on the exercise of a power of appointment, it is the duty of the conveyancer advising the purchaser to ascertain that the power has been or will be in all respects well execute...
-Of Title Under The Exercise Of Powers. Part 2
Equitable relief against defective execution of a power. (e) Stat. 22 & 23 Vict. c. 35, s. 12, passed 13th Aug. l859 (f) Sug. Pow. 207. 8th ed. (g) Stat. 22 & 23 Vict. c. 35, s. 12. (h) Stat. 22 & ...
-Of Title Under The Exercise Of Powers. Part 3
It may be noted here that, whenever an abstract of title mentions some express power of which the exercise might affect the property sold, but no exercise thereof is subsequently stated in the abstrac...
-Of Title Under The Exercise Of Powers. Part 4
(c) See Burdett v. Doe d. Spile-bury, 10 Cl. & Fin. 340, where a power to be exercised by will signed, sealed and published in the presence of and attested by three witnesses was held to be well execu...
-Of Title Under The Exercise Of Powers. Part 5
(i) Stat. 4.') & 46 Vict. c. 38, s. 2 (8). (k) Sect. 38. (l) See Re Moore, 1906, 1 Ch. 789. (m) Stat. 53 & 54 Vict. c. 69, s. 16. As to cases affected by this amendment of the law, see Re Brown's W...
-Of Title Under The Exercise Of Powers. Part 6
What is the settlement. and Iveagh. (s) Stat. 45 & 46 Vict. c. 38, s. 2 (1). (t) 1893, 2 Ch. 345. 20 (2) Re Mundy and Roper's Contract. (u) 37 Sol. J. 336; Wolsten-holme's Conveyancing and Settl...
-Of Title Under The Exercise Of Powers. Part 7
(c) Re Ailesbury and Iveagh, 1893, 2 Oh. 345, 358, 359; ' Re Mandy and Roper's Contract, 1899, 1 Oh. 275, 298. (d) See Re Spencer's Settled Estates, 1903, 1 Ch. 75; Re Coull's Settled Estates, 1905, ...
-Of Title Under The Exercise Of Powers. Part 8
The courses open to a tenant for life after a re-settlement. (p) See the explanation given in Re Wimborne and Browne's Contract, 1904, 1 Ch. 637, 542. (q) Above, p. 308. (r) The Court of Appeal in ...
-Of Title Under The Exercise Of Powers. Part 9
The exceptions to the tenant for life's power of conveyance. Estates, etc. having priority to the settlement. (z) Above, pp. 307 - 310, 312, 313. (a) Above, p. 306. (b) Stat. 57 & 58 Vict. c. 30, ...
-Of Title Under The Exercise Of Powers. Part 10
Rights of an assignee for value of the life estate. (n) See Wheelwright v. Walker, 23 Ch D. 752: above , p. 311: Re Dickin and Kelsall's Contract, 1908, 1 Ch. 213, 218. (o) Stirling, J., Re Du Cane ...
-Of Title Under The Exercise Of Powers. Part 11
Another effect of sect. 50 of the Settled Land Act, 1882 (m), is that on the bankruptcy of a tenant for life his statutory powers do not pass to his trustee in bankruptcy but remain exercisable by him...
-Of Title Under The Exercise Of Powers. Part 12
Purchaser from tenant for life should require evidence of the non-existence of estates, etc which the latter cannot convey. Chaser of the life estate should so yield up possession to the pur-chaser f...
-Of Title Under The Exercise Of Powers. Part 13
Into; see Shaw v. Foster, L. R. 5 H. L. 321, 333, 338, 349, 356; Lysaght v. Edwards, 2 Ch. D. 499; below, Chap. XI. Sec. 1. And rights given by statute must be recognised and enforced by all Courts, w...
-Of Title Under The Exercise Of Powers. Part 14
On a sale by a mortgagee under an express power of sale containing a clause for the purchaser's protection in the common form, the purchaser should, of course, abstain from making requisitions as to a...
-Of Title Under The Exercise Of Powers. Part 15
(k) Re Edwards to Green, 58 L. T. N. S. 789. (l) Stat. 44 & 45 Vict. c. 41, ss. 1, 19. (m) Sect. 20. (n) See Barker v. Illingworth, 1908, 2 Ch. 20, deciding that, where a notice had been served req...
-Of Title Under The Exercise Of Powers. Part 16
A mortgagee, in exercising his power of sale, does not stand in a fiduciary relation to his mortgagor (s). His only obligations are to observe the terms of the power and to act in good faith (t). He i...
-Of Title Under The Exercise Of Powers. Part 17
A mortgagee entitled to exercise the statutory power of sale (h) may well do so by attorney: but any power of attorney given for this purpose must expressly confer either a general authority to sell a...
-Chapter X. Of Particular Titles
Sec. 1. Sale of Copyholds. Sec. 2. Sale of Leaseholds. Sec. 3. Sale of lands in a Register County Compulsory Registration District. Sec. 4. Voluntary Conveyances. Sec. 5. Sale of Ground Rents, Rever...
-Sec. 1. - Sale Of Copyholds
On the sale of copyholds, the purchaser, in the absence of special stipulation, is equally entitled to have the whole legal and equitable estate vested in him as in the case of freeholds (a). In copyh...
-Sec. 2. - Sale Of Leaseholds
The principal duties of a conveyancer advising a purchaser of leasehold land have been already noticed (r). He must see that the lease or term offered by the abstract corresponds at all points with th...
-Sale Of Leaseholds. Part 2
(d) 1 Davidson, Prec. Conv. 537, 624, 648 and n. (y), 4th ed. (c) Stat. 44 & 45 Vict. c. 41, s. 3 (4). (f) See Bull v. Hutchens, 32 Beav. 615; Lawrie v. Lees, 14 Ch. D. 249; 7 App. Cas. 19, 30 - 33,...
-Sale Of Leaseholds. Part 3
(g) Re Highett and Bird's Contract, 1902. 2 Ch. 214; 1903, 1 Ch. 287. (h) Bridges v. Longman, 24 Beav. 27, 30: Davenport v. The The Queen, 3 App. Cas. 115; Jacob v. Down, 1900, 2 Ch. 156. (i) Pennan...
-Sale Of Leaseholds. Part 4
(c) Re Higgins and Percival, 1888, W. N. 172. (d) Rinqer to Thompson, 51 L.J. Oh. 42. (e) Ahove, pp. 80, 357. (f) See Wms. Real Prop. .508. 509, .515, 21st ed. By stat. 55 & 56 Vict. c. 13, s. 3, a...
-Sale Of Leaseholds. Part 5
(t) See and consider Re Spark's Lease, L905, 1 Ch. 456: Jenkins v. price, 1907. 2 Ch. 229, reversed, 1908, 1 Ch. 10; Willmolt v. London Road Car Co., 1910, 1 Ch. 754. (u) Re Marshall and Salt's Contr...
-Sale Of Leaseholds. Part 6
Satisfied terms. Proviso for cesser. (n) See 1 Davidson, Prec. Conv. 696, n. (l), 4th ed.: 1 Key & Elph. Prec. Conv. 284, 4th ed.; 290, 8th ed.; Encyclopedia of Forms and Precedents. xii. 344. (o) ...
-Sale Of Leaseholds. Part 7
Land held for long term enlarged into fee simple. (e) Whitchurch v. Whitchurch, 2 P. W. 236; 9 Mod. 124; Good-right v. Sales, 2 Wils. 329, 331. (f) Vapel v. Girdler, 9 Ves. 509; Sug. V. & P. 625, 62...
-Sale Of Leaseholds. Part 8
(x) Worthing Corpn.v. Heather, 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, ...
-Sec. 3. - Sale Of Lands In A Register County Or Compulsory Registration District
If the property purchased be situate in Middlesex or Yorkshire (including the town and county of Kingston-upou-Hull), the conveyancer must, of course, have regard, in advising on title, to the law est...
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 2
(m) Jack d. Rennick v. Armstrong, 1 Hud. & B. 727 ; Fury v. Smith, ib. 735 : both cases on the Irish Registry Act; 2 Dart, V. & P. 855, 856, 5th ed. ; 963, 964, 6th ed. ; 871, 872, 7th ed. (n) Doc d....
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 3
(a) By stat. 48 & 49 Viet. c. 2.;. 8. 3, a caveat in favour of any person may be registered with respect to any lands in Yorkshire by any person claiming to be entitled to any interest therein: and if...
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 4
(x) Stat. 38 & 39 Vict. c. 87, s. 127; 54 & 55 Vict. c. 64. First Sched. Sec.14; Land Transfer Rules, 1908, I. r. 48. (y) See stat. 38 & 39 Vict. c. 87, ss. 8, 9; Wms. Real Prop. 645, 646, 21st ed. ...
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 5
(l) Land Transfer Rules (1903), r. 70, as amended by L. T. R. (1908), IV. The conditions required to entitle a person to make such an application are the same as in the case of freehold land (above, p...
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 6
(m) Stat. 60 & 61 Vict. c. 65, First Schedule. (n) See Wms. Real Prop. 632, 633 and n. (n), 21st ed.; 45 Sol. J. 357. (o) Sug. V. & P. 561: Dart, V. & P. 707, 5th ed.; 708, 6th ed.; 714, 7th ed. (...
-Sale Of Lands In A Register County Or Compulsory Registration District. Part 7
Successive purchases of several undivided shares. (a) Above, p. 382. (h) See below, Chap. XVIII. Sec. 1. (c) See above, p. 386, n. (p); below, Sec. 10 of this chapter. Conveyance on purchase of an...
-Sec. 4. - Voluntary Conveyances
Voluntary conveyances, and conveyances revocable by the grantor, of any estate in lands or other hereditaments were liable to be defeated (r), before the 29th of June, 1893 (s), by a subsequent convey...
-Voluntary Conveyances. Continued
(q) Willis v. Brown, 10 Sim. 127. (r) Under the judicial construction of stat. 27 Eliz. c. 4, made perpetual by 39 Eliz. c. 18, s. 31, and avoiding conveyances made with intent to defraud subsequent ...
-Sec. 5. - Sale Of Ground Rents, Reversions And Remainders, Mines, Roads, Rivers, Etc
The property commonly described as freehold or leasehold ground rents is nothing else than the freehold or leasehold reversion expectant on the determination of a building lease (s); and the purchaser...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 2
Sale of land leased for years, where succession duty payable at end of lease. Chain between the vendor and the occupant have been discovered. (c) Hunt v. Luck, 1901, 1 Ch. 45, 53. (d) See above, pp...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 3
Rights given by the Conveyancing: Act of 1881 to enforce lessees' covenants and conditions. In leases granted under statutory powers. In other leases. (u) Manchester Brewery Co. v. Coombs, 1901, 2 ...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 4
(p) Winter's ease, Dyer, 308; Co. Litt. 215a. (q) Stat. 22 & 23 Vict. c. 35, s. 3. (r)See above, n. (n). (s)Stat. 41 & 45 Vict, 0. 41, s. 12; see also s. 10, above, p. 103. Notice to quit where the ...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 5
(i) Above, pp. 58, 59; Newman v. Rogers, 4 Bro. C. C. 391; Sug. V. & P. 262; 1 Dart, V. & P. 419, 5th ed.; 484, 6th ed.; 497, 7th ed.; below, Chap. XII. Sec.1. (k) Ex parte Manning, 2 P. W. 410; Chi...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 6
Mines and minerals. Royal mines. What is included in the term Minerals. (y) Jacomb v. Turner, 1892, 1 Q. B. 47, 52. (z) See stat. 8 & 9 Vict. c. 118, ss. 16 sq., 147; above, p. 409, note (p); Davi...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 7
(s 3 & 4 Will. IV. c. 27, amended by 37 & 38 Vict. c. 57. (t) Thew. Wingate, 10 B. & S. 714, n.; Seddon v. Smith, 36 L. T. N. S. 168; Williams on Commons, 152 - 154. (u) The owner of the mines or st...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 8
By. Co., 5 C. B. N. S. 174; Harrison v. Rutland, 1893, 1 Q. B. 142; Hickman v. Maisey, 1900, 1 Q. B. 752. (g) See Salisbury v. Great Nor-thern By. Co., ubi sup. (h) See cases cited in note (k), p. 4...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 9
Soil of rivers. Island in a river. (a) See Derby County Council v. Matlock Bath, etc Urban District, L896, A. C. 315. (b) Set cases cited in note , (p), p.. 417, above. (c) Above, pp. HO, 417. As...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 10
(a) Above, p. 419. (b) Bristow v. Cormican, 3 App. Cas. 641, 658, 665 - 667. (c) Shury v. Piggot, 3 Bulst. 339. (d) Wright v. Howard, 1 Sim. & St. 190, 203; Mason v. Bill, 5 B. & Ad. 1, 17 sq.; Emb...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 11
Rights of fishing and sporting. Rights of fishing in tidal waters. Several fishery in tidal waters. Rights of fishing in nun-tidal waters. (r) See Goldsmid v. Tunbridge Wells Improvement Commissio...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 12
Approvement of part of a common. Every landowner is entitled of common right, and as a natural incident of his ownership, to have his soil supported in its natural state by the soil of the adjacent l...
-Sale Of Ground Rents, Reversions, Mines, Roads, Rivers. Part 13
Undivided share in land. Tenant in common buying other shares. (l) Stat.57 & 58 Vict.c. ocxiii.: see Drury v. Army and Navy, etc. Supply, 1896, 2 Q. B. 271; Hobbs v. Grover, 1899, 1 Ch. 11; fit Stow...
-Sec. 6. - Safe Of Purely Incorporeal Hereditaments
Upon the purchase of purely incorporeal hereditaments, the general rule as to the title required to be shown is the same as upon the purchase of land, that is to say, if the incorporeal hereditament b...
-Safe Of Purely Incorporeal Hereditaments. Part 2
(l) Stat. 4 Geo. II. o. 28, s. 5; Wms. Real Prop. 428, 429, 21st ed. Covenant to pay a rent-charge. Proviso for re-entry on non-payment of rent-charge. (m) Thomas v. Sylvester, L. R. 8 Q. B. 368: R...
-Safe Of Purely Incorporeal Hereditaments. Part 3
Tithe rent-charge. Lands sold as tithe-free. (b) Stat. 51 & 52 Vict. c. 51, s. 13. By sect. 4, in this Act purchaser for value includes a mortgagee or lessee or other person who for valuable cons...
-Safe Of Purely Incorporeal Hereditaments. Part 4
Benefices Act, 1898. (z) Greenwood v. London, 5 Taunt. 727. (a) Fox v. Chester, 3 Bli. N. S. 123. (b) Stat. 12 Anne, st. 2, c. 12, 8. 2. (c) Stat. 61 & 62 Vict. c. 48, s. 1 (1). (d). Benefices R...
-Sec. 7. - Sale Of Charity Lands
On the sale of any hereditaments which are or have been subject to any charitable uses or trusts (r), there are two main points to be considered by the conveyancer advising on the title; first, whethe...
-Sale Of Charity Lands. Part 2
Requisites of the conveyance of land to charitable (r) As to what uses or trusts are charitable, see Income Tax Commrs. v. Pemsel, 1891, A. C. 531; 583: Hunter v. A.-G., 1899, A. C. 309; Tudor's Char...
-Sale Of Charity Lands. Part 3
Winchester, and Westminster, for the better support and maintenance of the scholars only upon the foundations of those last-mentioned colleges, or to or in trust for the warden, council, and scholars ...
-Sale Of Charity Lands. Part 4
(g) Stat. 9 Geo. II. 0. 36. (h) Walker v. Richardson, 2 M. & W. 882; A. -G. v. Glyn, 12 Sim. 84. (i) Ashton v. Jones, 28 Bear. 460. (k) Stat. 51 & 62 Vict. 0. 42: see the title. A Consolidation Ac...
-Sale Of Charity Lands. Part 5
Contract to sell land for the use of a charity. (z) Re Wilkinson, 1902, 1 Ch. 841; Re Sidebottom, 1902, 2 Ch. 389; see also Re Ryland, 1903, 1 Ch. 467. (a) Stat. 51 & 52 Vict. c. 42; above, p. 445. ...
-Sale Of Charity Lands. Part 6
Restriction on the sale, mortgage, or leasing of charity lands (r) Stat. 54 & 55 Vict. c. 73, s. 3; above, pp. 450, 456, n. (d). (s) See Gentle v. Faulkner, 1900, 2 Q. B. 267. (t) See Wms. Real Pro...
-Sale Of Charity Lands. Part 7
(d) Stat. 16 & 17 Vict. c. 137, ss. 21, 24. (e) See also stats. 18 & 19 Vict. c. 124, s. 30; 23 & 24 Vict. c. 136, s. 15. (f) Stat. 16 & 17 Vict. c. 137, s. 26. Commissioners may authorise providen...
-Sec. 8. - Partnership Property
Where a purchaser has notice that any land sold is or has been partnership property, he must ascertain that the same has been or shall be duly assured, not only by all persons seised of the legal esta...
-Partnership Property. Continued
(u) See stat. .53 & 54 Vict. c. 39, 20 -22; Darby v. Darby, 3 Drew. 495; Waterer v. Waterer L. B. 15 Eq 402; A. -G. v. Hub-buck, 13 Q. B. D. 275;Re Bourne, 190(i, 2 Ch. 427. 429, 432, 433. (x) Land, ...
-Sec. 9. - Sale By Order Of The Court
Where the title to any land sold depends on an order for sale made by the Court (m), the principal points, on which the purchaser's advisers must satisfy themselves, are these: first, that the whole l...
-Sale By Order Of The Court. Continued
Title under an order for sale made by the Court. (l) 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 t...
-Sec. 10. - Sale Of An Equity Of Redemption
The purchaser of an equity of redemption is exposed to the following risks: - First, since equitable charges or rights affecting equitable estates in land rank, as a rule, according to the order of th...
-Sale Of An Equity Of Redemption. Part 2
(o) Jones v. Barnett, 1899, 1 Ch. 611, 1900, 1 Ch. 370. (p) Pp. 470, 471. (q) Jones v. Jones, 8 Sim. 633; Wilmot v. Pike, 5 Hare, 14; Phillips v. Phillips, 4 De G. F. & J. 208, 215; Taylor v. London...
-Sale Of An Equity Of Redemption. Part 3
Keeping the charge on foot. Purchase by mortgagee of the equity of redemption. (o) See Watts v. Byrnes, 1 De G. M. & G. 240. 244; Adams v. Angell, 5 Ch. D. 634, 641, 645, 647; Thorne v. Conn, 1895, ...
-Sale Of An Equity Of Redemption. Part 4
G.. 857, 872; Gibson v. Seagrim, 20 Beav. 614; Kay, L. J., Mint v. Howard, 1893, 2 Ch. 54, 72; Re Jones, 1893, 2 Ch. 461, 470 sq. (e) See Dolphin v. Aylward, L. R. 4 H. L. 486, 501; Flint v. Howard, ...
-Sec. 11. - Sale Of Licensed Property
On the sale of a public-house or other licensed property as a going concern, the vendor is bound, on the day fixed for completion, to produce a valid and effectual licence of the kind promised by the ...
-Sec. 12. - Land Subject To Restrictive Covenants
As we have seen (o), the fact that any laud purchased is subject to restrictive covenants is such a defect of title as justifies the purchaser in refusing to perform the contract; unless the vendor sh...
-Land Subject To Restrictive Covenants. Continued
Land subject to restrictive covenants. Statutory restriction (o) Above, pp. 167, 195 -197. (p) Bird v. Eggleton, 29 Ch. D. 1012; Re Ponsford and Newport School Board, 1894, 1 Ch. 454; lie Bostworth...
-Sec. 13. - Investigation Of Title In View Of A Mortgage
A few words may be added on the investigation of title in view of taking a mortgage of land. When it is proposed to obtain a loan of money on the security of a mortgage of land, the title is usually i...
-Chapter XI. Of The Effect Of The Contract Pending Completion
Sec. 1. Of the Rights and Liabilities of the Parties pending Completion in respect of the Property sold. Sec. 2. Of the Transfer pending Completion of the Rights and Liabilities under the Contract. S...
-Of The Effect Of The Contract Pending Completion. Part 2
(I) Shaw v. Foster, L. R. 5 H. L. 321, 338;Lysaght v. Edwards, 2 Ch. D. 499, 506; Rayner v. Preston, 18 Ch. D. 1, 6; Me Stucley, 1906, 1 Ch. 67, 78. (m Acland v. Gaisford, 2 Madd. 28, 32; Phillips v....
-Of The Effect Of The Contract Pending Completion. Part 3
Destruction by fire pending completion of a house insured by the vendor. (z) Clare Hall v. Harding, 6 Hare, 273, 296; Monro v. Taylor, 8 Hare, 51, 60; Sug. V. & P. 304; 1 Dart, V. & P. 248, n. (u), 2...
-Of The Effect Of The Contract Pending Completion. Part 4
Purchaser should himself insure against fire. As the result of the purchaser's equitable ownership of the property sold and the vendor's consequent trusteeship for the purchaser, the vendor is bound,...
-Of The Effect Of The Contract Pending Completion. Part 5
Y. & C. 222; Townsend v. Cham-pernowne, 3 Y. & C. 505, 508; Regent's Canal Co. v. Ware, '23 Beav. 575, 588; Royal Bristol, etc. Bdg. Socy. v. Bomash, 35 Ch. D.390, 397, 398. (w) Clarke v. Ramuz, 1891...
-Of The Effect Of The Contract Pending Completion. Part 6
Vendor's right to the profits. (c) Tilley v. Thomas, L. R. 3 Ch. 61; Phillips v. Silvester, L. R. 8 Ch. 172, 170 -178. (d) Gedye v. Montrose, 26 Beav. 45. (e) This comparison appeal be correct as a...
-Of The Effect Of The Contract Pending Completion. Part 7
The vendor's duty to discharge the outgoings. Should be set thereon: Sherwm v. Shakspear, 5 De G. M. & G. 517, 538, 539; Seton on Judgments, 2244, 6th ed. If this be omitted the vendor cannot be char...
-Of The Effect Of The Contract Pending Completion. Part 8
Purchaser taking possession before completion. 309, 313. And see below. Chap. XII. Sec. 4, as to apportionment of the outgoings. (u) Powell v. Martyr, 8 Ves. 146, 149; Fludyer v. Cocker, 12 Ves. 25;...
-Sec. 2. - Of The Transfer Pending Completion Of The Rights And Liabilities Under The Contract
We will now consider the effect of the transfer of the rights and liabilities created by the contract pending the completion thereof. This may take place either involuntarily, which is mainly by act o...
-Of The Transfer Pending Completion Of The Rights And Liabilities Under The Contract. Part 2
Death of the vendor. Devolution of the vendor's estate. (r) Baden v. Pembroke, 2 Vern. 213; Owen v. Davies, 1 Ves. sen. 82; Hinton v. Hint on, 2 Ves. sen. 631, 633; Taylor v. Stibbert, 2 Ves. jun. 4...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 3
(p) Cattell v. Corrall, 4 Y. & C. 228; see above, p. 385, n. (p). Here it may be noted that under stat. 3 & 4 Will. IV.c.74, ss. 1, 15, a tenant in tail, who has by deed unenrolled conveyed away all h...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 4
As we have seen (u), 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. Such a conveyance cannot ...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 5
Death of vendor who sold under a power. (z) lie Carpenter, Kay, 418; Be Colling, 32 Ch. D. 333. (a) Re Cuming, L. R. 5 Ch. 72: Re Pagani, 1892, 1 Ch. 236. (b) Above, pp. 505, 529, 530. (e) The ques...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 6
Death of the purchaser. (i) Above, pp. 228 sq., 531. (k) Above, pp. 229, 235, 533. (l) Above, pp. 228 sq., 534. (m) Above, pp. 528, n. (t), 529, n. (u), 531, n. (m),and the authorities there cited...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 7
Devolution of the burthen of the contract on the purchaser's death. A contract for the sale of land is not discharged either by an act of bankruptcy committed or by a receiving order or an adjudicati...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 8
In consequence of the doctrine of the relation back of the title of a trustee in bankruptcy to the act of bankruptcy (g), if a purchaser of land have notice of an act of bankruptcy committed by the ve...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 9
Insolvent vendor when discharged from liability on the contract. Where the vendor is an undischarged bankrupt at the time when the contract of sale was made, he cannot give a good title to or convey ...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 10
Act of bankruptcy by the purchaser. (g) Above, p. 546, n. (u). (h) Above, p. 549, n. (p). (i) 2 Dart, V. & P. 995, 1004, 5th ed.; 1114, 1126, 6th ed.; 1029, 7th ed.; Rawlins on Specific Performance...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 11
Purchaser an undischarged bankrupt at the time of the contract. (m) See the principle applied in Stagg v. Medway Navigation Co., 1903, 1 Ch. 169. (n) See Re Vavasour, 1900, '2 Q. B. 309. (o) See ab...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 12
S. 4; 63 & 64 Vict. c. 26, s. 6 see Wms. Real Prop. 521, 522, 21st ed. (g) Below. Chap. XII. Sect. 2. (h)See stats. 46 & 47 Vict, c. 52, s.4; 53 & 54 Vict. c.71 s. 1, A debtor commits an ac1 of bank...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 13
Marriage of cither party to the contract. (d) To every person not so detained and not found a lunatic by inquisition, with regard to whom it is proved to the satisfaction of the Judge in lunacy that ...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 14
Assignment by a party to the contract. Assignment by the vendor of the land sold. (n) Stat. 33 & 34 Vict. c. 23, ss. 6 - 8; and see sect. 30. (o) Sects. 9 - 14; Carr v. Anderson, 1903, 2 Ch. 279. T...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 15
Assignment of the benefit of the contract. (f) Wood v. Griffith, 1 Swaust. 43,' 55, 50; Sug. V. & P. 356; Shaw v. Foster, L. R. 5 H. L 321, 333. 338; Tolhnrst v. Asso-ciattd Portland, etc. Ltd., 1963...
-Of The Transfer Pending Completion Of The Rights And Liabilities. Part 16
(r) 6 W. R. 188, where, how-ver, specific performance was refused on other grounds. Dyer v. Pulteney, Barn. Ch. 100. 169, 170; Shaw v. Foster, L. E. 5 H. L. 821, 333, 338, 339, 350, 357, 358; and Bee...
-Chapter XII. Of The Completion Of The Contract
Sec. 1. Of Completion generally. Sec. 2. Of (Searches and Inquiries. Sec.3. Of the Preparation of the Conveyance. Sec. 4. Of the Adjustment of Accounts. Sec. 5. Of the Execution of the Conveyance....
-Of The Completion Of The Contract. Continued
V. & C 401. (f) Above, pp. 58, 59. (q) See the cases cited above, p. 58: Patrick v. miner, 2 C. P. D. 342. (h) Lloyd v. Rippingale, cited 1 Y. & C. 410; Parkin v. Thorold, 16 Beav. 59, 65; see abov...
-Sec. 2. - Of Searches And Inquiries
The object of searching for incumbrances or other matters, which are registered or enrolled, is to ascertain that the vendor's title is not adversely affected by any judgment, Crown debt, writ or othe...
-Of Searches And Inquiries. Part 2
Judgments. Crown debts and writs of execution. (u)Above, pp. 373 sq. (x) See Wms. Real Prop. 268 - 294, 602 - 605, 21st ed. (y) Ibid. 2GS) - 275, 285 - 287. (z) Stat. 63 & 64 Vict. c. 26, 8.2(1) (a...
-Of Searches And Inquiries. Part 3
Orders made in exercise of bankruptcy jurisdiction. (m) Above, p. 373; Wms. Real Prop. 212, 21st ed. (n) Davis v. Strathmore, 16 Ves. 419; Sug. V. & P. 521. (o) Greaves v. Toficld, 14 Ch. D. 563. T...
-Of Searches And Inquiries. Part 4
(k) These consist of rent-charges payable for twenty-two years and granted by certificate of the Enclosure Commissioners, and. if charged on lands in Middlesex or York, were to be registered in the co...
-Of Searches And Inquiries. Part 5
Statutory charges on land of a principal sum, not payable by way of annuity. (a) Elphinstone & Clark on Searches, 114, 115. (b) These are granted by the Local authority by way of rent-charge for a t...
-Of Searches And Inquiries. Part 6
Bankruptcy. Deeds of arrangement. (y) Co. Litt. 344 b; Anon., 1 Vern. 318; Hiern v. Mill, l3 Ves. 114, 120; Bellamy v. Sabine, 1 De G. & J. 566; Price v. Price, 35 Ch. D. 297. (s) See above, p. 224...
-Of Searches And Inquiries. Part 7
10. On purchase of laud from a company. (q) Above, p. 597. (r) Above, p. .597. (a) Stat. 25 & 26 Vict. c. 89. (t) Stat. 63 & 64 Vict, c. 48, s. 14. (u) Stat. 7 Edw. VII. c. 50, s. 10. (.x) Stat. 8 ...
-Of Searches And Inquiries. Part 8
Against what names searches mould be made. (d) Stat. 51 & 52 Vict. c. 51. (c) Stat. 63 & 64 Vict. c. 26. (f) See Wms. Real Prop. 86 94. 465-467, 13th ed.; 270 278, 285 - 287, 293, 294, 602 605, 21s...
-Of Searches And Inquiries. Part 9
Official searches. (u) Lane v. Jackson, 20 Beav. 535. (x) Procter v. Cooper, 2 Drew. 1, 18 Jur. 444; affirmed, 1 Jur. N. S. 149. Having regard to the provisions of stat. 45 & 46 Vict. c. 39, s. 2 (3...
-Of Searches And Inquiries. Part 10
(r) Above, p. 522. (s) Above, p. 521. The purchaser must further ascertain that the possession or enjoyment of the land sold is in accordance with the title shown. For this purpose he should make in...
-Of Searches And Inquiries. Part 11
(d) Above, pp. 399, 400. (e) As to the duty of the vendor to give up vacant possession on completion, see above, pp. 512, 515, 578; Engell v. Fitch, L. R. 4 Q. B. 659: Royal Bristol, etc. Society v....
-Sec. 3. - Of The Preparation Of The Conveyance
As we have seen (t), it is the purchaser's duty at his own expense to prepare a proper instrument of conveyance to himself of the property sold and to tender the same to the vendor for his execution; ...
-Of The Preparation Of The Conveyance. Part 2
Parties to the conveyance on the grantee's side. Conveyance to the purchaser's nominee. (f) Above, pp. 636, 561. (g) Above, p. 46. This appears to follow from the act that, if the pruchaster's assi...
-Of The Preparation Of The Conveyance. Part 3
Sale of lands subject to incumbrances. (x) See Sug. V. & P. 559: 1 Dart, V. & P. 503, 5tb ed.: 573, 6th ed.; 531, 7th ed. It is submitted that the dictum of Jessel, dictum. Besides, it takes no accou...
-Of The Preparation Of The Conveyance. Part 4
Vendor should never be allowed to obtain the legal estate. (o) For the purpose of deciding what sum ought to be so paid into Court, the Court will make a declaration as to future rights: Re Fr...
-Of The Preparation Of The Conveyance. Part 5
Purchaser receiving notice of mesne incumbrances. (a) Above, pp. 565, 566; Jared v. Clements, 1903, 1 Oh. 42b. (b) Above, p. 481. (c) Above, p. 481. (d) Above, pp. 481, 624. (e) This was the case...
-Of The Preparation Of The Conveyance. Part 6
(o) Sug. V. & P. 558. (p) See 1 Dart, V. & P. 519, 5th ed.; 591, 6th ed.; above, p. 116. (q) See above, p. 136. (r) Above, pp. 131, 153; see also, p. 138. (s) Above, p. 132. (t) Above, p. 620. W...
-Of The Preparation Of The Conveyance. Part 7
(i) Above, p. 630, n. (b). (k) Re Sansom and Narbeth's Contract, 1910, 1 Ch. 741, 749, 750. In that case the contract contained only a general description of the property sold not defining the measur...
-Of The Preparation Of The Conveyance. Part 8
Deascription independent of or by reference to a plan. (l) Above, p. 620. See an article on the subject above discussed in 26 L. Q. R. 268: but it is respectfully submitted that the learned author ha...
-Of The Preparation Of The Conveyance. Part 9
(e) Litt. 8. 183; Co. Litt. 121 b: Williams on Commons, 315; Beddington v. Atlee, 35 Ch. D. 317, 326. (f) Watts v. Kelson, L. R. 6 Ch. 166; Kay v. Oxley, L. R. 10 Q. B. 360; Barkshire, v. Grubb, 18 C...
-Of The Preparation Of The Conveyance. Part 10
(p) See Broomfieldv. Williams, 1897, 1 Ch. 602; Pollard v. Gare, 1901, 1 Ch. 834; International Tea Stores Co. v. Hobbs, 1903, 2 Ch. 165. (a) 2 Dart, V. & P. 744, 5th ed.; 838, 839, 6th ed.; 742, 743...
-Of The Preparation Of The Conveyance. Part 11
Where the property is sold subject to some incumbrance. (e) Palmer v. Fletcher, 1 Lev. 122; Holt, C. J., Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093; Thesiger, L. J., Wheeldon v. Burrows, 12 Ch. D. 31,...
-Of The Preparation Of The Conveyance. Part 12
(f) See Tucker v. Vowles, 1893, 1 Ch. 195; Rowell v. Satchell, 1903, 2 Ch. 212; Osborne v. Brad-ley, 1903, 2 Ch. 446; above, p. 497, n. (s). (g) Above, p. 494, and n. (a); Nottingham Patent Brick, Se...
-Of The Preparation Of The Conveyance. Part 13
Limitation by deed of equitable estates in land. (u) Stat, 27 Hen. VIII. c. 10. (x) Above, p. 172. (y) Re Ethel and Mitchells and Butler's Contract, 1901, 1 Ch. 945, 948; below, Chap. XIII. Sec. 2....
-Of The Preparation Of The Conveyance. Part 14
Vendor of land bound to give the usual covenants for title. (b) See Worley v. Frampton, 5 Hare, 560; Sug. V. & P. 69, 575; 1 Dart, V. & P. 550, 5th ed.; 622, 6th ed.; 573, 7th ed.; Wms. Real Prop. 44...
-Of The Preparation Of The Conveyance. Part 15
(l) Above, p. 47_'. (m) Sug. V. 7 P. 674; Cottrell v. Cottrell, L. R. 2 Eq. 330; 1 Dart, V. & P. 645, 6th ed.; 617. 6th ed.; 568, 7th ed.: Davidson, Prec. Conv. vol. ii. Pt. i. 270 - 275 and notes, ...
-Of The Preparation Of The Conveyance. Part 16
(t) Sect. 7 (1) (f). (u) Seat 7 (4). (x)Sect. 7(7) (y) Williams v. Hathaway, 6 Ch. D. 544, 546. (z) Above, p. 656. (a) Sect. 7 (6). (b) Co. Litt. 314 b, 385 a; Middlemore v. Goodale, Cro. Car. 50...
-Of The Preparation Of The Conveyance. Part 17
Covenants for title on sale of copyholds. 2 Key & Elph. Prec. Conv. 461, a., 662, 663, 704, 710, 4th ed.: 457, a., 553, 554, 674, 680, 8th ed.; Davidson's Concise Precedents, 511 and n.. 521, 17th ed...
-Of The Preparation Of The Conveyance. Part 18
Purchaser agreeing to observance of restrictions on the use of the land bought must enter into an absolute covenant to that effect. (k) Sug. V. & P. 573; Davidson, Prec. Conv. vol. ii. pt. i. pp. 379...
-Of The Preparation Of The Conveyance. Part 19
(u) Above, pp. 350 sq. (x) This is further apparent from the fad that the covenants for title, which the vendor is bound to give, include a covenant that the rent has been paid and the covenants perf...
-Of The Preparation Of The Conveyance. Part 20
So where land is sold subject to some charge, which the vendor will after conveyance remain personally liable to pay, the purchaser is bound to covenant to indemnify the vendor against all liability f...
-Of The Preparation Of The Conveyance. Part 21
Whether the usual remedies for securing a rent-charge in fee are void for remoteness. (t) See above, pp. 648, 666. (u) It is not equally necessary in all casts, as the burden of restrictive covenant...
-Of The Preparation Of The Conveyance. Part 22
Another matter which may be conveniently discussed in connection with the preparation of the conveyance is the delivery to the purchaser of the title deeds or other muniments of title, and the vendor'...
-Of The Preparation Of The Conveyance. Part 23
Power on breach of covenant to enter ami hold until perforro-ance thereof. Law conditions should be subject to the rule against perpetuities, it, would apparently follow that such an implied conditio...
-Of The Preparation Of The Conveyance. Part 24
Vendor's duty to furnish statutory acknowledgments and undertakings. What documents should be included in a statutory acknowledgment. (t) 1 Davidson, Prec. Conv. 621, 638, 644, 4th ed.; Davidson's C...
-Of The Preparation Of The Conveyance. Part 25
(m) Sag. V. & P. 436; Dart, V. & P. 676, 5th .ed.: 764, 6th ed.: 695, 7th ed. (n) See Bug. V. & P. 453, n.; Gabriel v. Smith, 16 Q. B. 847, 852 - 854, 861, where note that the vendor had only the ben...
-Of The Preparation Of The Conveyance. Part 26
Vendor must, as a rule, give both acknowledgment and undertaking. (u) Stat. 44 & 45 Vict. c. 41. (x) See Sug. V. & P. 452: l Dart, V. & P. 555, 5th ed.; 1 Davidson, Prec. Conv. 222, n. (t), 223, 592...
-Of The Preparation Of The Conveyance. Part 27
(r) See above, pp. 687, 688. (s) Davidson, Prec. Conv. vol. i. 591: vol. ii. pt. i. 663 n., 4th ed. By the Vendor and Purchaser Act, 1874 (z), such covenants for production as the purchaser can and ...
-Of The Preparation Of The Conveyance. Part 28
Increment value duty stamp. Stamp duty on conveyances on sale. (i) See 1 Dart, V. & P. 564, 5th ed.; 637, 6th ed.; 589, 7th ed. (k) Ibid. 565, 5th ed.; 638, 6th ed.: 590, 7th ed. (l) See stats. 54...
-Of The Preparation Of The Conveyance. Part 29
(c) See Underground Electric Rys., etc., Ltd. v. Inland Revenue Commrs., 1905, 1 K. B. 174, 1906, A. C. 21. (d) See Bristol v. Inland Revenue Commissioners, 1901, 2 K. B. 336. (e) See above, p. 618....
-Of The Preparation Of The Conveyance. Part 30
Sale of an equitable interest in lands. Of equity of redemption. (k) Above, pp. 235, 316 tq. (l) See also sects. 65 -68. No stamp duty is chargeable on an admittance: Elton on Copyholds, 282, 339, ...
-Of The Preparation Of The Conveyance. Part 31
Sale of a lease of a separate tenement, flat or dwelling, part of a larger building. (h) See ss. 2, 25 - 32. (c) See ss. 7 (exempting agricultural land, as defined in s. 41, while it has no higher v...
-Of The Preparation Of The Conveyance. Part 32
Increment value duty-stamp, when required. The Increment Value Duty stamps, and will be returned on presentation of the ticket after the expiration of the time mentioned therein. By Regulation 11, if...
-Sec. 4. - Of The Adjustment Of Accounts
If the purchase should be completed at the proper time for completion, the purchase money will be payable without interest (h), and the only matter in respect of which any adjustment of accounts may b...
-Of The Adjustment Of Accounts. Part 2
(q) See Lawes v. Gibson, L. R. 1 Eq. 135; above,pp.67,74, 523. (r) Above, p. SO. (s) Above, pp. 50. 520 Bq. (t) Re Bettetwortk and Richer, 37 Ch. D. 535. (u) See Stock v. Meakin, l900, 1 Ch. 683: ...
-Of The Adjustment Of Accounts. Part 3
Purchaser's liability to pay interest. Under an open contract. (c) See 1 Dart, V. & P. 130, 131, 5th ed.; 147. 6th ed.; 143, 7th ed.; 1 Davidson, Prec. Conv. 544. 681 ,sq., 699 sq., 4th ed.; 1 Key &...
-Of The Adjustment Of Accounts. Part 4
Claims to compensation under an open contract. (h) Above, pp. 512-51.5. (i) Above, p. 65. (k) Above, pp. 65, 610. (l) Above, p. 43. (m) See Mortlock v. Butter, 10 Ves. 292, 306; Halsey v. Grant, 13 ...
-Of The Adjustment Of Accounts. Part 5
(g) Above, p. 203; Castle v. Wilkinson, L. R. 5 Ch. 534; Fry, Sp. Perf. Sec. 1271, 3rd ed. Distinguish Barker v. Cox, 4 Ch. D. 464, on the ground that there the vendor expressly undertook to procure a...
-Of The Adjustment Of Accounts. Part 6
(y) 2 Dart, V. & P. 646, 5th ed.; 730, 6th ed.; 670, 7th ed. In the cases above mentioned (g), where it was held that the agreement to give compensation was not applicable if the property produced we...
-Of The Adjustment Of Accounts. Part 7
Purchaser's rights under condition providing for compensation. (l) Above, pp. 611, 652, 653. (m) The error was exactly parallel to that committed in Re Fawcett and Holmes (above, pp. 728, 730, n. (i...
-Of The Adjustment Of Accounts. Part 8
(a) Above, pp. 32 34, 41, 45. 84, 105, 116, 123, 124. (b) See above, pp. 619, 620. (c) Above, pp. 35, 46, 619, 620. (d) Above, p. 620. (e) Above, pp. 373 sq.; Mit-telholzer v. Fullarton, 6 Q. B. 989...
-Sec. 5. - Of The Execution Of The Conveyance
We have now arrived at the subject of the actual completion of a sale of land. This usually takes place at the office of the vendor's solicitors (u); and the conveyance is either executed there and th...
-Of The Execution Of The Conveyance. Part 2
W Vendor must convey in person. Power of attorney when revoked. (b) See King v. Smith, 1900, 2 Ch. 425, where a landowner's solicitor fraudulently procured him to execute a mortgage of his land; Ja...
-Of The Execution Of The Conveyance. Part 3
Where the conveyance is executed by attorney. (d) Re Hetling and Merton's Contract, 1893, 3 Ch. 269, 276, 280. (c) Above, pp. 738, 739. (f) See above, pp. 738 - 740. If the vendor, being in the ser...
-Preface Vol2
The writer must apologise to all purchasers of his first volume for his delay in completing the second. He confesses that, when the first volume appeared, he had under-estimated the difficulties atten...
-Preface Vol2. Continued
(e) Pp. 703 - 707. (f) Pp. 710 - 719. (g) 1900, 1 Ch. 616. (h) 30 Beav. 445. (i) L. E. 5 Eq. 1. (j) L. E. 13 Eq. 427. (k) 28 Ch. D. 255. (1) 6 M. & W. 358. (m) Pp. 737 and note (u), 740, 741. (n) P. ...
-Errata
Page xxvi, line 7 from bottom, for mortgagor read mortgagee. 6, n. (w),for Thimberley read Thimbleby. for Cotterill read Cotterell. 6, n. (x), for 556 read 558. 7, n. (/), for Pierce read Peire...
-Addenda To Vols. I. And II
Page 5, n. (s), add Lavery v. Pursell, 39 Ch. D. 508, 518. 12, n. (j), add at end Dickinson v. Barrow, 1904, 2 Ch. 339, 334. 54, n. (n), add See Re Jackson and Baden's Contract, 1905, 1 Ch. 603....
-Addenda To Vols. I. And II. Continued
Page 420, n. (x), add a reference to Cave v. Cave, 15 Ch. D. 639. 420, line 6, after hands (x) insert And after completion of the contract by conveyance and payment of the purchase-money, he remai...
-The Law Relating To Vendor And Purchaser of Lands. Chapter XIII. Of Mistake
Sec. 1. Of Mistake us precluding true Consent. Sec. 2. Of Mistake in the expression of Consent, and its Rectification. In the previous part of this book the normal course of a contract for the sale o...
-Sec. 1. - Of Mistake As Precluding True Consent
We have seen (b) that, in order to make a valid contract, it is necessary that there should be true, full and free consent of the parties; that is, consent unimpeachable as having been induced by mist...
-Of Mistake As Precluding True Consent. Part 2
Unilateral mistake. If one manifest a certain intention, he is estopped from proving that his real intention was different. Thompson v. Leach, 2 Vent. 198, 202, 208; 2 Prest. Abst. 226 - 228; Sigger...
-Of Mistake As Precluding True Consent. Part 3
Contracts then purported to be made by spoken or written words apparently expressing a true consent are, as a rule, void if there be no real agreement of the parties' minds in some point which goes to...
-Of Mistake As Precluding True Consent. Part 4
Letter of acceptance sent without the writer's authority. Unilateral mistake. (o) See above, p. 13. (p) See Henkel v. Tape, L. R. 6 Ex. 7; Baxendale v. Bennett, 3 Q. B. D. .525; Clutton v. Atten-bo...
-Of Mistake As Precluding True Consent. Part 5
(b) Athenaeum Life Assurance Society v. Pooley, 3 De G. & J. 294; Graham v. Johnson, L. R. 8 Eq. 36, 43; above, p. 584. (c) Above, p. 667. (d) Above, pp. 439, 440, 463, 471, 479, 490, 493. Where on...
-Of Mistake As Precluding True Consent. Part 6
Van Praagh v. Everidgc. (q) Tamplin v. James, 15 Ch. D. 21.5. (r) See above, p. 19, n. (v). (s) Fry, Sp. Perfee. Sec. 277, 752. (t) See above, pp. 4, 6, and n. (x). Mistake as to price. Mistake ...
-Of Mistake As Precluding True Consent. Part 7
Mistake as to the quality of a thing sold. The rule is caveat emptor. (y) See above, p. 63.5, and n. (e); Stewart v. Kennedy, 15 App. Cas. 108, 121; cf. above, p. 639. (z) Above, pp. 27, n. (b), 15...
-Of Mistake As Precluding True Consent. Part 8
(a) Greenhalgh v.Brindley, 1901, 2 Ch. 324. It should be noted that non-disclosure, on the sale of land, of a fact material to the title of the property sold stands on a different footing from nondisc...
-Of Mistake As Precluding True Consent. Part 9
{I) See Horsfall v. Thomas, 1 H. & C. 90, dissented from by Cock-burn, 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 ...
-Of Mistake As Precluding True Consent. Part 10
(a) Smith v. Hughes, ubi sup. (b) See Webster v. Cecil, 30 Beav. 62, as explained in Tamplin v. James, 15 Ch. D. 215, 221; Paget v. Marshall, 28 Ch. D. 255, 265. The case appears to be governed by th...
-Of Mistake As Precluding True Consent. Part 11
(A) Alvanley v. Kinnaird, 2 Mac. & G. 1, 7, 8; Scott v. Littledale, 8 E. & B. 815. (i) Manser v. Back, 6 Hare, 443, 447, 448; Alvanley v. Kinnaird, 2 Mac. & G. 1, 8. (k) Above, pp. 635, 639 - 641. ...
-Of Mistake As Precluding True Consent. Part 12
Common mistake as to some fact which is a condition precedent to the formation of a contract. {z) Webster v. Cecil, 30 Beav. 62, as explained in Tamplin v. James, 15 Ch. D. 215, 221, 222. (a) Above,...
-Sec. 2. - Of Mistake In The Expression Of Consent, And Its Rectification
It has been already mentioned (I) 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...
-Of Mistake In The Expression Of Consent, And Its Rectification. Part 2
Rectification may be obtained where a written instrument does not express the parties' real agreement. (s) Altham's case, 8 Rep. 150b, 155; Croome v. Lediard, 2 My. & K. 251; Saunderson v. Piper, 5 B...
-Of Mistake In The Expression Of Consent, And Its Rectification. Part 3
Rectification granted of instruments embodying executory as well as executed agreements. (k) Price v. Dyer, 17 Ves. 356, 364; above, p. 700. (l) Above, p. 700, and notes (t) (a) (c). (m) Above, p. 70...
-Of Mistake In The Expression Of Consent, And Its Rectification. Part 4
(z) Joynes v. Statham, 3 Atk. 388; Ramsbottom v. Gosdon, 1 V. & B. 165; Winch v. Winchester, ib. 375; London and Birmingham By. Co. v. Winter, Cr. & Ph. 57, 62 ; Manser v. Back, 6 Hare, 443 ; Smith v....
-Of Mistake In The Expression Of Consent, And Its Rectification. Part 5
To obtain rectification, there must be a common mistake. Cases where rectification with the alternative, at the defendant's option, of rescission, has been ordered on the ground of unilateral mistake...
-Of Mistake In The Expression Of Consent, And Its Rectification. Part 6
Analysis of the circumstances in which rectification may-he claimed. (o) Above, p. 707. (p) 34 Ch. D. 367. (q) Above, p. 707. Common mistake. Plaintiff mistaken, but estopped at law. (r) See abo...
-Chapter XIV. Of Fraud, Misrepresentation, Duress And Undue Influence
Sec. 1. Of Fraud and Misrepresentation. Sec. 2. Of Duress and Undue Influence. Sec. 1. - Of Fraud And Misrepresentation Like other contracts, a contract for the sale of land may he avoided by either...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 2
(d) Above, p. 6S6. (e) See the cases cited at the end of note (s), p. 699, above, as to the admissibility of oral evidence in proof of a representation which has induced a written contract. (/) Behn...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 3
(x) Above, pp. 509, 510; Glaze-brook v. Woodrow, 8 T. R. 366. See Poole v. Hill, 6 M & W. 835; Laird v. Pirn, 7 M. & W. 474. (y) Above, pp. 27, n., 133, 134, 149, 152. (z) Such an undertaking is of ...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 4
Innocent misrepresentation in equity. No rescission for innocent misrepresentation after completion. (q) Newham v. May, 13 Price, 749; Leuty v. Hillas, 2 De G. & J. 110; Joliffe v. Baker, 11 Q. B. D...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 5
(k) See last note but one. In order to give rise to a right to rescind a contract for misrepresentation, whether innocent or fraudulent, it appears that the following facts must be established:-There...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 6
(x) Strangways v. Bishop, 29 L. T. O. S. 120. (y) Smith v. Land and House Property Corp., 28 Ch. D. 7 ; and see Tibbatts v. Boulter, 73 L. T. 534, where the representation was that certain licensed p...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 7
Cornfoot v. Fowke. Sixthly, in order to give rise to the right to rescind the contract, the representation must have been made as a part of the transaction ending in the formation of the contract. I...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 8
What is requisite to maintain an action of deceit for a false representation inducing a contract. Motive, as a rule, immaterial. (b) Horsfall v. Thomas, 1 H. & C. 90; see above, p. 686, n. (I), as t...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 9
Misrepresentation as a defence to a claim for specific performance. Here we may mention a form of mis-statement in connexion with the sale of land, which has not exactly the true characteristics of a...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 10
Must be communicated. Election may be evidence by acts. No rescission after an election to affirm the contract. Nor where by the act of the party claiming to rescind restitutio in integrum has beco...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 11
(n) Above, p. 499. (o) Above, p. 745. (p) Above, p. 74o. (q) Above, pp. 723 - 725, 727 - 730, 744; and see below, p. 749. (r) Above, p. 675. (s) Load v. Green, 15 M. & W. 216, 221. (t) Bridgeman...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 12
(m) These expenses are recoverable as damages for breach of the contract: Hanslip v. Padwick, 5 Ex. 615. (n) Edwards v. McLeay, G-. Coop. 308, 318, 2 Swanst. 287, 289; Berry v. Armistead, 2 Keen, 221...
-Of Fraud, Misrepresentation, Duress And Undue Influence. Part 13
Forged documents. Adoption of a forged instrument. (d) Johnson v. Windle, 3 Bing. N. C. 225; Robarts v. Tucker, 16 Q. B. 560 ; Brocklesby v. Temperance Bdg. Soe., 1S93, 3 Ch. 130, 135, 137, 1895, A....
-Sec. 2. - Of Duress And Undue Influence
We have seen (q) that, in order to make a valid contract, there must be free consent of the parties. Contracts induced by duress or undue influence are wanting in this element of validity: but in such...
-Of Duress And Undue Influence. Part 2
Two classes of cases of undue influence. 1. Where exercised independently of any special relation between the parties. 2. Where implied from the existence of some confidential relation. (a) See pre...
-Of Duress And Undue Influence. Part 3
(o) Huguenin v. Baseley, 14 Ves. 273; Allcard v. Skinner, 36 Ch. D. 145, 171, 181 sq.; and cases cited above, pp. 757, 758. (p) Hindson v. Weatherill, 5 De G. M. & G. 301; Boyse v. Rossborough, 6 H. ...
-Of Duress And Undue Influence. Part 4
(e) Carter v. Palmer, 8 Cl. & Fin. 657, 705 sq.; Holman v. Loynes, 4 De G. M. & G. 270. (/) See cases cited above, p. 760, n. (a); Clark v. Clark, 9 App. Cas. 733, 737; Be Boles and British Band Co.'...
-Of Duress And Undue Influence. Part 5
Inadequacy of consideration on sale of a reversion. 153. Earlier cases had proceeded on the ground that inadequacy of consideration alone was a sufficient ground for refusing to enforce specific perf...
-Chapter XV. Of Illegality In The Contract
We have seen (g) that it is essential to the validity of a contract that there be nothing unlawful in the object of the agreement. A simple sale (h) of land is not in general affected by this conditio...
-Of Illegality In The Contract. Part 2
293 (uncertificated conveyances); Davies v. Makuna, 29 Ch. D. 596 (unqualified medical practitioner). (y) Fisher v. Bridges, 3 E. & B. 642; see above, p. 771. (z) Shackell v. Rosier, 2 Bing. N. C. ...
-Of Illegality In The Contract. Part 3
(q) Stat. 32 Hen. VIII. c. 9, s. 2, now repealed by stat. 60 & 61 Vict. c. 65, s. 11. Sale of pre-tenced right or title. (r) See Jenkins v. Jones, 9 Q. B. D. 128,134. (s) It was held that this Act ...
-Of Illegality In The Contract. Part 4
Illegal contracts are void. Property transferred thereunder cannot be recovered back. Sale for illegal purposes known (s) Above, p. 726. (t) See Collins v. Blantern, 2 Wils. 341; Holman v. Johnson...
-Of Illegality In The Contract. Part 5
(i) Fisher v. Liverpool Marine Insee. Co., L. E. 8 Q. B. 469, 9 Q. B. 418. 8 (2) Contract for sale of land to a charity. (j) Manning v. Purcell, 7 De G. M. & G. 65, 57, 63, 66; Hampden v. Walsh, 1 ...
-Chapter XVI. Of Personal Incapacity
To constitute a valid contract, all parties to the agreement must enjoy full contractual capacity (a); and when the object of the contract is the sale of land, it is also necessary, in order to carry ...
-Of Personal Incapacity. Part 2
Infants' marriage settlements. Infants' gifts of money. Mortgages by infants. Effect of an infant's conveyance and its avoidance. (o) Stat. 37 & 38 Vict. c. 62, s. 1; Thurstan v. Nottingham, etc. ...
-Of Personal Incapacity. Part 3
Where an infant can make a valid conveyance. 1. Exercise of powers by an infant. Age, obtain a loan of money, the lender has an equitable claim to recover the money. The infant does not in this case...
-Of Personal Incapacity. Part 4
Sale or lease of infant's under the Settled Land Acts. {d) Stat. 40 & 41 Vict. c. 18. (e) Stat. 45 & 46 Vict. c. 38, ss. 59, 60. (/) See Re Wells, 31 W. R. 764, W. N. 1883, p. 111; Re Morgan, 24 Ch...
-Of Personal Incapacity. Part 5
Infants Relief Act, 1874. (r) Stat. 37 & 38 Vict. c. 62. (s) By the Betting and Loans (Infants) Act, 1892, stat. 55 Vict. c. 4, s. 5, if any infant, who has contracted a loan which is void in law, ...
-Of Personal Incapacity. Part 6
Completed sale of land by infant. (h) Flight v. Bolland, 4 Russ. 298; Lumley v. Ravenscroft, 1895, 1 Q. B. 683. (i) See Clayton v. Ashdown, 9 Vin. Abr. 393; 2 Dart, V. & P. 1191; Fry, Sp. Perf. Sec....
-Of Personal Incapacity. Part 7
(l) See Matthews v. Baxter, L. R. 8 Ex. 132; Pollock on Contract, 94, 7th ed. (m) Molton v. Camroux, 2 Ex. 487, 4 Ex. 17; Imperial Loan Co. v. Stone, 1892, 1 Q. B. 599. (n) See Price v. Berrington, ...
-Of Personal Incapacity. Part 8
Insane man's contract to buy or sell land. Whether specific performance by the lunatic will be ordered. (a) Bac. Abr. Idiots (D, F); Sergeson v. Sealey, 2 Atk. 412; Re Sefton, 1898, 2 Ch. 378; Bald-...
-Of Personal Incapacity. Part 9
Sale of lunatic's lands irrespective of their contracts to sell them. (z) Above, pp. 787, 788. It is thought that the doctrine of a voidable conveyance being rendered unimpeachable by a subsequent co...
-Of Personal Incapacity. Part 10
Outlaws. (g) Sect. 12; Carr v. Anderson, 1903, 2 Ch. 279. {h) Sect. 30. i) Sect. 18. (k) Sect. 7. (I) Short & Mellor's Crown Office Practice, 384; Wms. Pers. Prop. 94, and n. (c), 15th ed. (m) Ba...
-Of Personal Incapacity. Part 11
Effect of war on contracts made with aliens in time of peace. Driefontein, etc, 1902, A. C. 484, 506; see Co. Litt. 129b, n. (3), and consider the pleading in Alcinous v. Nigreu, 4 E. & B. 217. (k) ...
-Of Personal Incapacity. Part 12
Wife's leaseholds. Execution of powers by-married women. Fines and Recoveries Act, 1833. (i) Williams on Seisin, 128. (k) 1 Scriv. Cop. 262, 3rd ed. An exception was admitted in the case of an equ...
-Of Personal Incapacity. Part 13
Wife's separate estate. Restraint on alienation. (p) Stat. 8 & 9 Vict. c. 106, s. 7; see above, p. 816, n. (a). (q) Pp. 816 sq. (r) See Taylor v. Meads, 4 De G. J. & S. 597, 604, 605; Wms. Real Pr...
-Of Personal Incapacity. Part 14
(o)R e Hughes, 1898, 1 Ch. 529. (p) Cooke v. Fuller, 26 Beav. 99; Munt v. Glynes, 20 W. R. 823; Waite v. Morland, 38 Ch. D. 135, 138 (q) See note (n), above. (r) See Re Insole, L. R. 1 Eq. 470, 47...
-Of Personal Incapacity. Part 15
(i) Above, p. 825; and see note (f), above. (/) See 1 Black. Comm. Ch. 15; 3 Black. Comm. 92 - 94; Burn's Eccl. Law, ii. 500, 9th ed.; stat. 20 & 21 Vict. c. 85, ss. 6, 22; Cavell v. Prince, 35 L. J....
-Of Personal Incapacity. Part 16
(d) Re Lumley, 1896, 2 Ch. 690; see also Re Davenport, 1895, 1 Ch. 361. (e) Stat. 45 & 46 Vict. c. 75, s. 19. (/) Re Stonor's Trusts, 24 Ch. D. 195; fie Whitaker, 34 Ch. D. 227; Hancock v. Hancock, ...
-Of Personal Incapacity. Part 17
Restraint on alienation. Sale without notice of a restraint on anticipation. The Act confers on married women a special, not a general, capacity to hold and dispose of property. Effect of wives' wi...
-Of Personal Incapacity. Part 18
6. After she has obtained a protection order (s), or a separation order (/). 7. A wife may enter into a binding agreement to compromise proceedings in any matrimonial cause between her husband and he...
-Of Personal Incapacity. Part 19
Wife's contract to exercise a power. Wife's contract made with the formalities required by the Fines and Recoveries Act. Under the rules of equity, a married woman had power to bind any separate est...
-Of Personal Incapacity. Part 20
Separate property-subject to a restraint on anticipation. (x) Pelton v. Harrison, 1892, 1 Q. B. 118. (y) Jay v. Robinson, 25 Q. B. D. 467. (z) Holtby v. Hodgson, 24 Q. B. D. 103; Lady Aylesford v. ...
-Of Personal Incapacity. Part 21
Contract induced by a married woman's misrepresentation. Wife's liability for her fraud. Appears that, if the order were to do some act agreed to be done by the wife under her contract made by virtu...
-Of Personal Incapacity. Part 22
(e) A married woman might also so elect as to affect her interest in any personalty; Griggs v. Gibson, L. R. 1 Eq. 685; except, it seems, her reversionary chose in action not alienable under Malins' A...
-Of Personal Incapacity. Part 23
Title to English land may be affected by the marriage of the owner, while domiciled abroad. Re Be Nicols. {q) Viditz v. O'Hagan, 1900, 2 Ch. 87; see above, p. 786, and n. (n). It may be remarked that...
-Of Personal Incapacity. Part 24
It may be noted here, with respect to the assurance of land to a corporation, that under the old doctrine of uses a corporation, having no conscience, could not stand seised of land to another person'...
-Of Personal Incapacity. Part 25
Corporations created by-statute for particular purposes. Railway-companies. River navigation company. Companies incorporated under the Companies Act, 1862. (c) Eastern Counties Ry. Co. v. Hawkes, ...
-Of Personal Incapacity. Part 26
(s) Wenlock v. River Dee Co., 10 App. Cas. 354. (t) Above, p. 856, nn. (g), (h). (u) Bac. Abr. Corporations (E, 3); 1 Black. Comm. 475. (x) Ludlow Corp. v. Charlton, 6 M. & W. 815; Kidderminster Co...
-Of Personal Incapacity. Part 27
Contract by a corporation for sale or purchase of land. Trading corporations, Corporations created for particular purposes. (stat. 30 & 31 Vict. c. 131, s. 37), contracts on behalf of any company so...
-Of Personal Incapacity. Part 28
Misrepresentation by the agent of a corporation. Liability of a corporation in an action of deceit for its agent's fraudulent misrepresentation. Misrepresentation made to a corporation. It will be ...
-Of Personal Incapacity. Part 29
What is necessary to effect a corporate act by a common law corporation. (a) See D'Arcy v. Tamar, etc. By. Co.,L. R. 2 Ex. 158; and cases cited below, p. 868, n. (f). (b) Bac. Abr. Corporations (E, ...
-Of Personal Incapacity. Part 30
Dissolution of a corporation. (r) Bank of Ireland v. Trustees of Evans' Charities, 5 H. L. C. 389; Corp. of the Staple v. Bank of England, 21 Q. B. D. 160; Ruben v. Great Fingall (Consolidated, Ld, 1...
-Of Personal Incapacity. Part 31
(h) See cases cited in note (e), above. (i) Above, p. 543. (A) Stats. 7 & 8 Vict. cc. 110, 113; see Wms. Pers. Prop. 285, 288, 289, 15th ed. (l) Co. Litt. 2a, 3a; 1 Dart, V. & P. 24, 25. (m) Above...
-Chapter XVII. Of Relative Disability In Equity
In the previous chapter we examined the instances in which a contract for the sale of land may he voidable or void at law on account of the legal incapacity of some party thereto to hind himself or he...
-Of Relative Disability In Equity. Part 2
Where one party is (b) Above, pp. 684, 723, 724. (c) Above, pp. 759 - 761. (d) Above, p. 759. {e) Above, p. 758. (f) Pp. 756 - 769. {g) Above, p. 874. trustee for the other of the property sold. G...
-Of Relative Disability In Equity. Part 3
The rule governs all contracts giving the trustee any interest in the trust property. Sale by a trustee for purchase to his cestui' que-trusts. Gifts to trustee by cestui-que-trust of the trust prop...
-Of Relative Disability In Equity. Part 4
Principle of the rule. (k) As to an authority to sell, see Expte. Lacey, 6 Ves. 625; Lister v. Lister, ib. 631; Lewis v. Hillman, 3 H. L. C. 607, 628 - 630; Franks v. Bollans, L. R. 3 Ch. 717, 718, 7...
-Of Relative Disability In Equity. Part 5
{b) Above, p. 883, n.(k). (c) See above, pp. 268, 271, 277. Retirement in view of purchase. Purchase long after retirement. Trustee for sale cannot he sub-purchaser from a stranger pending completi...
-Of Relative Disability In Equity. Part 6
Persons in a fiduciary position as regards the exercise of an authority to sell or purchase. (g) Stat. 53 & 54 Vict. c. 69, s. 12, passed 18th Aug. 1890. (h) Farwell, J., Boyce v. Ed-brooke, 1903, 1...
-Of Relative Disability In Equity. Part 7
Person exercising an authority in favour of an independent party through whom he has an interest in the sale. (y) Whitcomb v. Minchin, 5 Madd. 91; Re Bloye's Trusts, 1 Mac. & G. 488, 496; S. C, nom. ...
-Of Relative Disability In Equity. Part 8
Where one invested with an authority to sell or purchase in effect sells to or buys from himself, the persons by or on whose behalf the authority was conferred have the option of affirming or avoidin...
-Of Relative Disability In Equity. Part 9
(g) Above, p. 752, n. (r). (h) Fox v. Mackreth, 2 Bro. C. C. 400, 420, 421, 2 Cox, 320 - 322; Hall v. Hallet, 1 Cox, 134, 139; Hardwicke v. Vernon, 4 Ves. 411; Expte. Reynolds, 5 Ves. 707; Expte. Hug...
-Of Relative Disability In Equity. Part 10
Illustration of the distinction. Aside without prejudice to the interests of lessees and others who might have contracted bond fide with the person purporting to purchase; and this case has been cite...
-Of Relative Disability In Equity. Part 11
(I) Above, pp, 308, 334. (m) See above, pp. 308, 334 - 336, and notes (t), (b). (n) Above, p. 336 and n. (t). (o) New Sombrero Phosphate Co. v. Erlanger, 5 Ch. D. 73, 125; affirmed, 3 App. Cas. 121...
-Chapter XVIII. Of The Discharge Of The Contract
Sec. 1. Of the Discharge of the Contract before Breach, and by Performance. Sec. 2. Of Breach of the Contract and Discharge therefrom after Breach. Having finished the subject of the avoidance of the...
-Sec. 1.- Of The Discharge Of The Contract Before Breach, And By Performance
A contract may be discharged before any breach of its provisions has occurred, first, by the agreement of all parties thereto; secondly, for impossibility of performance; and, thirdly, in consequence ...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 2
A contract may also be discharged, before breach, by implied waiver, that is, by the parties entering into a new contract inconsistent with the performance of the old; as if A. contract to sell Blacka...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 3
A third form of discharge of a contract, before breach, by mutual assent is where the contract has been made subject to the fulfilment of some condition precedent or subsequent, and this condition is ...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 4
Whether the parties are entitled to restitutio in integrum where a contract partly-performed is discharged by mutual assent. (n) Above, pp. 54, GO, 71, 135, 147 - 150, 644, 660. (a-) Above, pp. 58, ...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 5
The doctrine is applicable to any condition subject to which land is sold, and which becomes an impossible condition. V. Myers, L. R. 2 C. P. 651; Robinson v. Davison, L. R. 6 Ex. 269; Howell v. Cou...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 6
Discharge in consequence of bankruptcy since the contract. 1. Disclaimer by the trustee. 2. Rescission by the order of the Court in Bankruptcy. 3. Composition or scheme of arrangement approved by t...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 7
(r) De Lassalle v. Guildford, 1901, 2 K. B. 215; above, pp. 540, 680, G86, 728, 732, 738, n. (u). (s) See above, pp. 427, 428. (t) Above, pp. 428, 429, 571, 572, and cases there cited. (u) Clarice ...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 8
(m) Grant v. Mills, 2 V. & B. 306; Winter v. Anson, 3 Russ. 488; Collins v. Collins, 31 Beav. 347. (n) Parrott v. Sweetland, 3 My. & K. 655; Dixon v. Gayfere, 1 De G. & J. 655; and see Clarke v. Roy...
-Of The Discharge Of The Contract Before Breach, And By Performance. Part 9
Vendor executing conveyance without payment has no common law lien on the title deeds. (i) Sice v. Rice, 2 Drew. 73, 85; Simmer v. Webster, 1902, 2 Ch. 163, 173, 174; above, pp. 616, n. (q), 655, 847...
-Sec. 2. - Of Breach Of The Contract And Discharge Therefrom After Breach
A breach of the contract is committed when one of the parties fails to perform some obligation imposed on him by the agreement at the time when it ought to be performed (c). The obligations undertaken...
-Of Breach Of The Contract And Discharge Therefrom After Breach. Part 2
Discharge of a contract by breach. (r) Above, p. 725. (s) Hotham v. East India Co., 1 T. It. 638, 645; Bettini v. Gye, 1 Q. B. D. 183, 186, 187; above, pp. 726 and n. (n), 935. (t) Moses v. Macferl...
-Of Breach Of The Contract And Discharge Therefrom After Breach. Part 3
(h) Cort v. Ambergate, etc. By. Co., 17 Q. B. 127. (i) Above, p. 936. (k) Frost v. Knight, L. R. 7 Ex. 111, 112; Michael v. Hart, 1902, 1 K. B. 482, 490 (l) Above, pp. 916 sq. {m) Above, pp. 782, ...
-Of Breach Of The Contract And Discharge Therefrom After Breach. Part 4
(l) Rolle, Abr. 264; Bac. Abr. Arbitrament and Award (A.). Judgment. The right of action upon a contract may also be barred by lapse of time under the Statutes of Limitation; but this does not altog...
-Of Breach Of The Contract And Discharge Therefrom After Breach. Part 5
(d) Stat. 37 & 38 Vict. c. 57, s. 8, replacing 3 & 4 Will. IV. c. 27, s. 40. (e) Toft v. Stephenson, 7 Hare, 1, 1 De G. M. & G. 28, 5 ib. 735; above, pp. 506, 509, 510. (f) S. C, 5 De G. M. & G. 735...
-Chapter XIX. Of The Remedies For Breach Of The Contract
Sec. 1. Of Rescission and Resale. Sec. 2. Of claiming Damages under the Contract. Sec. 3. Of Specific Performance. Sec. 4. Of a Vendor and Purchaser Summons. Sec. 5. Of the Purchaser's Remedies for Di...
-Sec. 1. - Of Rescission And Resale
It has been pointed out (l) that, where either party to the contract commits such a breach of it as discharges the other from his obligation under the agreement, the other is entitled, at his election...
-Of Rescission And Resale. Part 2
Party rescinding a part-performed contract liable to restore anything received thereunder. Rescission must, as a vendor and purchaser summons the contract has been rescinded at the purchaser's instan...
-Of Rescission And Resale. Part 3
Rescission where the purchaser has been in possession. (h) Palmer v. Temple, 9 A. & E. 508, 520, where a stipulation, that either party making default should pay 1,000/. as liquidated damages, was he...
-Of Rescission And Resale. Part 4
(z) Above, pp. 45, n. (f) . 915. 19(2) Resale to enforce the vendor's lien. If, on a sale of land, the purchaser have notice that the vendor has entered into a prior contract for sale thereof, whic...
-Sec. 2. - Of Claiming Damages Under The Contract
We have seen that every breach of a contract to sell land results in a right of action at law to recover damages for the breach (t); and that, where the breach is of an essential stipulation, the inju...
-Of Claiming Damages Under The Contract. Part 2
Where a conveyance has been executed. If, on the purchaser's breach of contract, the vendor affirm the agreement and sue for damages thereunder, it does not appear that he can recover his expenses of...
-Of Claiming Damages Under The Contract. Part 3
(s) Flureau v. Thornhill, 2 W. Black. 1078; Sikes v. Wild, 1 B. & S. 587, 4 B. & S. 421; Bain v. Fothergill, L. R. 7 H. L. 158. This rule also applies to contracts to grant a lease of land in which t...
-Of Claiming Damages Under The Contract. Part 4
As to the deposit and other purchase money paid. (n) See above, pp. 130 - 134. (o) Above, p. 961; Compton v. Bagley, 1892, 1 Ch. 313, 321; Day v. Singleton, 1899, 2 Ch. 320; Sug. V. & P. 362, 639. ...
-Of Claiming Damages Under The Contract. Part 5
Purchaser has no lien for damages. It has been mentioned (z) that, on breach of an essential stipulation in the contract, the injured party electing to affirm the agreement has the alternative of sui...
-Of Claiming Damages Under The Contract. Part 6
Vendor's position at law after his action for specific performance has been dismissed because the title is doubtful. (m) Tredegar v. Windus, L. R. 19 Eq. 607, 613 - 615. (n) Langmead v. Maple, 18 C....
-Of Claiming Damages Under The Contract. Part 7
1. Denial of the formation of the contract. 2. Denial of its enforce-ability. 3. Denial of its validity. Mistake avoiding the contract. (j) Above, pp. 936 - 938. (k) Above, pp. 933 - 935. (l) Ab...
-Of Claiming Damages Under The Contract. Part 8
Where the principal is named in the memorandum. Contract made by deed. Foreign principal. (o) Bolton Partners v. Lambert, 41 Ch. D. 29-5 (on which ease see the note in Fry. Sp. Perf. 711. 3rd ed.):...
-Of Claiming Damages Under The Contract. Part 9
(d) Polhill v. Walter, 3 B. & Ad. 114; Randell v. Trimen, 18 C. B. 786; see above, pp. 739 - 742. (e) Thomson v. Davenport, 9 B. & C. 78. (/) Consider Hagedorn v. Oliver-son, 2 M. & S. 485; Foster v...
-Of Claiming Damages Under The Contract. Part 10
(t) Mumble v. Hunter, 12 Q. B. 310. Principal subject to equities exit-ting between the agent and the other contractor. Alternative liability of principal or agent. (u) Ferrand v. Bischoffsheim, 4 ...
-Sec. 3. - Of Specific Performance
As has been already mentioned (d), either party to a sale of land may elect to sue for an order that the contract he specifically performed; and this is the most effective way of enforcing the agreeme...
-Of Specific Performance. Part 2
In some cases specific performance may be obtained, where there is no right to damages. (l) See above, p. 78, n. (k). (m) Buxton v. Lister, 3 Atk. 383, 384. (n) Above, pp. 958 sq. (o )Harnett v. Y...
-Of Specific Performance. Part 3
As a rule, where some stipulation which the Court cannot specifically enforce forms an integral part of an executory (d) contract, the Court will not decree specific performance of the rest of the agr...
-Of Specific Performance. Part 4
(z) Wolverhampton Corpn. v Emmons, 1901, 1 K. B. 515. (a) Wms. Pers. Prop. 186, 15th ed. (b) Howard v. Hopkyns, 2 Atk. 371; French v. Macule, 2 Dr. & War. 269, 274 sq.; Coles v. Sims, 5 De G. M. & G...
-Of Specific Performance. Part 5
(p) Willan v. Willan, 16 Ves. 72, 83; Fry, Sp. Perf. Sec. 387, 3rd ed.; see above, p. 685, and n. (z). (q) 2 Bro. C. C. 326. (r) Above, pp. 685, n. (a), 742; Brandling v. Plummer, 2 Drew. 427. 429! ...
-Of Specific Performance. Part 6
Want of mutuality. (k) Above, pp. (',91 - 695. (i) Mortlock v. Butter, 10 Ves. 292, 312; Harnett v. Yielding, 2 Sch. & Lef. 549, 554; Orel v. Noel, 5 Madd. 438; Wood v. Richardson, 1 Bear. 174, 176,...
-Of Specific Performance. Part 7
Doubtfulness of the title. Inquiry as to title. (r) Marlow v. Smith, 2 P. W. 198; Shapland v. Smith, 1 Bro. C. C. 75; Cooper v. Denne, 4 Bro. C. C. 80, 1 Ves. jun. 565; Shef-field v. Mulgrare, 2 Ves...
-Of Specific Performance. Part 8
Questions of law: previous adverse decision of equal Court, though doubted. Previous favourable decision doubted. Adverse decision of inferior Court. Title depending on the construction of an ill-d...
-Of Specific Performance. Part 9
382, 392, 393 (g) Above, pp. 105, 106; Re Summerson, 1900, 1 Ch. 112, n.: Hepworth v. Pickles, ib. 108; see also Clippens Oil Co. v. Edinburgh, etc. Trustees, 1901, A. C. 61, 69, 70. (h) Warde v. ...
-Of Specific Performance. Part 10
(x) Above, p. 1005. The cases, in which the vendor or purchaser is entitled to obtain an order for specific performance of the contract with compensation for some error of description, have been alre...
-Sec. 4. - Of A Vendor And Purchaser Summons
At the present time, when a vendor and purchaser of land are at variance upon some matter, which prevents the completion of the contract, and neither of them will give way, they usually prefer to subm...
-Of A Vendor And Purchaser Summons. Part 2
The excluded questions affecting the existence or validity of the contract (d) appear to he such contentions as put in issue the existence or validity of the contract at law; and it appears that, as t...
-Of A Vendor And Purchaser Summons. Part 3
(n) Above, p. 975. (o) See Re Popple & Barratt, 25 W. R. 248. 23 (2) Discharge for impossibility of performance. (p) Above, pp. 147 - 150, 914, 915. (q) This point is established by-numerous deci...
-Sec. 5. - Of The Purchaser's Remedies For Disturbance After Completion
If after completion of the contract the purchaser discover that he has obtained a defective title to the land sold, so that he is liable to be ejected therefrom or disturbed in his enjoyment thereof b...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 2
Remedy on covenants for title. (g) Above, pp. 933, 948. (h) Above, pp. 575, 581, 585. (i) See above, pp. 575 sq., 581, 588; Davidson, Prec. Conv., vol. 2, pt. 1, pp. 379 & n., 381, 4th ed. (k) Thu...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 3
The usual covenant for right to convey is broken if by reason of any act, omission or sufferance on the part of any person, whose acts, etc. are covenanted against, the conveying party or parties had ...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 4
(n) Turner v. Moon, 1901, 2 Ch. 825; Great Western Ry. Co. v. Fisher, 190.5, 1 Ch. 316. [o] Lock v. Furze, L. R. 1 C. P. 441, 443. (p) Above, pp. 784 sq. (q) Nash v. Aston, T. Jones, 195; Sag. V. &...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 5
Persons claiming under the covenantor. (z) Davidson, Prec. Conv., vol. 2, pt. 1, p. 232, 4th. ed.; stat. 44 & 45 Vict. c. 41, s. 7 (1 A); David v. Sabin, 1893, 1 Ch. 523, 532; above, p. 1035. (a) Su...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 6
(z) See Morgan v. Hunt, 2 Ventr. 213; Dennett v. Atherton, L. R. 7 Q. B. 31G, 326, 327; Sanderson v. Mayor of Berwick-onTweed, 13 Q. B. D. 547, 551: Har-rison v. Muncaster, 1S91, 2 Q. B. 080, 684, 689...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 7
Covenant for further assurance does not enlarge the grant, unless such were the intention. (o) Sug. V. & P. 012. (p) Above, pp. 461, 496, (q) Above, p. 1040. Davis v. Tollemache. Bankes v. Small. ...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 8
(m) Turner v. Moon, 1901, 2 Ch. 825, 829; cf. above, p. 963. (n) Above, p. 1033. The measure of damages for breach of a covenant for quiet enjoyment (which, as we have seen (r), is not broken until ...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 9
Compromise by the purchaser of adverse claims on the land purchased. (g) This rule appears to have been applied in Lock v. Furze, L. R. 1 C P. 441, and Rolph v. Crouch, L. R. 3 Ex. 44, 49, 50, where ...
-Of The Purchaser's Remedies For Disturbance After Completion. Part 10
(b) Page v. Midland By. Co., 1894, 1 Ch. 11; Great Western By. Co. v. Fisher, 1905, 1 Ch. 316, 322. (c) See above, pp. 567, 568, 581, n. (m). (d) See above, pp. 568 & n. (h), 588, 699 sq., 703 - 707...
-Chapter XX. Of The Sale Of Registered Land
The principles to be applied in carrying out a sale of land registered under the Land Transfer Acts, 1875 and 1897 (a), depend upon the provisions of these statutes and the rules made thereunder (b), ...
-Of The Sale Of Registered Land. Part 2
(c) Where it is proved to the satisfaction of the registrar that the right to any mines or minerals is vested in the proprietor of land registered or about to be registered, the registrar may register...
-Of The Sale Of Registered Land. Part 3
(u) By stat. 60 & 61 Vict. c. 65, s. 8 (I), the land certificate or certificate of charge shall be produced to the registrar on every entry in the register of a disposition by the registered proprieto...
-Of The Sale Of Registered Land. Part 4
The register is the only-good evidence of title to registered land. (i) Above, p. 1060, n. (o); see stat. 60 & 61 Vict. c. 65, First Schedule, amending sects. 18 (4, 5), 30 - 33, and 35 - 38 of the L...
-Of The Sale Of Registered Land. Part 5
Discharge of registered incumbrances. Of the power of sale conferred by the charge, it may be registered, and a new land certificate may be issued to the purchaser, without production of the former l...
-Of The Sale Of Registered Land. Part 6
Production of the land certificate. Charge by deposit of the land certificate. (z) See above, pp. 130 - 135, 152. (y) Above, p. 1062, & n. (u). (z) Above, p. 1065. (a) See stat. 60 & 61 Vict. c. ...
-Of The Sale Of Registered Land. Part 7
(p) Capital & Counties Bank, Ld. v. Rhodes, 1903, 1 Ch. 631, 655. (q) Above, p. 313. (r) See Wms. Real Prop. 118, 393, 626, 628, 19th ed. The transferee appears not to succeed to the estate or owner...
-Of The Sale Of Registered Land. Part 8
Vendor not entitled to demand payment against the execution of a registered transfer. (b) It is submitted that the case is not parallel to that of the conveyance of land in a register county; see abo...
-Of The Sale Of Registered Land. Part 9
We are therefore driven to conclude that one of the first three methods of completion above mentioned must be that to which the parties are bound under an open contract: but in the absence of any expr...
-Of The Sale Of Registered Land. Part 10
Is the purchaser bound to have regard to notice given to him of unregistered interests? of getting in or releasing things declared not to be incumbrances or outstanding estates or interests not affect...
-Of The Sale Of Registered Land. Part 11
(n) Above, pp. 1081 sq. (o) Stat. 38 & 39 Vict. c. 87, s. 84, amended by 60 & 61 Vict, c. 65, First Schedule; Land Transfer Rules (1903), 46, 223. (p) Above, pp. 426 sq. We see, then, that a purcha...
-Of The Sale Of Registered Land. Part 12
Inquiries. {i) Above, pp. 524 - 527. The reasons for this opinion are given in Appendix (A), below. (k) See Land Transfer Rules (1903), 2 - 11, 284. (l) Ibid. Rules 2, 269 - 282, 285. (m) Ibid. Ru...
-Of The Sale Of Registered Land. Part 13
Transfer of registered land, how effected. Be registered as proprietor, if the land were unregistered, the registrar shall enter notice of the liability on the register in the prescribed manner. See ...
-Of The Sale Of Registered Land. Part 14
As to inserting in an instrument of transfer matters extraneous to the transferee's registration. (0) Above, pp. 1074, 1077. (p) Land TransferRules (1903), 119. {q) See above, pp. 1058, n. (c), 1073...
-Of The Sale Of Registered Land. Part 15
Registration with qualified or possessory title does not make a good root of title. Sale of registered leaseholds. Where held by underlease (i) Above, p. 606. (k) Above, p. 1061, n. (q, r). (l) A...
-Of The Sale Of Registered Land. Part 16
(a) Above, pp. 575, 580. (b) Above, pp. 307 sq. (c) Stats. 38 & 39 Vict. c. 87, fl. 68; 60 & 61 Vict. c. 65, 8. 6 (1). (d) Stat. 60 & 61 Vict. c. 65, s. 6 (2); see Land Transfer Rules (1903), 78 - ...
-Of The Sale Of Registered Land. Part 17
Registered incorporeal hereditaments. (m) See stat. 60 & 61 Vict, c. 65, s. 22 (6, c); Land Transfer Rules (1903), 175 - 181. (n) Stats. 38 & 39 Vict. c. 87, s. 82; 60 & 61 Vict. c. 65, First Schedu...
-Of The Sale Of Registered Land. Part 18
Creation of easements or other rights over registered land. (n) Notwithstanding that he appears to come in under a new statutory title; above, p. 1074 & n. (r). The case appears to be analogous to th...
-Of The Sale Of Registered Land. Part 19
Joint registered proprietors. (s) Above, pp. 428, 429. (t) Above, p. 1109. (u) Land Transfer Rules(1903), 153. (x) Above, p. 1090. (y) Land Transfer Rules (1903), 153, 223. (z) Above, p. 1062, n...
-Of The Sale Of Registered Land. Part 20
(y) Land Transfer Rules (1903), 83, 84, 86. (z) Above, p. 405 & n. (l). (a) Above, pp. 370, n.(m), 1100. (b) Land Transfer Rules (1903), 85. (c) Above, p. 409. (d) Land Transfer Rules(1903), 256....
-Of The Sale Of Registered Land. Part 21
Purchase of registered land from a mortgagee exercising his power of sale. (a) See stat. 60 & 61 Vict. c. 65, s. 24; above, p. 370. (b) Stat. 38 & 39 Vict. c. 87, s. 2. But if at any time land is fo...
-Of The Sale Of Registered Land. Part 22
Purchase from an incum-brancer, prior to first registration, not registered as proprietor of the incumbrance. {g) Above, p. 1061, n. (r). (h) Above, p. 1067. (i) Above, pp. 1067, 1069. (k) Above, pp....
-Of The Sale Of Registered Land. Part 23
Purchase from an incumbrancer, prior to first (k) Above, pp. 511 sq., 1066, 1086, 1093, 1094. (l) Above, pp. 1118, 1119. (m) Above, pp. 369, 370. (n) Above, pp. 372, 373, 1119 & n. (r) (o) Above...
-Of The Sale Of Registered Land. Part 24
Remedies conferred by-registered charges on registered land. (k) Stat. 38 & 39 Vict. c. 87, s. 27; see above, p. 1123, n. (x). (l) Above, pp. 1074 - 1081. (m) Stat. 60 & 61 Vict. c. 65, s. 8 (4); a...
-Of The Sale Of Registered Land. Part 25
(l) Stats. 3 & 4 Will. IV. c, 27, ss. 28, 34; 37 & 38 Vict. c. 57, ss. 7, 9; Kinsmen v. Rouse, 17 Ch. D. 104; Forster v. Patterson, ib. 132. (m) See stats. 38 & 39 Vict, c. 87, s. 95: 60 & 61 Vict. c...
-Of The Sale Of Registered Land. Part 26
(q) Above, p. 1127. (r) Above, p. 1074. (s) If, as suggested below, the mortgagee insist on obtaining a covenant for a transfer to himself in case of his entry into possession, coupled with a power ...
-Of The Sale Of Registered Land. Part 27
Date of a deed. Somewhat similar difficulties arise in the case of a sale of unregistered land situate in a compulsory registration district, when a mortgage is to he made to secure part of the purch...
-Of The Sale Of Registered Land. Part 28
[a) Above, pp. 1133 - 1135 & n. (n). (b) 2 Key & Elph. Prec. Conv. 927 - 930, 8th ed. Under the Land Transfer Rules (1903), 96, the purchaser, having the right to apply for registration as first prop...
-Appendix (A)
Referred to above, page 1088. Search in Bankruptcy on the Sale of Registered Land. The author's principal reason for advising that a search in bankruptcy should be made before completing a sale of r...









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