A purchaser, after conveyance and payment of his purchase-money, may obtain relief in Equity against a vendor, who, by fraudulent misrepresentation, has induced him to accept a defective title (r); nor need he wait until eviction, but may, at once, claim to have the contract rescinded (s): even a fraudulent concealment, by the vendor, of a material fact which the purchaser had no means of discovering, might lead to the same result (t). So, in a modern case, where a purchaser in possession was fraudulently induced by the vendor and his solicitor, in the absence of his own professional adviser, to pay the purchase-money and execute covenants for the production of title deeds, while the title to part of the property was under investigation with reference to a known defect, he was held entitled to rescind the contract, to recover his purchase-money with his costs, charges and expenses, and to have the deeds of covenant delivered up to be cancelled (u). So, where a vendor, seemingly from mere mistake, erroneously stated that a will, forming part of the title, had been proved, the purchaser, after conveyance, obtained a decree that the will should be deposited with the Master, and the vendor was fixed with costs (v).

Purchaser accepting defective title through fraud of vendor, relieved in Equity.

(q) Vide supra, p. 360, and authorities cited; and see Brewster v. Kitchin or Kidgil, Ld. Raym. 317, 322; and 5 Mod. 369; and Holmes v. Buckley, 1 Eq. Ca. Abr. 27; and the remarks on these decisions in Smith's Leading Cases, 32, et seq.

(r) Edwards v. M'Leay, G. Coop. 308,312; 2 Swanst. 287; Berry v. Armistead, 2 Keen, 221; Roddy v.

Williams, 3 J. & L. 1; see Jillard v. Edgar, 13 Jur. 1114.

(s) G. Coop. 318; 2 Keen, 221.

(t) See G. Coop. 312; Early v. Garrett, 4 M. & R. 687, 690; and see 2 Y. & C. C. C. 577; and the judgment in Small v. Attwood, You. 455.

(u) Berry v. Armistead, 2 Keen, 221.

In a recent case, where a public way over the estate had been so blocked up under a mere temporary arrangement that it could not be discovered by the purchaser, and the vendor's solicitor, (she herself having no personal knowledge of its existence,) omitted to disclose the same, but not, as the Court considered, "with any intention to do or sanction anything he thought wrong," and the conditions of sale required the purchaser to build a wall which in fact interfered with such right of way, it was held, that this was such implied fraud on the vendor as enabled the Court to decree a reconveyance (w): the bill, however, which rested the purchaser's case upon the ground of personal fraud, was, on appeal, dismissed by the Lords (x); they being of opinion that she had no actual knowledge of the circumstances, and that the agent's knowledge could not sustain a charge of personal fraud against the principal; and that the plaintiff, putting his case on the ground of personal fraud, could not rest it on any other ground: and Lord Cottenham cited, and seemed to approve of, a case (y), where a lessor having informed his intended lessee, (in answer to an inquiry on the point,) that no public right of way existed over the estate, a bill to rescind the executed lease on the ground of the ascertained existence of such right of way, was dismissed, there having been no wilful misrepresentation.

It may be remarked of one of the last two cases (z), that the misrepresentation evidently resulted from mere carelessness in not ascertaining whether certain mark-stones denoted the centre or the side of the way; and, of the other (a), that the lessor had grounds for believing his statement to be correct: in each case the misrepresentation, if discovered in time, would probably have been a sufficient reason for refusing to complete the contract; but, as observed by Lord Cottenham (b), there is a marked distinction made by Courts of Equity between what is necessary to resist a suit for specific performance of a contract, and what is necessary to support a suit to set aside a deed executed and an arrangement completed. It seems that, in such cases, the principal would, as a general rule, be bound by the fraud of the agent (c); but not by his mere non-commimication of his constructive knowledge, or of knowledge acquired by him otherwise than as agent (d).

Vendor how far responsible for his agent.

Purchaser must show wilful misrepresentation, semble.

(v) Harrison v. Coppard, 2 Cox, 318.

(to) Gibson v. D'Este, 2 Y. & C. C. C. 542.

(at) Wilde v. Gibson, 1 H. L. Ca.605

(y) Legge v. Croker, 1 B. & B. 506.

(z) Gibson v. D'Este, ubi supra.

Where a re-conveyance is decreed, the purchaser, it appears, will be credited, in addition to his purchase-money, not only with necessary outgoings in respect of the estate, but also with the amount of repairs and improvements, if executed before the discover}' of the defect in title, and if their repayment is specially prayed by the bill (e); and, probably, of necessary repairs executed during or pending litigation, if specially prayed (f): he will also be allowed his costs of the purchase and conveyance (g), and interest upon all these several sums at the rate of 4l. (h) per cent. from the times of their respective payments or expenditure; and will be debited with such rents and profits as he has, or without wilful default (i) might have, received; and with an occupation rent in respect of any part of the estate which has been in his own possession (k): he would also, it is conceived, be compelled to reinstate premises which he has materially altered; e. g., a private house converted into a shop (l): where a purchase was set aside for fraud on the part of the purchaser, and the rents exceeded the interest of the purchase-money, annual rests were directed until the principal should be liquidated (m).

Principal bound by fraud of agent.

Terms on which purchaser is relieved in Equity

(a) Legge v. Croker, ubi supra.

(b) Vigors v. Pike, 8 Cl. & Fin. 645.

(c) See Wilson v. Fuller, 3 Q. B. 68, 77; Sug. 274; 1 H. L. C. 615.

(d) Wilde v. Gibson, 1 H. L. Ca. 605; and see Alvanley v. Kinnaird, 2 Mac. & G. 1, 6.

(e) See Edwards v. M'Leay, 2 Sw. 289.

(f) See Sug. 279.

(g) 2 Sw. 289. See the decree.

(h) See 2 Y. & C. C. 581; 5l. per cent. was formerly allowed, see Jac. 166.

(i) See the decrees in Gibson v.