Defects in title, which are not available as a defence to purchaser: limited right of common; small quit-rents or rent-charges; tithe-when the freedom from tithe was no part of the in-ducement to the purchase; existence of footway.

(k) Per Lord Brougham, Cam-major v. Strode, 2 Myl. & K., see judgment, p. 725; Poole v. Sher-gold, 2 Bro. C. C. 118; Lord Eldon's remarks in Drewe v. Han-son, 6 Ves. 675, as stated Sug. 363.

(l) Fordyce v. Ford, 4 Bro. C. C. 494.

(m) Burnell v. Brown, 1 Jac. & W. 168.

(n) See Drewe v. Hanson, 6 Ves. 679.

(o) Dyer v. Hargrave, 10 Ves. 505, 508.

(p) 4 Bro. C. C. 498; 6 Ves. 679; 10 Ves. 508.

(q) 1 Jac. & W. 168.

(r) See Calcraft v. Roebuck, 1

Ves. jun. 221.

(s) Howland v. Norris, 1 Cox, 59.

(t) See Esdaile v. Stephenson, 1 Sim. & St. 122; Portman v. Mill, 1 Russ. & M. 6'96, and see Sir E. Sugden's remarks (V. and P. 354), disapproving of the decision in How-land v. Norris. ubi supra, that a tithe rent-charge of 14l. per annum was a matter for compensation. It may be remarked, that in the absence of any statement on the subject, the existence of a title-commutation rent-charge, or of tithe, must be presumed, and is no objection to the title, nor ground for claiming compensation.

Upon the last case, we may remark, that the purchaser's agent appears to have actually entered by letter into a binding agreement to purchase subject to the tithe: as to the case before Lord Eldon, the decision ought scarcely to be considered to establish any general rule; the particulars represented 32 acres or thereabouts to be free from tithe generally, both small and great; and it is obvious that a purchaser buying an estate of 140 acres, say with an intention of building a residence on the land, and laying out gardens, etc., might deem it of material importance that even a very small part of the estate should be free from a liability to the payment of tithe in kind.

So, the circumstance of the estate being subject to a footway over and round it, has been held to be no defence to a suit for specific performance, its existence being-patent, and the purchaser having made no inquiry on the subject (x); but the decision has not been generally approved (y); and the Courts would probably upon slight grounds come to a different decision in any case where an estate was subject to a right of way which materially affected its enjoyment.

(u) Binks v. Lord Rokeby, 2 Sw. 222.

(w) Smith v. Tolcher, 4 Russ. 302.

As to the 5th of the above heads. - The amount of the consideration to be paid may be a ground of defence by either party: and its inadequacy, or excess, will, of course, be determined with reference to matters as existing at the date of the contract, irrespectively of subsequent events (z). Inadequacy of consideration is not, however, a defence available to the vendor of an estate in possession (a), unless it can be shown to have originated in fraud, surprise, or misrepresentation, (whether wilful or not) (b), or improper concealment on the part of the purchaser (c), or in advantage taken of the distress of the vendor (d), or, according to Lord Eldon, "unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction" (e); but this dictum would probably at the present day be hardly sustained in its full extent (f).

The fact of the sale being by auction, of course, much increases the difficulty of showing fraudulent inadequacy (g); and the fact of neither party being aware of the value of the estate at the time of the contract, seems to render such a defence impracticable; as in a case where a person sold, for what proved to be one-tenth only of its real value, the allotment to which he might be entitled under an expected Inclosure Award (h).

5th. Matters relating to the consideration.