This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
A solicitor purchasing from his client cannot insist upon any objections to the title which he - or his then partner - considered unimportant when acting for the client upon his original purchase (x). The rule would also seem applicable to counsel; but it would not, it is conceived, preclude objections founded upon alterations made in the law in the interval between the purchase and resale.
Solicitor purchasing cannot object to title which he accepted for his client.
(q) Sug. 14th ed. 257; Morrell v. Studd, 1913, 2 Ch. 648; Helsham Jones v. Hennen & Co., (1914) 84 L. J. Ch. 569; Phipps & Co. v. Rogers, 1925, 1 K. B. 14.
(r) Interpretation Act, 1889, s. 3.
(s) Re North, 1895, 2 Q. B. 264; 64 L. J. Q. B. 694; Goldsmiths' Co. v. West Met. R. Co., 1904, 1 K. B. 1; 72 L. J. K. B. 931; and see Radcliffe v. Bartholomew, 1892, 1 Q. B. 161; 61 L. J. M. C. 63; and Ann. Pr., R. S. C, Ord. LXIV. rr. 1-6 and 12.
(0 Blackburn v. Smith, (1848) 2 Ex. at p. 789.
(u) Weston v. Tidier, (1903) 88 L. T. 769.
(x) Beevor v. Simpson, (1829) Taml. 69.
Objections clearly frivolous, made and persisted in, will indispose, even if they do not prevent (y), the Court from enforcing a contract at the suit of the purchaser, or if the decree is made the plaintiff may be deprived of costs (z).
Danger of frivolous objections and requisitions.
In this connection the cases in note (a) render it necessary to exercise great caution in framing requisitions, in cases where the condition enabling the vendor to rescind does not expressly provide for notice being given to the purchaser of intended rescission if the requisition is persisted in.
Where vendor need not give notice of his intention to rescind.
And, on the other hand, a purchaser should be careful not to hold back important objections or requisitions: if he does so, the question may arise whether he has not impliedly waived them (6); and where a purchaser puts a vendor to' expense in complying with requisitions, and then takes and insists on a fatal objection, which he originally had the means of discovering, it seems that if an action were brought by the vendor for specific performance and dismissed, the Court would not dismiss it with costs, and would even allow to the vendor, by way of set-off, the expenses so incurred by him (c); though it seems he could not otherwise recover them (d).
Danger of withholding objections, etc, - whether it amounts to waiver.
(y) Sug. 14th ed. 352.
(z) Newall v. Smith, (1820) 1 J. & W. 263.
(a) Re Dames and Wood, (1885) 29 Ch. D. 626; 54 L. J. Ch. 771; Glenton to Haden, (1886) 53 L. T. 434; Re Slar-bowkett and Sibun, (1889) 42 Ch. D. 375; 58 L. J. Ch. 651; Merrett v. Schuster, 1920, 2 Ch. 240. Cf. Quinion v. Home, 1906, 1 Ch. 596.
(b) See remarks on Magennis v. Fallon, (1828) in Sag. 14th cd. 347; and Stanton v. Tattersall, (1853) 1 S. & G. 529; 17 Jur. 967; Alexander v. Crosby, (1844) 1 J. & L. 666; 7 Ir. Eq. R. 445. Where a purchaser made frivolous objections in an action for specific performance by the vendor, the purchaser was held entitled in his answer to the bill to raise an entirely new objection; Gray v. Fowler, (1873) L. R. 8 Ex. 249; 42 L. J. Ex. 161.
(c) See and consider Deverell v. Lord Bolton, (1812) 18 Ves. 505, 514, 515; Corbett v. Commrs. of Worts, (1868) 16 W. R. 889; 18 L. T. 548.
(d) See Sug. 14th ed. 363.
Though it is not necessary that a purchaser's original requisitions should go beyond matters arising out of the title as abstracted, it is always desirable, in the first instance, to make any requisition of importance as to the special form of conveyance or concurrence of parties other than the vendor. If the purchaser insists on a requisition as to matter of conveyance which the vendor refuses to comply with, and the purchaser, after giving the vendor notice to remedy the defect within a reasonable time, rescinds the contract, the Court cannot, if the requisition is well founded, enforce specific performance at the suit of the vendor (e).
Requiring concurrence of other parties.
A requisition that the vendor shall at his own expense obtain a judicial construction of an ambiguous will, on which his title is founded, is admissible; and if the construction is against the vendor he will have to pay the costs (f); if against the purchaser, the purchaser will, it seems, as a rule have to pay the costs (g).
A purchaser may not usually make any requisition as to any document dated or made before the date for the commencement of the title (h).
Requisition for judicial construction of will.
The purchaser's prima facie right to a marketable title may be negatived, not only by express stipulation, but also by a clear notice of the state of the title given to him before entering into the agreement (i). Where a purchaser is aware when he enters into the contract of the existence of defects in the title which are beyond the vendor's power to remove, he cannot be presumed to have bargained for a good title (k). If, however, the contract expressly provides that a good title shall be shown, the vendor cannot avoid his obligation by showing that the purchaser was aware at the date of the contract of incurable defects in the title (l).
Purchaser's prima facie right to a good title.
(e) Denny v. Hancock, (1870) 6 Ch. 1, 13; 23 L. T. 686.
(l) Re Hill and Chapman, (1885) 54 L. J. Ch. 595; 52 L. T. 290; Hatten v. Russell, (1888) 38 Ch. D. 334; 57 L. J. Ch. 425.
(g) See Re Guyton and Rosenberg, 1901, 2 Ch. 591; 70 L. J. Ch. 751; and note in Farrer on Conditions of Sale, 2nd ed. p. 274.
(h) L. P. Act, 1925, s. 45 (1) (b) and (11), proviso.
(i) Ogilvie v. Foljambe, (1817) 3 Mer. at p. 64; Ellis v. Rogers, (1885) 29 Ch. D. 661, 671.
(k) Alderdale Estate Co. v. Mcgrory, 1918, A. C. 503.
A purchaser may, after the contract, expressly or impliedly waive, wholly or in part, his right (whether absolute or qualified) to a marketable title, or to the usual evidences thereof (m). Where a purchaser, having taken several objections, expresses himself willing to accept the title upon a specified objection being removed, this waiver of the other objections is merely conditional upon the removal of the specified objection; so that, if such objection is not removed and an action is commenced against him for specific performance, he is entitled to a general reference as to title (n); and though the objection taken by the purchaser may not be his true reason for refusing to complete the purchase, the Court will not pry into his motives, but will simply decide whether the objection is tenable or not (o). Acceptance of the title, as abstracted, is no waiver of the purchaser's right to have the abstract verified (p): nor will the Court imply a waiver of any objection not clearly raised by the contents of the abstract (q): nor does a purchaser, by waiving his right to an abstract, necessarily waive objections to the title otherwise known to him (r); nor does acceptance of the title bind the purchaser, where the vendor conceals some material fact (s). Where a purchaser of a freehold and copyhold estate accepted the title, subject to the proauction of a declaration of identity of lands mentioned in the deeds to those now sold," this was held to be a waiver of his original right to have the tenure of a particular part distinguished (t); and where a purchaser, in his answer to an action for specific performance, admitted his belief that at the date of the contract the vendor had a title, this was treated as an admission of the fact, which he could not afterwards question (u).