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.
Upon default by the purchaser, the vendor, or, if he is dead, his personal representatives, can sue the purchaser, or, if he is dead, his personal representatives, or his real representatives, if the agreement were under seal and the heirs were named therein, for damages sustained by the breach of the contract (e).
Right of action in vendor or his representatives, against purchaser or his representatives for breach of contract.
Where a purchaser has been let into possession, and refuses to complete, the vendor cannot, if no conveyance has been executed, recover from him the whole amount of the purchase-money, but only the damages actually sustained by the breach of contract (f) ; for it would be unjust that the vendor should have both purchase-money and estate; but where the vendor has executed, or offered to execute, the conveyance, and the purchaser has possession, the vendor may recover the whole amount of the purchase-money. His right of action is not taken away by a stipulation that if the purchaser should fail to comply with any of the conditions the deposit shall be forfeited as liquidated damages (g),
Vendor cannot recover entire purchase-money, if no conveyance.
If the title deeds have been delivered to the purchaser, in order that he might prepare the conveyance, the vendor may recover them at Law (h).
May recover title deeds.
If the purchase goes off through defect of title in the vendor, the purchaser, if he has been let into possession, cannot be sued for use and occupation for the time during which the contract was pending, though the occupation has been a beneficial one (t), on the ground that his possession cannot be ascribed to any implied contract, inconsistent with the express contract. In the two principal reported (k) cases it appears that the purchaser had paid, in one case all, and in the other part, of the purchase-money ; but though this was in some degree relied on in the earlier, it does not seem to have been considered material in the later, of the two decisions. If, however, after the contract is clearly abandoned, he retains possession, he will be liable in respect of such subsequent occupation (/); and whether in such a case his possession is to be attributed to a new tenancy at will, or is a mere trespass, is a question of fact (m). Where a purchaser retained possession for eight years without payment, and refused either to accept the vendor's defective title or to abandon the agreement, and upon a bill being filed by the vendor, and the master reporting against the title, still refused to accept it, he was ordered to account for the rents and profits and to pay the costs of the suit (n).
Purchaser in possession, whether liable for use and occupation if no title.
(e) See sup. p. 804, as to the liability of the heir and devisees upon the covenant. See Be Bernardy v. Harding, (1853) 8 Ex. 822 ; 22 L. J. Ex. 340, as to rescinding the contract and suing on a quantum meruit for expenses incurred.
(f) Laird v. Pim, (1841) 7 M. & W. 474 ; 10 L. J. Ex. 259; Moor v.
Roberts, (1858) 2 C. B. N. S. 839, 842; 26 L.J. C. P. 246.
(g) Icely v. Grew, (1836) 6 N. & M. 467.
(h) Parry v. Frame, (1801) 2 B. & P. 451.
(t) Kirtland v. Pounsett, (1809) 2 Taun. 145 ; Winterbottom v. Ingham, (1845) 7 Q. B. 611; 14 L. J. Q. B.
Where C, a sub-purchaser from B., entered into possession, and then, pending a suit for specific performance by B. against A. (the original vendor), was induced by A. to give up possession under a mistake of facts, it was held that, upon a decree being made for specific performance of the contract between A. and B., and a conveyance being executed by A., C. could maintain use and occupation for the time during which he had been out of possession (o) ; but it appears to have been subsequently held in the same case, that though the equitable owner might maintain use and occupation under the circumstances, yet such action would not lie against the vendor, because the relation of landlord and tenant was never contemplated between the parties (p).
Purchaser may maintain use and occupation in respect of his equitable title, when.
298; Stevens v. Guppy, (1826) 3 Rus. 171 ; Williams v. Shaw, (1825) cited ib. at p. 178 ; Seaton v. Booth, (1836) 4 A. & E. 528 ; 5 L. J. N. S. K. B. 97 ; and see Sug. 14th eel. 179.
(k) Kirtland v. Pounsett, and Win-terbottom v. Ingham, sup.
(l) Howard v. Shaw, (1841) 8 M. & W. 118.
(m) Markey v. Coote, (1876) 10 I. R. C. L. 119.
(n) King v. K., (1833) 1 M. & K. 442 ; Hope v. H., (1856) 22 Beav. at p. 365.
(o) Hull v. Vaughan, (1818) 6 Pr. 157 ; and see Winterbottom v. Ingham, sup.
(p) Winterbottom v. Ingham, sup.,
A purchaser who has let a tenant into possession can maintain an action for use and occupation against him though the purchase is not completed; the tenant being estopped from disputing the title of the party from whom he received actual possession (q). The purchaser when let into possession is, during the subsistence of the contract, only a tenant at will, though there may be a stipulation for payment of interest on the purchase-money until completion (r) ; but (unless under an agreement to quit in some specified event which has happened (s) ) he cannot, while such tenancy continues, be ejected without notice (t). This, however, does not apply to a case where the purchaser's occupation, after rescission of the contract, is held not to be referable to a new tenancy at will, but to be a mere trespass; and in such a case he will be liable for damages in respect of such trespass, and may be ejected without notice (u.
Purchaser let into possession is tenant at will.