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.
Equity will enforce specific performance of the contract for sale, against the vendor himself, and also (on the footing not of contract but of trusteeship) against, first, all persons claiming under him by a title arising subsequently to the contract, except purchasers for valuable consideration who have paid their money and taken a conveyance without notice of the original contract: e.g., his trustee in bankruptcy (h), or committee in lunacy (i), or voluntary alienees (k), or judgment creditors (I), or the aftertaken wife or husband of the vendor (m), or the vendor's alienees for value (if they purchased with notice of the prior contract (n), or have not taken a conveyance), or (in case of his death) against his personal representatives. So, specific performance will be enforced against a railway company which has taken over the undertaking of a dissolved railway company subject to its obligations and liabilities (o).
Specific performance against vendor, and parties claiming under him by title subsequent to the contract.
(f) Inglev. Vaughan Jenkins,1900, 2 Ch. 368 ; C9 L. J. Ch. 618.
(g) Nurse v. Lord Seymour, (1851) 13 Beav. 254.
(h) Tearce v. Bastable's Truster in Bkey., 1901, 2 Ch. 122; 70 L. J. Ch. 446.
(i) Lunacy Act, 1890, s. 133 et seq.; Re Pagani, 1892, 1 Ch. 236.
(k) See Hinton v. 11., (1708) 2 Ves. sen. 631, 633.
(!) Brunion v. Neale, (1845) 14 L. J. Ch. 8.
(m) Sec 2 Ves. sen. 633.
(n) Daniels v. Davison, (1809) 16
Ves. 249 ; (1810) 17 Ves. 433 ; Light-foot v. Heron, (1839) 3 Y. & C. 586 ; Cutts v. Thodey, (1844) 1 Col. 223; Fewster v. Turner, (1841) 6 Jur. 144 ; 11 L. J. N. S. Ch. 161; Potter v. Sanders, (1846) 6 Ha. 1 ; Hersey v. Giblett, (1854) 18 Beav. 174 ; 23 L. J. Ch. 818 ; Shaw v. Thaekray, (1853) 1 Sm. & G. 537; Barnes v. Wood, (1869) 8 Eq. 424 ; 38 L. J. Ch. 683 ; Bp. of Winchester v. Mid-Hants B. Co., (1867) 5 Eq. 17; 37 L. J. Ch. G4, where specific performance of a contract with a railway company was enforced against another company, who had leased the line.
And, secondly, Equity will enforce specific performance of the contract against persons claiming under a title which, although prior to the contract and known to the purchaser, might have been displaced by a conveyance by the vendor; e.g., voluntary alienees before the Voluntary Conveyances Act, 1893 (p) ; wife entitled to freebench (if, as is the case in most manors, her title depends upon her husband dying seised) (q) ; dowress who married since the Dower Act, 1833, came into operation; vendor whose wife, married before the Act, refuses to release her dower, where the purchaser is willing to take the estate with compensation (s) ; joint tenants claiming by survivorship (t), the contract for sale operating as a severance (u) ; and remaindermen, or beneficiaries, in cases where the vendor has contracted in due exercise of a power or pursuant to a trust (x) ; subject, nevertheless, to these exceptions, viz., that the contract of a tenant in tail, who dies before executing the conveyance, does not affect the interests of the issue in tail or remaindermen (y): and that the contract of a trustee will not he enforced if the attendant circumstances constitute it a breach of trust (z). In one case, trustees of a turnpike road were compelled to complete a contract which they had entered into, in forgetful-ness of a statutory right of pre-emption under the General Turnpike Act (a), though the right was insisted on: but in this case the purchaser was willing to take such estate as the vendors could convey (b).
Specific performance against parties claiming under a title prior to the contract, which the vendor might have displaced by convey(o) Forlescue v. Lostwithiel, §c. R. Co., 1894, 3 Ch. 621.
(p) Buckle v. Mitchell, (1811) 18 Ves. 100 ; Metcalfe v. Pulvertoft, (1813) 1 Ves. & B. 180; Willats v. Busby, (1842) 5 Beav. 193 ; Stacpoole v. S., (1843) 4 D. & War. 320, 352 ; Roshcr v. Williams, (1875) 20 Eq. 210; 44 L. J. Ch. 419.
(q) Hinton v. H., (1755) 2 Ves. sen. 631 ; Brown v. Raindle, (1796) 3 Ves. 256.
(s) Wilson v. Williams, (1857) 3 Jur. N. S. 810 ; Barnes v. Wood, (1869) 8 Eq. 424 ; 38 L. J. Ch. 683; Barker v. Cox, (1876) 4 Ch. D. 464; 46 L. J. Ch. 62.
(t) See Hinton v. H., (1755) 2 Ves. sen. 631, 634 ; Burnett v. Kinaston, (1700) Pr. Ch. 120.
(u) Brown v. Raindle, (1796) 3 Ves. 257 ; Frewen v. Relfe, (1787) 2 Br. C. C. at pp. 220, 224 ; Kingsford v. Ball, (1852) 2 Gif. App. 1. As to severance being effected by an agreement to settle, see Caldwell v. Fellowes, (1870) 9 Eq. 410 ; 39 L. J. Ch. 618; Burnaby v. Equitable Rev. Soc, (1885) 28 Ch. D. 416; 54 L. J. Ch. 466 (the case of an infant) ; by marriage, see Palmer v. Rich, 1897, 1 Ch. 134; 66 L. J. Ch. 69; Re Butler's Trusts, (1888) 38 Ch. D. 286 ; 57 L. J. Ch. 643.
(x) Mortlock v. Bulla; (1804) 10 Ves. at p. 315 ; Dowtll v. Dew, (1842) 1 Y. & C. C. C. 345 : cf. Gas light Co. v. Towse, (1887) 35 Ch. D. 519 ; 56 L. J. Ch. 889 ; and see cases cited, sup. p. 1029.
But the vendor's contract will, of course, not be enforced against persons claiming under a prior title which he himself could not have displaced by a conveyance; e.g., a dowress under the law prior to the Dower Act, 1833 (c), or a wife seised of an estate of inheritance : nor would the contract of a tenant for life be enforced against the trustees of the reversion who are empowered but decline to sell at his request (d) ; but such a contract may now be enforced against the successor under sect. 31 (2) of the Settled Land Act, 1882 (e).
Vendor's contract cannot be enforced against parties claiming under prior absolute title.
(y) Fines and Recoveries Act, 1833, s. 47; and the same was the rule before the Act: Frank v. Mainwaring, (1839) 2 Beav. 115; and see Sug. 14th ed. 467. The section does not exclude the ordinary jurisdiction of the Court to rectify a duly enrolled disentailing deed on the ground of mistake : Hall-Bare v. H.-D., (1885) 31 Ch. D. 251 ; 55 L. J. Ch. 154. The Court will not compel a woman, under a covenant to settle after-acquired property, to settle an estate tail to which she becomes entitled in possession: Hilbers v. Parkinson, (1883) 25 Ch. D. 200 ; 53 L. J. Ch. 194. But where a tenant in-tail in remainder sells a base fee, and covenants for further assurance with an express mention of a disentailing assurance, he may be compelled, on acquiring the estate in possession, to execute a disentailing deed : Banlces v. Small, (1887) 34