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 purchaser who has misrepresented the property to a third person desirous of purchasing it, cannot enforce the contract in Equity (r): so at Law, when a purchaser, by his statements in the sale room, prevented others from bidding, the sale was held voidable by the vendor (s).
Depreciatory remarks, etc, by purchaser. Their effect.
(p) See Lord Hatherley's judgment. 6 Ch. p. 779.
(q) Coaks v. Boswell, (1886) 11 A. C. 235, 236; 55 L. J. Ch. 761; and see Davies v. London Marine Insurance Co., (1878) 8 Ch. D. 469.
(r) Howard v. Hopkyns, (1742) 2 Atk. 371; Buxton v. Litter, (1746) 3 Atk. 383, 386.
A purchaser, however, is not liable to an action at Law for having depreciated to the vendor the value, of the property, or its chance of sale (t); nor will an action lie against a stranger for preventing a sale by giving notice of his claim upon the estate, unless it be shown that such notice was given maliciously (u): and, in any case, in order to support an action for slander of title, the plaintiff must prove falsehood, malice, and special damage (x). If the defendant acted in good faith, the action cannot be maintained, though a man of sound sense and knowledge of business would not have uttered the slander (y). And where a person claims a right which he intends to enforce against a purchaser, not only is he entitled, but he is in common fairness bound, to give prompt notice of his intention; and, consequently, no action will lie for giving such preliminary warning, unless it can be shown, either that the threat was not made in good faith, but with the intent to injure the vendor, and without any intention to follow it up, or that the circumstances were such as to make the bringing of an action altogether wrongful (z). It is of course not necessary that such a warning should be followed up by bringing an action.
Slander of title by stranger.
An agreement between two persons, not to bid against each other at an auction, is legal; and forms a valuable consideration for an agreement giving to the party withdrawing his opposition at the auction a right of pre-emption over other property (a); and such an agreement has been held valid, where the sale was made by order of the Court (b).
Agreement not to bid, legal.
(s) Fuller v. Abrahams, (1821) 3 Br. & B. 116; and see Mason v. Armitage, (1806) 13 Ves. 25.
(t) Vernon v. Keys, (1810) 12 Ea. 632, 638.
(u) See Hargrove v. Le Breton, (1769) 4 Burr. 2422; Malachy v. Soper, (1836) 3 Bing. N. C. 371, 382; 6 L. J. N. S. C. P. 32; Blackham v. Pugh, (1846) 2 C. B. 611, 620, 624; 15 L. J. C. P. 290; Pater v. Baker, (1847) 3 C. B. 831, 862, 868; 16 L. J. C. P. 124; Sug. 14th ed. 357.
(x) Brook v. Bawl, (1849) 4 Ex. 521; 19 L. J. Ex. 114; see Bignell v. Buzzard, (1858) 3 H. & N. 217; 27 L. J. Ex. 355.
(y) Pitt v. Donovan, (1813) 1 M. & S. 639.
(z) Wren v. Weild, (1869) L. R. 4 Q. B. 730; 38 L. J. Q. B. 88; Balsey v. Brotherhood, (1880) 15 Ch. D. 514; 49 L. J. Ch. 786; affd. 19 Ch. D. 386; British Railway Traffic Co. v. V. C. R. Co., 1922, 2 K. B. 260.
It may be remarked, that, when a written agreement between the parties has once been signed all previous representations, unless fraudulent (c), become immaterial (d), except for the purpose of defence in Equity (e), or for the purposes of rectification (f).
Effect of written agreement on preliminary negotiations.
(a) Gallon v. Emuss, (1844) 1 Coll. 243; 13 L. J. N. S. Ch. 388. As to knock-out sales, see Cohen v. Roche, 1927, 1 Ch. 169, 173.
(b) Re Carew's Estate, (1858) 26 Beav. 187; 28 L. J. Ch. 218. See and consider Rowlings v. General Trading Co., 1921, 1 K. B. 635.
(c) Sup. s. 1.
(d) Pickering v. Dowson, (1813) 4 Taunt. 779, 783; Knight v. Barber, (1846) 16 M. & W. at pp. 69, 70; 16 L. J. Ex. 18.
(e) Haynes v. Hare, (1791) 1 H. Bl. at p. 664.
(f) Craddock Bros. v. Hunt, 1923, 2 Ch. 136. Thi3 case very materially modifies the rule in Woollam v. Hearn, 7 Ves. 211. See the notes in 2 Wh. & T. L. C. 9th ed. pp. 472 - 475.
( 103 )