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.
Delivery of the abstract may, if necessary, be compelled by an order obtained on summons ; and, if dissatisfied with the title shown thereby, the purchaser may procure an order that the title he referred to chamhers. When a decree was manifestly wrong by reason of the ahsence of a necessary party to the record, the purchaser was formerly entitled to he discharged without a reference ; hut not where the question, whether all proper persons were parties, depended on extraneous circumstances which were a proper subject for inquiry (q). And the 70th s. of the Cony. Act, 1881, being an enactment in favour of purchasers, would not seem to have altered the rule. Contrary to the rule which prevails in ordinary sales, the Court will compel the purchaser to take an equitable title (r) ; but only where the legal estate is outstanding without any claim of interest on the part of the person in whom it is vested (s) ; or is outstanding in an infant from whom it may be readily got in (t) ; and the rule is strictly confined to such cases (u); nor would it compel him to take a doubtful equitable title (x) ; nor, perhaps, where there is material error in the decree, to wait until the same is rectified (y). So, where the recitals in one of the abstracted deeds were so framed as to conceal a defect in the prior title, the purchaser was discharged from the purchase and was allowed his costs, notwithstanding that by the conditions he was precluded from inquiring into the prior title, and the recitals were made conclusive evidence (z). In one case, where a purchaser had accepted the title and paid in his purchase-money, he was discharged from the contract upon a deed being discovered which showed that the plaintiffs could not make a title to more than a moiety of the estate (a); but a purchaser, who, having discovered a supposed defect in the title, buys in the interest of the party who alone could take advantage of it, will not be allowed the benefit of the general rule as to doubtful titles (b). Where the abstract was erroneous and misled the purchaser's counsel on a material point, and the mistake remained for a time undiscovered owing to the negligence of the solicitor in failing to examine the original will, the purchaser having paid his purchase-money into Court, was allowed to be discharged; but he was not allowed interest on his purchase-money, and he had to pay the costs of all parties, except the person who had the conduct of the sale (c). Where the title was rendered bad by the vendor's default to keep the property insured, the purchaser was discharged (d).
Abstract, and title.
(k) Day v. Bonaini, (1886) 55 L. T. 329.
(I) Miller v.Smith, (1847) 6 Ha. 609.
(m) Pearce v. P., (1834) 7 Si. 138.
(n) Christian v. Chambers, (1845) 4 Ha. 307; 14 L. J. Ch. 310. For form of order, see Seton, 6th ed. 349.
(o) Rigby v. Macnamara, (1801) 6
Ves. 515; Vale v. Devenport, (1802) ib. 615 ; see Dewell v. Tuffnell, (1855) 1 K. & J. 324 ; see, too, Goodwill's 8. E., (1862) 4Gif. 90.
(p) R. v. Gregory, (1817) 4 Pr. 380 ; it would now be conveyed to the personal representatives and devolve as real estate.
(q) Whitfield v. Zequestre, (1849) 3 De G. & S. 464, 167.
(r) Craddock v. Piper, (1844) 14 Si. 310; 19 L. J. Ch. 107; and see Bug. 11th ed. 397.
Craddock v. Piper, sup. ; ef. Freeland v. Pearson, (1869) 7 Eq. 246.
(t) Sug. 14th ed. 397.
(u) See Freeland v. Pearson, sup.
(x) Marlow v. Smith, (1723) 2 P. W. at p. 201.
(y) Lechmere v. Brasier, (1821) 2
J. & W. 287 ; Whitfield v. Zequestre,
(1849) 3 De G. & S. at p. 467 ; but see Sherwood v. Beveridge, (1849) ib. 425 ; Cahert v. Godfrey, (1843) 6 Beav. 97, 110 ; 12 L. J. N. S. Ch. 305 ; Plumtre v. O'Dell, (1842) 4 Ir. Eq. R. 602.
(z) Else v. R, (1872) 13 Eq. 196; 41 L. J. Ch. 213; and see Re Banister, (1879) 12 Ch. D. 131 ; 48 L. J. Ch. 837.
(a) Ward v. Trathen, (1814) 14 Si. 82.
It is stated by Lord St. Leonards (e), that, in every case, the purchaser is entitled to the costs of the application for a reference of title, and to the costs of that reference ; it appears, however, from a later case (/), that the decision, upon which the above proposition was founded, is misre-ported ; and that the Court only held that the purchaser was not liable to pay costs, on the certificate being in favour of the title; if, however, the title were made out, in chambers, on grounds not appearing on the abstract, he would be entitled to receive costs (g) ; and if the title is found to be good upon grounds appearing on the abstract, he may be ordered to pay costs, if his objections are frivolous and vexatious (h). If the title prove bad, the purchaser, unless precluded by the conditions, is entitled to receive his costs (t), charges, and expenses (k), out of the fund in Court (if any) (/); or, if there be none, from the party having the conduct of the sale, who may recover them in the action (m) : but a defendant, to whom the conduct of the sale has been given, will not, it seems, be ordered to pay the purchaser's costs, where there are funds in Court which may be made primarily answerable; in such a case leave will be given to the purchaser to apply for payment (n). It is said to have been held by Sir J. Leach that, where exceptions were allowed to the Master's report in favour of the title, the Court would not thereupon direct that the purchaser be discharged and his costs be paid, but that some specific application must be made for the purpose (o) ; notice of which must have been given to all parties interested in the purchase-money (p). It appears that, where the title is decided to be bad, the purchaser must be actually discharged by order, before there can be a re-sale (q).
Costs of reference.
(b) Sheppard v. Doolan, (1842) 3 D. & War. 1.
(c) McCulloch v. Gregory, (1855) 1 K. & J. 286 ; 24 L. J. Ch. 246.
(d) Palmer v. Goren, (1856) 4 W. R. 688; 25 L. J. Ch. 841.