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 the vendor's death, the contract is binding upon his personal representatives. By the S. L. Act, 1925, s. 90 (2), every contract thereunder is made binding on and enures for the benefit of the settled land, and is enforceable against and by every successor in title for the time being of the tenant for life, or statutory owner, and may be carried into effect by any such successor, but so that it may be varied or rescinded by any such successor, in the like case and manner (if any) as if it had been made by himself.
S. L. Act,
By s. 37 of the Ad. of E. Act, 1925, all conveyances of any interest in real or personal estate made to a purchaser either before or after the 1st January, 1926, by a person to whom probate or letters of administration have been granted are valid, notwithstanding any subsequent revocation or variation of the probate or administration; and this provision applies whenever the testator or intestate died, but takes effect without prejudice to any order of the Court made before 1926.
Ad. of E. Act, 1925, s. 37.
Where a lease contains an option of purchase which is exercised after the death of the lessor, the land is converted as from the date of the exercise of the option, and the purchase-money passes to the lessor s residuary legatees and not to the residuary devisees (g). But if the lessor after creating the option specifically devise the property, or by codicil republishes a will specifically devising it, there is a sufficient indication of intention to take the case out of the rule as laid down by Lawes v. Bennet (h), and the devise will be entitled to the purchase-money (i); but unless a contrary intention is expressed, a specific devise made before creating the option (k), or a general devise after the rule. And generally, where in a will made after a contract for sale the testator knowing of the contract specifically devises the property which or part of which is to be sold, that is a sufficient indication of an intention to pass to the devisee the whole of the testator's interest in the property (m).
The doctrine of conversion (f).
(e) S. 47.
(f) For a fuller discussion of the question of notional conversion of real into personal estate under an agreement for sale, the reader is referred to the 7th edition of this work.
The principle of Laives v. Bennet (n), however, "has never been applied except between the real and personal representatives of the original creator of the option" (o); and it will not be extended to cases between vendor and purchaser.
Not applicable as between vendor and purchaser.
If the contract is binding on both parties at the time of the vendor's death, no subsequent act or matter can alter the relative rights of his representatives (p): so that, if the purchaser subsequently act so as to lose his right under the contract, the estate passes as personalty of the vendor's (q).
Events subsequent to vendor's death immaterial.
(g) Collimgwood v. Row, (1856) 5 W. R. 484; 26 L. J. Ch. 649; Townley v. Bedwell, (1808) 14 Ves. 591; Lawes v. Bennet, (1785) 1 Cox, 167; Re Isaacs, 1894, 3 Ch. 506; and see notes to Fletcher v. Ashburner, 1 Wh. & T. L. C. 9th ed. p. 313 et seq.
(h) 1 Cox,167.
(t) Re Pyle, 1895, 1 Ch. 724; 64 L. J. Ch. 477; Duffield v. Mac-master, 1896, 1 Ir. R. 370; Brant v. Vause, (1842) 1 Y. & C. C. C. 580; 11 L.j.n. S. Ch. 170.
(k) Weeding v. W., (1861) 1 J. & H. 424; 4 L. T. 616; Emuss v. Smith, (1848) 2 De G. & S. 722; Bowen v. Barlow, (1871) 11 Eq. 454; 40 L. J. Ch. 373; affd. (1872) 8 Ch. 171; 42 L. J. Ch. 82.
(l) Goold v. Teague, (1859) 5 Jur. N. S. 116; 32 L. T. (O. S.) 251.
(m) Re Calow, 1928, Ch. 710.
(n) (1785) 1 Cox, 167.
(o) Edwards v. West. (1878) 7 Ch. D. p. 863: 47 L. J. Ch. 463.
If during the vendor's lifetime he himself abandon the contract, or if through want of title or for any other reason it is at his death capable of being enforced only against and not by him, whether a conversion is or is not effected depends-upon whether the purchaser does or does not choose to enforce specific performance (r); the case being, in effect, similar to those in which the purchaser has ab initio a mere option to. purchase.