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 execution of the conveyance the purchaser is, as a general rule, entitled to have the title deeds delivered to him; and an order for their delivery, if not provided for in the order for payment of the purchase-money, may be obtained on summons (z). On a sale in lots, the purchaser of the largest lot is, in the absence of special agreement, entitled to the deeds as against the purchaser of several lots of larger aggregate amount (a). Where mortgagees, parties to the suit, consented to the sale, they were ordered to leave the deeds in the Master's office, but it was directed that they should not be delivered to the purchaser, without notice to the mortgagees (b). The solicitor conducting the sale is the proper person to apply for the delivery to the purchaser of the deeds deposited in Court.
Purchaser's rights after completion.
Purchaser, after conveyance, may claim the deeds.
Where the estate is sold in accordance with the decree, the Court " will protect the purchaser against the parties to the action (e), and all parties coming in under the decree" (d) ; and Lord St. Leonards considered it to be a general rule that even as against absent parties (e), the purchaser should not lose the benefit of his purchase by any irregularity in the proceedings in the action (f). So, if the include a disentailing deed ; but it is very doubtful whether the Court would appoint anyone under the 8. to execute a disentailing deed which a tenant in tail had in disobedience of the Court's order refused to execute. The point was raised, but not decided, by the C. A., in Bankes v. Small, (1887) 36 Ch. D. 716 ; 56 L. J. Ch. 254,832.
Purchaser protected against all parties to action.
(z) See Seton, 6th ed. 349, for form of order.
(a) Lord Kennaird v. Christie, (1809) cited Dan. C. P. 896 ; Scott v. Jack-man, (1855) 21 Bear. 110. The conditions ought always to provide that the purchaser of the largest part in value of property, held under the common title, shall have the custody of the deeds.
(b) Livesey v. Harding, (1839) 1 Beav. 343, 346 ; Knott v. Cottee, (1859) 27 Beav. 33 ; but see Fowler v. Scott, (1871) 20 W. P. 199.
(c) Although claiming by title acquired subsequently to the decree ; Massy v. Batwell, (1843) 4 D. & War. 58, 80.
(d) Sug. 14th ed. 1ll ; Usher v. Scanlan, (1841) Fl. & K. 243; Stac-poole v. Curtis, (1816) 2 Moll. 504; Tommey v. White, (1850) 3 H. L. C. at p. 63.
(e) Sug. H. L. 682.
(f) Sug. 14th ed. 110, and cases
Court being authorized by a private Act to ascertain the amount of A.'s debts, and to sell for their payment, sell in a manner authorized by the Act, but under a wrong conclusion as to the amount of the debts, the error will not affect a purchaser (g).
Formerly, if the Court clearly exceeded its jurisdiction, as if, in cases not falling within the scope of the Partition Acts, or the S. E. Act, 1877, it assumed to sell the real estate of infants upon the mere notion that a sale was beneficial (h), or, as against beneficiaries, not sui juris, to anticipate, without special grounds, the time fixed by the author of the trust for the sale of the estate (i), it was not clear that the purchaser would be protected by the decree; at any rate, he would not be compelled to accept the title (k). And a purchaser, especially if he were the plaintiff (/), was always bound to see that the sale was according to the decree (m) ; though he was not bound to see that no more property was sold than would be sufficient for the purposes for which a sale was directed (n). Nor would he, apparently, be affected by fraud in the proceedings of which he himself was innocent (o), unless it were apparent on the face of the decree (p) ; nor was a sale impeachable on the ground of its having been the object for which the suit, professedly directed to other purposes, was in fact instituted (q). And the decree was no protection against persons of whom the purchaser had actual notice that they ought to have been, but were not, parties to or otherwise bound by the suit (r) ; or against a judgment creditor, who did not come in under the decree (s); so that in every such case the purchaser was bound to see that he obtained a discharge.
Court exceeding- its jurisdiction.
Cited in the judgment in Bowen v. Evans, (1844) 1 J. & L. at p. 256 el scq.; and see Baker v. Sowter, (1847) 10 Beav. 343 ; 16 L. J. Ch. 333; Edgeworth v. E., (1847) 12 Ir. Eq. R. 81; Keogh v. A'., (1849) 13 ib. 284 ; Dixon v. Wilkinson, (1853) 22 L. J. Ch. 981 ; and see Blackie v. Clark, (1852) 15 Beav. at p. 606.
(g) Vans Agnew v. Stewart, (1822) Sug. 14th ed. 68.
(h) Calvert v. Godfrey, (1843) 6 Beav. 97 ; 12 L. J. N. S. Ch. 305; Russel v. B., (1827) 1 Mol. 525; Daly v. D., (1845) 2 J. &L. at p. 758; Weir v. Chamley, (1852) 1 Ir. Ch. R. at p. 317 ; see Peto v. Gardner, (1843) 2 Y. & C. C. C. 312 ; 12 L. J. N. S. Ch. 371.
(i) Bluckloxv v. Laws, (1842) 2 Ha.
40 ; Johnstone v. Baler, (1845) 8 Beav. 233 ; and see Bristow v. Skirrow, (1859) 27 Beav. 590.
(k) Sap.p. 1172.
(l) Talbott v. Minnett, (1843) 6 Ir. Eq. R. 83.
(m) Colclough v. Sterum, (1821) 3 Bl. 181, 186, 188; Lutwych v. Win-ford, (1787) 2 Br. C. C. 218, 251 ; and see Re Thompson' s S. E., (1858) Johns. 418, 423 ; Be Woodcock's Tr., (1867) 3 Ch. 230.
(n) S. C. ; Thomas v. Townsend, (1852) 16 Jur. 736 ; Dixon v. Wilkinson, (1853) 22 L. J. Ch. 911.
(o) See Sug. 14th ed. 1ll ; Boiven v. Evans, (1844) 1 J. & L. 178 ; 2 H. L. C. 257 ; Edgeworth v. E., (1847) 12 Ir. Eq. R. 81. If participating in the fraud, of course he is
But now, by s. 70 of the Conv. Act, 1881, no order of the Court under any statutory or other jurisdiction can, as against a purchaser, whether made before or since 1882, be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice or service, whether the purchaser has notice of any such want or not. An order of the Court under this s. will protect a purchaser from any objection to his title on account of mere irregularity of procedure; but it will not confer a good title on him when the Court inadvertently deals with the property of one person under the supposition that it belongs to another, without any notice to the true owner (t).
Order for sale not now invalidated as against a purchaser.
Where the legal estate is vested in trustees who have power to give a discharge for the purchase-money, and are bound by the decree, it is unnecessary that beneficiaries who are not before the Court should be made parties to the conveyance (u).
Beneficiaries, when unnecessary parties to conveyance.
Liable: Colchugh v. Bolger, (1816) 4 Dow, 54 ; Lord Bandon v. Becher, (1835) 9 Bl. N. S. 532.
(p) Gore v.Staepoole, (1813) 1 Dow, at p. 30 ; 8. G. cited 1 J. & L. 257.
(q) Bowen v. Evans, (1844) 1 J. & L. 178; 2H. L. C. 257.
(r) Colebugh v. Sterum, (1821) 3 Bl. 181 - 186; Piers v. P., (1837) 1 D. & Wal. 265 ; Rolleston v. Morton, (1842) 1 D. & War. at p. 177 ; and seeSug. H. L. 682 ; Doody v. Siggins, (1852) 9 Ha. App. xxxvii; Goldsmid v. Stonehewer, (1852) ib. xxxviii; as to representation, Hanman v. Riley,
(1852) ib. xl; Densem v. Elsworthy, (1852) ib. xlii; and see Swallow v. Binns, ib. xlvii, xlviii.
(s) Knight v. Pocock, (1857) 24 Beav. 436; 27 L. J. Ch. 297.
(t) Jones v. Bamett, 1900, 1 Ch. 370 ; 69 L. J. Ch. 242 - a case of a sale under the Judgments Act, 1864 - considering Mostyn v. M., 1893, 3 Ch. 376 ; 62 L. J. Ch. 959, in which the purchasers were held protected against puisne incumbrancers, and Re Hall-Dare, (1882) 21 Ch. D. 41 ; 51 L. J. Ch. 671. See also Re Whitham, (1901) 84 L. T. 585; 49 W. K. 597.
A purchaser, after conveyance, has been allowed compensation out of his purchase-money, on the ground of the rent of the estate having been misstated in the particulars (a?), or the length of an outstanding term (y). But this has not been allowed, if he purchased with notice of the error (z). When he claims compensation, he should apply by summons to have it either paid, or deducted from his purchase-money. Under special circumstances, he has been allowed to pay the purchase-money into Court and take possession without prejudice to his claim for compensation (a).
Purchaser allowed compensation for mis-description.