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.
Where the purchaser is in possession of the estate without having paid his purchase-money, the vendor is generally entitled to call upon him to pay it into Court. This subject is fully dealt with in the fourth edition of Fry on Specific Performance, at pp. 613 et seq.; and the following statement of the principles upon which the Court acts under such circumstances is taken from those pages :Section 7.
Payment of purchase-money into Court.
(p) Gregory v. Wilson, (1852) 9 Ha. 683 ; Nunn v. Truscott, (1819) 3 D. G. & S. 301; Lewis v. Bond, (1853) 18 Beav. 85 ; and see Rogers v. Tudor, (18G0) 6 Jur. N. S. 692, and cases there cited.
(q) Tarn v. Coombs, (1857) 3 Sm. & G. 449; (1857) 1 D. & J. 34 ; Lillie v. Legh, (1858) 3D. & J. 204 ; Bankin v. Lay, (1860) 2 D. F. & J. 65; Bogen v. Tudor, sup.; Pogntz v. Fortune,(1859)
27 Beav. 393; Morley v. Clavering, (I860) 29 Beav. at p. 87. As to the lessee not beiug liable for breaches committed between the date of the lease and the time of its execution, see Shaw v. Kay, (1847) 1 Ex. 412 ; 17 L. J. Ex. 17 ; Jervis v. Tomkinson, (1856) 1 II. & N. at p. 206 ; 26 L. J. Ex. 41.
(r) See Sainter v. Ferguson, (1849) 1 M. & G. 286; Orme y. Broughton, (1831) 10 Bing. 633, 538.
Where the purchaser is in possession, and the vendor has disclosed such a title as he ought to accept, the vendor's right to payment in is clear. The same rule applies where the purchaser in possession admits a good title, though he may claim the right to object to it, on the ground of its not having been approved by counsel (s).
On the other hand, it is a general rule that, where it is through the laches of the vendor that the title remains incomplete, the Court will refuse an application for the payment of the purchase-money into Court (t).
But where the want of a good title being shown is not from the default of the vendor, and the purchaser has not prejudiced the value of the property by his dealings with it when in possession, the Court, it seems, will put the purchaser to elect whether he will pay in his purchase-money or give up possession (u).
Where the contract allows possession to be taken before the completion of the title, the Court will not generally order the purchase-money to be paid into Court on the ground of possession (x) ; unless the purchaser in possession commits acts of ownership occasioning the deterioration of the property (y).
In a case where, according to the bill, there was a parol agreement for sale at 80/. per acre, with possession given of five acres, but, according to the answer, only of three acres, a motion that the purchaser should pay in the purchasemoney for the five acres, or else for the three acres, was refused (z).
Quantity of land taken when uncertain, no order made.
(s) Crutchley v. Jerningham, (1816) 2 Mer. 502.
(t) Fox v. Birch, (1815) 1 Mer. 105.
(u) Younge v.Duncombe, (1832) You. 275 ; Tindal v. Cobham, (1833) 2 My. & K. 385 ; 4 L. J. Ch. 98.
(x) Morgan v. Shaw, (1816) 2 Mer. 138 ; Gell v. Watson, (1818) 3 Mad. 225.
(y) Pope v. G. E. R. Co., (1867) L. R. 3 Eq. 171 ; 36 L. J. Ch. 60; Greenwood v. Turner, 1891, 2 Ch. 114; 60 L.J. Ch. 357.
In another case, where there was a sort of mixed possession, the great proportion of it being in the purchaser, hut the vendor not being entirely out of possession; and part of the purchase-money was paid, but the purchaser was in a state of insolvency, and admitted his intention to convey the estate to trustees for the benefit of his creditors, the Court appointed a receiver (a).
Under special circumstances, receiver appointed.
In one case, where a railway company, by agreement with the landowner, entered into possession, and constructed part of their line over the property, but made default in payment of a bond which they had given for the purchase-money, the Court of Appeal refused, on interlocutory motion, to restrain the company from continuing in possession until the purchase-money was paid ; but intimated that the landowner might be entitled to have a receiver appointed, or the purchase-money paid into Court (b). In a later case, the Court, in ordering payment of the purchase-money into Court by the railway company, gave leave to the landowner, in the event of its not being so paid, to apply for an injunction, or for the appointment of a receiver (c) ; and it appears to be now well settled that the vendor of land to a railway company has all the remedies of an ordinary vendor for enforcing his lien for unpaid purchase-money, even though the line may have been opened for public traffic (d) ; but until the lien is enforced by sale, the Court will not, as a rule, restrain the company from running trains over the land (e). Where, however, an attempt to sell has proved abortive (f), or the Court is convinced that the land is either unsaleable or will not realize the sum owing from the company (g), an order will be made for payment by the company into Court, and, in default of such payment, an injunction will be granted to restrain the company from running trains over the land, and from continuing in possession. The lien does not extend to the landowner's costs of the arbitration by which the price was ascertained (h).
Where a railway company has entered into possession before payment of the purchase-money.
(z) Benson v. Glastonbury Canal Co., (1837) 1 Ccop. t. Cott. 350.
(a) Hall v. Jenkinsen, (1813) 2 Ves. & B. 126, 126; Cook v. Andreas, 1897, 1 Ch.266 ; 66 L. J. Ch. 137.
(b) Pell v. Northampton, etc. S. Co., (1806) 2 Ch. 100 ; 3G L. J. Ch. 319. See, too, Munns v. Isle of Wight R. Co , (1870) 5 Ch. 414 ; 39 L. J. Ch. 522 ; Lycett v. Stafford and Uttoxeter R. Co., (1872) 13 Eq. 261 : 41 L. J.
Ch. 474 ; and see Latimer v. Aylesbury R. Co., (1878) 9 Ch. D. 385, where on the motion the appointment of a receiver was also refused.
(v) Bishop of Winchester v. Mid-Hants R. Co., (18G7) 5 Eq. 17; 37 L.J. Ch. 64.