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.
If a mortgagee, having agreed to purchase the equity of redemption, proceed to enforce his legal title by ejectment, the existence of the contract will, unless he has improperly delayed to enforce it (c), be a ground for refusing to stay the action on the tender of principal, interest and costs (d).
Mortgagee contracting to purchase may enforce his legal title.
The fact of a mortgagee with power of sale having contracted to sell part of the mortgaged estate for a sum exceeding the amount due on the security, is no ground for restraining him from bringing an action for recovery of the mortgage debt(e).
Contract for sale by mortgagee under power.
Agreement by lessee to purchase.
There is an implied promise on the part of each successive assignee of a lease to indemnify the original lessee against breaches committed during the continuance of his interest (g); and in a case where the assignee of a lease agreed to sell it, and the purchaser (it being stipulated that he should not be entitled to an assignment) entered and retained possession until the end of the term, he was held bound in Equity to indemnify the original lessee, though no party to the agreement, against breaches of covenant committed during such possession (h).
Agreement for purchase of lease, and possession taken.
(c) Skinner v. Stacey, (1744) 1 Wils. 80.
(d) Goodtitle v. Pope, (1797) 7 T. E. 185; Coote, 9th ed. p. 902.
(e) Willes v. Levett, (1847) 1 De G. & S. 392; Fisher, Mort. 6th ed. p. 384; Kerr on Injunctions, 6th ed. p. 523.
(f) Doe v. Burton, (1851) 16 Q. B. 807; 15 Jur. 990.
(g) Moule v. Garrett, (1870) L. E. 5 Ex. 132; 7 Ex. 101; 41 L. J. Ex. 62. And see the L. P. Act, 1925, s. 77 (1) (c).
(h) Close v. Wilberforce, (1838) 1 Beav. 112; 3 Jur. 35; see Sanders v. Benson, (1841) 4 Beav. 350; and Moore v. Greg, (1848) 2 Ph. 717, 721, 725; 18 L. J. Ch. 15. For the legal liability of which ,this principle is the equitable counterpart, see Moule v. Garrett, sup.; and cf. Bonner v. Tottenham, etc. Bldg. Soc, 1899, 1 Q. B. 169; 68 L. J. Q. B.114.
The equitable assignee of a legal term of years is not liable to the lessor for rent accrued, or breaches of covenant committed, during the time he was in possession (i).
Liability of equitable assignee of a lease.
Where a lessor becomes the equitable assignee of an underlease, he cannot set up the non-performance of the covenants contained in such underlease as a ground for refusing performance of a covenant by him in the original lease (k).
Agreement by lessor for purchase of underlease.
By s. 42 (4) of the L. P. Act, 1925, it is provided (inter alia) that under a contract for sale of land, if the subject-matter is a mortgage term and the vendor has power to convey the fee simple, the contract shall be deemed to extend to the fee simple; and if the subject-matter is an equitable interest capable of subsisting as a legal estate, and the vendor has power to vest (or to require to be vested) the legal estate in the purchaser, the contract shall be deemed to extend to such legal estate. If the subject-matter is an entailed interest in possession, and the vendor has power to vest (or to require to be vested) in the purchaser the fee simple, the contract shall be deemed to extend to the fee simple.
L. P. Act, 1925, s. 42 (4)
(i) Cox v. Bishop, (1857) 8 D. M. & G. 815; 26 L. J. Ch. 389; Ramage v. Womack, 1900, 1 Q. B. 116; 69 L. J. Q. B. 40; Bagot Tyre Co. v. Clipper Tyre Co., 1902, 1 Ch. 146, 156; 71 L. J. Ch. 158; and see Hall v. Ewin, (1887) 37 Ch. D. 74; 57 L. J. Ch. 95; Stein v. Pope, 1902, 1 K. B. 595; 71 L. J. K. B. 322.
(k) Jenkins v. Portman, (1836) 1 Ke. 435; 5 L. J. N. S. Ch. 313; and see Cox v. Bishop, sup.; Nokes v. Gibbon, (1856) 3 Dr. 681; 26 L. J. Ch. 433.
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