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.
or if lands are omitted from conveyance - and as to further assurance in Equity and by Statute.
If it appear that the estate belonged to the purchaser, he can, in Equity, and probably at Law (i), recover his purchaserelieved in Equity.
(e) Cator v. Lord Pembroke, (1787) 2 Br. C. C. 282.
(f) Sug. 14th ed. 553.
(g) Tylee v. Webb, (1851) 14 Beav.
(A) Cane v. Lord Allen, (1814) 2 Dow, 289, 296.
(i) Strickland v. Turner, (1852) 7 Ex. 208; 22 L. J. Ex. 115.
And a purchaser who, though without any fault on the part of the vendor, buys an estate which in fact has no existence, (e.g., a remainder expectant on an estate tail which has been barred,) can obtain relief in Equity (m) ; but it is otherwise, if the purchaser buys an estate the existence of which he knows to be doubtful (n). The principle was doubted by Lord St. Leonards (o) : but it has been decided that, even at Law, an action lies in such a case to recover the purchase-money as money paid without consideration: - as where a life annuity is sold after the death of the cestui que vie (p).
Whether so if he buy estate which has no existence:
Where a creditor of an insolvent firm, one of the members of which was also separately insolvent and non compos, in order to procure a title to the separate interest of the non compos partner, issued an execution against him, and sold by the sheriff, with the intention of himself purchasing, so as to or known to the vendor to be utterly worthless.
(k) Bingham v. B., (1718) 1 Ves. sen. 126 ; Cochrane v. Willis, (1865) 1 Ch. 58 ; 35 L. J. Ch. 36 ; Jones v. Clifford, (1876) 3 Ch. D. 779 ; 45 L. J. Ch. 809 ; and see Huddersfield Banking Co. v. Henry Lister, 1895, 2 Ch. 273, 281; 64 L. J. Ch. 523; and as to cases of compromise of doubtful rights, Lansdown v. L., (1730) Mos. 364 ; Leonard v. L., (1812) 2 B. & B. 171 ; Stewart v. S., (1839) 6C. &F. 911.
(/) Bingham v. B., sup. ; Hudders-field Banking Co. v. Henry Lister, 1895, 2 Ch. 273, 281, judgment of Lindley, L. J. ; 64 L. J. Ch. 523 ; and as to mutual mistake, sup. p. 808.
(m) Hitchcock v. Giddings, (1817) 4 Pr. 135; Bidguay v. Sneyd, (1854) Kay, at p. 635; and see Stent v.
Bailis, (1724) 2 P. W. 217, 220, the judgment in which contains evidently bad law; and see Clare v. Lamb, (1875) L. R. 10 C. P. 334 ; 44 L. J. C. P. 177 ; Debenham v. Saw-bridge, 1901, 2 Ch. at p. 109.
(n) Griffin v. Caddell, (1875) 9 I. R. C. L. 488 ; ef. Jefferys v. Fairs, (1876) 4 Ch. D. 448.
(o) See Sug. 14th ed. 247.
(p) Strickland v. Turner, (1852) 7 Ex. 208 ; 22 L. J. Ex. 115 ; Barr v. Gibson, (1838) 3 M. & W. at p. 399 ; Hastie v. Couturier, (1853) 9 Ex. 102; 22 L. J. Ex. 299 ; Gompertz v. Bartlett, (1853) 2 E. & B. 849 ; 23 L. J. Q. B. 65 ; Chapman v. Speller, (1850) 14 Q. B. 621 ; 19 L. J. Q. B. 239 ; Kearney v. Ryan, (1878) 2 L. R. Ir. 61.
Facilitate dealings with the partnership estate, but was in fact outbidden by a stranger, the purchaser was relieved from his purchase, with costs against the vendor ; on the ground that the property was utterly worthless, within the vendor's knowledge; and that the execution and sale were entirely under his control (q).
If lands shown to a purchaser are excepted from the conveyance under a name by which he did not know them, he can claim them in Equity ; and by getting in an outstanding legal estate may hold them, even as against a subsequent purchaser for valuable consideration and without notice (r) ; and he could, doubtless, enforce a conveyance of them, as against the vendor, or volunteers. He has also, it would appear, the same rights as respects lands accidentally omitted from the conveyance, if shown to him as part of his purchase (s), or if he can prove an agreement for their purchase sufficient within the Statute of Frauds (t). And, as a general rule, where the conveyance is executed for the purpose of giving effect to and executing the agreement, and by fraud, accident, or mistake, it gives to the purchaser less than he is entitled to under the agreement, he may call upon the Court to rectify the defective conveyance, and give him all that the agreement comprehended (u) : but not where the omitted property has in the meantime been conveyed to another purchaser without notice; and in such a case, unless there is actual fraud, it seems that no compensation can be given (x).
Purchaser may claim in Equity lands shown to him or accidentally omitted.
And relief upon a defective instrument is the more readily afforded when the party to be charged thereon is himself the person who prepared or perfected it (y). But where the ori-ginal agreement is of doubtful construction, and the conveyance is definite and unequivocal, it is not easy to avoid the conclusion that the latter may be the best evidence of the terms of the actual agreement (z). If the purchaser's bill in such a case is dismissed, and the purchase-money has been paid by him into Court, and not invested, he must pay interest upon it to the vendor, though it has been unproductive (a). Of course, the Court will not interfere if the agreement was, in the technical sense of the word, inequitable (b).
When relief afforded.
(q) Smith v. Harrison, (1857) 26 L. J. Ch. 412.
(r) Oxwick v. Brockett, (1698) 1 Eq. Ca. Ab. 355.
(s) See Cass v. Waterhouse, (1691) Ch. Prec. 29.
(t) S. C.; and see Nelson v. N., (1628) Nels. 7 (which, however, was a case between principal and agent); and Calverley v. Williams, (1790) 1 Ves. 210.
(u) See sup. p. 742 et seq.
(x) Leutij v. Uillas, (1858) 2 D. & J. 110; 27 L. J. Ch. 534, upon the ground that the particulars did not warrant the purchaser's belief. And ef. Ellis v. Sills, (1892) 67 L. T. 287.