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.
And where a colliery proprietor, under the mistaken notion that he had a power of compulsorily purchasing land for the purpose of a railway, wrote to the landowner, and, referring to such supposed power, offered to purchase the land at a fair valuation, and, no reply being given, the railway was made over the land without further communication with him, but with his full knowledge; and then, after a fruitless negotiation as to the price to be given for the land, the landowner commenced an ejectment upwards of three years after the railway had been finished; the same learned judge, on motion, restrained the action, upon the colliery proprietor submitting to judgment in the action, and paying into Court a sum equal to the value of the land(/). So, where a canal was made over land with the consent of the freeholder, and compensation was paid to the tenant, but the amount of compensation which the freeholder was to receive remained unsettled, his representatives and parties claiming under him by purchase, with notice of the facts, were restrained at the expiration of the tenancy from asserting their legal rights (u). But when the party in possession has acquired a statutory right to purchase and hold the land, there is no longer the same reason as before for straining the jurisdiction of the Court (x).
Landowner's acquiescence in expenditure.
(r) Williams v. W., (1865) 2 Dr. & S. 378 ; (1867) 2 Ch. 294 ; 36 L. J. Ch. 200, 419 ; see, too, Cood v. C, (1863) 33 Beav. 314 ; 33 L. J. Ch. 273.
(s) Bratson v. Nicholson, (1842) 6 Jur. 620.
(t) Powell v. Thomas, (1848) 6 Ha.
300 ; Wavering's case, cited 5 Ves. 690 ; Duke of Devonshire v. Eglin, (1851) 14 Beav. 530; 20 L. J. Ch. 495 ; ef. Ramsden v. Dyson, (1866) L. R. 1 II. L. 129, 170; Bankart v. Tennant, (1870) 10 Eq. 141; 39 L. J. Ch. 809 ; Plimnier v. Mayor of Wellington, (1884) 9 A. C. 699 ; 53 L. J. P. 0. 104.
In the case of a power of sale or leasing the parol contract of a tenant for life, followed by expenditure, would, it is conceived, be insufficient to bind a remainderman who had not acquiesced in such expenditure (y), unless, after the death of the tenant for life, he lie by and allow the purchaser or lessee to improve the estate (z) : for the plaintiff's contention, in cases of part performance, is, that it is a fraud on a party permitting an expenditure on the faith of a parol agreement, to attempt to take advantage of its not being in writing (a).
Parol contract by tenant for life followed by expenditure.
It is now clear (b), that the Court, being satisfied of the existence of an agreement, will, if possible, ascertain its real terms. But immaterial terms, although stated in the pleadings, need not be proved (c).
Plaintiff, how far bound to show precise terms of contract.
(u) Duke of Beaufort v. Patrick, (1853) 17 Beav. 60; 22 L. J. Ch. 489.
(x) Meynell x. Surtees, (1855) 1 Jur. N. S. 737; 25 L. J. Ch. 257 ; but see Somerset Coal Co. v. Harcourt, (1858) 2 D. & J. 596 ; 27 L. J. Ch. 625.
(y) Blore v. Sutton, (1817) 3 Mer. at p. 247 ; Lowry v. Lord Dufferin, (1839) 1 Ir. Eq. R. 281 ; Morgan v. Milman, (1853) 3 D. M. & G. at p. 33; 22 L. J. Ch. 897; vide sup. p. 855.
(z) Stiles v. Couper, (1748) 3 Atk. 692.
(a) Blore v. Sutton, sup.
(6) See Allan v. Boirer, (1790) 3
Br. C. C. 149 ; Clinan v. Cooke, (1802) 1 Sch. & Lef. at p. 38 ; Boardman v. Mostyn, (1801) 6 Ves. 467, 471 ; Morphea v. Jones, (1818) 1 Sw. 172; Price v. Assheton, (1834) 1 Y. & C. 82 ; 4 L. J. N. S. Ex. Eq. 3 ; Bale v. Hamilton, (1846) 5 Ha. at p. 381 ; 16 L. J. Ch. 397 ; Mundy v. Jolliffe, (1839) 5 M. & C. 167, 177 ; and see Crook v. Corp. of Seaford, (1871) 6 Ch. 551 ; Laird v. Birkenhead R. Co., (1859) Johns. 500 ; 29L. J. Ch.218; Wilson v. West Hartlepool P. Co., (1865) 2 D. J. & S. 475; 34 L. J. Ch. 241; Sug. 11th ed. 148.
(c) Gregory v. Mighell, (1811) 18 Ves. 328 ; Mundy v. Jolliffe, sup.
Where a parol agreement is sought to be specifically enforced, on the ground of part performance, it must be distinctly shown what are the terms of the agreement which have been partly performed, and that the acts of part performance are referable to that agreement alone (d).
But, although the Court will endeavour to put a reasonable interpretation upon vague expressions (c); and, in construing them, will consider the surrounding circumstances, and the conduct of the parties in their dealings with the subject-matter of the contract (f) ; yet, if the final result of all the evidence which can be procured is to leave the material terms of the agreement doubtful, it can, of course, make no decree. Thus, where it remained uncertain whether the purchase-money did or did not include the timber, the Court declined to interfere (g) ; so, where an agreement for a lease did not state the length of the term to be granted (h), or the date at which it was to commence (i), or at which an increased rent was to become payable (k) ; so, where on a contract for a lease for lives the lives were not named, nor the person who was to name them (7) ; so, where the construction of the agreement depended upon the meaning of an "etc." (m) ; so, where the agreement was to take a lease of a house if the drawing-rooms were " handsomely decorated according to the present style" (n) ; neither, in the absence of special circumstances, will the Court enforce specific performance of a contract for the sale of land, which is silent as to the means of access to it, when it is reasonably uncertain whether a permanent right of way can be conferred on the purchaser (o).
It must be shown that the acts of part performance are solely-referable to the agreement ; and its material terms must be clearly shown.
(d) Per Lord Romilly, Price v. Salusbury, (1863) 32Beav. 446,459; aff. ib. 461. And see Dickinson v. Barrow, 1904, 2 Ch. 339 ; 73 L. J. Ch. 701.