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.
(1890) 15 A. C. 144, per Lord Watson.
(/) Bourne v. Gatliff, (1844) 11 C. &F. 45, 70.
(g) See Colpoys v. C, (1822) Jac. 451, 463; Simpson v.Margitson, (1847) 11 Q. B. 23 ; 17 L. J. Q. B. 81 ; Doe v. Langton, (1831) 2 B. & Ad. at p. 695 ; Doe v. Birch, (1836) 1 M. & W. 402 ; Parker v. Gossage, (1835) 2 C. M. & R. 617; 5 L. J. N. S. Ex. 4 ; Boots v. Snelling, (1883) 48 L. T. 216.
(A) See Spartali v. Benecke, (1850) 10 C. B. 212 ; 19 L. J. C. P. 293 ; Field v. Lelean, (1861) 7 Jur. N. S. 918 ; 30 L. J. Ex. 168 ; Beacon Life and Fire Ass. Co. v. Gibb, (1862) 1 Mo. P. C.N. S. 73.
(i) St. Cross Hosp. v. Lord Howard de Walden, .(1795) 6 T. R. 338.
(k) Hutton v. Warren, (1836) 1 M. & W. 466 ; 5 L. J. N. S. Ex. 234; Syers v. Jonas, (1848) 2 Ex. 1ll ; Spartali v. Benecke, (1850) 10 C. B. 212 ; 19 L. J. C. P. 293; Bale v. Humfrey, (1858) E. B. & E. 1004 ; 27 L. J. Q. B. 390.
(l) See Eden v. Earl of Bute, (1776) 3 Br. P. C. 679 ; Allen v. Cameron, (1833) 1 C. & M. 832 ; 2 L. J. N. S. Ex. 263; Simpson v. Henderson, (1829) M. & M. 300 ; Shore v. Wilson, (1842) 9 C. & F. 355; Innes v. Sayer, (1851) 3 M. & G. at p. 614 ; Newell v. Radford, (1867) L. R. 3 C. P. 52; 37 L. J. C. P. 1.
(m) Morris v. Wilson, (1859) 5 Jur. N. S. 168; Dale v. Humfrey, (1858) E. B. & E. 1004; 27 L. J. Q. B. 390; Filby v. Hounsell, 1896, 2 Ch. 737 ; 65 L. J. Ch. 852.
(n) Schmaltz v. Avery, (1851) 16 Q. B. 655 ; 20 L. J. Q. B. 228 ; Carr v. Jackson, (1852) 7 Ex. 382 ; 21 L. J. Ex. 137 ; Young v. Schuler, (1883) 11 Q. B. D. 651.
(o) Longchamps v. Faucett, (1791) Peak. Ca. 101 ; Doc v. Bart, (1787) 1 T. R. 701 ; Jones v. Newman, (1751) 1 W. Bl. 60 ; Murray v. Parker, (1854) 19 Beav. 305; Chad-wick v. Burnley (Mayor of), (1864) 12 W. R. 1077; McMarray v. Spicer, (1868) 37 L. J. Ch. 505 ; Chambers v. Kelly, (1873) Ir. R. 7 C. L. 231 ;
Clarke v. Coleman, (1895) W. N. 114.
(p) Hodges v. Horsfall, (1829) 1 R. & M. 116 ; Shortrede v. Cheek, (1834) 1 A. & E. 57 ; Morris v. Wilson, (1859) 5 Jur. N. S. 168.
(q) Doe v. Westlake, (1820) 4 B. & Ald. 57; Towle v. Topham, (1877) 37 L. T. 308 ; and see sup. p. 234 et seq. for other cases in equity.
(r) There must be a reasonable and not a merely conjectural doubt; Clifton v. Walmesley, (1794) 5 T. R. 564 ; Lord Walpole v. Lord Cholmon-deley, (1797) 7 T. R. 138, 149 ; Smith v. Jeffryes, (1846) 15 M. & W. 561 ; 15 L. J. Ex. 325. As to evidence in explanation of the ambiguity, see Thomas v. T., (1796) 6 T. R. 671 ; Bradshaw v. B., (1836) 2 Y. & C. 72; Doe v. Hiscocks, (1839) 5 M. & W. 363, 369; 9 L. J. N. S. Ex. 27.
(s) Doe v. Morgan, (1832) 1 C. & M. 235; 2 L.J. N. S. Ex. 88.
(0 Doc v. Needs, (1836) 2 M. & W. 129 ; Colpoys v. C, (1822) Jac. 451, 464.
(u) See Brodit v. St. Paul, (1791) 1 Ves. 326 ; and see 1 Sch. & L. 36.
In Lyle v. Richards (z) the boundary in a mining sett was described as " a line drawn from J. Y.'s house " to a bound-stone, and the parcels were described by reference to an endorsed plan. The site of J. Y.'s house, from the north-east corner of which the line was drawn, was inaccurately shown on the plan, and the dispute lay between two coterminous grantees as to what was the true boundary between their respective setts; the question depending upon what part of the house was to be taken as the starting point for the line. It was held by Lords Cranworth and Chelmsford that the plan, though inaccurate as to the site of the house, clearly indicated that the line was to be drawn from its north-east corner; and that the judge below was right in directing the jury that the line was to be drawn as marked on the map. Lord Westbury dissented from this view, and held, that as the error in the plan could not be discovered without the aid of extrinsic evidence, there was a latent ambiguity, which was matter of fact to be determined by a jury upon the evidence, not matter of law depending upon the construction of the deed. A plan is part of a deed to be interpreted, like every other portion of the instrument, by the judge; but, as Lord Westbury observed, the question here was not one of the interpretation of the deed itself, or even of the construction of the description of the parcels, but of the inference to be derived from a map as to the relative position of two objects, one of which was proved to be erroneously laid down. As soon as that proof was admitted, it became obvious that the true position in nature of the thing erroneously laid down, and the true relative position of the adjoining objects, must both be ascertained by external evidence (a). The latter seems the sounder view : the construction of the plan was matter of law, so long only as its accuracy was unimpeached : being proved to be inaccurate, it became a question of fact what parcels were comprised in the lease; for it did not follow that, because the boundary line was drawn from the north-east corner of the house as incorrectly represented on the plan, it would have been drawn from the same point, if the true site of the house had been shown (b).
Lyle v. Richards, inference to be drawn from plan.
(x) Bank of New Zealand v. Simpson, 1900, A. C. 182, 189 ; 69 L. J. P. C. 22.
(y) lb. ; Erell v. Henry, 1903, 2
K. B. 740, 753, 754; 72L. J. K. B. 794. (z) (1866) L. R. 1 H. L. 222; 35 L. J. Q. B. 214; see and consider this case.
An agreement merely collateral to the land, not being within the Statute of Frauds (c), may be supported by parol evidence, if not at variance with the terms of a written contract relating to the land (cc). Thus where a lessee before executing a lease stipulated that the rabbits on the farm should be destroyed, and that a clause to that effect should be inserted in the lease, but on the lessor's assurance that the rabbits should be destroyed, signed the lease without insisting on the alteration, parol evidence in support of the agreement was admitted in an action by the lessee against the lessor for damage done by the rabbits (d). The same also applies to a parol collateral warranty (e). A consideration not expressed, but not inconsistent with the consideration which is expressed, may be proved by parol (/).
Agreement merely collateral to the land may be proved by parol.
(a) See judgment of Lord West-bury, ib. 241.
(b) As to tithe commutation maps, ordnance maps, etc. being used as evidence, see sup. 340 and 340, n. (c).
(c) See sup. p. 224.
(cc) Vezey v.Rashleigh, 1904, 1 ch. 634 ; 73 L. J. Ch. 422.
(d) Morgan v. Griffith, (1871) L. R. 6 Ex. 70 ; 40 L. J. Ex. 46 ; Leather Cloth Co. v. Hieronimus, (1875) L. R.
10 Q. B. at p. 146 ; 44 L. J. Q. B.
54 ; Angell v. Luke, (1875) L. R. 10 Q. B. 174; 44 L. J. Q. B. 78; Erskine v. Adeane, (1873) 8 Ch. 756; 42 L. J. Ch. 835, 849 ; Salaman v. Glover, (1875) 20 Eq. 444 ; 44 L. J. Ch. 551 ; Lloyd v. Sturgeon Falls Co., (1901) 85 L. T. 1G2; Boston v. B., 1904, 1 K. B. 124 ; 73 L. J. K. B. 17 ; and see Bank of Australia v. Palmer, 1897, A. C. 540 ; 66 L. J. P. C. 105.
It seems that, both at Law (g) and in Equity (h), the acts of the parties subsequent to the making of the agreement, are, as such, inadmissible for the purpose of determining its meaning. Nor are such acts admissible to show the meaning of the conveyance after execution (i).
Subsequent acts of the parties immaterial.
As a general rule an instrument without a date operates from the date of its execution; but parol evidence is admissible to show that it was not intended to take effect until a future period (A) ; so also, to show that the execution of a dated instrument was merely conditional (/). An executory agreement for a lease will not satisfy the Statute of Frauds, unless it can be collected from the agreement itself on what day the term is to begin ; and there is no inference that the term is to commence from the date of the agreement in the absence of language pointing to that conclusion (m). But where the agreement actually operates as a demise the rule is otherwise (n).
Want of date.
(e) De Lassalle v. Guildford, 1901, 2K. B. 215; 70 L. J. K. B. 533; and cases there cited.
(f) See Leifchild's case, (1866) 1 Eq. 231; Clifford v. Turrell, (1845) 1 Y. & C. C. C. 138 ; 14 L. J. Ch. 390 ; Re The Barnstaple Second Annuitant Soc, (1884) 50 L. T. 424; but see Levy v. Creighton, (1874) 22 W. R. 605 ; sup. p. 929.
(g) Iggulden v. May, (1806) 7 Ea. 237; Simpson v. Margitson, (1847) 11 Q. B. 23 ; 17 L. J. Q. B. 81; Lewis v. Nicholson, (1852) 18 Q. B. 503; 21 L. J. Q. B. 311.
(h) Monro v. Taylor, (1848) 8 Ha. 61, 56; 21 L. J. Ch. 525.
(i) See Prison Commrs. v. Clerk of Peace for Middlesex, (1882) 9 Q. B. D. 506 ; 2V. E. R. Co. v. Lord Hastings, 1900, A. C. 260 ; 69 L. J. Ch. 516.
(k) Davis v. Jones, (1856) 25 L. J.
C. P. 91
(I) Gudgen v. Besset, (1857) 3 Jur. N. S. 212 ; 26 L. J. Q. B. 36, which see as to "delivery"; Pattle v. Hornibrook, 1897, 1 Ch. 25 ; 66 L. J. Ch. 144.
(m) Marshall v. Berridge, (1881) 19 Ch. D. 233 ; 51 L. J. Ch. 329 ; overruling Jaques v. Millar, (1877) 6 Ch. D. 153; 47 L. J. Ch. 544 ; Rock Portland Co. v. Wilson, (1883) 52 L. J. Ch. 214 ; Wyse v. Russell, (1882) 11 L. R. Ir. 173; Re Lander and Bagley, 1892, 3 Ch. 41 ; 61 L. J. Ch. 707 ; Hitmphery v. Cony-beare, (1899) 80 L. T. 40. Cf. Phelan v. Tedcastle, (1885) 15 L. R. Ir. 169, where the date could be collected on the contract; and see sup. p. 241, n. (m).
(n) Doe v. Benjamin, (1839) 9 A. & E. 644 ; Marshall v. Berridge, sup.