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.
The primary (and, until recently, probably the only) relief to be obtained in Equity for the non-performance of the contract, is a decree for specific performance. The question whether the Court had or had not under its general jurisdiction power to award compensation for non-performance, in the event of the primary relief failing, is now one of no practical importance; as in the year 1858 Lord Cairns' Act (a) conferred upon it an express power of awarding damages in cases where it had jurisdiction to entertain a suit for specific performance. In addition to this, the Court now has power under the Judicature Act, 1873, s. 24 (7), to award damages even where there is no case for specific performance (b).
Specific performance, the primary-remedy in Equity.
Damages under the Judicature Act, 1873.
Lord Cairns' Act has been repealed by the Statute Law Revision Act, 1883, but the effect of the latter Act is to preserve, if not to enlarge, the jurisdiction which the former one conferred (c) ; and, accordingly, now, whenever the Court has jurisdiction to entertain a suit for specific performance, it may, in its discretion, award damages to the party injured, either in addition to, or substitution for, the primary relief; such damages to be assessed as the Court shall direct. It need hardly be added that the jurisdiction conferred by Lord Cairns' Act and the repealing Act relates to the remedy only, and creates no new right to damages, where none were formerly recoverable (d). It must also be remembered that an alternative claim for damages under these Acts, merely as a substitute for specific performance, cannot succeed, if the plaintiff has himself made the performance of the contract impossible; and in order to obtain damages for the breach in such a case, the plaintiff should at once, on the defendant's becoming incapable of performing his part, amend his claim to that effect (e).
Damages under Lord Cairns' Act, and the Statute Law Revision Act, 1883;
(a) 21 & 22 Vict. c. 27.
(b) Elmore v. Pirrie, (1887) 57 L. T. 333.
(c) Bayers v. Collyer, (1884) 28 Ch. D. 103; 54 L. J. Oh. 1.
The statutory remedy provided by Lord Cairns' and its repealing Act by way of damages is merely subsidiary to the primary equitable relief (/) of specific performance, which, since the Judicature Acts, every Division of the High Court has possessed.
Only awarded when a siut for specific performance would lie.
The principle by which Courts of Equity have been guided in decreeing specific performance of a contract for purchase is, that damages at Law may not, in the particular case, afford a complete remedy (g) : they will, therefore, decline to interfere if the subject-matter of the contract be such that both vendor and purchaser would be reimbursed by damages; as on an ordinary (h) agreement for the sale of stock (i). In the case of land, the purchaser's right to sue can seldom if ever be questioned upon this ground; for the land may, to him, have " a peculiar and special value " (k).
Principle on which specific performance decreed.
The fact of the land, the subject-matter of the contract, being out of the jurisdiction, is no bar to the action, if the parties are subject to the jurisdiction of the Court (/). But this must be taken subject to this qualification, that the Court will not decide questions relating to the title to immoveable property situated abroad (m).
Where the land is out of the jurisdiction.
(d) Bock Portland Co. v. Wilson, (1883) 52 L. J. Ch. 214.
(e) Hipgrave v. Case, (1885) 28 Ch. D. 356 ; 54 L. J. Ch. 399 ; Nicholson v. Brovon, (1897) W. N. p. 52.
(f) Lavery v. Purssell, (1888) 39 Ch. D. 508 ; 57 L. J. Ch. 570.
(a) See Adderlcy v. Dixon, (1824) 1 S. & S. at p. 610 ; Paris Chocolate Co. v. Crystal Palace Co., (1855) 3 Sm. & G. 119.
(h) Doloret v. Rothschild, (1824) 1
S. & S. 590 ; 2 L. J. (O. S.) Ch. 125 ; Pooley v. Budd, (1851) 14 Beav. 34.
(i) Cud v. Butter, (1719) 1 P. W. 570 ; 2 Wh. & T. L. C. 7th ed. 416 ; Nutbrown v. Thornton, (1804) lOVes. 159, 161.
(k) Adderley v. Dixon, (1824) 1 S. & S. 610.
(I) Pain v. Lord Baltimore, (1750) 1 Ves. sen. 445 ; 1 Wh. & T. L. C. 7th ed. 755 ; Jackson v. Petrie, (1804) 10 Ves. 164 ; Cood v. C, (1863) 33
A vendor has a mere pecuniary demand against his purchaser who refuses to complete, which may be enforced by an action at Law. If the conveyance has been executed, he may in such an action recover the purchase-money ; if no conveyance has been executed, he has the land, and may recover the difference between the price agreed upon and the estimated price on a resale; and, in either case, any special damage which he may have sustained by reason of the breach. His case, therefore, is not one in which the relief at Law is inadequate ; but, upon the principle of affording mutual remedies, Equity has nevertheless entertained a vendor's bill (n) in every case where the purchaser might sue for specific performance of the contract; and it makes no difference whether the consideration be a life annuity, or a gross sum (o) ; and, although the consideration be paid, the right of the vendor to be relieved from liabilities attaching to the ownership of the land will sustain the suit (p).
Vendor may sue in Equity for the purchase-money.
Upon a purchase by a railway company, it is no defence to the landowner's suit, that the price of the land, and the compensation for damage consequential on its purchase, are by the agreement amalgamated in a single sum (q).
Purchase hy railway company.
Beav. 314 ; Black Point Syndicate v. Eastern Concessions, Id., (1898) 79 L. T. 658 ; Fry, 4th ed. 51 et seg. As to enforcing claim against the proceeds of sale of land out of the jurisdiction, see Waierhouse v. Stans-feld, (1851) 9 Ha. 234 ; (1852) 10 Ha. 254 : see also, as to foreclosure of a mortgage of land in an English colony, Toller v. Carteret, (1705) 2 Vern. 494; Paget v. Ede, (1874) 18 Eq. 118; 43 L. J. Ch. 571.