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.
Instances of the rule.
(q) Futon v. Rogers, (1813) 1 Ves. & B. at p. 353.
(r) Mortlock v. Buller, inf. ; Hill v. Buckley, (1810) 17 Ves. 401; (1814) 3 Ves. & B. 192.
(s) Mortlock v. Buller, (1804) 10 Ves. 315 ; Sudd v. Lascelles, 1900, 1 Ch. 815, 818 ; 69 L. J. Ch. 396.
(0 Re Terry and White, (1886) 32
(u) Barret v. Ring, (1854) 2 Sm. & G. 43.
(x) Wilson v. Williams, (1857) 3 Jur. N. S. 810.
(y) Netthorpe v. Holgate, (1844) 1 Col. 203.
(z) Dale v. Lister, cited 16 Ves. 7.
(a) Milligan v. Cooke, (1808) 16 Ves. at pp. 11, 12; but, semble, the Court will not now consider the comparative value of co\enants; see Ridgway v. Gray, (1819) 1 M. & G. 109; and Law v. I'rhvin, (1848) 16 Si. 390 ; Farebrother v. Gibson, (1857) 1 D. & J. 602 ; Cato v. Thompson,
(1882) 9 Q. B. D. 618
(b) Barnes v. Wood, (1869) 8 Eq. 424 ; 38 L. J. Ch. 683 ; and see Wilson v. Williams, (1857) 3 Jur. N. S. 810; and see and distinguish Castle v. Wilkinson, (1870) 5 Ch. 534 ; 39 L. J. Ch. 843.
(c) Painter v. Newby, (1853) 11 Ha. 26 ; see p. 30 as to church leases.
(d) Jones v. Evans, (1848) 17 L. J. Ch. 469.
(e) Oceanic Navigation Co. v. Suther-berry, (1880) 16 Ch. D. 236, 246 ; 50 L. J. Ch. 308.
(f) Western v. Russell, (1814) 3 Ves. & B. 187, 192.
(g) Hooper v. Smart, (1874) 18 Eq. 6S3.
(h) Burrow v. Scammell, (1881) ]9 Ch. D. 175; 51 L. J. Ch. 296; Hexter v. Rearer, 1900, 1 Ch. 341 ; 69 L. J.
Ch. 146 ; ef. Lumley v. Ravenscroft, 1895, 1 Q. B. 683; 64 L. J. Q. B. 441.
(i) Morrocks v. Rigby, (1878) 9 Ch. D. 180; 47 L. J. Ch. 800.
(k) A.-G. v. Bay, (1749) 1 Ves. sen. 218, 224; and see Barker v. Cox, (1876) 4 Ch. D. 464 ; 46 L. J. Ch. 62. See now Conv. Act, 1881, s. 4.
(/) Mackenzie v. Hesketh, (1877) 7 Ch. D. 675 ; 47 L. J. Ch. 231.
The right, however, of a purchaser to require specific performance, with an abatement of the purchase-money, is subject to the vendor's right to rescind the contract, where such a right is reserved by the conditions (m). Thus, it has been held that a condition for rescinding the contract, if counsel should be of opinion that a marketable title could not be made, enabled the vendor to rescind upon counsel rejecting the title to one undivided third of the property (»). And, a fortiori, in the converse case, where the purchaser had a right to rescind, in case his objections to title were not removed, and he gave notice of rescission on the ground of the vendor's want of title to a small portion of the estate, it was held that he could not be compelled to complete with an abatement (o). But when the vendor agreed to sell the fee, with full knowledge that he could not do so without the concurrence of a tenant for life, and failed to obtain such concurrence, he was not allowed to avail himself of the condition for rescission (p). So, where there was a condition enabling the vendor to rescind if unwilling to comply with a requisition as to title or conveyance, Pearson, J., held that he was not entitled to put the condition into force because the purchaser objected to take a conveyance, subject to an obligation to repair which was not mentioned in the particulars or conditions (g). The question of the vendor's right to rescind will be found more fully treated above in Chap. IV. s. 3.
Vendor's rights under condition for rescission.
(m) Re Terry and White, (1886) 32 Ch. D. 14; 55 L. J. Ch. 345; Heppenstall v. Hose, (1884) 33 W. R. 30.
(n) Williams v. Edwards, (1827) 2 Si. 78; and see Mawson v. Fletcher, (1870) 6 Ch. 91 ; 40 L. J. Ch. 131; Re Terry and White, sup.
(o) Ashton v. Wood, (1857) 3 Jur. N. S. 1104 ; but see Hanbury v. Lichfield, (1833) 2 M. & K. 629, where-the purchaser had notice of the defect -when he entered into the contract.
(p) Nelthorpe v. Holgate, (1844) 1 Col. 203 ; but qu. now, see Gray v. Fowler, (1873) L. R. 8 Ex. 249, 282; 42 L. J. Ex. 161.
(q) Hardman v. Child, (1885) 28 Ch. D. 712; 54 L. J. Ch. 695; but cf. Be Glenton and Haden, (1885) 53 L. T. 434; Re Terry and White, sup.; Re Deighton and Harris, 1898, 1 Ch. 458 ; 67 L. J. Ch. 240, which decided that the ordinary condition applies to matters of conveyance as well as title ; Re Isaacs and Towell, 1898, 2 Ch. 285; 67 L. J. Ch. 508.
We have seen that, as a general but not universal rule, every purchaser has a right to take what he can get, with compensation for what he cannot get (r) ; but he cannot claim a conveyance of an interest to which a vendor shows a doubtful or defective title, with an abatement in respect of the imperfection in title (s), except, perhaps, where the defect is of a temporary character, or is otherwise a fit subject for compensation; as, e.g., where a good title was deduced, but the vendor's wife refused to release her dower, and specific performance was decreed at the purchaser's suit with a compensation (7). Conduct or acquiescence on the part of the purchaser which amounts to an acceptance of the title, may yet be insufficient as a waiver of his right to compensation (u).
No abatement for defect in title.
Clearly, however, in carrying out the above rule of making the vendor convey what he has with an abatement for what he has not, the Court is either making a new contract between the parties, or is at best executing the original contract only cy pres (x). On this ground, it seems that, to avoid hardship, the relief should be confined to cases where the actual subject-matter is substantially the same as that stated in the contract (y). The relief may also be refused on the ground of the difficulty of assessing proper compensation (s). But the Court will decree specific performance of an agreement for a lease of an undivided moiety of mineral property, in spite of the difficulty there may be in making arrangements for its proper working with the other co-owners (a). Cases, too, might occur where, on the ground of serious hardship, the Court would refuse to assist a purchaser : as, e.g., in the case, put by Lord St. Leonards (b), of a vendor showing a good title to his mansion-house and park, but having no title to a "large adjoining estate held and sold with it." Apparently on this ground, and partly on the ground of mistake by the vendors in a case where, on a contract to sell the entirety of a lace manufactory, it appeared that the vendors had only nine-sixteenths, and that the remaining shares clearly belonged to another party, who had also a charge on the vendors' shares for a sum nearly equal to the purchase-money, Shadwell, V.-C, on an interlocutory application, refused the purchaser specific performance with an abatement (c). But this case, it is submitted, is not now likely to be followed. For, though the difference between the property contracted to be sold and that which the vendor can convey may be great, the Court will generally, notwithstanding this circumstance, enforce the contract where it sees that its intention is the sale of whatever interest the vendor has (d).