Ireland (2). But the tendency of recent decisions is against such an extension of the doctrine of constructive notice to the relation of vendor and purchaser, while the matter rests in contract (a). And it is conceived that, unless the undisclosed tenants' rights are of a very trifling nature (b), a vendor who had not disclosed equities, existing as between him and his tenants, could not enforce a contract against a purchaser, on the ground that the latter knowing of such tenancy had constructive notice of such equities (c). Where a plaintiff had obtained an agreement for an exchange with immediate possession, under a false representation to the defendant that the tenants of the latter would accede to the arrangement, he was not allowed to claim specific performance subject to the tenants' interests (d).

Right to abatement lost, by contracting with notice of defect.

(l) Bainbriclge v. Kinnaird, (1863) 32 Beav. 346.

(m) Seaman v. Vaudrey, (1809) 16 Ves. 390; Martin v. Cotter, (1846) 3 J. & L. 496, 509 (right of turbary and getting limestone) ; but see Smithson v. Powell, (1862) 20 L. T. (O. S.) 105 ; Ramsden v. Hirst, (1858) 4 Jur. N. S. 200 ; 27 L. J. Ch. 482, where the mines had been abandoned, though the right to work them continued.

(n) Sug. 14th ed. 312.

(o) Peacock v. Poison, (1848) 11 Beav. 355 ; 18 L. J. Ch. 57.

(p) Lawrenson v. Butler, (1802) 1 Sch. & L. 13, 19 ; Harnett v. Yielding, (1805) 2 Sch. &L. 549, 560; Nelthorpe v. Holgate, (1844) 1 Col. 203, 215.

(q) Castle v. Wilkinson, (1870) 5 Ch. 534; 39 L. J. Ch. 843.

(r) Rudd v. Lascelles, 1900, 1 Ch. 815 ; 69 L. J. Ch. 396.

(s) Morris v. Preston, (1802) 7 Vcs. at p. 557.

(t) Embury v. Litchfield, (1833) 2 M. & K. 629.

(u) Farebrother v. Gibson, (1857) 1 D. & J. 602, 605.

(x) Edwards- Wood v. Marjoribanks,

(1858) 3 D. & J. 329 ; (1860) 7 H. L. C. 806 ; 28 L. J. Ch. 298 ; 30 L. J. Ch. 176.

(y) James v. Lichfield, (1869) 9 Eq. 51 ; 39 L. J. Ch. 248.

But the knowledge of the purchaser is not always fatal to his claim for specific performance with compensation. Thus, where an estate was limited to such uses as A. and B., husband and wife, should appoint, and, in default of appointment, to the use of trustees during B.'s life for her separate use, with remainder to A. in fee, and A. entered into a contract for sale to C, who had notice of the settlement, agreeing to obtain the concurrence of all necessary parties, and after C. had actually paid his purchase-money to the trustees, B. refused to concur in the conveyance, Bacon, V.-C, decreed specific performance at the suit of the purchaser, with compensation in respect of B.'s life interest, and with a lien for such compensation on the purchase-money in the hands of the trustees (c). "Where property was put up for sale by auction under particulars and conditions which stated that it was subject to a term of years less by eight years than was really the case, and the purchaser took out a summons under the Vendor and Purchaser Act, 1874, asking that he might be allowed compensation in respect of the mis-statement, which the vendor refused, on the ground that the purchaser knew the real facts and gave proportionately less for the property; Kay, J., held that he was entitled to compensation under the usual condition on that behalf (/).

Knowledge not invariably fatal to claim forabatement.

(z) Carroll v. Keayes, (1873) 8 I. R. Kq. 97.

{a) Caballero v. Henty, (1874) 9 Ch. 447 ; 42 L. J. Ch. G35 ; and see, as to the doctrine, sup. pp. 877, 884.

(b) Sail v. Smith, (1807) 14 Ves. at p. 433.

(e) Cabellero v. Henty, sup.; Phillips v. Miller, (1875) L. R. 10 C. P. 420, 427 ; 43 L. J. C. P. 74 ; 44 L. J. C. P. 265.

(d) Lord Clermont v. Tasburgh, (1819; 1 J. &W. 112.

(r) Barker v. Cox, (1870) 4 Ch. D. 464 ; 4G L. J. Ch. 62 ; and see Wilson v. Williams, (1857) 3 Jur. N. S. 810, a similar case before Wood, V.-C.

The cases which have been considered above, being cases in which the purchaser, having had knowledge of a defect, seeks specific performance with abatement against the vendor, must be distinguished from those in which the knowledge of the purchaser is relied on by the vendor in an action to enforce a defective title against a purchaser. This latter class of cases has already been considered (g).

It may occasionally happen that the vendor's interest is found to exceed that which he contracted to sell; in which case he must, as a general rule, make good the latter to the best of his ability : for instance, where a vendor, in fact seised in fee, contracted to sell the estate as copyhold, stating it to be equal in value to freehold, it was held that he ought (but for other grounds of defence) to have conveyed the freehold (h). It has, however, been held, that, on an agreement to assign a lease, Equity cannot decree an underlease, although the assignment would induce a forfeiture ; since the vendor's motive for agreeing to assign may have been to escape the rent and covenants (i) ; but the defence, as Lord St. Leonards remarks, is one which could seldom be set up by a vendor (k).

Vendor, how far bound to make good interest contracted for, out of his own higher interest.

(/) Lett v. Randall, (1883) 49 L. T. 71. In English v. Murray, (18S3) ib. 35, where the purchaser attempted to get off his contract on the ground of a defect, of which he had been warned by the vendor, he was held to his bargain ; but his right to compensation under the common condition was admitted by the vendor.

(g) Sup. pp. 124 et seq., 148 etseq.; inf. p. 1091 ; and see Re Gloag and Miller, (1883) 23 Ch. D. 320; 52 L. J. Ch. 654 ; Cato v. Thompson, (1882)9 Q. B. D. 616.

(h) Twining v. Morrice, (1788) 2 Br. C. C. at p. 331.

(i) Anon., Sug. 14th ed. 301 ; and consider Bart left v. Salmon, (1855) 6 D. M. & G. 33.

(k) lb.

Although a purchaser may not be entitled to specific performance of the contract with an abatement, it does not follow that/the vendor can enforce the contract against him, as it stands; different considerations applying to misdescription and error when regarded as elements in a purchaser's action for specific performance with abatement, and when regarded as elements in a purchaser's defence to a vendor's action (/).