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.
If the purchaser be unwilling to complete with an abatement, he may resist specific performance (m), on the ground of the tenure of the property, or of a material part of it, varying from that to which he is entitled under the contract; e.g., he will not be compelled to take a term (even for 4,000 years) (n), or a copyhold (o), for a freehold, or mere sheep walks for a freehold (p), or enfranchised copyhold for a freehold, where the rights of the lord in respect of minerals are reserved (q).
"Want of title, where a defence for purchaser declining abatement.
When estate is of different tenure;
So, also, the purchaser may resist specific performance on the ground of the property being held in a manner different from that which is expressed or implied in the contract; e.g., he will not be compelled to take an assignment of an underlease, instead of an original lease (r) ; or of a redeemable, instead of an absolute interest is) ; or of an or held in different manner;
(I) See notes to Woollam v. Seam, 2 Wh. & T. L. C. 7th ed. 519.
(m) If he relies on want of title as a defence, he should not formerly have filed a cross bill to have the contract rescinded: Siltony. Barrow, (1780) 1 Ves. 284. So, now he should not counterclaim to that effect.
(n) Thrive v. Corp, (1803) 9 Ves-3G8 ; and see Fordyce v. Ford, (1701) 4 Br. C. C. 494, cited (180G) 13 Ves. 78 ; Wright v. Howard, (1823) 1 S. & S. 100; Price v. Ley, (18C3) 4 Gif. 235.
(o) Twining v. Morrice, (1788) 2 Br. C. C. 320. 331 ; Hirk v. Phillips, (1721) Pr. Ch. 575; Bug. 14th ed. 303 ; Ayles v. Cox, (1852) 16 Bear.
23 ; unless the incidents of tenure are trivial, sup. p. 150.
(p) Vancouver v. Bliss, (1805) 11 Ves. 458 ; seep. 1071.
(q) Upperton v. Nicholson, (1871) 6 Ch. 436; 40 L. J. Ch. 401.
(r) Madeley v. Booth, (1848) 2 De G. & S. 718 ; Brumfdt v. Morton, (1857) 3 Jur. N. S. 1198 ; Re Beyfus and Masters, (1888) 39 Ch. D. 110. But it is otherwise where, on the particulars, it is obvious that what is being- sold is an underlease : Camber-u-ell Bldg. Soc. v. Holloway, (1879) 13 Ch. D. 754 ; 49 L. J. Ch. 361; Broom v. Phillips, (1806) 74 L. T. 459.
(s) Coverley v. Burrell, (1821) Sug. 14th ed. 299.
Improved, instead of a ground, rent (t) ; or of a ground rent to which the remedies of a reversioner are not incident (u) : or on the ground of no title being shown to that extent of interest which he contracted for ; e.g., he cannot be compelled to take, instead of an estate in possession, a reversion expectant on a life estate (x), or on a subsisting, or, d fortiori, a reversionary lease (y); or a life estate, and (subject to an intervening estate tail) the remainder in fee, instead of the fee simple in possession (z) : nor, having contracted for the entirety, can he be compelled to take undivided parts of the estate (a), even although the vendors were tenants in common of the entirety (b). The same decision has been come to, where, on a contract for two-sevenths of an estate, a title could only be made to one-seventh (c). Nor will the purchaser, on the purchase of a leasehold interest, be compelled to accept a term "considerably less" (d) than that contracted for; e.g., a term for six instead of sixteen years (e) ; or one which, instead of being twelve and a half years certain, may be determined at the lessor's option at the end of five years (f). So again, he may resist specific performance on the ground of no title being shown to a material part of the estate ; such materiality consisting either in the proportion which such part bears to the entirety, or in its being important with regard to the enjoyment of the residue, or as possessing an adventitious value in the estimation of the purchaser (g) ; e.g., "a purchaser cannot be compelled to take compensation for a large portion of the estate " (h); as, where the property was stated to contain 753 square yards or thereabouts, but in fact contained only 573 square yards (t) : so, in the case of building land, a deficiency inconsiderable as regards actual quantity may be material by reason of its interfering with the profitable user of the land for building purposes, as when the deficiency exists mainly in the frontage measurement (k). Nor, having entered into a single contract for two estates, could the purchaser probably be compelled to take one without the other (/), although the estate with the defective title were let upon, and sold subject to, a fee-farm grant at a large rent (m) : so, where on the purchase of a mansion and 700 acres, the title to 12 acres proved defective, such 12 acres being opposite the park gates and containing brick earth, which rendered it probable that they might be built upon, the purchaser was held free (n) : so, also, where, on the purchase of a wharf and jetty, no title could be made to the jetty (o) : and where no title could be made to a strip of land forming the frontage to the highway (p). So, he may resist specific performance on the ground of the existence of incumbrances or liabilities which would interfere .with the enjoyment of the estate; e.g., liabilities to tithe (if the estate is sold as tithe free) or to a modus or commuted rent-charge (q) ; or to a ground rent, not mentioned in the particulars, on the purchase of leaseholds (r) ; or to rights of mining (s), common (s), or waterway, with power of entry for the purpose of making, opening, or cleansing water-courses, or to rights of entry for making reservoirs, or of planting ladders for the repair of adjoining houses (t), or to an easement in another to use the kitchen for certain purposes (u), or to restrictive covenants as to user (x), or to a right of sporting (y), or to the repairs of the chancel of a church (z), or to quit-rents or rent-charges, if of a large amount (a), or to keep up the fences, water-courses, etc, upon the land itself (b), have been held to be defects which do not admit of compensation.