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.
Or no title shown to extent of interest contracted for; or to material part of estate;
(t) Stewart v. Alliston, (1815) 1 Mer. 26.
(u) Langford v. Sehnes, (1857) 3 K. & J. 220 ; Smith v. Watts, (185&) 4 Dr. 338.
(x) Collier v. Jenkins, (1831) You. 295 ; Hughes v. Jones, (18G1) 3 D. F. & J. 307 ; 31 L. J. Ch. 83.
(y) Linehan v. Cotter, (1844) 7 Ir. Eq. R. 176 ; Sug. 14th ed. 304.
(z) Sug. 14th ed. 308.
(a) Dalby v. Fallen, (1830) 1 R. & M. 296 ; see Price v. Griffith, (1851) 1 D. M. & G. 80 ; 21 L. J. Ch. 78 ; Re Arnold, (1880) 14 Ch. D. 270.
(b) A.-G. v. Day, (1749) 1 Ves. sen. 218, 224.
(c) Roffey v. Shalleross, (1819) 4 Mad. 227 ; cited (1834) 2 M. & K. 726.
(d) Sug. 14th ed. 299; see Mort-lock v. Butter, (1804) 10 Ves. at p. 306; Halsey v. Grant, (1806) 13 Ves. 77, 78 ; Vignolles v. Bowen, (1847) 12 Ir. Eq. R. 194, 198.
(e) Long v. Fletcher, (1709) 2 Eq. Ca. Abr. 5.
(f) Weston v. Savage, (1879) 10 Ch. D. 736 ; 48 L. J. Ch. 239.
(y) See Knatchbull v. Grueber, (1815)
Or to one of two estates sold; or where incumbrances, etc. exist which would affect enjoyment;
1 Mad. 167 ; and Halsey v. Grant, (1806) 13 Ves. 79; Magtennis v. Fallon, (1829) 2 Moll, at p. 588 ; Stewart v. Marq. Conyngham, (1851) 1 Ir. Ch.R. 534, 573.
(h) Sug. 14th ed. 316.
(i) Portman v. Mill, (1826) 2 Rus. 570 ; 8 L. J. N. S. Ch. 161; Whitte-more v. W., (1869) 8 Eq. 603; in which case there was a condition that no compensation should be allowed for misdescription; and see Re Fawcett and Holmes, (1889) 42 Ch. D. 150 ; 58 L. J. Ch. 763.
(k) Cf. Brewer v. Brown, (1884) 28 Ch. D. 309 ; 54 L. J. Ch. 605.
(l) Prendergast v. Eyre, (1828) 2
Hog. 78, 81.
(m) See S. C, p. 94; Sug. 14th ed. 313, 315.
(n) Knatchhull v. Grueber (1815) 1 Mad. 153; (1817) 3 Mer. 124, 141; and see (1834) 2 M. & K. at p. 728.
(o) Peers v. Lambert, (1844) 7 Beav. 546 ; and see Drewe v. Hanson, (1802) 6 Ves. 678 ; (1806) 13 Ves. 78 ; Sug. 14 th ed. 316, where earlier decisions of a contrary tendency have been disapproved of.
(p) Perkins v. Ede, (1852) 16 Beav. 193.
(q) Ker v. Clohery, (1819) Sug. 14th ed. 321; Binks v. Lord Rokeby, (1818) 2 Sw. 222.
Upon a similar principle, it has been held, at Law, that a purchaser having contracted for the assignment of a subsisting lease, cannot be required to accept a new lease as original lessee; his liability being greater under the lease than it would be under the assignment (c). So, where, on or matters exist which increase liability of purchaser;
(r) Jones v. Rimmer, (1880) 14 Ch. D. 588; 49 L.J. Ch. 775.
(s) See Seaman v. Vaicdrey, (1810) 16 Ves. 390; Sug. 14th ed. 312; Martin v. Cotter, (1846) 3 J. & L. 496, 509 ; Hayford v. Griddle, (1855) 22 Beav. 480 ; Ramsden v. Hurst, (1858) 4 Jur. N. S. 200; 27 L. J. Ch. 482; Kerr v. Pawson, (1858) 25 Beav. 394 ; 27 L. J. Ch. 594 ; Pretty v. Solly, (1859) 26 Beav. 606; and see Upperton v. Nicholson, (1871) 6 Ch. 436; 40 L. J. Ch. 401.
(t) See Shackleton v. Sutcliffe, (1847) 1 De G. & S. 609, where only about four and a half out of thirty acres contracted for were subject to the easements. As to the importance of such an easement, see Goodhart v. Hyett, (1883) 25 Ch. D. 182 ; 53 L. J. Ch. 219.
(u) Heywood v. Mallalieu, (1883) 25 Ch. D. 357; 53 L. J. Ch. 492.
(x) Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778; 51 L. J. Q. B. 544 ; 55 L. J. Q. B. 280; and see Cato v. Thompson, (1882) 9 Q. B. D. 616.
(y) See Burnell v. Brown, (1820) 1 J. & W. 172 ; Sug. 14th ed. 311.
(z) Forteblow v. Shirley, (1806) cited 2 Sw. 223.
(a) Portman v. Mill, (1831) 1 R. & M. 696.
(b) Larkin v. Lord Posse, (1846) 10 Ir. Eq. R. 70. See as to a charge on a living in favour of Queen Anne's Bounty not entitling a purchaser to compensation, Edwards- Wood v. Mar-joribanhs, (1858) 3 D. & J. 329 ; (1860)
7 H. L. C. 806 ; 28 L. J. Ch. 298 ; 30 ib. 176.
(c) Mason v. Corder, (1816) 2 Marsh. 332 ; see Sug. 14th ed. 300, where the case seems to be cited doubtfully ; but the principle seems a sound one; and Bee Partington v. Hamilton, (1854) Kay, at p. 558 ; 23 L. J. Ch. 1000 ; Barllett v. Salmon, (1855) 6 D. M. & G. 33 ; Hayford v. Criddle, (1855) 22 Beav. 477 ; Creswell v. Pavidson, (1887)56 L. T. 811.
The purchase of leaseholds, the lease was found to contain covenants to build additional houses, and to deliver them up at the end of the term, and the houses had not been built, but the covenant to build had been waived; it was held that the liability under the covenant to deliver up at the end of the term was a sufficient defence to the suit; although such liability might have been escaped by assigning the term to a pauper even only a day before its termination (d).
Where only part of an estate is affected by a liability which, if affecting the entirety, would enable the purchaser to resist specific performance, the purchaser's right to avoid the contract would seem to depend upon whether the part so affected is material to the enjoyment of the residue. Where the part so affected is not material to such enjoyment, and is not the purchaser's principal object in purchasing, he may, it seems, be compelled to take the remainder of the land at a proportionate price ; but, in such a case, there would be a reference to chambers, if the Court thought it necessary, to inquire as to the materiality of the part to which a title cannot be made (e).
Or affect enjoyment of material part.
Where, on the purchase of several lots by the same person, the title to one or more proves defective, this may or may not, according to circumstances, be a ground for the purchaser resisting specific performance in respect of the remaining lots. An express agreement that the purchaser shall not take any unless he can have all, will be sufficient to blend the whole into one contract; "but the same complication may be effected, or rather evidenced, without any such agreement. It is a question of circumstances; the lots may be connected from their nature ; it may be shown that the purchase of the one was made with reference to the other. A mere suggestion by the party, a mere statement of his inclination or fancy, will not be sufficient; nor may the proof of anything of a private nature, not known to the vendor, suffice ; but where, upon matters known to both parties, he can ground his proof that the one transaction was dependent on the other, he complicates the two, so as to make the contract one, although there may have been no express statement that he was to take none, if he might not have all"(/).