Defect in title to one of several lots.

(d) Nouaille v. Flight, (1844) 7 Beav. 521 ; 13 L. J. Ch. 414 ; Re Haedicke and Lipski, 1901, 2 Ch. 666 ; 70 L. J. Ch. 811. (e) Sng. 14th ed. 31.5.

Knowledge by the purchaser of a defect when he enters into the contract may be fatal, not only, as we have seen (g), to a claim by him for specific performance with abatement, but even in some cases to his defence to a vendor's action against him for specific performance. "When the contract is silent as to the title which is to be shown by the vendor, and the purchaser's right to a good title is merely implied by law, that legal implication may be rebutted by showing that the purchaser had notice before the contract that the vendor could not give a good title" (A). Accordingly a purchaser has been held to have lost his right to resist specific performance and his right to compensation or abatement (i) on the ground of the estate being of a different tenure (k), or subject to a liability affecting its beneficial enjoyment {e.g., a right of sporting (/) ), or of there being no title to a material part of it (m), or of a variation from the description in the particulars (n), where, at the time of entering into the contract, he had knowledge of the defect. And the rule has been once or twice extended to cases where the defect was patent (o), and where it might have been discovered by due diligence (p). So, too, he may lose his right if, after having become acquainted with it, he, without insisting thereon, proceed in the treaty (q) ; or, a fortiori, take possession (r). If, although insisting on the objection, he take possession and endeavour to prevent the vendor from removing the defect, or even proceed in the treaty, he may be compelled to complete with an abatement (s) ; and when a railway company agreed to buy from a tenant for life an estate not within their special Act, and to procure an Act enabling him to convey the fee, which they failed to do, they were ordered to pay the entire purchase-money into Court, upon his conveying his life estate (t).

Benefit of defence, how lost to purchaser.

(f) Per Lord Brougham in Casa-major v. Strode, (1834) 2 M. & K. at p. 725 ; Poole v. Shergold, (1786) 2 Br. C. C. 118 ; Lord Eldon's remarks in Drewe v. Hanson, (1802) 6 Ves. 675, as stated Sug. 14th ed. 320 ; Lewin v. Guest, (1826) 1 Rus. 325.

(g) Sup. p. 1082.

(h) Per Fry, J., He Gloag and Miller, (1883) 23 Ch. D. at p. 327 ; 52 L. J. Ch. 654.

(i) See Homer v. Williams, (1839)

1 Jones & C. 274.

(k) Fordyce v. Ford, (1794) 4 Br. C. C. 494 ; and see sup. p. 1086.

(I) Burnett v. Brown, (1820) 1 J. & W. 168.

(m) See Drewe v. Hanson, (1802) 6 Ves. at p. 679 ; Martin v. Cotter, (1846) 3 J. & L. at p. 508.

(n) Dyer v. Hargrave, (1805) 10 Ves. 505, 508.

(o) Bowles v. Bound, (1800) 5 Ves. 508 ; Davies v. Sear, (1869) 7 Eq. at

" But, if the contract expressly provides that a good title shall be shown, then, inasmuch as a notice by the vendor that he could not show a good title would be inconsistent with the contract, such a notice would be unavailing, and whatever notice of a defect in the title might have been given to the purchaser, he would still be entitled to insist on a good title" (u). Thus, where a vendor agreed to sell freeholds and to make "a good marketable title," and it appeared that the property was in fact subject to restrictive covenants of such a kind as were inconsistent with a marketable title, it was held, in an action by the purchaser to recover his deposit, that evidence that the purchaser knew of the defect was not admissible to vary the express contract, and that he was entitled to repayment of his deposit (x).

Where contract is expressly for good title.

P. 429; 38 L. J. Ch. 535; but, qu., see Cato v. Thompson, (1882) 9 Q. B. D. at p. 617 ; Bug. 14th ed. 328.

(p) James v. Lichfield, (1869) 9 Eq. 51; 39 L. J. Ch. 248; Carroll v. Keayes, (1873) 8 I. R. Eq. 97; but these cases are of doubtful authority, see sup. pp. 1083, 1084.

(q) Cinth v. Sambourne, (1794) 4 Br. C. C. 498; Dreuc v. Hanson, (1802) 6 Yes. at p. G79 ; Dyer v. Hargrove, (1804) 10 Ves. 508 ; Kingsley v. Young, (1809) 17 Ves. 468; (1811) 18 Ves.

207; Farebrother v. Gibson, (1857) 1 D. & J. 602.

(r) Burnell v. Brown, (1820) 1 J. & W. 168 ; Re Gloag and Miller, (1883) 23 Ch. D. 320; 52 L. J. Ch. 654.

(s) Calcraft v. Roebuck, (1790) 1 Ves. 221.

(t) E. C. R. Co. v. llawkcs, (1855) 5 H. L. C. 331 ; 22 L. J. Ch. 77.

(u) Per Fry, J., Re Gloag and Miller, (1883) 23 Ch. D. 327; 52 L. J. Ch. 654.

(x) Cato v. Thompson, (1882) 9 Q. B. D. 616.

Nor will a purchaser be allowed to resist specific performance, if the misdescription or defect is immaterial; as, e.g., where an estate having been sold with what was represented in general terms as an unlimited right of common, the same proves to be a right of common only for sheep (y) ; or on the ground of the estate being subject to quit-rents or rent-charges of small amount (z), or of a slight misdescription of the vendor's interest on a sale of leasehold (a), or quit-rents (b), or a want of title to immaterial (c) portions of the estate. But in such cases, in the absence of a condition excluding compensation, the purchaser who is compelled to specifically perform the contract will be allowed an abatement for the defect.

Immaterial defects in title not available as a defence to purchaser; limited right of common; small quit-rents or rents-charge ;

So, where on the sale of 140 acres, the particulars stated that about 32 acres were tithe-free, and no evidence of exemption could be produced, Lord Eldon held that the right to the tithe of this part of the property could not be considered the inducement to the purchase; and decreed specific performance with an abatement (d). So, where the purchaser's agent having by letter agreed to purchase an estate, consisting of a house and nineteen acres of land, twelve of which were occupied by the house, offices, garden, and pleasure-grounds - no mention being made of tithes- and on a more formal contract being prepared, the great tithe, when the freedom from tithe was no part of inducement to purchase.