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.
(y) Howland v. Norris, (1784) 1 Cox, 59.
(z) Esdaile v. Stephenson, (1822) 1 S. & S. 122 ; Portman v. Mill, (1831) 1R. &M. 696; Woodv.Bernal, (1812) 19 Ves. 221 ; Prcndergast v. Eyre, (1828) 2 Hog. 78, 81, 94, and see Sug. 14th ed. 313, disapproving of the decision in Howland v. Norris, sup., that a tithe rent-charge of 14l. per annum was a matter for compensation. As to a misstatement of the amount of ground rent on the sale of a lease, see Pope v. Garland, (1841) 4 Y. & C. 394 ; 10 L. J. N. S. Ex. Eq. 13.
(a) See cases cited, sup. p. 1086 et scq.
(b) Cuthbert v. Baker, (1093) Sug. 14th ed. 313 ; and see Browne v. Wamock, (1880) 7 L. R. Ir. 3, where, on the grant of a lease for ever, the lessee was not allowed to resist specific performance on the ground of the property being subject to a fee-farm rent smaller than the rent to be reserved by the lease.
(e) M'Queen v. Farquhar, (1805) 11 Ves. 467 ; Bowyer v. Bright, (1824) 13 Pr. 698, 704 ; Stewart v. Marquis Conyngham, (1851) 1 Ir. Ch. R. at p. 573; Re Brewer and Hankins, (1899) 80 L. T. 127.
(d) Binks v. Lord Bokeby, (1818) 2 Sw. 222.
Tithes were inserted by the purchaser's solicitor, but without any increase of price or further treaty on the subject, and. no title could be made to the tithes, Sir J. Leach held that the tithe could have formed no part of the inducement to the contract, and decreed specific performance with an abatement, the same having been offered by the vendor (e).
In the last case the purchaser's agent appears to have entered by letter into a binding agreement to purchase subject to the tithe. A liability to the render of tithe in kind constitutes an objection of a different character from that which arises from the existence of a mere pecuniary liability of defined amount.
As to the 5th of the above heads. - The amount of the consideration to be paid may be a ground of defence by either party ; and its inadequacy, or excess, will, of course, be determined with reference to matters as existing at the date of the contract, irrespectively of subsequent events (f). Inadequacy of consideration is not, however, a defence available to the vendor of an estate in possession (g), unless it can be shown to have originated in fraud, surprise, or misrepresentation (whether wilful or not (h) ), or improper concealment on the part of the purchaser (i), or in advantage taken of the distress of the vendor (k), or, according to Lord Eldon, "unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction" (l), - but this dictum would probably at the present day be hardly sustained in its full extent (m), - or unless the vendor be a trustee for sale (n) : but even in the case of a trustee the Court will enforce against him an agreement to sell at a fair specified price, although a much larger sum may have been subsequently offered and accepted (o).
5th - Matters relating to consideration.
Inadequacy of, when a vendor's defence.
(e) Smith v. Tolcher, (1828) 4 Rus. 302.
(f) See Sug. 14th ed. 273 ; Poole v. Shergold, (1786) 2 Br. C. C. 118, 119; Coles v. Trecothick, (1804) 9 Ves. at p. 24G.
(g) Coles v. Trecothick, sup. ; Burrowea v. Lock, (1805) 10 Ves. 470; Lowther v. L., (1806) 13 Ves. 103 ; Borell v. Dami, (1843) 2 Ha. at p. 450.
(h) Wall v. Stubbs, (1815) 1 Mad. at p. 81 ; Brealey v. Collins, (1831) You. 317 ; and see next note.
(i) See cases cited in n. (g) ; also White v. Damon, (1802) 7 Ves. 30 ; Western v. Russell, (1814) 3 Ves. & B. 187 ; Deane v. Rastron, (1792) 1 Anst. 64 ; Cadman v. Homer, (1810) 18 Ves. 10 ; Turner v. Harvey, (1821) Jac. 169; Wall v. Stubbs, (1815) 1 Mad. 80 ; Lukey v.O 'Donnel, (1805) 2 Sch. & L. at p. 471; Sug. 14th ed. 274.
(k) See Martin v. Mitchell, (1820) 2 J. & AV. 413, 424.
In order to bring a contract within this equitable jurisdiction, there must be a consideration moving from the party who seeks specific performance (p). It is, therefore, immaterial for this purpose that the contract is under seal (q), if, in point of fact, there is no consideration at all.
No consideration, contract under seal.
The distinction which for a long time existed between the purchase of an interest in possession, and of a reversionary interest, as respects mere inadequacy of price being an available defence for the vendor has, as we have seen (r), been removed by the Sales of Reversions Act, 1867. But, although inadequacy per se is no longer a sufficient ground for setting aside such a transaction, yet it is still an element of weight when taken into account with other circumstances (s) ; and, as in the case of an interest in possession, so, d fortiori, in the case of a reversionary interest, if the value is capable of estimation, and the price paid is so grossly inadequate as to be in itself evidence of fraud, this may be a sufficient defence to the purchaser's suit for specific performance. And a degree of inadequacy which would be insufficient to induce the Court to interfere and set aside an executed contract may be a valid defence in a suit for specific performance (t) ; especially if the contract has not been acted on, or attempted to be enforced, until the reversion has fallen into possession (u).
On sale of a reversionary interest;
(/) Coles v. Trecothick, (1804) 9 Ves. at p. 246 ; and see Stilwell v. Wilkins, (1821) Jac. 282.
(m) See Sug. 14th ed. 275 ; Tigers v. Pike, (1842) 8 CI. & F. at p. 645.
(n) Goodwin v. Fielding, (1853) 4 D. M. & G. 90.
(o) S. C.
(p) Ord v. Johnston, (1855) 4 W. R. 37 ; Walrond v. W., (1858) John. 18 ; 28 L. J. Ch. 97.
(q) See Kekewich v. Manning, (1851) 1D.M. &G. 176,188; 21 L. J.Ch.577.
(r) Sup. p. 755 et seq.
(s) Earl of Aylesford v. Morris, (1873) 8 Ch. 484 ; 42 L. J. Ch. 546 ; and see the subject fully discussed, sup. p. 756 et seq.