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.
(t) See Ryle v. Swindells, (1824) M'Cl. 519 ; Playford v. P., (1845) 4 Ha. 546; Tigers v. Pike, (1842) 8 C. & F. at p. 645.
The fact of the sale being by auction, although not absolutely conclusive (x), much increases the difficulty of showing fraudulent inadequacy (y) ; and the fact of neither party being aware of the value of the estate at the time of the contract, seems to reduce the chance of succeeding in such a defence to a minimum; as in a case where a person sold, for what proved to be one-tenth only of its real value, the allotment to which he might be entitled under an expected Inclosure Award (s).
Sale of unascertained interest.
It is laid down by Lord St. Leonards (a), that "if an uncertain consideration (as a life annuity) be given for an estate, and the contract be executory, Equity, it seems, will enter into the adequacy of the consideration."However, in a case (b) before Sir J. Wigram, V.-C, his Honor, in deciding that an inadequacy of seven or eight per cent, was insufficient as a defence, made observations indicating a doubt whether the older cases are to be regarded as authorities ; they having been decided before the modern rule of treating inadequacy of price in contracts for the purchase of interests in possession as nothing more than an ingredient in evidence, was perfectly established ; at any rate, the circumstance of the contingency having turned out unfavourably to the vendor, is no ground of defence (c).
Consideration uncertain in amount, whether question of inadequacy-excluded ;
But though, in sales of property in consideration of a life annuity, the Court will decree specific performance notclear case required.
(u) Playford v. P., sup.
(x) Collet v. Woolladon, (1791) 3 Br. C. C. 228.
(y) White v. Damon, (1802) 7 Ves. 30, 35; Exp. Latham, (1803) ib. 35, n.; Ord v. Noel, (1820) 5 Mad. 440 ; Borell v. Dann, (1843) 2 Ha. at p. 450.
(z) Anon., cited 6 Ves. 24 ; and see Knight v. Marjoribanks, (1848) 11 Beav. 322; (1849) 2 M. & G. 10.
(a) Sug. 14th ed. 273; Pope v. Roots, (1774) 1 Br. P. C. 370 ; Mortimer v. Capper, (1782) 1 Br. C. C. 156 ; Jackson v. Lever, (1792) 3 ib. 005.
(b) Bower v. Cooper, (1843) 2 Ha. 408; 11 L.J. N. S. Ch. 287.
(c) Coles v. Trecothick, (1804) 9 Ves. at p. 246 ; Kenney v. Wexham, (1822) 6 Mad. 355.
Withstanding the death of the annuitant, it will inquire with some jealousy as to the fairness of the transaction, and require a clear case for specific performance under such circumstances (d).
We have already seen that where the estate is sold for a contingent consideration, e.g., a life annuity, the occurrence of the contingency which determines the consideration, is, in general, no defence to the purchaser's suit for specific performance (e).
Failure of contingent consideration, in general no defence.
So, on the other hand, it has been held that the mere excessive (/) amount of the purchase-money, even although not attributable to fraud, misrepresentation, or concealment on the part of the vendor (g), is a defence available to a purchaser (h). But it may now, it is conceived, be accepted as the well-established rule of the Court that the mere fact of an excessive price having been agreed to be paid, unless it is so enormously great as to be conclusive evidence of fraud (/), is not in itself a defence to an action for specific performance of the contract at the suit of the vendor (k). So, the fact that a fictitious bid has been made unknown to the vendor, and that in consequence the purchaser has given more than he had previously bid, has been held no defence to an action by the vendor for specific performance (/).
Excessive purchase-money, when a defence.
Where the subject-matter of the contract is property of a speculative description, e.g., a mine, which may or may not turn out profitable, the excessive amount of the purchasemoney can seldom be an available defence to the purchaser (m) : and it may be doubted whether the Court ought in any case, on the mere ground of the hardship of the bargain, to withhold relief from the vendor, if the circumstances, which are relied on as constituting the hardship, may be supposed to have been present to the mind of the defendant, at the time of his entering into the contract (n).
Where the property is of uncertain value, e.g., a mine.
(d) Per Lord Cottenham, in Davies v. Cooper, (1840) 5 M. & C. at p. 279; and see Valentine v. Dickinson, (1861) 7 Jur. N. S. 857 ; Baker v. Monk, (1864) 10 ib. 691.
(e) Sup. p. 292 ; and see p. 1095.
(f) At the date of the contract; see Poole v. Shergold, (1786) 2 Br. C. C. 119.
(g) Which, if proved, would of course he a har to specific performance : Buxton v. Lister, (1746) 3 Atk.
386 ; Shirley v. Stratton, (1785) 1 Br. C. C. 440.
(h) Day v. Newman, (1798) cited 10 Ves. 300 ; Squire v. Baker, (1726) 5 Vin. Ab. 549.
(i) Stilwell v. Wilkins, (1821) Jac. 280.
(k) Abbott v. Sworder, (1851) 4 De G. & S. 448 ; 22 L. J. Ch. 235 ; Fry, 4th ed. 194-6.
(/) Union Bank v. Munster, (1887) 37 Ch. D. 51 ; 57 L. J. Ch. 124.
]). VOL. IT.
"Where a contract for purchase forms a subordinate part of an agreement for a loan to the purchaser, the latter has evidently a ground of defence which does not exist in ordinary cases (o).
Purchase connected with loan.
Where the consideration, moving from one party to the contract, consists of something to be done at a future time, which the Court could not enforce, it will not decree specific performance against the other party (;;).
Future consideration which cannot be enforced.
When the price is to be fixed by valuation or arbitration (q), the decision of the valuer, arbitrators, or umpire is generally conclusive on the question of value (r) ; and, in the absence of fraud or mistake, the Court will not relieve the purchaser on the mere ground that the price awarded is exorbitant (s), or the vendor, on the ground that the price fixed is below the real value (t) ; but the misbehaviour, or mere negligence, of the valuers may afford grounds for the