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.
Less time allowed where there is a refusal to perform the contract.
The modern tendency of the Court, however, has been to require the plaintiff to be prompt in seeking his equitable remedy (u) ; and relief will be more readily refused on the ground of delay, if the contract were originally (x), or have by subsequent events become (y), a hard one ; or if he have acted vexatiously (z), or have entered into the contract without present means of performing it (a) ; or where the matter has not merely slept, but the defendant has actually refused to complete (b) ; or where the plaintiff has acted in reference to the estate in a manner inconsistent with the existence of the contract (c); or where the property is of fluctuating value (d). Where the purchase was to be completed on the 24th of April, with a condition allowing a resale if the conditions were not adhered to, and the vendor agreed at the purchaser's request not to put the condition into force for six weeks after the date fixed for completion, and on the 20th of June agreed to a further extension of time for a month, the purchaser's action for specific performance brought on the 25th of July was dismissed, and his deposit forfeited (e). In the case of an agreement for a lease, it could be only under very special circumstances, if at all, that the Court would enforce specific performance after the stipulated term had expired (f).
Tendency of modern decisions as to delay.
(m) Haywood v. Cope, (1858) 25 Beav. 140, 150; 27 L. J. Ch. 468.
(n3) Stewart v. Smith, (1824) 6 Ha. 222, n.; and see Ends v. Williams, (1854) 4 D. M. & G. 674.
(o) Watson v. Eeid, (1830) 1 R. & M. 236.
(p) See Heaphy v. Hill, (1824) 2 S. & S. 29, about two years' delay ; Walker v. Jeffreys, (1842) 1 Ha. 341 ; 11 L. J. N. S. Ch. 209, two years; Southcomb v. Bp. of Exeter, (1847) 6 Ha. 213 ; 16 L. J. Ch. 378, nineteen months; Moore v. Marrable, (1866) 1 Ch. 217, five years.
(q) See Southcomb v. Bp. of Exeter, sup. ; and Moxhay v. Inderwick, (1847) 11 Jur. 837, where a correspondence upon the shape of the conveyance was carried on at considerable intervals for nearly four years ; and see Gee v. Pearse, (1848) 2 De G. & S. 325, 346, where V.-C. Knight-Bruce remarked that a purchaser, not ready with the price according to the contract, ought to show a very special case for the interference of the Court against the vendor. See, too, Colby v. Gadsden, (1865) 34 B. 416.
(r) Clarke v. Moore, (1844) 1 J. & L. 723 ; and see Hersey v. Giblett, (1854) 18 Beav. 174 ; 23 L. J. Ch. 818. But delay will be material on the question of costs: see Burke v. Smyth, (1846) 3 J. & L. 193 ; Fleetwood v. Green, (1809) 15 Ves. 594 ; King v. E., (1833) l M.&K. 442.
(s) Sharp v. Milligan, (1856) 22 Beav. 606.
(t) Mills v. Haywood, (1877) 6 Ch. D. 196.
(u) Southcomb v. Bp. of Exeter, sup.; Nunn v. Truscott, (1849) 3 De G. & S. 304 ; Parkin v. Thorold, (1852) 16 Beav. 59, 62 ; Mills v. Haywood, (1877) 6 Ch. D. 196.
(x) Sup. p. 1061.
As to the second class of cases. - We have already seen that any act by the vendor - e.g., the felling of ornamental timber -which prevents his giving to the purchaser that which was substantially the subject-matter of the contract, will be a defence to his action for specific performance (g) ; but that he may, in due course of husbandry, cut coppice, and get in crops, accounting to the purchaser for the net profits received subsequently to the time at which, according to the contract, they are to belong to the purchaser in the event of the sale being completed (h).
Waste of estate, when a defence.
(y) See Alley v. Deschamps, (1806) 13 Ves. 225, 230.
(z) See Spurrier v. Hancock, (1799)
4 Ves. 667 ; Pope v. Simpson, (1799)
5 Ves. 145.
(a) See Gee v. Pearse, (1848) 2 De G. & S. at p. 346.
(b) Guest v. Homfray, (1801) 5 Ves. 818.
(c) Chambers v. Betty, (1815) Beat. 488.
(ft) Pollard v. Clayton, (1855) 1 K.
& J. 462; Lloyd v. Wilkes, (1854) 2 Eq. R. 1081; Maebryde v. Weehes, (1856) 22 Beav. 533; Haywood v.
Cope, (1858) 25 Beav. 140 ; 27 L. J. Ch. 468; Alloway v. Braine, (1859) 26 Beav. 575; Mills v. Haywood, (1877) 6 Ch. D. at p. 202. See sup. p. 498; and Cornwall v. Hcnson, 1899, 2Ch. 710; 1900, 2 Ch. 298 ; 69 L. J. Ch. 581.
(e) Howe v. Smith, (1884) 27 Ch. D. 89; 53 L. J. Ch. 1055.
(f) See Nesbiit v. Meyer, (1818) 1 Sw. 223 ; Walters v. Northern Coal Co., (1855) 5 D. M. & G. 629; De Brassac v. Marlyn, (1863) 11 W. R. 1020.
(y) Sup. p. 290.
So, the circumstance of the vendor having turned the purchaser out of possession (which he was entitled to under the contract, and had been allowed to take), has been held a sufficient defence to the vendor's suit (i).
In the case just cited, the purchaser had stipulated for immediate possession, which was not to be deemed an acceptance of the title: and the decision has been held not to apply to a case where a purchaser is, under the common condition, let into possession on the day fixed for completion, but pays no portion of his purchase-money, nor any interest upon it: under such circumstances a vendor may resume possession- e.g., by giving the tenants notice not to pay rent to the purchaser - without showing an intention to abandon his contract, or forfeiting his right to enforce it (/.•).
Ejectment of purchaser rightfully in possession.
So, if the plaintiff refuse or be unable to perform a material stipulation under the contract (/) - as if it had been agreed that the vendor should become tenant of the estate for a term of fourteen years at a specified rent, and he become insolvent (m) ; or that he should procure the unqualified withdrawal of a restrictive covenant, and he fail to do so (n) - this may be a reason for refusing specific performance against the purchaser; but this defence was overruled when the agreement was for merely a yearly tenancy, especially as the vendor's embarrassments were known to the purchaser (o).