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.
Inability of vendor to perform a material stipulation of the contract.
(h) Sup. p. 289.
(i) Knatchbull v. Grueber, (1816) 3 Mer. 144.
(k) Colby v. Gadsden, (1865) 34 Beav. 416.
(/) See Hunter v. Daniel, (1844) 4 Ha. 433 ; 14 L. J. Ch. 194; Counter v. Macpherson, (1845) 5 Mo. P. C. 83. And see, as to the rule that "he who comes for Equity must do Equity," Hanson v. Keating, (1844) 4 Ha. 1 ; 14 L. J. N. S. Ch. 13 ;
Gibson v. Goldsmid, (1854) 5 D. M. & G. 757; 24 L. J. Ch. 279.
(m) Lord v. Stephens, (1835) 1 T. & C. 228 ; Neale v. Mackenzie, (1837) 1 Ke. 474.
(n) Reeves v. Greenwich Tanning Co., (1864) 2 H. & M. 54 ; Me JTallis and Barnard, 1899, 2 Ch. 515; 68 L. J. Ch. 753.
(o) Lord v. Stephens, sup. ; hut qu. whether the length of the tenancy is material; see Sug. 14th ed. 297.
So, where a party in possession under an agreement for a lease, has done acts which would, had the lease been actually granted, have clearly entitled the lessor to re-enter for a forfeiture, specific performance at the suit of the former will be refused (p). And where there is a conflict of evidence as to whether there has been such a breach as will create a forfeiture, or as to whether it has been waived by receipt of subsequent rent, or otherwise, the Court, in decreeing specific performance, will direct the lease to bear date prior to the alleged breach, so as to give the lessor the opportunity of proceeding by ejectment or action of covenant; the lessee being put upon an undertaking to admit, in any such action, that the lease was executed on the clay of its date (q).
Act of forfeiture by purchaser.
As to the third class of cases. - If the plaintiff has brought an action and has recovered damages for breach of contract, he will be held to have elected his remedy (r); but it must be" remembered that he may now apply for alternative remedies in the same action.
Action brought and damages recovered.