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.
3rd - Matters relating to estate:- original defects in, how far a defence ; public nuisance; public inconvenience.
It was considered, in one case, that the existence of a public nuisance in the immediate neighbourhood of a house agreed to be taken as a residence, and rendering it unfit for that purpose (its existence, however, being unknown to either party, although easily ascertainable by the vendor), is no defence to his suit for specific performance, although it will induce the Court to try the case strictly (m). But the Court will refuse specific performance of a contract the carrying out of which will expose the purchaser to criminal proceedings, e.g., a contract for the sale of a house used as a brothel (n).
(h) Knatchbull v. Grueber, (1817) 3 Mer. at p. 146 ; Re Arnold, (1886) 14 Ch. D. at pp. 279, 284.
(i) Sup. p. 1055, n. (b).
(k) Sup. Ch. III., sect. 1, and p. 149 et seq.
(I) See Knatchbull v. Grueber, sup. pp. 153, 165.
(m) Lucas v. James, (1849) 7 Ha. 410, 418 ; 18 L. J. Ch. 329 ; but qu. whether this would be so, if the nuisance were such as the vendor ought to have been aware of.
(n) Hope v. Walter, 1899, 1 Ch. 879 ; 68 L. J. Ch. 359 ; reversed on appeal, 1900, 1 Ch. 287 ; 69 L. J. Ch. 166.
So, where, pending a suit for specific performance, the defendants, a railway company, prosecuted their works in a manner contrary to the terms of the contract, and opened the line, it was held that the inconvenience which would be caused to the public by interfering with the traffic, was not an available defence (o).
We have already seen (p) that the accidental destruction or deterioration of the estate subsequently to the contract is no defence to the vendor's action for specific performance.
Destruction of estate, not a purchaser's defence.
As to the 4th of the above heads.-"Want of title to the estate is a defence which may occasionally be available as well to vendor as to purchaser. As a general rule, however, a vendor will be compelled to convey his interest, if an imperfect one, in the estate, if the purchaser choose to accept it without compensation (q) ; so he will be compelled to make good the contract out of any interest which he has subsequently acquired (r) ; or to procure the concurrence of parties who are bound to convey at his request (s), e.g., trustees of the legal estate (t) ; and, in one case, a purchaser of copyholds, who had acquired the whole legal and beneficial interest, was nevertheless held entitled in a suit against his vendor to require the concurrence of mere nominal trustees, who had never been admitted under a voluntary covenant to surrender (u). So, a vendor, professing to sell an unincumbered estate, but having in fact only an equity of redemption, as a general rule, will be compelled to redeem the mortgage, and obtain a conveyance from the mortgagee (x). So, a tenant in tail in remainder will be decreed to convey a base fee, and covenant to bar the remainders over upon becoming tenant in tail in possession (i/).
4th - Matters relating to title: -want of title, considered as vendor's defence.
(o) Raphael v. Thames Valley R. Co., (1867) 2 Ch. 147; 36 L. J. Ch. 209.
(p) 8up. pp. 290, 291.
(q) Harnett v. Yielding, (1805) 2 Sch. & L. at p. 554 ; Sug. 14th ed. 218; Bradley v. Munton, (1852) 15 Beav. 460; Barrett v. Ring, (1854) 2 Sm. & G. 43.
(r) Sec cases cited sup. p. 818, and Came v. Michell, (1846) 10 Jur. 909 ; 15 L. J. Ch. 287.
(s) Howell v. George, (1815) 1 Mad. 11 ; Costigan v. Hastier, (1804) 2 Sch. &L. 160, 166.
(t) See Sug. 14th ed. 349 ; Crop v. Norton, (1740) 2 Atk. 74, 75.
(u) Steele v. Waller, (1860) 28 Beav. 466 ; but the plaintiff did not get his costs. But qu, this case ; and see Minion v. Kirwood, (1868) 3 Ch. 614.
(x) But cf. Wedgwood v. Adams, (1844) 8 Beav. 103, where the Court,
But Equity will not compel a vendor to procure the concurrence of parties whose concurrence he has no right to require ; e.g., a husband to procure the concurrence of his wife (z), or son (a), except, perhaps, where he has expressly agreed to procure such concurrence (b); or a tenant for life to procure the concurrence of trustees for sale of the reversion, they being under no obligation to comply with his request (c) ; nor will it compel him to purchase and convey the tithes of an estate contracted to be sold as tithe free (d).
Cases in which it is available.
The defence, however, is not one favoured by the Court, which in such cases only holds its hand on the ground of the actual impossibility of enforcing its decree (e). A vendor cannot be permitted to say that he did not mean to acquire an interest which is necessary to enable him to convey the property (f). If he can get it, he may and will be compelled to do so; and it is no available defence that he had not got it at the commencement of the action. Specific performance will be decreed against him, if he have got the necessary interest at the date for showing a title on the reference ; and, if it then be shown that he can get it, he will be ordered to do so (g).
The true ground of the decisions.
On the ground of hardship, refused to interfere; and He G. N. R. Co. and Sanderson, (1884) 25 Ch. D. 788; 53 L. J. Ch. 445.
(y) Lord Bolingbroke's case, (1802) cited (1802) 1 Sch. & L. 19, n. As to contracts to disentail, see Fines and Recoveries Act, 1833, s. 47 ; Petre v. Duncombe, (1818) 7 Ha. 24 ; Dering v. Kynaston, (1868) 6 Eq. 210 ; Hitters v. Parkinson, (1883) 25 Ch. D. 200 ; 53 L. J. Ch. 194; and see sup. p. 1031.
(2) Emery v. Wase, (1803) 8 Ves. 505, 514 ; Howell v. George, (1815) 1 Mad. 1,6; see Jordan v. Jones, (1816) 2 Ph. 170; Ex p. Blake, (1853) 16 Beav. at p. 471; and cf. Wilson v. Williams, (1857) 3 Jur. N. S. 810.
(a) Howell v. George, sup.
(b) See Emery v. Wase, (1803) 8 Ves. 505, where the earlier cases are cited; but the point seems very doubtful, see Sug. 14th ed. 206 ; Junes v. Jackson, (1809) 16 Ves. 367.