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.
(c) Thomas v. Bering, (1837) 1 Ke. 729; 6 L. J. N. S. Ch. 267. See now S. L. Act, 1890, s. 16.
(d) Todd v. Gee, (1810) 17 Ves. 273.
(e) See Seawcll v. Webster, (1860) 29 L. J. Ch. 71, 73.
(f) Browne v. Warner, (1808) 14 Ves. 409, 413.
(y) Holroyd v. Marshall, (1861) 10 H. L. C. 191,211 ; Came v. Mitchell, (1816) 15 L. J. Ch. 287 ; Walker v. Barnes, (1818) 3 Mad. 247.
It will be found on examination that many of the cases usually referred to on this head were really decided on the ground of the vendor's mistake. For this reason, the Court has refused to compel the vendor to perfect his title by exercising a power of purchasing and settling another estate in lieu of that which he had contracted to sell (It) ; or to make himself the personal representative of a deceased owner (i) ; or to complete a contract which he had entered into in the belief that he was absolute owner, when in fact he was only able to sell under a power of sale and exchange, and was under a liability to re-invest the purchase-money (A); or to convey, as mortgagee under a power of sale, an estate which he claimed as absolute owner by foreclosure, and thus to render himself liable to account for the purchase-money (I) ; or, where he was a trustee, to carry out a contract, which might reasonably expose him to liability at the suit of his beneficiaries (w). So, where a tenant for life, with the ultimate reversion in fee, contracted, as it appeared to the Court, merely as the agent of his trustees (who had a power to sell the fee simple), he was not bound, upon the contract being held void as against the trustees, to make it good out of the fee simple, which had subsequently vested in himself by the failure of the intervening limitations (n). The decision, however, was different, where a tenant for life, similarly circumstanced, contracted in his own name, as if seised in fee simple (o). But the Court will not decree specific performance by directing an invalid insurance to be executed by a tenant for life, which might encumber and embarrass remaindermen (p). The above cases relating to sales by a tenant for life are now rendered practically obsolete by the Settled Land Acts.
Mistake the real ground of many of the cases.
(h) Howell v. George, (1815) 1 Mad. 1.
(i) Williams v. Moid, (184G) 2 Col. 575: 15 L. J. Ch. 331.
(k) Hood v. Oglander, (1865) 34 Beav. 513.
(1) Watson v. Marston, (1853) 4 D. M. &G. 230.
(m) Sneesby v. Thorne, (1855) 7 D.
M. & G-. 399 ; and see cases cited sup. p. 1055, n. (h).
(n) Mortlock v. Mllet; (1801) 10 Ves. 202, 316.
(o) Butler v. Powis, (1845) 2 Col. 156.
(p) Ellard v. Lord Llrtndaf, (1810) 1 B. & B. 241, 251, considered in Turner v. Green, 1895, 2 Ch. 205; 04 L. J. Ch. 539.
Where the want of title is only partial, - i.e., where it affects only part of the estate, or only part of that interest in it which was agreed to be sold, - the question arises, whether the vendor can resist the purchaser's claim to specific performance with a compensation, or, to speak more accurately, an abatement of the purchase-money. This right generally, but not universally (q), exists in each class of cases (r). The general rule which guides the Court in such cases has been thus laid down by Lord Eldon (s), and may now be regarded as well established. " If a man, having partial interests in an estate, chooses to enter into a contract, representing it and agreeing to sell it as his own, it is not competent to him afterwards to say that, though he has valuable interests, he has not the entirety, and that, therefore, the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction the person contracting under these circumstances is bound by the assertion in his contract; and, if the vendee chooses to take as much as he can have, he has a right to that and to an abatement." But it is conceived that this rule must be qualified by the addition of the words " in the absence of a condition expressly excluding any claim for compensation" (t).
Vendor generally compelled to convey what he can with abatement.
Thus, want of title to the entire interest contracted for will not, it seems, be available as a defence for the vendor, if the purchaser elects to take such estate as the vendor can convey (u); or to dispense with the concurrence of a person having a partial interest in the property, - as, e.g., a wife entitled to dower,- upon being allowed an abatement from his purchase-money (x). So, where a person, entitled to a remainder in fee, subject to a life estate, contracted to sell the estate, relying on obtaining the concurrence of the tenant for life, which was in fact withheld, specific performance was decreed at the suit of the purchaser, with an abatement in respect of the life estate (//). So, where the contract was, in effect, for an absolute term of twenty-one years, and it was found that the actual term might expire by the cesser of certain lives, specific performance was decreed against the vendor, with an abatement in respect of the difference between the absolute and defeasible interests (z). The decision was the same where a term was sold with the benefit of A.'s covenants for renewal, and such covenants were found to be not absolute, but binding only a contingent portion of his assets (a). So, where A. contracted for the purchase of an estate from B., who represented himself to be the owner in fee, but was in fact entitled only pur autre vie, with remainder to his wife in fee, specific performance was decreed at the suit of A., with compensation in respect of the interest of B.'s wife (b). Again - there being the common condition for compensation - when property sold as a renewable leasehold was in fact merely for a term certain, the contract was enforced with an abatement (c). So, where vendors had agreed to sell two-sixths of certain leaseholds, whereas, in fact, they could only make a title to four-twentieths, specific performance was decreed against them, with an abatement in respect of the defect (d). So, where an administrator granted an underlease of a leasehold estate belonging to his intestate, with an option to the underlessee to purchase at a fixed price within a specified period, the Court refused to enforce specific performance of the option to buy the whole, on the ground that it was ultra vires of the administrator to give such an option ; but, as to the one-third of the property, to which the administrator was entitled beneficially, specific performance was decreed against him (c). Nor is the want of title to a very considerable part of the estate any reason why the vendor should not be compelled to convey so much as he has (f). Thus, where a vendor agreed to sell the entirety of a freehold estate, and it was subsequently discovered that an undivided moiety belonged to other parties, the purchaser was held to be entitled to a conveyance of the vendor's moiety on payment of one-half of the purchase-money (g). Again, where a person granted a lease with an option to the lessee to purchase the whole, and it was discovered, on an examination of the title, that the lessor was only entitled to a moiety of the property, she was ordered to convey all the interest she had, allowing an abatement of half the purchase-money (h). So, where A. and B. agreed to sell property, and it turned out that B. had no interest in it, and that A. was entitled to only a moiety, which was subject to a mortgage, the purchaser was held entitled to a conveyance of A.'s moiety subject to the mortgage, with an abatement which, in the circumstances of the case, swallowed up all the purchase-money due to A. (i). And the result was the same where, owing to the death of one of two tenants in common and the devolution of his moiety, specific performance became impossible as to the share of the deceased (/.•). The rule may also be applied to a case of deficiency in quantity (/).