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.
What allowances made for repairs, improvements, etc.
(m) See Knatchbull v. Grueber, (1815) 1 Mad. 153, 170; S. C., (1817)
3 Mer. 124.
(n) Forteblow v. Shirley, (1806) cited 2 Sw. 223.
(o) Doe v. Burton, (1851) 16 Q. B. 807; 15 Jur. 990.
(p) Sug. 14th ed. 347; Nicloson v. Wordsworth, (1818.) 2 Sw. 365.
(q) Saunders v. Musgrave, (1827) 6 B. & C. 524; 9 D. & R. 549.
(r) Doe v. Caperton, (1840) 9 C. & P. 112; Doe v. Chamberlaine, (1839) 5 M. & W. 14; Doe v. Jackson, (1823) 1 B. & C. 448; Doe v. Leeds R. Co., (1851) 16 Q. B. 796; 20 L. J. Q. B. 486; Doe v. Neeld, (1841) 3 Man. & G. 271.
(s) Doe v. Rock, (1842) 4 Man. & G. 30; sup. p. 400.
(t) Southcomb v. Bp. of Exeter, (1847) 6 Ha. 213; 16 L. J. Ch. 378.
(u) Donovan v. Fricker, (1821) Jac. 165; Neesom v. Clarkson, (1844)
4 Ha. at p. 104; 9 Jur. 82. (x) Sug. 14th ed. 254.
Purchaser in possession entitled to rents and profits.
Where a contract was rescinded upon the ground of fraud in the purchaser, the latter was compelled to reinstate a private house which he had converted into a shop (6). It is submitted that alterations by a purchaser, though not in themselves a waiver of title, will yet deprive him of the aid of the Court in rescinding the contract, if they are such as change the nature or character of the property, and do not admit of reinstatement; or if he declines or is unable to reinstate them.
Liability of purchaser in respect of alteration of premises.
If the contract be rescinded through want of title or other default on the part of the vendor, or under a condition enabling the purchaser to rescind, or through any other circumstance not the fault of the purchaser, the purchaser, if he has paid all or any part of the purchase-money, will have a lien for the same, with interest (c), on the land and title deeds, even though he may have taken an independent security (d), and also for his costs (e). But no such right exists where the contract is void on the ground of illegality (f); or where the purchaser is disqualified from holding such an interest in real estate (g). A person, who has paid purchase-money under a bond fide mistaken belief that he is entitled to the benefit of the contract, has a lien on the property, in the hands of the person rightfully entitled, for the money paid by him under the mistake (h). Mere delay on the part of the purchaser, though sufficient to deprive him of the right to a decree for specific performance, will not necessarily disentitle him to his lien (i).
His lien on estate for purchase-money paid.
(y) Sug. 14th ed. 254.
(z) See Edwards v. M'leay, (1818) 2 Sw. 287; G. Coop. at p. 312.
(a) See Leppington v. Freeman, (1891) 66 L. T. 357; and see Allen v. I. R. Commrs., 1914, 2 K. B. 327, 333.
(b) Donovan v. Fricker, (1821) Jac. 165; see Sug. 14th ed. 254, 255, where the fraud is not noticed.
(c) Torrance v. Bolton, (1872) 8 Ch. 118, 121; 41 L. J. Ch. 643; 42 ib. 177; Whitbread, Ltd. v. Watt, 1902, 1 Ch. 835; 71 L. J. Ch. 424.
(d) Lacon v. Mertins, (1743) 3 Atk. 1, 4; Mackreth v. Symmons, (1808) 15 Ves. at p. 345; 2 Wh. & T. L. C. 9th ed. 848; Oxenham v. Esdaile, (1829) 3 Y. & J. 262; Burgess v. Wheate, (1759) 1 Ed. at 211; Wythe* v. Lee, (1855) 3 Dr. 396; 25 L. J. Ch. 177, 389.
(e) Middleton v. Magnay, (1864) 2 H. & M. 233; 10 L. T. 408; Turner v. Marriott, (1867) 3 Eq. 744; 15 L. T. 607; Thomas v. Buxton, (1869) 8 Eq. 120; Torrance v. Bolton, sup.; Whitbread, Ltd. v. Watt, 1901, 1 Ch. 911, 913; 1902, 1 Ch. 835; Kitton v. Hewett, (1904) W. N. 21; Re Furneaux and Aird, (1906) W. N. 215.
Where the vendor of an estate contracted to be sold executed a mortgage upon it, of which notice was duly given to the purchaser by the mortgagee, who did not interfere with the contract, and the purchaser, who was allowed to take and retain possession, paid several instalments of the purchase-money as provided by the contract, but eventually (on grounds which were adjudged sufficient) rejected the title, it was held that the purchaser had a lien upon the estate for the payments made and interest, which might be enforced against the mortgagee (k). If before completion the purchaser has resold, the sub-purchaser (upon rescission taking place) will have a lien for any money paid by him upon whatever interest the purchaser may possess in the property (I); or if the vendor has assigned the benefit of the contract, the purchaser can recover money paid by him to the assignee (m).
(f) Ewing v. Osbaldiston, (1836) 2 M. & C. 53, 88; 6 L. J. N. S. Ch. 161.
(g) See Harrison v. Southcote, (1751) 2 Ves. sen. pp. 389, 393; Mackreth v. Symmons, (1808) 15 Ves. at p. 337.
(h) Maddison v. Chapman, (1861) 1 J. & H. 470; and see Parkinson v. Hanbury, (1867) L.r.2 H. L.1.
(i) Levy v. Stogdon, 1898, 1 Ch. 478; 1899, 1 Ch. 5; 67 L. J. Ch. 313; 68 L. J. Ch. 19; cf. Cornwall v. Henson, 1900, 2 Ch. 298; 69 L. J. Ch. 581.
(k) Rose v. Watson, (1864) 10 H. L. C. 672; Whitbread, Ltd. v. Watt, sup.
(l) Aberaman Ironworks v. Wickens, (1868) 4 Ch. at p. 107; 20 L. T. 89; and see Fleming v. Loe, 1901, 2 Ch. 594; 70 L. J. Ch. 805; reversed on the facts by C. A., 1902, 2 Ch. 359; 71 L. J. Ch. 687.
(m) Fleming v. Loe, sup.
The doctrine of a vendor's lien applies to personal as well as to real estate (n).
By the L. C. Act, 1925, s. 10, the different classes of charges therein mentioned may be registered as land charges. Class " C" (iii) refers to equitable charges (other than charges thereinbefore mentioned) not secured by deposit of title deeds; and a vendor's lien would, it seems, fall within this class. By s. 13 (2), a land charge of (inter alia) Class "C" arising after the commencement of the Act is to be void (except as thereinafter provided) as against a purchaser unless the charge is registered before the completion of such purchase; and by s. 14 (2) after the expiration of one year from the first conveyance, occurring after the commencement of the Act, of such a land charge created before such commencement, the person entitled thereto is not to be able to enforce the same against a purchaser of the land charged or of any interest in the land, unless the charge is registered before the completion of the purchase.