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.
(m) Carter v. C, (1857) 3 K. & J. at p. 635; 27 L. J. Ch. 74 : Sug. 14th ed. 743.
(n) See and consider Blackie v. Clark, (1852) 15 Beav. 595, 601.
(o) Tyler v. Beversham,(1673) Finch, 80 ; Thomas v. Davis, (1757) 1 Dick. 301 ; see Beaumont v. Bramlcy, (1S22) T. & It. 41 ; Marquess of Exeter v. Marchioness of Exeter, (1837) 3 M. & C. 321 ; 7 L. J. N. S. Ch. 240 ; Mortimer v. Shorthall, (1842) 2 D. & "War. 363.
(p) Harris v. Pepperell, (1867) 5 Eq. 1.
(q) Jenner v. J., (1866) 1 Eq. 361 ; 35 L. J. Ch. 329 : and see Rooke v.
Lord Kensington, (1856) 2 K. & J. 753 ; 25 L. J. Ch. 795 ; Crompton v. Jarratt, (1885) 30 Ch. D. .298; 54 L. J. Ch. 1109.
(r) Rob v. Butterwick, (1816) 2 Pr. 190.
(s) Wright v. Goff, (1856) 22 Beav. 207; Cowen v. Truefitt, 1899, 2 Ch. 309 ; 68 L. J. Ch. 563.
(t) Earl of Bradford v. Earl of Bomney, (1862) 30 Beav. 431 ; but see Garrard v. Frankel, (1862) ib. 445; 31 L. J. Ch. 604; Harris v. Pepperell, (1867) 5 Eq. 1 ; Paget v. Marshall, (1884) 28 Ch. D. 255 ; 54 L. J. Ch. 575 ; and see Bloomer v. Spittle, (1872) 13 Eq. 427; 41 L. J.
In a case at Law, where A., being seised in fee of an undivided moiety of a messuage, and having a lease of the other moiety with a covenant not to assign without licence, after reciting that he was seised in fee of the entirety, granted to B.,by way of mortgage, all his estate and interest in the messuage, and by the same deed assigned other leasehold property of which he was possessed, it was held that only the moiety of which he was seised in fee passed by the deed (b). Stress was laid on the fact that the deed was only a security for a debt, and not an absolute purchase; but the only sufficient ground, if it be one, for the decision was that if the leasehold moiety had been held to pass there would have been a forfeiture. No doubt the fact of part of the messuage being held under a lease was overlooked, and it was the intention of both parties that the whole should be included in the deed. The covenant in the lease was against assignment only; and if the question had come before a Court of Equity, the mortgagee would probably have been entitled to require an underlease.
Where mistake is unilateral.
Ch. 369, where, after the time which had elapsed, the Court declined to rectify the deed, but gave the plaintiff (the purchaser) the option of dismissing his bill 'without costs, if the defendants would not rectify the deed ; May v. Platt, 1900, 1 Ch. 616, 623; 69 L. J. Ch. 357.
(u) Marquis of Breadalbane v. Marquis of Chandos, (1836) 2 M. & C. 711. Parol evidence is inadmissible where there is no ambiguity between the contract and conveyance; May v. Platt, sup.
(x) Earl of Bradford v. Earl of
Romney, (1862) 30 Beav. 431 ; and see Wilkinson v. Nelson, (1861) 7 Jur. N. S. 480.
(z) Garrard v. Frankel, Harris v. Pepperell, and Paget v. Marshall, sup.
(a) Mayy. Platt, sup.; and see Gun v. M'Carthy, (1884) 13 L. R. Ir. 304.
(b) Francis v. Minton, (1867) L. R. 2C. P. 543; 34 L. J. C. P. 201.
The burden of proof, where it is sought to have a deed rectified, lies on the plaintiff (c).
Onus of proof.
The difference between cases where the conveyance is rectified on the ground of mistake, and cases where the vendor has no remedy for his own mistake in the conveyance as to the quantity or quality of the estate, is, that in the former the parties never intended to deal with the property which is conveyed; while, in the latter (d), the vendors do intend to sell all their remaining interest in the property, but by their own mistake they misdescribe what that interest is (c) : so, in the case put by Lord Cottenham (/),the vendor would really intend to sell the entire farm, and the only mistake would be as to the quantity. At Law evidence cannot be received to contradict the conveyance by showing that property, which would, prima facie, pass under general words, was not intended to be included in the purchase (g).
In cases where an undue advantage has been taken, amounting to fraud, the party imposed on is entitled to rescission. Thus, relief has been afforded, where a purchaser knowingly obtained, for an inadequate consideration, a conveyance from a vendor in humble circumstances and ignorant of his rights (h) ; and, in other cases, where advantage has been taken of the vendor's distress to procure an unfair bargain (i). And where a person, who well knew the value of the property, obtained from a young man, a common sailor, lately come ashore, and much pressed for money, an estate for a grossly inadequate price, the Court, even as against the devisees of the purchaser, appointed a receiver before the hearing (k). The burden of proof is on the person seeking rescission (/).
Distinction between cases where conveyance is rectified on ground of mistake and where vendor lias no remedy.
Evidence not admissible at Law to show intention not to pass property which prima facie passes by conveyance.
Relief in cases of fraud and distress- rescission.
(c) Wright v. Goff, (1856) 22 Beav. 207; 25 L. J. Ch. 803; Tucker v. Bennett, (1S87) 38 Ch. D. 1; Bonhote v. Henderson, 1895,1 Ch. 742; 1895, 2 Ch. 202.
(d) Okill v. Whittaker, (1847) 2 Ph. 338.
(e) lb. 341 ; Howkins v. Jackson, (1850) 2 Mac. & G. 372 ; 19 L. J.
Ch. 451. The rule does not, however, apply to voluntary deeds ; Undo v. Z., (1839) 1 Beav. 496; 8 L. J. N. S. Ch. 284 ; Turner v. T., (1880) 14 Ch. D. 829.
(f) Sup. p. 741.
(g) Doe v. Webster, (1840); 4 P. ft D. 270.
It was laid down by Lord Langdale (m), that a man who is in distress may nevertheless contract; and if, being in distress, he procure other persons to consent to an agreement which he would not himself have requested or consented to if he had not been in distress, and afterwards successfully urges and obtains the performance of that agreement, and, after that, acquiesces for a length of time in the performance without any notice of dissatisfaction or complaint, he is not entitled to set aside the transaction on the mere ground of his poverty or distress, in the absence of any deception or fraud proved to have been practised on him.