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.
Terms on which vendor was entitled to relief.
312; 58 L. J. Ch. 113; James v. Kerr, (18S9) 40 Ch. D. 449; 58 L. J. Ch. 355 ; Rae v. Joyce, (1892) 29 L. R. Ir. 500 ; Seaton v. Lewis, (1895) 11 T. L. R. 430; Kevam v. Joyce, (1896) 1 Ir. R. 442.
(s) Fry v. Lane, sup.
(t) Brenchley v. Higgins, (1901) 83 L. T. 751 ; 70 L. J. Ch. 788; and Bee Wilton v. Osborn, 1901, 2 K. B. 110 ; 70 L. J. K. B. 507, a decision under the Money-lenders Act, 1900.
(u) King v. Hamlet, (1834) 2 M. & K. 456; (1835) 9 Bli. N. R. at p. 610 ; see Sug. H. L. 65 et seq.
(x) Barker v. Vansommer, (1782) 1 Br. C. C. 149.
(y) Per Lord Brougham, C, (1834) 2 M. & K. 485.
(a) See Bellamy v. Sabine, (1848) 2 Ph. 425 ; 17 L. J. Ch. 105 ; Tarleton v. Liddell, (1851) 17 Q. B. 390 ; 20 L. J. Q. B. 507.
In one case where, on the sale of a reversionary interest, the purchaser took an assignment of life policies, which were then valueless, and kept them up at his own expense, he was held entitled to the moneys received in respect of the policies before the transaction was impeached (f) ; but in another case, a mortgagee was disallowed what he had paid for premiums on life policies included in his security, notwithstanding that the deed provided in the usual way for keeping the policies on foot (g) : the contract as to paying the premiums was treated as altogether void; and both cases were rested on the principle that there was no obligation on the purchaser or mortgagee to keep up the policies; if he did so, and the result was favourable to himself, he might retain the benefit; if it turned out otherwise, he had no charge on the estate for payments voluntarily made (h). Where the policies are effected by the purchaser simply for his own security, and the vendor derives no benefit therefrom, the principle above stated seems to apply: but where, on the transaction being set aside, the vendor takes a re-assignment of the policies, and keeps them on foot for his own benefit, he clearly ought to repay what has been expended by the purchaser for premiums (i).
Purchaser's rights on keeping up policies.
(a) Wilkinson v. Fowkes, (1851) 9 Ha. 592.
(5) Gowland v. De Faria, (1810) 17 Ves. 20 ; Bellamy v. Sabine, (1848) 2 Ph. 425, 442 ; 17 L. J. Ch. 105.
(c) Gowland v. Be Faria, sup. ; see the decree in Sarery v. King, (1856)
5 H. L. C. 627 ; 25 L. J. Ch. 482. And see Miller v. Cook, (1870) 10 Eq.
641 ; 40 L. J. Ch. 11 ; Tyler v. Yates, (1871) 6 Ch. 665 ; 40 L. J. Ch. 768.
(d) Murray v. Palmer, (1805) 2 Sch. & L. 474, 490; Salter v. Brad-shaw, (1858) 26 Beav. 161. See, as to allowance for improvements of charity property, A.-G. v. Kerr, (1840) 2 Beav. 420 ; 9 L. J. N. S. Ch. 190.
(e) Croft v. Graham, (1863) 2 D. J. & S. 155 ; James v. Kerr, (1889) 40 Ch. D. at pp. 459, 460; Kevan v. Joyce, (1896) 1 Ir. R. 442 ; and see Miller v. Cook, Tyler v. Yates, sup. ; see now the Money-lenders Act, 1900, and Wilton v. Osborn, cited sup.
(f) Foster v. Roberts, (1861) 29 Beav. 467; 30 L. J. Ch. 666; and see Bell v. Ahearne, (1849) 12 Ir. Eq. R. 576.
(g) Pennell v. Millar, (1856) 23 Beav. 172 ; see and consider this case; and see Darcy v. Croft, (1858) 9 Ir. Ch. R. 19.
(h) See and consider Nesbitt v. Berridge, (1864) 10 Jur. N. S. 53.
"Where the transaction is set aside the purchaser will be charged with what he has actually received, and interest: and, in one case, where he had received from the vendor interest on the purchase-money, such payments were held to have been in reduction of the principal, and he himself was charged with interest upon them (k) : but he will not, like a mortgagee, be charged with what without wilful default he might have received (/). Where inadequacy of price is the sole ground for the interference of the Court, the defendant has been allowed his costs (m), except those of the reference as to value (n) ; but slight additional circumstances have induced the Court to refuse them (o). No absolute rule has, however, been laid down by the Court (p), though the tendency has been not to deal with the costs of such a suit as in a suit for redemption, but to throw the whole costs on the defendant, even where inadequacy of value has been the sole title to relief (q). In an action by the heir of a deceased vendor alleging that the purchase-money is in part unpaid, the personal representative must be made a party, as being interested in maintaining the validity of the contract (r).
Terms on which sale is set aside.
(i) See farther as to whether the lender or the borrower is entitled on repayment of the loan to a policy effected by the former on the life of the latter, Bruce v. Garden, (1869) 5 Ch. 32 ; 39 L. J. Ch. 334 ; Foster v. Roberts, and Bell v. Ahearne, sup.; and Morland v. Isaac, (1855) 20 Bear. 389 ; Courtenay v. Wright, (1860) 2 Gif. 337 ; 30 L. J. Ch. 131; Freme v. Brade, (1858) 2D. & J. 582; 27 L. J. Ch. 697 ; Knox v. Turner, (1870) 9 Eq. 155 ; 39 L. J. Ch. 207. And see generally, on the subject of lien for payment of premiums, the law summarized by Fry, J., in Leslie v. French, (1883) 23 Ch. D. 552; 52 L.J. Ch. 762.
(k) Murray v. Palmer, (1805) 2
Sch. & L. 474, 488.
(!) See Sug. 14th ed. 254 ; and the judgment in Murray v. Palmer, (1805) 2 Sch. & L. 474, 489, against such liability; but see contra the decree, ib. 490.
(m) Bawtree v. Watson, (1834) 3 M. & K. 339, 341; see Sug. 14th ed. 286.
(n) Boothbyx. B., (1852) 15 Beav. 212.
(o) Wood v. Abrey, (1818) 3 Mad. 417, 424 ; Newton v. Sunt, (1833) 5 Si. 521, 523.
(p) Per Kay, J., in Fry x. Lane, (1888) 40 Ch. D. 312, 324 ; 58 L. J. Ch. 113.
(q) See Edwards v. Burt, (1852) 2 D. M. & G. 55 ; Foster v. Roberts.
And, of course, long delay (s) and clear (t) acquiescence on the part of the vendor, - (and this notwithstanding his poverty) - or his advised confirmation of the sale (u), - which confirmation may be as well by will as by deed (x) - will bar the right to relief (y) : nor will relief be given to the prejudice of a sub-purchaser in good faith without notice (s). It has been held, that in the case of the sale of a reversion for undervalue, time does not begin to run against the vendor until the reversion falls into possession (a). The statement of consideration in the conveyance is not conclusive ; but any additional consideration, not inconsistent with the terms of the deed, may be established by parol evidence (b).