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.
Right to reconveyance lost by acquiescence or confirmation.
In the case of a voidable transaction of this nature, a clear Distinction distinction must be drawn between the right and the remedy (c). Where the property has passed at Law, the remedy is one belonging to the exclusive jurisdiction of Equity, which can therefore impose its own terms on the party seeking relief. Mere lapse of time for a period which may, the jurisdiction being exclusive and not concurrent, be less than that prescribed at Law by the Statute of Limitations, will deprive a sluggish plaintiff of his remedy. On the other hand, mere lapse of time can hardly, in the absence of circumstances raising the inference of acquiescence or presumed release, bar the right: - a right which nevertheless is enforceable only by an equitable remedy. Thus, where the disability arises only on grounds of public policy, and there has been no unfair dealing, the plaintiff, though he has done nothing to release his right, may yet find himself unable to enforce it. In cases where there has been something in the nature of fraud, a release is not presumed in the absence of knowledge by the plaintiff of his rights ; and probably in such a case the principle above laid down with regard to the remedy would be held not to apply.
Sup.; Talbot v. Staniforth, (1861) 1 J. & H. 484 ; but see Miller v. Cook, (1870) 10 Eq. 611, where the defendant was allowed to add his costs to his security ; Fry v. Lane, sup. ; Kevans v. Joyce, (1896) 1 Ir. R. 442, 472, and cases there cited.
(r) Wilkinson v. Fowkes, (1851) 9 Ha. 193 ; but consider now effect of Land Transfer Act, 1897.
(s) Moth v. Atwood, (1801) 5 Ves. 815 ; Wright v. Vandcrplank, (1856) 8 D. M. & G. 133 ; Willoughby v. Brideoake, (1865) 11 Jur. N. S. 706 ; Lord Clanricarde v. Honning, (1861) 7 Jur. N. S. 1113; 30 L. J. Ch. 865.
(t) Gerrard v. O'Reilly, (1823) 3 D. & War. 414 ; Sibbering v. Earl of Balcarres, (1850) 3 De G. & S. 735.
(u) Lyddon v. Moss, (1859) 4 D. & J. 101 ; but there is no confirmation unless the vendor is fully aware of the voidability of the transaction.
(x) Stump v. Gaby, (1852) 2 D. M.
& G. 623.
(y) Cole v. Gibbons, (1734) 3 P. W. 290, 294 ; see sup. p. 55 ; and see Knight v. Marjoribanks, (1848) 11 Beav. 322; Farmer v. F., (1848) 1 H. L. C. 724 ; Sibbering v. Earl of Balcarres, sup.
(z) Thonnsv. Davis, (1737) 1 Dick. 301 ; Cobbett v. Brock, (1855) 20 Beav. 524 ; and see, at Law, Parker v. Patrick, (1793) 5 T. R. 175; Load v. Green, (1846) 15 M. & W. at p. 219 ; 15 L. J. Ex. 113 ; White v. Garden, (1851) 10 C. B. 919 ; 20 L. J. C. P. 166 ; Stevenson v. Newnham, (1853) 17 Jur. 600 ; 22 L. J. C. P. 110.
(a) Salter v. Bradshaiv, (1858) 26 Beav. 161 ; where the transaction was set aside after the lapse of forty years.
(b) Clifford v. Turrell, (1841) 1 T. & C. C. C. 138 ; Nixon v. Hamilton, (1838) 2 D. & Wal. 364, 387 ; Keenan v. Handley, (1864) 2 D. J. & S. 283 ; see inf. pp. 927 el seq.
Between right and remedy.
And, as a general rule, where it is clearly shown that through mutual mistake, or by reason of fraud, or misrepresentation amounting to fraud, the conveyance fails to express the intention of the parties, and what that intention really was ((/), a Court of Equity will rectify it (e) ; but will not supply terms which have been intentionally omitted under the mistaken notion of their illegality (/).
Conveyance, when reformed in Equity.
The Court will, if necessary, in a suit to set aside a conveyance, make an order to preserve the property pending litigation: e.g., in case of an advowson, by restraining the defendant from presenting to a vacancy; and this, even though he is a sub-purchaser for value, and deny notice of the original fraud (g).
Court preserves property pending litigation.
(c) Mitchell v. Eomfray, (1881) 8 Q. B. D. 587 ; 50 L. J. Q. B. 460 ; Wright v. Vanderplank, sup. ; All-card v. Skinner, (1887) 36 Ch. D. 145; 56 L. J. Ch. 1052; see especially judgment of Bowen, L. J.
(d) Brougham v. Squire, (1852) 1 Dr. 151.
(e) Marquis of Breadalhane v. Marquis of Chandos, (1837) 2 M. & C. 711; inf., s. 8. For marriage settlement rectified, see Bold v. Hutchinson, (1855) 5 D. M. & G. 558 ; Rogers v. Earl, (1757) 1 Dick. 294 ; Johnson v. Bragge, 1901, 1 Ch. 28 ; 70 L. J. Ch. 41 ; Sug. 14th ed. 172. For rectification refused, see Elwes v. E., (1861) 7 Jur. N. S. 747. (/) Inf. p. 1054.
D. Vol II
If a grantee fraudulently conceal and subsequently act on an intention of using the premises for an immoral and illegal purpose, this will not prevent the estate from passing to him at Law under the executed assurance (h).
Illegal motive of purchaser does not avoid conveyance.