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.
May be waived.
Effect of acceptance of title subject to specified requisition.
(l) Re Gloag and Miller's Contract, (1883) 23 Ch. D. 320, 327; and see observations of Romer, L. J., on Re Hignett and Bird's Contract, 1903,
1 Ch. 287, in his judgment in Re Allen and Driscoll's Contract, 1904,
2 Ch. p. 231.
(m) See Gloag and Miller's Contract, (1883) 23 Ch. D. 320, 329.
(n) Lesturgeon v. Martin, (1834) 3 M. & K. 255; Sweet v. Meredith, (1862) 8 Jur. N. S. 637; 3 Gif. 610.
(o) Denny v. Hancock, (1870) 6 Ch. 1, 10; 23 L. T. 686.
(p) Southby v. Hutt, (1837) 2 M. & C. at p. 217; 1 Jur. 100.
(q) Blacklow v. Laws, (1842) 2 Ha. at p. 47; 6 Jur. 1121; A.-g. v. Sitwell, (1835) 1 Y. & C. at p. 570; 5 L. J. N. S. Ex. Eq. 86; Bentley v. Craven, (1853) 17 Beav. 204; 21 L. T. (O. S.) 215; Turquand v. Rhodes, (1868) 37 L. J. Ch. 830; 18 L. T. 844.
(r) Sidebotham v. Barrington, (1839) 3 Jur. 947.
(s) Bousfield v. Hodges, (1863) 33 Beav. 90; Re Haedicke and Lipski, 1901, 2 Ch. 666; 70 L. J. Ch. 811; and see Allen v. Smith, 1924, 2 Ch. 308.
Where a purchaser who had been let into possession - which, as it was according to the contract, does not appear material - and who had retained the abstract for a considerable period without objection, and had altered and let the premises, wrote a letter apologising for the non-payment of the purchase-money, this was held to amount to an admission that the title was approved (x): and the same decision was come to, where a purchaser took possession under the contract, paid part and gave security for the residue of the purchase-money, and mortgaged her interest under the contract (y). So where a purchaser had been in possession, and had retained the abstract for five months without making any requisition as to title, and then, while under notice by the vendor to complete within fourteen days, merely required the production of the deeds, he was, under the special circumstances, held to have thereby accepted the title as abstracted (z).
From apologies for non-payment.
From payment for, and dealing with property.
From retention of the abstract without making requisitions.
The preparation of the conveyance cannot, in general, be relied on as evidence of waiver (a): where, however, in the case of a lease, the lessee, without previously requiring a title to be shown, approved of a draft lease furnished by the lessor, and took possession under the contract, he was held to have waived all objections to the title (b); but this is not so where there has been a common mistake (c). Where a purchaser of a leasehold house, after transmission to him of the original lease, prepared a draft assignment, and made various objections as to repairs and other matters, but did not require the production of the lessor's title, the Court considered that he had waived its production (d). Execution of the conveyance is by itself no waiver of a claim for compensation, where the purchase-money has been paid into Court (e).
Approval of preparation of conveyance, when a waiver.
(t) Dawson v. Brinckman, (1850) 3 M. & G. 53.
(u) Phipps v. Child, (1857) 3 Dr. 709.
(x) Margravine of Anspach v. Noel, (1816) 1 Mad. 310. Cf. Cooch v. Walden, (1877) 46 L. J. Ch. 639.
(y) Haydon v. Bell, (1838) 1 Beav. 337; 2 Jur. 1008.
(z) Pegg v. Wisden, (1852) 16 Beav. 239; 16 Jur. 1105. See sup. p. 435.
(a) See Sug. 14th ed. 345; Burroughs v. Oakley, (1819) 3 Sw. 159; (1815) 1 Mer. 52; Harwood v. Bland, (1842) Fl. & K. 540.
Where the purchaser prepares and tenders the draft conveyance, this cannot, as a general rule, amount to waiver of objections on the title, except conditionally upon the vendor's acceding to the proposed form of conveyance (l).
Depends upon circumstances. Where the possession is taken after the delivery of the abstract, and not in pursuance of any special provision of the contract, it is prima facie a waiver of all objections appearing on the abstract; and it lies on the purchaser to rebut this presumption (k).
The fact of an intended lessee having advertised the property for sale, though not considered conclusive, has been relied on, as one among other evidences of his having waived the production of the lessor's title (g); but, in general, no great importance as regards waiver can be fairly attached to the mere circumstance of the purchaser having attempted to resell the property; except that the actual or attempted resale of merely a portion of the estate, may, as between the original vendor and purchaser, show that the latter did not consider such portion material in determining whether there has been waiver of objections to the title (h).
Attempt to resell.
Possession of the property by the purchaser is the fact most frequently relied on as furnishing evidence of waiven of objections to the title (i): its importance, however.
(b) Warren v. Richardson, (1830) You. 1; and see Simpson v. Sadd, (1854) 4 D. M. & G. 665; 24 L. J. Ch. 562.
(c) Jones v. Clifford, (1876) 3 Ch. D. 779; 45 L. J. Ch. 869.
(d) Clive v. Beaumont, (1848) 1 De G. & S. 397; Smith v. Capron, (1849) 7 Ha. at p. 191; 19 L. J. Ch. 322.
(e) Perriam v. P., (1884) 32 W. R. 369; 49 L. T. 710.
(f) Lukey v. Eiggs, (1855) 1 Jur. N. S. 200; 3 Eq. R. 510.
(g) Simpson v. Sadd, (1854) 4 D. M. & G. 665; 24 L. J. Ch. 562.
(h) See Knatchbull v. Grueber, (1815) 1 Mad. at p. 170; (1817) 3 Mer. 124; Jones v. Clifford, (1876), 3 Ch. D. 779; 45 L. J. Ch. 809.
(i) Fludyer v. Cocker, (1805) 12 Ves. 25, 27; Fleetwood v. Green, taken after delivery of abstract.
The strongest case against the purchaser is, where he forcibly, or without the consent of the vendor, and without being authorised by the contract so to do, takes possession: forcibly taking possession was held in an early case to amount to a waiver of an objection for want of title to an important part of the estate (l), though compensation appears to have been allowed.
Possession, however, if taken in accordance with the clear intention of the parties, as evidenced by the terms or subject-matter of the contract (m), or with the consent of the vendor (n), is not in itself, as a general rule, any waiver of the purchaser's right to a good title, or of any pending negotiations upon the title. Where, however, the purchaser was, upon his own application, let into possession, this was held to be a waiver of an objection (viz., a right of sporting over the property) which appeared upon the face of the abstract delivered three months previously, but which had not been made the subject of remark by the purchaser or his solicitor (o). But the taking of possession does not preclude the purchaser from objecting to the title upon grounds which subsequently come to his knowledge aliunde (p). So, also, there will be no waiver, where there has been a serious misdescription of the property, not discovered until after possession was taken (q). Where a purchaser agrees to give a vendor time to remedy a misrepresentation which the vendor within that time fails to do, the purchaser does not thereby lose his right to rescind on the ground of such misrepresentation (r).
Possession taken under contract, or with vendor's leave.
(1809) 15 Ves. 594; Binks v. Lord Rokeby, (1819) 2 Sw. 222, 226; (1817) 2 Mad. 227; Haydon v. Bell, (1838) 1 Beav. 337; 2 Jur. 1008; Seller v. Simonds, (1859) 5 Jur. N. S. 997; 34 L. T. (O. S.) 43.
(k) Bown v. Stenson, (1857) 24 Beav. 631; Gloag and Miller's Contract, (1883) 23 Ch. D. 320; 52 L. J. Ch. 654.
(l) Calcraft v. Roebuck, (1790) 1 Ves. 221.
(m) Dixon v. Astley, (1816) 1 Mer. 134; Stevens v. Gappy, (1828) 3 Rus. 171; 6 L. J. Ch. 164; Bolton v. London School Board, (1878) 7 Ch. D. 766; 47 L. J. Ch. 461.
(n) Vancouver v. Bliss, (1805) 11 Ves. 458, 464; Burroughs v. Oakley, (1819) 3 Sw. 159; (1815) 1 Mer. 52; Simpson v. Sadd, (1854) 4 D. M. & G. 665; 24 L. J. Ch. 562.
(o) Burnell v. Brown, (1820) 1 J. & W. 168.
(p) Bown v. Stenson, (1858) 24 Beav. 631.
Where purchasers retained possession for two years, without requiring an abstract, which, according to the agreement, was to be paid for by themselves, if required, this was held to be a waiver of their right to investigate the title (s). And where a purchaser has taken possession of and enjoyed the subject-matter of the contract, the Court will, as against him, make every presumption in favour of the validity of the contract (t).
Long retention of possession.
The grant of a lease by the purchaser to a tenant in possession is equivalent to taking possession (u): so is acceptance of the keys of a house (x).
What amounts to possession.
In Peart v. Bushell (y), Hart, V.-c, refused to enforce, under the Court's summary jurisdiction, a personal undertaking by the vendor's solicitor to do certain acts for perfecting the title. But this case was disapproved of by Hamilton, J., in United Mining, etc. Corp. v. Becher(z).
Undertaking by solicitor to perfect title.
(q) Turquand v. Rhodes, (1868) 37 L. J. Ch. 830; 18 L. T. 844.
(r) Tibbatts v. Boulter, (1895) 73 L. T. 534.
(s) Sibbald v. Lowrie, (1854) 18 Jar. 141; 23 L. J. Ch. 593; Wallis v. Woodyear, (1856) 2 Jar. N. S. 179.
(t) Port of London Assurance case, (1854) 5 D. M. & G. 465; 2 Eq. R. 260.
(u) Ex p. Sidebotham, (1834) 1 M. & A. 655; 3 L. J. N. S. Bkcy. 122.
(x) Guest v. Homfray, (1801) 5 Ves. at p. 823.
(y) (1827) 2 Si. 38.
(z) 1910, 2 K. B. 296, 306. On appeal, 1911, 1 K. B. 840, the case was disposed of without any decision being given upon the questions of law and practice dealt with in the judgment of the Court below.