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.
Where land is sold as fen land, the particulars need not refer to embanking and drainage taxes, to which it is-subject under a local but public Act of Parliament (u).
Or statutory local taxes:
(m) Seaman v. Vawdrey, (1810) 16 Yes. 390. See Ramsden v. Hurtt, (1858) 6 W. R. 349; 27 L. J. Ch. 482.
(n) Forteblow or Horniblow v. Shirley, (1806) 13 Ves. 81; cited 2 Sw. 223.
(o) Re White and Smith, 1896, 1 Ch. 637; 65 L. J. Ch. 481; Re Haedicke and Lipski, 1901, 2 Ch. 666; 70 L. J. Ch. 811; Allen v. Smith, 1924, 2 Ch. 308.
(p) See Shackleton v. Sutcliffe, (1847) 1 De G. & S. 609; Heywood v. Mallalieu, (1883) 25 Ch. D. 357; 53 L. J. Ch. 492. Cf. Beyfus v. Lodge, 1925, Ch. 350.
(q) Bowles v. Round, (1800) 5 Yes. 508. Cf. Yandle v. Sutton, 1922, 2 Ch. 199.
(r) Coverley v. Burrell, (1821) Sag. 14th ed. 27.
(s) Ballard v. Way, (1836) 1 M. & W. 520; 5 L. J. N. S. Ex. 207.
(t) See Bailey v. Barnes, 1894, 1 Ch. 25; 63 L. J. Ch. 73.
(u)Barraud v. Archer, (1828) 2 Sim. 433; affd. 2 Russ. & M. 751; 9 L. J. (O. S.) Ch. 173.
So, on the sale of lands within the mining districts, any reference to the rights of mining (x) under the local customs would, it is conceived, be unnecessary, as their existence is matter of notoriety (y).
Or notorious local customs:
But the particulars must contain no (misrepresentation; e.g., if, on the sale of leaseholds, the terms of the lease are mis-stated, the sale may he set aside; even though the auctioneer read the lease at the sale (z). So, where on a sale by the Court of leasehold properties held under a corporation, which usually reserved mere nominal rents, a full detailed description was given of one of the lots, which did not state that it was subject to a heavy ground rent, the purchaser was discharged from his purchase (a). So also, where the vendor knew that the purchaser required the land for building purposes and represented that it was suitable for that purpose, when in fact there was an underground culvert, which rendered it unsuitable (b). In such a case, the misrepresentation is so material that the purchaser may be regarded as not getting that for which he contracted (c). It has been held, however, that where there is a latent defect, but the defect is not so material as to prevent the purchaser from getting substantially what he contracted for, he is not entitled to have the contract rescinded, but may have to take the property with compensation (d).
But no misrepresentation allowable: e.g., misstatement of lease:
(x) See Rogers v. Brenton, (1847) 10 Q. B. 26; 17 L. J. Q. B. ,34; Rowe v. Brenton, (1828) 3 Man. & R. 247, 339, 341, 344; 8 B. & C. 765.
(y) And see now, as to the Hundred of High Peak, Derbyshire, 14 &. 15 Vict. c. 94; and Wake v. Hall, (1883) 8 A. C. 195; 52 L. J. Q. B. 494. In the Forest of Dean the customs have been regulated by the Dean Forest (Mines) Act, 1838, amended by 24 & 25 Vict. c. 40, and the Dean Forest (Mines) Act, 1871. See Wood on Dean Forest; Macswinney, 3rd ed. p. 536. As to the customs of Devon and Cornwall, see Stannary Laws, and Macswinney, 3rd ed. c. 19; also Macswinney, 5th ed. p. iii.
(z) Flight v. Booth, (1834) 1 Bing. N. C. 370; 4 L. J. N. S. C. P. 66; Jones v. Edney, (1813) 3 Camp. 285; and see Van v. Corpe, (1834) 3 My. &. K. 269; Flight v. Barton, (1832) ib. 282; Stanley v.mcgauran, (1882) 11 L. R. Ir. 314.
(a) Jones v. Rimmer, (1880) 14 Ch. D. 588; 49 L. J. Ch. 775. In this case there was no actual misstatement, and yet the particular was held to be misleading.
(b) Re Puckett and Smith, 1902, 2 Ch. 258; 71 L. J. Ch. 666.
(c) 1902, 2 Ch. p. 264.
Or of dimensions of property:
So, where redeemed land tax, consisting of several sums charged on distinct tenements, was described as an aggregate sum issuing out of all, the misdescription was held to be a fatal objection to the title (f). And a description in the particulars of six houses as being held under one lease at ground rents of 4l. per annum for each house, when the property is held at an entire rent of 24l., is a material misstatement entitling the purchaser to recover his deposit (g).
Or as to redeemed land tax:
Or of ground rent.
The effect of what would otherwise be notice may be destroyed, not only by actual misdescription or misstatement, but by anything calculated to deceive, or even lull suspicion, upon the particular point; as where lot A. (building land) was expressed to be sold subject to the rights of way reserved by the existing leases of adjoining property B., and a plan, specially referred to in the particulars, disclosed a carriage-way reserved over A. to B., and also a way reserved over A. to another lot C, but gave no indication of another way reserved over A. to B., the particulars and plan were treated as deceptive; and the purchaser was held not bound, in the particular circumstances, to have inspected the leases (h).
Nor anything calculated to deceive, etc. Reference to deceptive plan.
So, where a lessee sold (by way of underlease) part of a demised estate, and the particulars mentioned that the original lease contained a power of re-entry on breach of a covenant against certain trades being carried on upon the premises, and that the purchasers must enter into similar covenants, but did not state the fact - a serious defect in the title (i) - that some underleases, already granted of parts of the property, contained no such covenants, the purchaser recovered his deposit at Law (h). So, in Equity, a vendor of property on lease is not justified in parading upon his particulars the existence of covenants beneficial to the estate, but which he knows, or has good reason to believe, cannot be enforced (l): though he is not, as a general rule, bound to show who are nominatim the parties liable upon such covenants (l).