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.
Plan showing intended adjacent roads and improvements
Statement that adjoining land is building land.
(z) Baskcomb v. Beckwith, (1869) 8 Eq. 100; 38 L. J. Ch. 536.
(a) Feoffees of Heriot's Hospital v. Gibson, (1814) 2 Dow, 301; Squire v. Campbell, (1836) 1 My. & C. 459; 6 L. J. N. S. Oh. 41; Nurse v. Lord Seymour, (1851) 13 Beav. 254; Tucker v. Vowles, 1893, 1 Ch. 195; 62 L. J. Ch. 172; see Schreiber v. Creed, (1839) 10 Si. 9; 8 L. J. N. S. Ch. 346; Beaumont v. Dukes, (1822) Jac. 422; Nicholson v. Rose, (1859) 4 D. & J. 10; Whitehouse v. Hugh, 1906, 1 Ch. 253.
(b) Randall v. Hall, (1851) 4 De G. & S. 343; but qu. whether the vendor refusing to grant a right of way, at any rate over such roads as might eventually be made, could enforce specific performance. See judgment.
(c) Peacock v. Penson, (1848) 11 Beav. 355; 18 L. J. Ch. 57; upon the construction of covenant to make roads, see Mason v. Cole, (1849) 4 Ex. 375; 18 L. J. Ex. 478.
(d) Swansborough v. Coventry, (1832) 9 Bing. 305 2 L. J. N. S. C. P. 11; Broomfield v. Williams, 1897, 1 Ch. 602; 66 L. J. Ch. 305; Pollard v. Gare, 1901, 1 Ch. 834; 70 L. J. Ch. 404; Godwin v. Schweppes, Ltd., 1902, 1 Ch. 933; Cable v. Bryant, 1908, 1 Ch. 259.
Where a person owns a house having the actual use and enjoyment of certain lights and also holds the adjoining land, and sells the house, he cannot, though the lights are new, nor can any one who claims under him, build upon the adjoining land so as to obstruct or interrupt the enjoyment of those lights (f), for such an obstruction by the vendor would be, in effect, a derogation from his grant. A contract for the sale of a house with windows looking over the land of a third person implies no representation or warranty that the windows are entitled to the access of light over that land(g).
Vendor of house retaining adjoining land cannot obstruct lights.
Care should be taken upon the sale of house property or building land which has been described in the title-deeds by reference to indorsed plans and a scale of measurement, to ascertain that the measurement is correct: a slight variation may lead to serious difficulty with a purchaser.
Reference to plans.
In the construction of particulars of sale, the Courts have attached the following meanings to the following expressions: viz: Meaning of particular expressions.
A house described as "brick-built" is understood to be brick-built in the ordinary sense of the words; not composed externally partly of brick and partly of timber and lath and plaster (h): but the description of a house as "substantial and convenient " is merely relative; and in one case, where a house was so described, the purchaser was held to his bargain, though one of the external walls was only half a brick in thicknees (i).
(e) Booth v. Alcock, (1873) 8 Ch. 663; 42 L. J. Ch. 587; Godwin v. Schweppes, Ltd., 1902, 1 Ch. 926, 933; Quiche v. Chapman, 1903, 1 Ch. 669, 666; Westwood v. Heywood, 1921, 2 Ch. 130, 137.
(f) Per curiam, 9 Bing. 309. As to new windows, see Compton v. Richards, (1814) 1 Pr. 27; and Blanchard v. Bridges, (1835) 4 A. & E. 176; 5 L. J. N. S. K. B. 78.
(g) Per Farwell, J., Greenhalgh v. Brindley, 1901, 2 Ch. at p. 328; 70 L. J. Ch. 740; Smith v. Colbourne, 1914, 2 Ch. 532.
By "clear yearly rent" is understood a rent clear of all outgoings (k), etc, usually borne by the tenant; but subject to such (e.g., land tax) as are borne by the landlord (l).
"Clear yearly rent."
A perpetual rent reserved on a sale, where there was no charge in terms in the conveyance, was under special circumstances held to be not improperly described as a "rent-charge" (m).
The expression "farm," includes woodland, part of the estate, though not in the occupation of the tenant (n).
A house where beer was sold by retail under a licence "not to be drunk on the premises," has been held not to be a public house for the sale of beer (a). But a house used exclusively for the sale of beer to be drunk off the premises, though held not to be "a beer-house" (p), is a "beer-shop"(g); and a covenant not to build anything but dwelling-houses, except on a certain part where "shops" might be erected, does not entitle the purchaser to 6ell the excepted part as a site for "taverns" (r).
(h) Powell v. Doubble, Sug. 14th ed. 29.
(i) Johnson v. Smart, (1860) 2 Gif. 151.
(k) As to what is included in the word "outgoings," see Midgley v. Coppock, (1879) 4 Ex. D. 309; 48 L. J. Ex. 674; Re Boor, (1889) 40 Ch. D. 572; Tubbs v. Wynne, 1897, 1 Q. B. 74; 66 L. J. Q. B. 116: Barsht v. Tagg, 1900, 1 Ch. 231; 69 L. J. Ch. 91; Stock v. Meakin, 1900, 1 Ch. 683; Re Allen and Driscoll, 1904, 1 Ch. 493; 73 L. J. Ch. 382; Calder's Yeast Co. v. Stockdale, 1928, Ch. 340.
(l) Earl of Tyrconnel v. Duke of Ancaster, (1754) 2 Ves. sen. 500.
(m) Re Lord Gerard and Beecham, 1894, 3 Ch. 295; 63 L. J. Ch. 695.
(n) Portman v. Mill, (1839) 3 Jur. 356; 8L. J. N. S. Ch. 161.
(o) Pease v. Coats, (1866) 2 Eq. 688; 36 L. J. Ch. 57; but qu. See Feilden v. Slater, (1869) 7 Eq. 523; 38 L. J. Ch. 379; Jones v. Bone, (1870) 9 Eq. 674; 39 L. J. Ch. 405; Buckle v. Fredericks, (1890) 44 Ch. D. 244.
(p) L. & N. W. R. Co. v. Garnett, (1869) 9 Eq. 26; 39 L. J. Ch. 25.
(q) Bishop of St. Albans v. Battersby, (1878) 3 Q. B. D. 359; 47 L. J. Q. B. 571; and see London and Suburban Co. v. Field, ,(1881) 16 Ch. D. 645; 50 L. J. Ch. 549; and Holt v. Collyer, (1881) 16 Ch. D.
The expression "free public house" is a misdescription when the lease contains a covenant to take beer from the lessor (s).
"Free public house."
By the expression "ground rent," if unexplained, is to be understood a rent less than the rack rent of the premises; its proper meaning is the rent at which land is let for the purpose of improvement by building (t): but the expression is very carelessly used. Where what was called a ground rent was in fact a sum in gross, paid for the right of user of a pleasure ground, the purchaser was allowed to rescind his contract and recover his deposit (u).
On the sale of a manor, care should be taken to ascertain accurately what are its constituents. Minerals under tenemental freeholds, or under lands formerly copyhold of a manor, an advowson (x), or allotments made to the lord upon inclosure of wastes, may form parcel of the manor without the fact being suspected: and would pass under the ordinary words of conveyance of the manor, unless specially excepted (y).
Precautions to be observed on sale of manor.
718; 50 L. J. Ch. 811; Nicoll v. Penning, (1881) 19 Ch. D. 258, 267; 51 L. J. Ch. 166.
(r) Coombs v. Cook, (1883) 1 Cab. & El. 75; see Formby v. Barker, 1903, 2 Ch. pp. 547, 548; 72 L. J. Ch. 716.
(s) Jones v. Edney, (1813) 3 Camp. 285; and see Modlen v. Snowball, (1861) 29 Beav. 641; 4 D. F. & J. 143; 31 L. J. Ch. 34.
(t) Stewart v. Alliston, (1815) 1 Mer. 26; but see Bartlettv. Salmon, (1855) 6 D. M. & G. 33; and cf. Lecoy v. Mogford, (1856) 2 Jur. N. S. 1084; 4 W. R. 805.
(u) Evans v. Robins, (1862) 1 H. & C. 302; 31 L. J. Ex. 465; and see Langford v. Selmes, (1857) 3 K. & J. 220.
(x) See the Benefices Act, 1898, and the amending Measure of 1923, and Farrer on Conditions of Sale, 2nd ed. pp. 195, 196.
(y) L. P. Act, 1925, a. 62 (3). As to the old law, see A.-g. v. Ewelme Hospl., (1853) 17 Beav. 366; 22 L. J. Ch. 846; Hicks v. Sallitt, (1853) 3 D. M. & G. 782; 23 L. J. Ch. 571; Hicks v. Hastings, (1857) 3 K. & J. 701. As to the case of the sale of a copyhold farm, see Williams