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.
(y) Dorin v. Harvey, (1845) 15 Si. 49.
(z) Fleetwood v. Green, (1809) 15 Ves. 594 ; Margravine of Anspach v. Noel, (1816) 1 Mad. 310 ; Burroughs v. Oakley, (1819) 3 Sw. at p. 168, and earlier cases cited in argument ; Blacklow v. Laws, (1812) 2 Ha. at p. 47 ; Southby v. Hutt, (1837) 2 M. & C. 207; Bown v. Stenson, (1857) 24 Beav. 631.
(a) Hall v. Laver, (1838) 3 Y. & C. 191 ; King v. K., (1832) 1 M. & K. 442.
(b) Phipps v. Child, (1857) 3 Dr. 709.
"We have already seen that a purchaser who accepts a title; conditionally on the vendor complying with a specified requisition, which is not complied with, is entitled to a general reference of title (c).
Acceptance of conditional title, effect of.
The reference, when directed, should he complete and extend to all that regards the title, but not to other matters (d). The order is, to inquire whether the vendor can at the time of the reference (not at the date of the contract) show a good title (e); and it should contain a direction that if it shall he found that a good title can be shown, then it shall be ascertained when it was first shown ; and so the order is now always made; unless, for some reason stated at the time, and by the express direction of the Court, the inquiry as to the time when a good title was first shown be omitted (f) ; or unless the contract itself be disputed in the cause (g). The order may be to inquire whether a good title can be shown "subject to the conditions of sale " (h) ; but even without this qualification the inquiry will be restricted in Chambers to the deduction of a good title, having regard to the terms of the contract (i). So, also, an inquiry will, if desired, be directed, whether the defendant ever required of the plaintiff any, and what, evidence in proof of a point material to the title and at what time (k) ; but not as to a matter which has no reference to the title; e.g., the sufficiency of the abstract delivered (/).
Order of reference, subject-matter and form of.
(c) Sup. p. 508 ; Lesturgeon v. Martin, (1834) 3 M. & K. 255.
(d) Jennings v. Hopton, (1816) 1 Mad. at p. 212 ; Bennett v. Rees, (1836) 1 Ke. 405 ; 5 L. J. N. S. Ch. 360.
(e) Langford v. Pitt, (1731) 2 P. W. 630.
(f) Per Lord Langdale in Bennett v. Sees, (1836) 1 Ke. 409; 5 L.J. N. S. Ch. 360.
(g) See Gibbins v. N. E. M. Asylum, (1847) 11 Beav. 1, 5; 17 L. J.Ch.5; and Keyse v. Haydon, (1851)9 Ha.
App. lviii. ; rotter v. Crossley, (1856) 5 W. R. 35; Parry. Lovegrove, (1857) 4 Dr. 170 ; and for forms of orders, see Seton, 0th ed. 222 3 et seq.
(h) Wood v. Machu, (1846) 5 Ha. 158, 162; 16 L. J. Ch. 21.
(i) Re Banister, (1879) 12 Ch. D. 131 ; 48 L. J. Ch. 837 ; Smith v. Robinson, (1879) 13 Ch. D. 148; 49 L. J. Ch. 20 ; and see McMurray v. Spieer, (1868) 5 Eq. 527; 37 L. J. Ch. 505 ; Upperton v. Nicholson, (1871) 6 Ch. 436; 40 L. J. Ch. 401.
(k) Bennett v. Rees, sup. at p. 408.
A purchaser will not be compelled to take a doubtful title (m). "It is by no means easy to express what amount of doubt upon a point there must be, to induce the Court to refuse specific performance; and this difficulty has been increased by the ebb and flow of judicial opinion and decision for and against the rule which has characterised the cases for the last quarter of a century" (n). It is consequently impossible to give any perfect classification of the doubts which would, and of those which would not, prevail with the Court; and, as the consideration of the cases in detail, further than they have already been considered, seems hardly to fall within the scope of this work, the reader is referred on the subject to Chap. XVIII. of the 4th edition of Fry on Specific Performance.
Doubtful title, whether purchaser bound to accept.
With reference to the inability of the Court in a case, as between vendor and purchaser, to bind the interests of third parties, it should be mentioned that in actions for specific performance of contracts relating to registered land, or a registered charge, the L. T. Act, 1875 (o), has empowered the Court to cause all or any parties who have registered estates or rights in such land or charge, or have entered up notices, cautions, or inhibitions against the same, to appear in such action and show cause why such contract should not be specifically performed; and the Court may direct that any order made in such action shall be binding on such parties or any of them.
Third parties may be bound under Land Transfer Acts.
The necessity for bringing an action for specific performance has been in great measure superseded by the more summary procedure by summons provided by s. 9 of the V. & P. Act, 1874, which may be resorted to for the determination of any question arising out of or connected with the contract, not being a question affecting the existence or validity of the contract; i.e., in its inception (q). In such a proceeding the parties are in the same position as they would have been under a reference as to title in a suit for specific performance (r), and any question of difficulty on the title may he solved. Thus, in Re Hill to Chapman (s), the purchaser took objection to the vendor's power to sell, and made a requisition that he should obtain a judicial decision on the construction of the will under which he claimed. The vendor declined to do so, and took out a summons under the Act, asking for a declaration that the requisition had been sufficiently answered. The question of construction was thus immediately raised; and, on its being decided against the vendor, he was ordered to pay the costs of the summons. Thus too, although, upon a summons under s. 9 of the Act, evidence is adduced tending to throw a doubt upon the existence or validity of the contract itself, that does not preclude the Court from deciding, on the summons, a specific question arising out of or connected with the contract as it stands, such as a question with regard to the vendor's right to limit, in the conveyance, the operation of the general words in s. 6, sub-s. 2, of the Conv. Act, 1881; and it is the duty of the Court to deal with such a question on the summons, irrespective of whether the contract is one that can be enforced or not (t). The Court has jurisdiction upon a vendor's summons under the Act to make an order for the rescission of the contract, the return of the deposit, and the payment of the costs of investigating the title (u), but has no jurisdiction to give a purchaser unliquidated damages for a vendor's delay (x). A person who has availed himself of the provisions of the Act cannot, as a general rule, afterwards bring an action for specific performance (g). But where a purchaser has failed in his summons on the title, and yet refuses to complete, the vendor may sue him for specific performance (z). But, in such a case, if the purchaser, after the order on the summons, discovers facts showing the title to be bad, which he could not have discovered earlier with reasonable diligence, he may, at all events with the leave of the Court, counterclaim by way of an action of review (a). The Court has jurisdiction under the Act to decide whether a power to rescind contained in the contract has been properly exercised (b) ; as also to decide an isolated question arising out of the contract, although the respondent alleges he has entered into it under a mistake which would entitle him to rescind it (c). It is not proper to raise on summons under the Act a question as to the amount of an item of the vendor's solicitor's costs (d). And where the purchaser seeks to recover his deposit on the ground of fraud or misdescription enabling him to rescind, the matter then affects the validity of the contract, and cannot be determined under the Act (e). Sect. 9 of the Act is intended to enable vendors and purchasers to determine distinct isolated points arising under a contract, and not the question whether a vendor has a good title in a general way (f). The time within which an appeal can be brought from an order made under that section is twenty-one days (g).
The V. & P.
(m) Shapland v. Smith, (1780) 1 Br. C. C. 75; Vancouver v. Bliss, (1805) 11 Ves. 458, 465; Sloper v. Fish, (1813) 2 Ves. & B. 145 ; Jer-roise v. Duke of Northumberland, (1820) 1J. & W. 559, 569 ; Earl of Lincoln v. Arcedeckne, (1844) 1 Col. 98 ; Blosse v. Lord Clanmorris, (1821) 3 Bl. 62; Palmer v. Locke, (1881) 18 Ch. D. 381 ; 51 L. J. Ch. 124.
(n) Fry, 4th ed. 382.
(o) S. 93.
(q) Re Jackson and Woodbum, (1887) 37 Ch. D. 44; 57 L. J. Ch. 242. For observations as to scope of summonses, see Re Calcott and Elvin, (1898) 67 L.J. Ch. 553 ; 78 L. T. 417.
(>) Re Burroughs, Lynn and Sexton, (1877) 5 Ch. D. 601 ; 4G L. J. Ch. 528.
(s) (1884) 54 L. J. Ch. 595.
(t) Re Hughes and Ashley, 1900, 2 Ch. 595; G9 L. J. Ch. 711, approving Re Lander and Bayley, 1892, 3Ch. 41; 6l L.J. Ch. 707.
(u) Re Walker and Oakshott, 1901, 2 Ch. 383; 70 L. J. Ch. 666, following Higgins v. Perdval, (1888) 57 L. J. Ch. 807; 59 L. T. 213; Re Bryant and Barningham, (1890) 44 Ch. D. 218 ; 59 L. J. Ch. 636.
(x) Re Wilson and Stevens, 1894, 3 Ch. 546, 552 ; 63 L. J. Ch. 863.
(y) Thompson v. Ringer, (1880) 29 W. R. 520.
(z) Re Scott and Alvarez, 1895, 1 Ch. at pp. 609, 610, and the comments on that case in Re Wallis and Barnard, 1899, 2 Ch. at p. 520 ; 68 L. J. Ch. 753.
(a) lb. pp. 610, 622.
(b) Re Jackson and Woodburn, (1887)
37 Ch. D. 44 ; 57 L. J. Ch 213.
(c) Re Wallis and Barnard, 1899, 2 Ch. 515, 520 ; 68 L. J. Ch. 753.
(d) Re Webster and Jones, 1902, 2 Ch. 555; 71 L. J. Ch. 749.
(e) Re Davis and Cavey, (1888) 40 Ch. D. p. 608 ; 58 L. J. Ch. 153.
(f) Re Wallis and Barnard, sup.
(g) Re Blyth and Young, (1880) 13 Ch. D. 416; Re Rickett and Avent, (1890) W. N. 16.