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 a necessary party to the title is, neither in Law nor in Equity, subject to the control of the vendor, hut has an independent interest, and no evidence is furnished of a legal or equitable obligation on the part of such stranger to concur in the sale, the certificate should be against the title (//), on the ground of such non-concurrence; not that a good title can be made upon the stranger concurring (i). But where such necessary party is bound, as in the case of a trustee (k) or mortgagee, or agrees (/) to concur, the certificate may be in favour of the title (m). The certificate, however, should, in the case of an incumbrance, it is conceived, be, that a good title can be shown subject to the incumbrance, and that the incumbrancer is bound to concur; not that a good title can be made upon payment of the incumbrance (n).
Outstanding interest when a ground for reporting against title.
If the certificate be in favour of the title, and no application be made to discharge or vary it, a decree for specific performance will be made on the hearing on further consideration, unless in the interim any matter appear which affects the title; in which case, although the time for applying to discharge or vary the certificate may have expired, a further reference may be ordered, under special circumstances, on motion (o), or now probably on summons.
Where the certificate is in favour of the title.
If the certificate be against the title, and there be no application to discharge or vary it, or if such application be made, and prove unsuccessful, the vendor's action may be dismissed with costs on the hearing on further consideration.
Certificate against title.
We may here remark, that a decree, even by the Lords (p), for specific performance, in a suit between vendor and purchaser, is no protection against the adverse claims of persons not parties to the suit (q) ; except so far as that, if any particular question of title be decided in favour of the vendor, such decision forms a precedent which probably would, and in any inferior Court ought to, be followed on a future occasion, and in fact constitutes as good a warranty as can be procured (r) ; also, that such a decree may be abandoned or waived by delay, or by the conduct of the parties entitled to the benefit of it (s).
Decree for specific performance, no bar to claims by persons not parties.
(h) Esdaile v. Stephenson, (1822) 6 Mad. 366; Douglass v. L. & N. W. H. Co., (1857) 3 K. & J. 173, 181.
(i) S. V., as reported in Sug. 14th ed. 350.
(k) Avarne v. Brown, (1844) 14 Si. 303 ; 14 L. J. Ch. 30 ; Jumpson v. Pitchers, (1844) 1 Col. 13; 13 L. J. Ch. 166.
(l) Paton v. Rogers, (1822) 6 Mad. 25G : Sidebotham v. Barrington, (1841)
4 Beav. 110.
(m) Esdaile v. Stephenson, sup.
(n) Sug. 14th ed. 350 ; Magennxs v. Fallon, (1829) 2 Mol. at p. 575.
(o) Jeudwine v.Alcock, (1816)1 Mad. 597 ; and see now Ord. LV. r. 71.
(p) See Blosse v. Lord Clanmorris, (1821) 3 Bl. 62, 71 ; and per Lord Eldon, Vancouver v. Bliss, (1805) 11 Ves. 465; Jervoisey. Luke of Northumberland, (1820) 1 J. & W. 569.
A short outline has now been given of the principles bearing on an action for specific performance. For fuller details, the giving of which the necessary limits of this work do not admit, the reader is referred to Fry on Specific Performance, 4th edition, pp. 485 et seq.
(q) See Wood v. White, (1838) 4 M. & C. at p. 470 ; 7 L. J. N. S. Ch. 203 ; 8 ib. 209.
(r) Per Lord Eldon, Vancouver v. Bliss, (1805) 11 Ves. 465. (s) See Lord Rosse v. Sterling, (1816) 4 Dow, 442.