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.
(p) (1822) 1 S. & S. 122; Jones v. Mudd, (1827) 4 Rus. 118; 6 L.j. (O. S.) Ch. 26; Matson v. Swift, (1841) 5 Jur. 645.
(q) Monch v. Huskisson, (1827) 4 Rus. 121, n.
(r) Birch v. Podmore, (1828) Sug. 14th ed. 635.
(s) As to what is wilful default, see Elliott v. Turner, (1848) 13 Si. 477; Ex p. Bradshaw, (1848) 16 Si. 174; 17 L. J. Ch. 454; Re Windsor W. B. Act, (1850) 12 Beav. 522; Gregory v. Wilson, (1852) 9 Ha. p. 689; Re Bayley-worthington and Cohen's Contract, 1909, 1 Ch. 648.
(t) Oxenden v. Lord Falmouth, (1833) Sug. 14th cd. 637.
(u) Greenwood v. Churchill, (1845) 8 Beav. 413; 14 L. J. Ch. 143.
"Purchaser making default."
"Purchaser failing in making payment."
De Visme v. De V.
In the same case, it having been decided that the right to interest on the one hand, and to the income of the estate on the other, was not to commence until a good title was shown, the purchaser, when he applied for it, was refused compensation in respect of his money having been comparatively unproductive in the interim, on the ground that the vendors being in default and being therefore unable to exact from the purchaser interest until a good title was shown, the purchaser on his side was not justified in setting aside hie purchase-money until such title was shown (b).
This decision seems open to criticism. If, on the ground of hardship, the strict words of the agreement (which are sufficiently large in terms, and are notoriously intended in practice to extend to delays in making out the title) may be disregarded on the like principle, the purchaser (who may possibly have called in money upon the faith of the vendor's agreement to complete on a certain day) ought to be allowed to appropriate and reinvest it in such a manner as that it may produce some income and yet be ready when required, and to throw the loss of interest on the vendor (c).
Remarks on De Visme v. De V.
(x) Denning v. Henderson, (1847) 1 De G. & S. 689; 17 L. J. Ch. 8; Jones v. Gardiner, 1902, 1 Ch. 191; 71 L. J. Ch. 93. (y) See Paton v. Sogers, (1822) 6 Mad. 256. (z) (1849) 18 L. J. Ch. 159.
(a) De Visme v. De P., (1849) 1 M. & G. 336; 19 L. J. Ch. 52; and see Robertson v. Skelton, (1850) 12 Beav. 363; 19 L. J. Ch. 140. In Morris v. Wood, 15th Nov. 1850, Ms., Lord Cranworth stated that he adopted the latter of Lord Cottenham's two alternatives.
(b) (1849) 1 M. & G. 336, 352, 353.
Later decisions have brought the doctrine back into much the same state as that in which it was before De Visme v. De V., viz., that where there is neither vexatious conduct, dealing in bad faith, nor gross negligence on the part of the vendor, the special condition containing the expression "from any cause whatever," will extend to delays fairly arising from the state of the title (d). And where the conditions provided that interest should be paid "if from (any cause whatever other than the default of the vendor" - (the word "wilful" not being inserted) - the purchase should not be completed on the day named, and a delay arose owing to a defect in title, which was not, and could not be known to the vendor at the date of the contract, it was held that there was no "default" within the meaning of the contract and that the purchaser must accordingly pay interest (e).
Where a vendor died on the eve of completion, having devised the estate to an infant, which rendered a suit necessary, the purchaser was held liable to pay interest from the time originally fixed for completion (f); so, also, where, after the contract, a suit was found to be necessary in order to clear the title (g). And where there was a contract for the purchase of an undivided moiety of an estate subject to a lease, and, in consequence of the owner of the other moiety claiming the entirety, and refusing to produce the deeds, the vendor was compelled to file a bill for partition against him, but died pending the suit, having devised his estate to infants, and there was a delay of eleven years before a title was made, it was held by Lord Romilly that the purchaser was not under the circumstances compellable to complete; but that if he elected to do so, he must pay interest from the time fixed for completion (h). In this case the delay was not wholly caused by the difficulties of the title, but was partly attributable to the vendor. There had, however, been no appropriation of the purchase-money; and the purchaser, who was not prejudiced by the delay, had neither threatened to rescind the contract nor taken active measures to enforce completion. On appeal this decision was affirmed. Turner, L. J., considered that there was no obligation on a vendor to enter into litigation with an adverse claimant in order to perfect his title (i); but this, it is thought, would only apply to cases where the vendor, at the time of entering into the contract, is not aware of any adverse claim which may probably give rise to litigation, if or the Court will prevent a vendor from taking advantage of his own wrong (k).
(c) See Dyson v. Hornby, (1851) 4 De G. & S. 481.
(d) See Sherwin v. Shakspear, (1854) 5 D. M. & G. 517; 23 L. J. Ch. 177, 899.
(e) Re Woods and Lewis, 1898, 1 Ch. 436; 1898, 2 Ch. 211. Cf. Re Bayley-w'orlhington and Cohen's Contract, 1909, 1 Ch. 648.
(f) Bannerman v. Clarke, (1856) 3 Dr. 632; 26 L. J. Ch. 77; and see Tewart v. Lawson, (1856) 3 S. & G. 307; Vickers v. Hand, (1859) 26 Beav. 630.
(g) Lord Palmerston v. Turner, (1864) 33 Beav. 524; 33 L. J. Ch. 457.
Where there is a condition making interest payable if delay is due to the wilful default of the vendor, the purchaser will not, it seems, thereby escape the payment of interest if the delay is not entirely due to such default but also to the unreadiness of the purchaser himself to complete (l). "It is now settled that though moral delinquency, intentional delay, or wilful obstruction on the part of the vendor may all be absent, yet there may be wilful default on his part, disentitling him to interest" (m). "Default is a purely relative term, just like negligence. It means nothing more, nothing less, than not doing what is reasonable under the circumstances; - not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction. Wilful is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in Courts of Law, implies nothing blameable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent" (n).