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.
(u) Per Collins, L. J., in Re Woods and Lewis' Contract, 1898, 2 Ch. p. 216.
(x) North v. Percival, 1898, 2 Ch. 128; 67 L. J. Ch. 321; see the observations of Parker, J., in Re Bayley-worthington and Cohen's Contract, 1909, 1 Ch. p. 660. See also Savory v. Underwood, (1854) 23 L. T. (O. S.) 141.
(y) Herbert v. Salisbury and Yeovil R. Co., (1866) 2 Eq. 221.
(z) Grove v. Bastard, (1851) 1 D. M. & G. 69, 79; and see Williams v. Glenton, (1866) 1 Ch. 200; 35 L. J. Ch. 284, in which case the conditions made interest payable if "from any cause whatever " completion should be delayed.
Agreement to take rents and profits.
The Court, upon a petition under the L. C. C. Act, has no jurisdiction to direct payment by the company of interest upon purchase-money which has been paid into Court, but has remained uninvested (b).
As to cases under the L. C. C. Act, 1845.
The vendor cannot claim from the purchaser interest upon the deposit for the time during which it has, through the latter's default, been retained by the auctioneer earning no interest (c); but he can claim interest upon purchase-money left in the purchaser's hands, to answer incumbrances payable at a future date (d). Lord St. Leonards considered it doubtful whether the vendor could be compelled to pay interest on the deposit (e); but where the vendor was plaintiff, asking for specific performance, and his action was dismissed for want of title, he was ordered to repay the deposit with interest at 4 per cent. (f).
In paying the interest the purchaser may deduct income tax (g).
Where there is no express agreement on the quantity, and the contract in general terms includes property which it was not proposed to sell, Equity would not enforce it against the vendor, without at least giving him compensation(h); but a vendor has no general right to additional purchase-money, merely because the estate exceeds the quantity stated in the particulars. Since, however, if it were sold professedly by the acre, the excess, if taken, must, it is conceived, be paid for, it seems to follow, from the doctrine laid down in Hill v. Buckley (i) (viz., that where the quantity is stated the price must be considered as fixed with reference thereto), that if called upon to fulfil the contract, he might, independently of agreement, refuse to complete unless he were allowed compensation; at any rate where the excess is considerable (k).
Vendor's right to compensation is generally questionable.
(a) Brooke v. Champernowne, (1837) 4 C. & F. 589; Sweetland v. Smith, (1833) 1 Cr. & M. 585, where a like effect was attributed to a condition providing for payment of expenses, but not referring to interest.
(b) Re Crystal Palace R. Co., (1855) 1 Jur. N. S. 995; Ex p. Topple, (1871) 19 W. R. 1058. See Ex p. Lord Hardwicke, (1852) 1 D. M. & G. 297, where the jurisdiction was given by consent.
(c) Bridges v. Robinson, (1811) 3 Mer. 694; and see Townshend v. T., (1826) 2 Rus. 303; Sug. 14th ed. 638.
(d) Hughes v. Kearney, (1803) 1 Sch. & L. at p. 134; Comer v. Walkley, (1784) Sug. 14th ed. 677, n.
(e) See Sug. 14th ed. 638; but allowed in bankruptcy, see Re Page, (1837) 1 D. & Wal. 31.
(f) Turner v. Marriott, (1867) 3 Eq. 744.
(g) Bebb v. Bunny, (1854) 1 K. & J. 216; and see Gosling and Sharpe v. Blake, (1889) 23 Q. B. D. 324.
A special condition for compensation has been, as respects different lots on the same 6ale, held to apply as well in favour of as against a vendor (l). Where fields described as "fourteen acres more or less," were sold for 973l, under an order of the Court, and with the usual condition as to misdescription, a petition stating that the fields in fact contained twenty-seven statutory acres (the acres mentioned in the particulars being intended for customary acres), and that the real value was 1,600l., and praying that the purchaser might pay the difference, or that the property might be re-sold, was dismissed with costs (m). The decision, however, was chiefly on the ground of delay, four years having elapsed since the sale; and the case may, perhaps, be considered to differ in principle from cases where there is a misstatement of quantity, incapable of being explained by the difference between statutory and customary measurement; for, possibly, the purchasers at the sale might have bid under the full impression that the fourteen acres were in fact customary-acres, and this was alleged to have really happened. Lord St. Leonards' comment (n) upon the case is, "that no doubt it would be difficult in such a case to make a purchaser in good faith buy an estate twice as large as that for which he had contracted, and pay double the amount of the purchase-money for it:" and it may be doubted whether a purchaser ought ever to be compelled, under such conditions, to pay a sum materially exceeding the contemplated amount of purchase-money; in the above case, the Court seems to have considered, that had any relief been granted, it must have consisted in avoiding the sale altogether; and thus nullifying the condition. There appears no reason to doubt that such a condition can be insisted on by a vendor as defendant.
Alleged undervalue from measurement being given in customary instead of statutory acres, no compensation.
(h) See A.-g. v. Sitwell, (1835) 1 Y. & C. 559; 5 L. J. N. S. Ex. Eq. 86; Marquis Townshend v. Stangroom, (1801) 6 Ves. 328; see Tyler v. Beversham, (1673) Finch, 80; Alvanley v. Kinnaird, (1849) 2 M. & G. 1.
(i) (1811) 17 Ves. 394, 401.
(k) See Leslie v. Tompson, (1851) 9 Ha. at p. 273; 20 L. J. Ch. 561; Newby v. Paynter, (1853) 17 Jur. 483; but see Re Orange to Wright, (1885) 54 L. J. Ch. 590, where there was a compensation clause; cf. North v. Percival, 1898, 2 Ch. 128; 67 L. J. Ch. 321; Connor v. Potts, (1897) 1 Ir. R. 534.