(x) Per Coleridge, C. J., in Clarke v. Ramuz, 1891, 2 Q. B. 456, 460; 60 L. J. Q. B. 679.

(y) Foster v. Deacon, (1818) 3 Mad. 394.

(z) See Regent's Canal Co. v. Ware, (1857) 23 Beav. 575; 26 L. J. Ch. 566; Clarke v. Ramuz, 1891, 2 Q,. B. 456; 60 L. J. Q. B. 679.

(a) Ferguson v. Tadman, (1827) 1 Si. 530; Hoggart v. Scott, (1830) Tamlyn, 500; 9 L. J. (O. S.) Ch. 54; Royal Bristol Building Soc. v. Bomash, (1887) 35 Ch. D. 390, 397.

(b) Foster v. Deacon, sup.; Townsend v. Champernowne, (1839) 3 Y. & C. 505, 508.

(c) Lord v. Stephens, (1835) 1 Y. & C. 222.

(d) Harford v. Purrier, (1816) 1 Mad. 532; Rafety v. Schofield, 1897, 1 Ch. 937; 66 L. J. Ch. 448; and see Moloney v. Henshaw, (1891) 29 L. R. Ir. 352, as to duty of vendor of house property let at weekly rents and responsibility for acts of his agent.

(e) Clarke v. Ramuz, sup.

(f) Bennett v. Stone, 1903, 1 Ch. 509; 72 L. J. Ch. 240.

In Phillips v. Silvester (h) there was a dispute between the vendor and purchaser as to what was included in the contract, the latter claiming, and the former not admitting, that a small strip of land formed part of the purchase; pending the dispute, the vendor (i) refused to give up possession of the estate, except upon payment of the whole purchase-money, and took no steps either to procure a tenant for the property, or to preserve it from dilapidation. Long past the time fixed for completion, the vendor obtained a decree for specific) performance, excluding the strip. It was held by Lord Selborne, affirming Lord Romilly, that, as a set off to the interest payable by the purchaser under the contract on his purchase-money, the vendor must be charged with what he would, but for wilful default, have received for rent, and also with the dilapidations; and accounts between the parties were directed on this footing. It was admitted that the delay in completion was solely attributable to the purchaser, and that the vendor in refusing to give up possession acted only within his strict rights; but it was held that having retained possession, he was under the same obligations as any other person who, having a charge on the land, insists on the possession of the land itself as a further security. This decision, though disapproved of by Jessel, M. R., when the cause came on before him for further consideration (k), has been followed in subsequent cases, and must now be considered as good law (l).

Phillips v. Silvester.

(g) Foster v. Beacon, (1818) 3 Mad. p. 395.

(h) (1873) 8 Ch. 173; 42 L. J. Ch. 225; Royal Bristol Building Soc. v. Bomash, (1887) 35 Ch. D. 390; 56 L. J. Ch. 840.

(i) The dispute was in fact between the purchaser and the representatives of the vendor, who had died shortly after the contract.

(k) This further hearing is not reported.

(l) Clarke v. Ramuz, 1891, 2 Q. B. 456; 60 L. J. Q. B. 679; E. of Egmont v. Smith, (1877) 6 Ch. D. 469; 46 L. J. Ch. 356; Royal Bristol Building Soc. v. Bomash, sup.

36 (2)

A vendor who retains possession of the estate until completion of the purchase, does so, not in the character of a mortgagee for better protecting his lien for unpaid purchase-money, but in the character of a trustee (using the term in a qualified sense, and not as implying the active obligations of an ordinary trusteeship) for the purchaser; and, as such trustee, it is his duty to keep the property in a proper state of cultivation, reasonable regard being had to his incurring liability (m). And the purchaser can maintain an action against the vendor in his character as trustee for breach of trust, even after the conveyance has been executed, at least where he was at the time of execution ignorant of the breach, or where his taking the conveyance without making any claim for the breach does not amount to evidence of waiver of his right (n). Whether the deterioration of the property in the possession of the vendor takes place before or after the time fixed for completion, makes no difference to the liability of the vendor where, as is usually the case, there is no intention shown by the contract that either party intended that the purchaser should have possession before completion and payment of the purchase-money (o); but it seems that a vendor would not be liable for deteriorations after the time fixed for completion if the title shown were such that the purchaser ought to take possession (p), and has refused to do so after it has been offered by the vendor. Where expenditure, which is necessary although exceptional, is incurred by the vendor, he can, it is submitted, recover the same from the purchaser (q).

As to deduction of the third description; - Compensation may be due to the purchaser out of the purchase-money in respect of original defects in the estate, either as respects its quantity, or quality, or the extent of the vendor's interest.

Abatement in purchase-money in respect of original defects in estate.

(m) E. of Egmont v. Smith, sup.; and see Shaw v. Foster, (1872) L. R. 5 H. L. p. 338.

(n) Clarke v. Ramuz, sup.

(o) Clarke v. Ramuz, sup. See judgment of Kay, L. J.

(p) Binks v. Lord Rokeby, (1818) 2 Sw. 222, 226; Minchin v. Nance, (1841) 4 Beav. 332.

(q) See Bolton Partners v. Lambert, (1889) 41 Ch. D. 295, 302; 58 L. J. Ch. 425.

As to questions which relate to the quantity or quality of the estate (r): Chap. XII. Sect. 4.

The purchaser will be entitled to compensation for a deficiency in quantity, even though the estate is not sold professedly by measurement (s): and though he could not claim compensation if it appeared that he contracted with a knowledge (t) of the deficiency, such knowledge will not be assumed from the fact of his being intimately acquainted with the property (u), or even being the occupying tenant(x): nor is the right to compensation precluded by a condition that he shall not object to complete his purchase, if the quantity should turn out less than that stated in the particulars (y); nor by acts which amount to a waiver of objections to the title (z).