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.
(g) Cordingley v. Cheeseborough, (1862) 4 D. F. & J. 379; 31 L. J. Ch. 617; Whittemore v. W., (1869) 8 Eq. 603; and see Re Terry and White, (1886) 32 Ch. D. 14; 55 L. J. Ch. 345; Re Fawcett and Holmes, (1889) 42 Ch. D. 150, 157, 158; 58 L. J. Ch. 763; Jacobs v. Revell, 1900, 2 Ch. 858.
(h) Earl of Durham v. Legard, (1865) 34 Beav. 611; 34 L. J. Ch. 589. (i) Hill v. Buckley, (1811) 17 Ves. 401.
(k) Winch v. Winchester, (1812) 1 V. & B. 377; Duke of Norfolk v. Worthy, (1808) 1 Camp. 337, 339; Sug. 14th ed. 325.
(l) 1917, 1 Ch. 93.
Surface deficiency on pale of woods.
As respects the quality of the estate, - A purchaser, it appears, may claim compensation in respect of any deficiency which "admits of a certain estimation" (n): for instance, he may claim it for dilapidations of a house described as "in good repair" (o); or for the want of cultivation of land described as being in "a high state of cultivation" (p); or for the want of a natural water supply, where a manufactory in a place abounding in springs was described as well supplied with water, and there was in fact only an artificial supply on payment of a water rate (q). Compensation cannot be claimed, however, for that which does not admit of a pecuniary equivalent: for instance, it could not be claimed, it is thought, in respect of the land lying dispersed, instead of within a ring fence, as described (r); though such a variation might be sufficient to avoid the sale; and the purchaser cannot claim compensation in respect of a misdescription known to him when he entered into the contract. In this class of cases he must, unless the error is also contained in the conveyance, make his claim before execution, for such errors would otherwise be merged in the conveyance (s).
Abatement in purchase-money in respect of deficiency in quality may be claimed, when.
(m) Hill v. Buckley, (1811) 17 Ves. 394; see form of order, Seton; and see Aspinalls to Powell, (1889) 60 L. T. 595.
(n) Dyer v. Hargrove, (1805) 10 Ves. 505, 508.
(o) lb.; Grant v. Hunt, (1815) G. Coop. 173.
(p) Dyer v. Hargrave, tup.
(q) Leyland v. lllingworth, (1865) 2 D. F. & J. 248; 29 L. J. Ch.611.
(r) Fewster v. Turner, (1842) 6 Jur. 144; 11 L. J. N. S. Ch. 161.
(s) Perriam v. Perriam, (1884) 32 W. R. 369; Greswolde-williams v. Barneby, (1901) 83 L. T. 708; cf. Saunders v. Cookrill, (1902) 87 L. T. 30.
If the vendor has received the purchase-money, he must, in refunding the amount of abatement, pay interest upon it (t).
Interest on statement.
If the purchaser, without the vendor's sanction, invests the purchase-money, he of course takes all the risk of the investment, and is entitled to the profit, if any; but the risk and possible benefit of the investment are alike shifted to the vendor if made with his approval (u).
Investment of purchase-money, loss or gain on.
Shortly the law on the subject of compensation appears now to be as follows: Summary of the law on compensation for errors.
I. In the absence of any express stipulation, where the error is considerable, so as in fact to be of the substance of the contract, the vendor cannot insist upon specific performance by the purchaser, even though he is willing to allow compensation. The purchaser, on the other hand, can, alike whether the error is substantial or trivial, insist upon the vendor giving him as much as he is able of what he has contracted to sell, with compensation in respect of such part as he is unable to convey (x), unless the purchaser was aware of the defect when he entered into the contract, or the error had arisen by a mistake made in good faith, and the enforcement of the contract would be unjust (y), or the error is such that compensation cannot, at least without great difficulty, be assessed, e.g., in the case of restrictive covenants (z). Where the error is inconsiderable, the vendor is entitled to enforce the contract, with compensation allowed to the purchaser for the deficiency (a).
1. In the absence of any condition.
II. As to the application of the condition, that no error or misdescription shall annul the sale, and that no compensation shall be allowed for the same, the better opinion would seem to be that, while it applies both to great and _ small errors, so as to exclude the purchaser's right to specific performance with compensation in every case, yet at the same time it does not enable a vendor to force upon a purchaser a property which he has substantially (b) misdescribed. The difference, in fact, between the position of vendor and purchaser under this condition, is that while a vendor cannot, where there is a substantial error, insist on specific performance, the purchaser may insist upon the vendor carrying out the contract; but, in order to do so, he must pay the purchase-money in full (c). Where the error is inconsiderable, either party under such a condition is entitled to specific performance without compensation.
2. Where there is a condition excluding compensation.
(t) Ferguson v. Tadman, (1827) 1 Si. 530.
(u) Burroughes v. Browne, (1852) 9 Ha. 609, 613; 22 L. J. Ch. 148.
(x) Mortlock v. Buller, (1805) 10 Ves. 305; Rudd v. Lateellet, 1900, 1 Ch. 815; 69 L. J. Ch. 396.
(y) Earl of Durham v. Legard, (1865) 34 Beav. 611; 34 L. J. Ch. 589; Rudd v. Lascelles, sup.; sed qu. cf. Burrow v. Scammell, (1881) 19 Ch. D. 175; 51 L. J. Ch. 296.
(z) Rudd v. Lascelles, sup., approving dictum of Jessel, M. R., in Cato v. Thompson, (1882) 9 Q. B. D. 616, 618. (a) Sec inf. p. 942.
III. A condition, that compensation should be allowed for any error or misdescription, does not enable a vendor to insist upon the purchaser taking a property essentially different from that which he contracted to buy. As regards the purchaser, such a condition would not seem either to add to or to diminish the rights of the purchaser, since, as we have seen, he is, independently of any condition, entitled to insist on the vendor carrying out so much of the contract as he can, and at the same time allowing compensation; nor does it prevent the purchaser from refusing to carry out the contract in any case, where he would, in the absence of the condition, have been entitled to avoid it (d).