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.
The rule applies only to a broken contract, not to a broken covenant in a conveyance.
(r) Wall v. City of London Real Property Co., (1874) L. R. 9 Q. B. 249 ; 43 L. J. Q. B. 75.
(s) Gas Light Co. v. To use, (1887) 35 Ch. D. 519 ; 56 L. J. Ch. 889.
(t) Hyam v. Terry, (1881) 25 Sol. J. 371 ; Rowe v. London School Board, (1887) 36 Ch. D. 619 ; 57 L. J. Ch. 179. It is not, however, easy to reconcile this decision with an earlier one of the same judge in Royal Bristol Bldy. Soc. v. Bomash, (1887) 35 Ch. D. 390 ; 56 L. J. Ch. 840, in which he did allow the purchaser damages, under the title of compensation, for a delay in completion, arising from the state of the title in a manner closely similar to that in the later case.
(u) Jones v. Gardiner, 1902, 1 Ch. 191; 71 L. J. Ch. 93.
(x) Lock v. Furze, (1866) L. R. 1 C. P. 441 ; 35 L. J. C. P. 141. And see as to damages for breach of covenant, sup. pp. 776, 800 ; Mayne on Damages, 6th ed, 215 et seq., and Chap. IX.
On a summons under s. 9 of the Y. & P. Act, 1874, the Court has jurisdiction to decide any question in respect of any claim for compensation arising out of the contract (y) ; but this does not include a claim for damages occasioned by delay in completion owing to the wilful default of the vendor; thus, where in such a case the purchaser claimed compensation for loss occasioned by delay in completing repairs before going into occupation, and for loss of opportunity of getting rid of his present house and of letting a part of the property purchased, his claim was held to be one not for compensation properly so called, but for unliquidated damages arising out of non-delivery of possession, and as such not recoverable on a summons under the section (z).
Jurisdiction of Court as to damages under V. & P. Act, 1874, 8. 9.
The want of title to any part of the property is fatal at Law, unless the Court can make out a distinct contract in respect of the residue (a) ; or unless there is a condition for compensation, and the case can be brought within it. And though, on a purchase in lots, a separate contract arises upon every lot, a want of title to one will enable the purchaser to avoid the contract as to the others, if either they were complicated as respects enjoyment, or there was an understanding that he should not take any unless he could have all (b).
Want of title to part, when fatal.
When property sold in lots.
Upon the death of the purchaser, the right to sue in respect of any damages which may have been sustained by his personal estate, - e.g., loss of interest on the deposit, or the expenses of investigating the title, - descends upon his personal representative (c); and no action upon the agreement can be brought by the heir (d), whose only resource is to take proceedings in Equity.
Death of purchaser, right of action goes to personal representatives.
(y) Deposit with interest and costs of investigating title may be recovered under the section; see inf. p. 1111.
(z) Re Wilson and Stevens, 1894, 3 Ch.546; 63 L. J.Ch. 863; see Re Lait-wood's Contract, (1892) 36 Sol. J. 255.
(a) Johnson v. /., (1802) 3 B. & P. 162.
(b) Sec Gibson v. Spurrier, (1790) Pea. A. C. 49 ; Chambers v. Griffiths, (1794) 1 Esp. 150; Dykes Y.Blake, (1838) 4 Bing. N. C. 463 ; 7 L. J. N. S. C. P. 282 ; and inf. p. 1090.
(c) Orme v. Broughlon, (1834) 10 Bing. 533 ; 3 L. J. N. S. C. P. 208.
(d) Sug. 14th ed. 238.