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.
Custody of deeds, on sale in lots.
Every condition intended to relieve the vendor from his prima facie (k) liability to deduce a marketable title, and verify the abstract by proper evidence, must be expressed in plain and unambiguous language (l). For instance, a condition that he shall not be bound to produce any original deed or other document than those in his possession and set forth in the abstract, was held not to relieve him from his liability to verify the abstract; for nom constat that, because he has only certain specified deeds in his possession, he cannot prove his title (m).
Title and evidence of title.
(f) See Griffiths v. Hatchard (1854) 1 K. & J. at p. 19; 23 L. J. Ch. 957; General Conditions of 1925, No. 34 (2).
(g) Griffiths v. Hatchard, sup.
(h) Scott v. Jackman, (1855) 21 Beav. 110, following a decision of Lord Eldon in Kennaird v. Christie, ib. l11, n.
(i) L. P. Act, 1925, s. 45 (9) (a).
(k) Souter v. Drake, (1834) 5 B. & Ad. 992; 3 L. J. N. S. K. B. 31; Ogilvie v. Foljambe, (1817) 3 Mer. 53, 64. The nature of the subject-matter of the contract may vary the rule, as on an agreement to buy the benefit of a proposal for a lease: Baxter v. Conolly, (1820) 1 J. & W. 576; and see, as to restrictive conditions, Ellis v. Rogers, (1885) 29 Ch. D. 661; Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778;
On an agreement by a vendor to sell a lease "as he held the same" for twenty-eight years, a condition that the purchaser should not require the lessor's title (mm) would not, it appears, prevent him from showing that the lease was invalid (n).
Against production of lessor's title.
Upon a sale of an underlease, described simply as a lease, a stipulation that the vendor should not be called upon to prove his title, was held to be inoperative when it appeared' that the original lease comprised other premises, and contained covenants embracing both properties and exposing the purchaser to eviction through the default of the holder of such other premises (o). And where the interest, being an underlease, is offered for sale as a lease, the misdescription is fatal (p).
On sale of an underlease, where simply described as a lease.
55 L. J. Q. B. 280; Re Davis and Cavey, (1888) 40 Ch. D. 601; 58 L. J. Ch. 143; Re Haedicke and Lipski's Contract, 1901, 2 Ch. 666; Molyneux v. Hawtrey, 1903, 2 K. B. 487; Allen v. Smith, 1924, 2 Ch. 308.
(l) Osborne v. Harvey, (1843) 7 Jur. 229; 12 L. J. N. S. Ch. 66; and see Clarke v. Faux, (1827) 3 Rus. 320; 6 L. J. (O. S.) Ch. 17; Morris v. Kearsley, (1837) 2 Y. & C. 139; He Marsh and Earl Gran-ville, (1883) 24 Ch. D. 11, 17; 53 L. J. Ch. 81.
(m) Southby v. Hutt, (1837) 2 M. & C. 207; and see Dick v. Donald, (1827) 1 Bli. N. S. 655; Osborne v. Harvey, step(mm) Cf. L. P. Act, 1925, s. 45 (2).
(n) See Sug. 14th ed. 369, and see judgment in Shepherd v. Keatley, (1834) 1 C. M. & R. 127, 128; 3 L. J. N. S. Ex. 288; Re Banister, (1879) 12 Ch. D. 131; 48 L. J. Ch. 837. But see Re National Provincial Bank, 1895, 1 Ch. 190, 194; 64 L. J. Ch. 255; Re Scott and Alvarez's Contract, 1895, 2 Ch. 603.
(o) Blake v. Phinn, (1847) 3 C. B. 976; 16 L. J. C. B. 159; see Fildes v. Hooker, (1818) 3 Mad. 193; Darlington v. Hamilton, (1854) Kay, 550; 23 L. J. Ch. 1000.
(p) Madeley v. Booth, (1848) 2 De G. & S. 718; Re Beyfus and Masters, (1888) 39 Ch. D. 110.
Where leaseholds were stated to be sold "by order of the executors," but were in fact sold by the administrator de bonis non of the testator durante absentia of his next of kin, the title was not forced upon the purchaser (q).
Where on a sale of freehold property it was a condition that the title to the beneficial ownership should commence with the will of A. C, and the purchaser was to assume that A. C, at the date of his death, was beneficially entitled in fee, when he had, in fact, only a contract for purchase, which was not completed till many years afterwards, it was held that the purchaser was not bound by the condition (r).
Where contract not completed.
And even where there is no misrepresentation, but only a common mistake as to the title appearing on the conditions, not only will specific performance be refused, but if the contract has been completed the purchaser, it seems, may recover his purchase-money as paid under mistake of fact (s).
Mistake as distinguished from misrepresentation.
In the absence of express stipulation, a condition as to recitals being evidence would not, it is conceived, bind the purchaser to accept recitals as evidence of conclusions of law (t); nor would it preclude the purchaser from proving aliunde the inaccuracy of the recitals as to matters of fact (u). Whether he would be so precluded by the expression "conclusive evidence," would seem open to question; at any rate such a condition would not avail, if the vendor knew the recital to be false.
Sect. 45 (6) of the L. P. Act, 1925 (re-enacting a provision in the same terms contained in s. 2 of the V. & P.
In deeds twenty years old;
(g) Webb v. Kirby, (1866) 7 D. M. & G. 376; 26 L. J. Ch. 145; and see, too, Cruse v. Nowell, (1866) 2 Jur. N. S. 636; 25 L. J. Ch. 709. See s. 164 of Jud. Act, 1925.
(r) Harnett v. Baker, (1875) 20 Eq. 50; 45 L. J. Ch. 64; and see Boyd v. Dickson, (1876) I. R. 10 Eq. 239.
(s) Jones v. Clifford, (1876) 3 Ch. D. 779, 792; 45 L. J. Oh. 809; cf. Cooper v. Phibbs, (1867) L. R. 2 H. L. 149.
(t) 9 Jarm. Conv. 3rd ed. by Sweet, 4; Goold v. White, (1854) Kay, 683.
(u) Drysdale v. Mace, (1864) 5 D. M. & G. 103; 23 L. J. Ch. 518.
Act, 1874), provides that, subject to any stipulation to the contrary, "recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions." This enactment, it will be observed, applies to recitals and not to sub-recitals; and it does not throw upon a purchaser the duty of accepting mere matters of inference (v).