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.
As to what is "timber."
(s) Cf. General Conditions of 1925, No. 3. As to what are fixtures;, see inf. p. 485.
(t) See, however, Ex p. Quincy, (1750) 1 Atk. 477.
(u) L. P. Act, 1925, s. 62 (1), which take3 the place of Conv. Act, 1881, s. 6 (2). And see Colegrave v. Das Santos, (1823) 2 B. & C. 76; .1 L. J. O. S. K. B. 239; Hitchman v. Walton, (1838) 4 M. & W. 409; and cases cited, 411; 8 L. J. Ex. 31; Manning v. Bailey, (1848) 2 Ex. 45; 18 L. J. Ex. 77; Ex p. Lloyd, (1834) 1 Mont. & Ayr. 494; 3 L. J. N. S. Bkcy. 108; Hare v. Horton, (1833) 5 B. & Ad. 715; 3 L. J. N. S. K. B. 41; Sag. 14th ed. 33; Wiltshear v. Cottrell, (1853) 1 E. &B. 674; 22 L. J. Q. B. 177; Monti v. Barnes, 1901, 1 K. B. 205, 207; 70 L. J. K. B. 225; Mather v. Fraser, (1856) 2 K. & J. 536; 25L. J. Ch. 361; Hutchinson v. Kay, (1857) 23 Beav. 413; 26 L. J. Ch. 457; Haley v. Hammersley, (1861) 3 D. F. & J. 587; 30 L. J. Ch. 771; Boyd v. Shorrock, (1867) 5 Eq. 72; 37 L. J. Ch. 144; Turner v. Cameron, (1870) L. R. 5 Q. B. 306; 39 L. J. Q. B. 125; but see Viscount Hill v. Bullock, 1807, 2 Ch. 482; Lyon & Co. v. London City and Midland Bank, 1903, 2 K. B. 135.
(x) Sug. 14th ed. 32. See Higginson v. Clowes, (1808) 15 Ves. 516; and No. 3 of General Conditions of 1925.
(y) Higginson v. Clowes, sup. (2) Woodfall, 22nd ed. 789.
(a) Aubrey v. Fisher, (1809) 10 Ea. 446; Hashwood v. Magniac, 1891, 3 Ch. 306; 60 L. J. Ch. 809.
(b) Duke of Chandos v. Talbot, (1731) 2 P. W. 606; see Craig, 11 et seq.
Where, on the sale of intermixed freehold and copyhold land, it was provided that the purchaser should not be entitled to have the quantities or boundaries of the two tenures distinguished, and he was to pay a specified sum for the timber, this was held to bind him to the purchase without an abatement, though the boundaries not being distinguishable, he could not fell a single tree (ff). And in another case, arising under the same conditions, there was a like decision, though the entire lot was shown to be copyhold; the Court holding that the contract was entire, and that there was often much value and enjoyment in the possession of trees apart from their selling value as timber (g).
Timber must be paid for under conditions, though purchaser may have no right to fell it.
Where there is a condition that any misdescription or error in the particulars shall not avoid the sale, but shall be the subject of compensation, the condition, so far as it affects the vendor's right to specific performance, must be taken to contemplate and provide for only such misdescription or error, as, in the absence of the condition, would be a ground for avoiding the contract (h). 'but, notwithstanding the condition, the misstatement, if wilful or designed, as it amounts to fraud, will render the contract voidable at the option of the purchaser; and, if it arise simply from negligence, will disentitle the vendor to specific performance, if the error is not a fair subject for compensation (i). If, in spite of the error, the purchaser is getting substantially what he contracted for, the case will be considered a fair one for the contract being enforced with compensation (k).
Compensation for misdescription.
(c) Foster v. Leonard, (1582) Cro. Eliz. 1. As to what are and what are not timber trees, see Honywood v. H., (1874) 18 Eq. 306: 43 L. J. Ch. 652; Dunn v. Bryan, (1872) 7 I. R. Eq. 143; Dashwood v. Magniac, 1891, 3 Ch. 306; 60 L. J. Ch. 809.
(d) Gordon v. Woodford, (1859) 27 Beav. 603; 29 L. J. Ch. 222.
(e) Rabbett v. Raikes, (1803) Woodfall, 22nd ed. 789; and see Duke of Chandos v. Talbot, (1731) 2 P. W. at p. 606.
(f) Bullen v. Denning, (1826) 5 B. & C. 842; 4 L. J. O. S. K. B.314. (ff) Crosse v. Lawrence, (1852) 9 Ha. 462. (g) Crosse v. Keenc, (1852) 9 Ha. 469.
What it extends to.
In the absence of any condition, where there was a mistake made in good faith in a matter essential to the contract, an estate being inadvertently stated to contain 21,750 acres, whereas it contained only half that quantity (l), the Court refused even the purchaser's suit for specific performance, holding it not a case for compensation, but for avoiding the contract altogether. The Court will not make a new contract by compelling a purchaser to take the property with compensation when it is substantially different from what he was induced by the representations made to him, whether fraudulent or not, to believe that he was purchasing (m). In such a case the contract will be set aside in toto.
(h) Leslie v. Tompson, (1851) 9 Ha. at p. 273; 20 L. J. Ch. 501; and see and consider Hoy v. Smythies, (1850) 22 Beav. 510. In Orange to Wright, (1885) 54 L. J. Ch. 590, and Bourne v. London Land Co., (1885) W. N. 109, Bacon, V.-c, refused the vendor the benefit of the condition.
(i) Sug. 14th ed. 28. Heywood v. Mallalieu, (1888) 25 Ch. D. 357, 365; 53 L. J. Ch. 492; Fry, 6th ed. pp. 576 et seq. And see Re Terry and White, (1886) 32 Ch. D. 14, 28; 55 L. J. Ch. 345; Re Hurlbalt and Chaytor, (1888) 57 D. J. Ch. 421.
(k) Re Fawcett and Holmes' Contract, 42 Ch. D. 150, approving the principle adopted in Might v. Booth, 1 Bing. (N. C.) 370, 377; Shepherd v. Croft, 1911, 1 Ch. 521. Of. Lee v. Rayson, 1917, 1 Ch. 013. See notes to Seton v. Slade, 2 Wh. &; T. L. C. 9th ed. pp. 455, 450.
(l) Earl of Durham v. Legard, (1865) 34 Beav. 611; 34 L. J. Ch. 589; and see Price v. North, (1837) 2 Y. & C. 620; 7 L. J. N. S. Ex. Eq. 9, where, however, there was a condition for compensation; but see Cordingley v. Cheeseborough, (1802) 4 D. F. & J. 379; 31 L. J. Ch. 617; Mckenzie v. Hesketh, (1877) 7 Ch. D. 675; 47 L. J. Ch. 231; and English v. Murray, (1884) 49 L. T. 35; 32 W. R. 84.
And where a vendor, who has the means of knowledge, and is bound to use due diligence, misdescribes his property in any important particular, it seems probable that the facts would in themselves be deemed conclusive evidence of a fraudulent intention (n); e.g., a statement that the estate was about one mile from Horsham, when in fact it was upwards of three miles distant (o); so a material misstatement, upon the sale of a house, as to the amount of the ground rent (p); and a description of dilapidated property as "good and substantial but unfinished buildings" (q).