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.
Or caused by gross negligence.
A sale of property merely by its usual and known description, without alteration, addition, or comment, will bind the purchaser, though such description may in fact accidentally mislead him; for instance, where a house long known and rated as No. 39, Regency Square, Brighton, was sold in London by auction by that description, and the purchaser bought it without previous inquiry, and then found that it was not actually in the square, but in a side 6treet commanding no sea view, and was a smaller house than the houses in the square, he was held by Sir James Parker, V.-c. to his bargain (r).
Purchaser bound though misled by a correct description made in good faith.
In this case there was that degree of apparent hardship and mistake which might, without much difficulty, have induced the Court to decline to exercise its discretionary jurisdiction; but the decision, it is submitted, was correct. It was, no doubt, a hardship upon the purchaser to be obliged to take property of a less valuable kind than that which he fancied he was buying; but it might have been an equal or greater hardship on the vendor to throw the property back upon his hands, and so to deprive him of the advantage of those biddings made in good faith at the auction, which immediately preceded the bidding upon which the house was knocked down to the purchaser. If the advertisement or particulars had contained any reference to Regency Square as possessing those peculiar advantages - such as a sea view - which, though enjoyed by the houses generally, were not enjoyed by No. 39, such reference would probably have been held to savour sufficiently of deception to deprive the vendor of the assistance of the Court.
Remarks on White v.
(m) Sug. 14th ed. 31; Flight v. Booth, (1834) 1 Bing. N. C. 370, 377; 4 L. J. N. S. C. P. 66; Re Fawcett and Holmes, (1889) 42 Ch. D. 150; 58 L. J. Ch. 763; and see Jacobs v. Revell, 1900, 2 Ch. 858, 863. 864; 69 L. J. Ch. 879; Lee v. Rayson, 1917, 1 Ch. 613.
(n) See Sug. 14th ed. 23 et seq.; Brownlie v. Campbell, (1880) 5 A. C. 925.
(o) Duke of Norfolk v. Worthy, (1808) 1 Camp. 337.
(p) Mills v. Oddy, (1834) 6 C. & P. 728; 5 Tyrw. 571; 4 L. J. Ex. 168.
(q) Robinson v. Musgrove, (1838) 8 C. & P. 469; Loyes v. Rutherford, (1809) Sug. 14th ed. 331; but, in general, a misstatement as to the state of repairs would seem to be a matter for compensation in Equity: Dyer v. Hargrove, (1805) 10 Ves. 505, 508.
(r) White v. Bradshaw, (1852) 16 Jur. 738.
Where a house known as No. 58, Pall Mall, but which in fact was built at the back of No. 57, and communicated with the street merely by a passage, was sold by auction, not merely as "No. 58, Pall Mall," but as "No. 58, on the north side of Pall Mall, opposite Marlborough House,"the Court held the case to be one of misdescription, and not to fall within the authority of the Regency Square case (s); and the cases seem to be distinguishable on this ground, viz., that in the former there was a mere description of the property in those terms in which alone it could be properly described; whereas, in the latter, the ordinary description was so amplified, as apparently to involve an assertion by the vendor that the premises actually occupied a specified desirable locality.
Stanton v. Taltersall distinguished.
If the intending purchaser examines the property in person or by his agents, he cannot, it seems, in the absence of direct fraud, contend that he is deceived by the representations of the vendor as to any point upon which he has thus tested their accuracy (t); but if the misrepresentation is of such a nature as not to be apparent on a personal inspection, and the purchaser relies upon it, the mere fact of his having examined the property does not necessarily make the contract binding upon him (u); nor is it any defence to an action to rescind a contract on the ground of misrepresentation that the purchaser might with reasonable diligence have ascertained that the statements were untrue (x).
So if he tests accuracy of particulars.
(s) Stanton v. Tattersall, (1853) 1 Sm. & G. 529.
(t) See Attwood v. Small, (1838) 6 C. & F. 232; see the judgment in Clapham v. Shillito, (1844) 7 Beav. at p. 149; and Jennings v. Broughton, (1854) 5 D. M. & G. 126; 23 L. J. Ch. 999.
Independently of fraud, however, and on the mere ground of the materiality of the misdescription, the usual condition as to compensation will not entitle the vendor to enforce the contract against an unwilling purchaser: Cases of material misdescription.
1st. Where the property is not of the same description as it appears to be in the particulars; as where long leasehold is described as freehold (y); or where land which was formerly copyhold and has been enfranchised, but remains subject to the rights of the lord in respect of minerals, is described as freehold (z); or where an underlease is sold as an original lease (a); or where, upon the sale of an estate let on lease at a rack rent, such rent is described as a ground rent (b); or where the occupation rent is overstated, or so stated as to mislead (c); or what is described as a freehold ground rent is in fact only a sum in gross secured by personal covenant (d); or where a house, composed externally partly of brick and partly of timber, and lath and plaster, is described as a brick-built house (e).
Where property is of different nature;
(u) Denny v. Hancock, (1870) 6 Ch. 1; Brewer v. Brown, (1884) 28 Ch. D. 309; 54 L. J. Ch. 605; Yandle & Sons v. Sutton, 1922, 2 Ch. 199.
(x) Redgrave v. Hurd, (1881) 20 Ch. D. 1; 51 L. J. Ch. 113.
(y) See Fenton v. Browne, (1807) 14 Ves. 144. If enlargeable under s. 153 of the L. P. Act, 1925 (which takes the place of s. 65 of the Conv. Act, 1881).. it would perhaps be treated as freehold.
(z) Upperton v. Nickolson, (1871) 6 Ch. 436; Bellamy v. Debenham, 1891, 1 Ch. 412; 60 L. J. Ch. 166. But see Kerr v. Pawson, (1858) 25 Beav. 394; 27 L. J. Ch. 594, where on a contract for the sale of copyholds there was a stipulation that the vendor should procure their enfranchisement, and it was held that the purchaser must be taken to have known that on an enfranchisement the lord could reserve the minerals. Cf. Be Jackson and Haden's Contract, 1906, 1 Ch. 412.