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 where serious misdescription as to quantity; stated (d); or where the particulars stated the premises to be in the joint occupation of A. and B. as lessees, when in fact A. was only assignee of the lease, and B. was a mere joint occupier (c); or where the right to coal under the estate was shown to be in other parties, and no means existed of determining its value (f); or where property was described as "now or late in the occupation of H. R. and others," and it was in fact subject to leases for lives at low rents which were not disclosed (g).
6thly. Where the misdescription is of such a nature that the amount of compensation cannot be estimated; as where, on the sale of a reversion, expectant on the decease of A. in case he should have no children, his age was described as 66 instead of 64 (c); or where, on the sale of a wood, the particulars erroneously stated that the average size of the timber approached 50 feet, the number of trees not being or amount of compensation cannot be estimated.
(u) Leyland v. Illingworth, (1860) 2 D. F. & J. 248; 29 L. J. Ch. 611.
(x) See Phillips v. Caldcleugh, (1868) L. R. 4 Q. B. 159; 38 L. J. Q. B. 68; Cato v. Thompson, (1882) 9 Q. B. D. 616; Ellis v. Rogers, (1885) 29 Ch. D. 661; and Rudd v. Lascelles, 1900, 1 Ch. 815; 69 L. J. Ch. 396 (a case where the contract was silent as to compensation); cf. Re Courcier and Harrold's Contract, 1923, 1 Ch. 565.
(y) Wauton v. Coppard, 1899, 1 Ch. 92; 68 L. J. Ch. 8.
(z) Price v. North, (1837) 2 Y. & C. 620; 7L. J. N. S. Ex. Eq. 9.
(a) Earl of Durham v. Legard, (1865) 34 Beav. 611; 34 L. J. Ch. 589; but see Cordingley v. Cheeseborough, (1862) 4 D. F. & J. 3.79; 31 L. J. Ch. 617.
(b) Arnold v. A., (1880) 14 Ch. D. 270.
(c) Sherwood v. Robins, (1828) a Car. & P. 339; Moo. & M. 194; and see White v. Cuddon, (1842) 8 C. & F. 776, 792.
The condition as to compensation may (h), and should in proper cases be used by vendor-trustees (i). Where, however, the misdescription is negligently made, the Court will not enforce the condition against the trust estate, but will leave the purchaser to his remedy for damages, or rescission (k); and fiduciary vendors will be liable to their beneficiaries for giving compensation for their negligent misdescription (l).
Whether trustee should use it.
Instead of a condition providing for compensation in the event of any omission or misdescription in the particulars, it is very usual to insert a condition that in such a case no compensation shall be allowed by the vendor (m). In one case, where land was described as containing la. 2r. 8p., and the vendor showed a title to only 3r. 24p., it was held that, under such a condition, the purchaser was bound to complete without compensation (n). And where, by an unintentional error, land was stated to contain 7,683 square yards, but in fact contained only 4,350 square yards, and the purchaser, notwithstanding the condition excluding compensation, insisted on completion with compensation, though the vendor offered to vacate the sale, specific performance was decreed at the suit of the purchaser, but upon payment of the whole of the purchase-money and costs (o). But such a condition, if relied on by a vendor seeking specific performance, does not preclude a purchaser from his right to compensation for a material deficiency in the quantity stated, as where the property was stated to contain 753 square yards, but in fact contained only 573 square yards (p); or from avoiding the contract where the misdescription is of such a nature as not to be a fit subject for compensation (q).
Condition that no compensation shall be allowed by the vendor.
(d) Lord Brooke v. Rounthwaite, (1846) 5 Ha. 298; 15 L. J. Ch. 332.
(e) Ridgway v. Gray, (1849) lm. & G. 109; but see Grissell v. Peto, (1854) 2 S. & G. 38; Farebrother v. Gibson, (1857) 1 D. & J. 602.
(f) Smithson v. Powell, (1852) 20 L. T. (0. S.) 104.
(g) Hughes v. Jones, (1861) 3 D. F. k J. 307; 31 L. J. Ch. 83.
(h) Hill v. Buckley, (1811) 17 Yes. 894; Hobson v. Belt, (1839) 2 Beav. 17; 8 L. J. N. S. Ch. 241 (sale by mortgagee); Re Chifferiel, (1888) 40 Ch. D. 45; 58 L. J. Ch. 268. See the T. Act, 1925, ss. 12 and 18, and the L. P. Act, 1925, s. 101 (1).
(i) See Dunn v. Flood, (1885) 28 Ch. D. at p. 591; 54 L. J. Ch. 370.
(k) White v. Cuddon, (1842) 8 Cl. & F. at p. 798. As to impeaching a sale by trustees after conveyance, see s. 13 (2) of the T. Act, 1925.
(l) Tomlin v. Luce, (1889) 48 Ch. D. 191; 59 L. J. Ch. 164, which see as to the measure of liability in such cases. See, however, s. 13 (1) of the T. Act, 1925.
(m) As to the effect of this condition generally, see Jacobs v. Revell, 1900, 2 Ch. 858; 62 L. J. Ch. 879; Re Puckett and Smith's Contract, 1902, 2 Ch. 258; Shepherd v. Croft, 1911, 1 Ch. 521, 529; Lee v. Rayson, 1917, 1 Ch. 613; Re Courcier and Harrold's Contract, 1923, 1 Ch. 565.
In the absence of stipulation, a vendor is bound to produce the originals of all deeds and other instruments necessary to verify the abstract (r), except copies of Court rolls, and such instruments as are upon record (s), or have been lost (t) or destroyed; as respects all of the latter ho may verify his abstract by secondary evidence (u). He must, however, as a general rule, in order to render copies admissible in evidence, prove the execution, and delivery of the originals (x), which, when deeds are lost and the witnesses are unknown, is often an insuperable difficulty. Formerly, the vendor, in the absence of stipulation, had to bear the cost of production, whether the documents were in his possession or not; but by the L. P. Act, 1925, s. 45 (4) (a) (which takes the place of s. 3 (6) of the Conv. Act, 1881), the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of Courts, Court rolls, deeds, wills, probates, letters of administration, and other documents, not in the possession of the vendor or his mortgagee or trustee, are thrown on the purchaser (y). And where the vendor's title to sell depends on a fact (e.g. that he was mortgagee in possession before a certain date) and that fact is stated, in replies to requisitions, the expense of a statutory declaration in support of the same must be borne by the purchaser (z).