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.
Agreement to sell land, what it includes.
(i) Torrance v. Bolton, (1872) 8 Ch. 118; 42 L. J. Ch. 177; Gardiner v. Tate, (1876) 10 I. R. C. L. 460. Of. Blaiberg v. Keeves, 1906, 2 Ch. 175.
(k) Be White and Smith, 1896, 1 Ch. 637, at p. 641; 65 L. J. Ch. 481; Be Haedicke and Lipski, 1901, 2 Ch. 666; 70 L. J. Ch. 811; Molyneux v. Hawtrey, 1903, 2 K. B. 487, 491; Allen v. Smith, 1924, 2 Ch. 308.
(l) Bower v. Cooper, (1842) 2 Ha. 408; 11 L. J. N. S. Ch. ,287.
(m) Hughes v. Parker, (1841) 8 M. & W. 244; and see Cattell v. Corrall, (1840) 4 Y. & C. 228, 236; 9 L. J. N. S. Ex. Eq. 37; Sug. 14th ed. 298.
(n) Doe v. Stanion, (1836) 1 M. & W. 695; 5 L. J. N. S. Ex. 253; Ogilvie v. Foljambe, (1817) 3 Mer. 53, 64; Phillips v. Caldcleugh, (1868) L. R. 4 Q. B. 159; 38 L. J. Q. B. 68.
(o) See Cowley v. Watts, (1853) 17 Jur. 172; 22 L. J. Ch. 591; Cox v. Middleton, (1854) 2 Dr. at p. 217; 23 L. J. Ch. 618.
All legal incidents presumably accompany estate.
But an agreement to sell land to a railway (a) or waterworks company (b), or to a Local Authority for the purpose of " sanitary work (c), does not comprise the minerals (d), unless they are expressly included in the purchase; and the mere agreement to sell a house and, land was formerly held not to pass the right to an unascertained allotment under an Inclosure Act (e); but by the Inclosure Act, 1845 (f), it is now provided that if an interest in land is sold before the allotment in respect of it is made, the allotment shall be made to the purchaser.
Minerals, when not included.
(p) Re Gloag and Miller's Contract, (1883) 23 Ch. D. 320, 327; 52 L. J. Ch. 654; Ellis v. Rogers, (1885) 29 Ch. D. 661, 666; Alderdale Estate Co. v. Mcgrory, 1917, 1 Ch. 414.
(q) Skull v. Glenister, (1864) 16 C. B. N. S. 81; 33 L. J. C. P. 185, case of right of way appurtenant, though not mentioned, passing by a parol demise: Cato v. Thompson, sup.
(r) "Et ad inferos," see Lewis v. Branthwaite, (1831) 2 B. & Ad. 437; 9 L. J. (O. S.) K. B. 263; Keyse v. Powell, (1853) 2 E. & B. 132; 22 L, J. Q. B. 305; Sparrow x. Oxford, etc. R. Co., (1852) 2 D. M. & G. at p. 108.
(s) Pope v. Garland, (1841) 4 Y,, & C. 403; 10 L. J. N. S. Ex. Eq. 13.
(t) Whittington v. Corder, (1852) 16 Jur. 1034.
(u) Stanton v. Tattersall, (1853) 1 Sm. & G. 529.
(x) Denne v. Light, (1857) 8 D. M. & G. 774; 26 L. J. Ch. 459; see and distinguish Curling v. Austin, (1862) 2 Dr. & S. 129.
(y) Longford v. Seltnes, (1857) 3 K. & J. 220.
(z) Whittington v. Corder, (1852) 16 Jur. 1034.
(a) R. C. C. Act, 1845, s. 77.
(b) Waterworks Clauses Act, 1847, s. 18.
(c) Defined by s. 2 of the Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883.
Though a conveyance of land to a railway company, under s. 81 of the L. C. C. Act, 1845, destroys all rights and interests in the land purchased if compensation is paid for them, yet if no compensation is made under e. 68, they still exist and are binding on a purchaser from the company (g). Where a railway company purchased land, which had been allotted under an Inclosure Act, with a condition annexed that the land so allotted should never be used for building purposes, and afterwards sold it to a purchaser as superfluous land, it again became subject to the restriction (h).
Restrictions to be guarded against on purchase from railway companies.
Any charge upon the estate, or right restrictive of the purchaser's absolute enjoyment of it, and the release of which cannot be procured by the vendors, should be stated in the particulars, as the omission may render the sale voidable by the purchaser (i); e.g., a right of sporting over the estate (k), a right of common every third year (l), a right to dig for mines (m), a liability to repair the church chancel (n), onerous covenants in a lease (o), or any other right or liability which cannot fairly admit of compensation, would, if undisclosed, have that effect.
Permanent charges and restrictive rights should be noticed.
(d) As to what is included under the term "minerals," see Lord Provost of Glasgow v. Farie, (1888) 13 A. C. 657; 58 L. J. P. C. 33; M. R. Co. v. Robinson, (1889) 15 A. C. 19; 59 L. J. Ch. 442; and G. W. R. Co. v. Blades, 1901, 2 Ch. 624; 70 L J. Ch. 847; G. W. R. Co. v. Carpalla, etc. Clay Co., 1909, 1 Ch. 218; 1910, A. C. 83.
(c) Fife v. Clayton, (1807) 1 Coop. temp. Cott. 351; 13 Ves. 546; and see Williams v. Phillips, (1881) 8 Q. B. D. 437; 51 L. J. Q. B. 102.
(f) S. 84.
(g) Ellis v. Rogers, (1885) 29 Ch. D. 661.
(h) Bird v. Eggleton, (1885) 29 Ch. D. 1012; 54 L. J. Ch. 819.
(i) Sug. 14th ed. 5, 6, 311, 312; and see Torrance v. Bolton, (1872) 8 Ch. 118; 42 L. J. Ch. 177; Nottingham Brick Co. v. Butler, (1886) 16 Q. B. D. 778; 55 L. J. Q. B. 280; Re Davis and Cavey, (1888) 40 Ch. D. 601; 58 L. J. Ch. 143.
(k) Burnell v. Brown, (1820) 1 J. & W. 168.
(l) Gibson v. Spurrier, (1796) Peake, Add. C. 49.
Eights of way or water (p) (if any) should be referred to; for though a mere non-disclosure of their existence might not, in general, avoid the contract (q), the Court would readily lay hold of anything in the particulars, etc, at all inconsistent with their existence, as a ground for relieving a purchaser.
Rights of way or water.
If the vendor's interest is in any way determinable, the fact should appear; for when a redeemable annuity was offered for sale simply as an annuity (r), and leasehold houses were sold without any mention being made of a private Act of Parliament which gave a company the right to purchase them (s), the sales were held invalid.
And anything which may determine vendor's interest.
The vendor, however, is not bound to mention in the particulars any matter affecting the property, of which the purchaser has notice (t) in the legal sense of the word.
But not matter of which purchaser has notice: