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.
(2) The preparation and contents of the particulars of completing the contract, and who bid without the sanction of, and unknown to, the vendor, does not enable the purchaser to avoid the contract, though he was thereby induced to give an enhanced price: Union Bank v. Munster, (1887) 37 Ch. D. 51.
The particulars should fairly and accurately (z) describe the estate; if, though grammatically correct, they are so obscure as to be likely to deceive an ordinary purchaser, the sale will be liable to be set aside (a). Nor is it sufficient for the particulars merely to tell what is not actually untrue, omitting a great deal that is true, and leaving the purchaser to ascertain the existence of any error or omission; but they should describe everything which it is material for him to know in order to judge of the nature or value of the property, otherwise specific performance will not bo decreed (b). "It is of the greatest importance," said Lord Romilly, "that it should be understood that the most perfect truth and the fullest disclosure should take place in all cases where specific performance of a contract is required" (c).
Particulars. Fair and clear description.
(t) Gilliatt v. G., (1869) 9 Eq. 60; 39 L. J. Ch. 142.
(x) Parfitt v. Jepson, (1877) 46 L. J. C. P. 529.
(y) Wood v. Manley, (1839) 11 A. & E. 34; 9L J. Q. B. 27.
(z) See Calverley v. Williams, (1790) 1 Ves. 210, 213.
(a) Taylor v. Martindale, (1842) 1 Y. & C. C. C. 658; Symons v. James, (1842) ib. at p. 490; Martin v. Cotter, (1846) 3 J. & L. 496; Swisland v. Dearsley, (1861) 29 Beav. 430; 30 L. J. Ch. 652; as to annual value, see Lowndes v. Lane, (1789) 2 Cox, 363; and White v. Cuddon, (1842) 8 C. & F. 766; annual rental, Re Edwards to Daniel, Ltd., (1890) 62 L. T. 445; and as to a deceptive statement as to occupancy, Lachlan v. Reynolds, (1853) Kay, 52; 23 L. J. Ch. 8.
The vendor, before he sells, is bound to make himself acquainted with the incidents of the property (d), so far as may be necessary in order to avoid serious error in the description; and a plan, if referred to in aid of the description, should be perfectly accurate; thus where the 6ale plan showed what was an apparent, but not the real boundary of the property, and a personal inspection by the purchaser failed to correct the misapprehension caused by the plan, the vendor's bill for specific performance was dismissed (e). On the sale of a partial interest,, any substantial (f) variation from the description will render the contract voidable (g).
It is the proper office of the particulars to describe the subject-matter of the contract, and of the conditions to state the terms on which it is sold (h); and the omission from the particulars of some fact which ought to have been stated there will not necessarily be remedied by a statement of it, however explicit, in the conditions; unless of course it can be shown that the purchaser's attention was expressly directed to it. Thus, where a printed particular described the property as an immediate absolute reversion falling into possession on the death of a lady aged 70, and it appeared from the written conditions, which were read but not distributed at the sale, that the property was 6old subject to three mortgages, the purchaser, who did not understand that he was buying an equity of redemption, was held entitled to have his contract rescinded, and under the special circumstances the vendor was condemned in costs (i). It is prima, facie the duty of the vendor to disclose all that is necessary to protect himself, and not the duty of the purchaser to demand an inspection of the vendor's title deeds before entering into a contract (k).
What particulars should state
(b) Baskcomb v. Beckwith, (1869) 8 Eq. 100; 38 L. J. Ch. 536.
(c) 8 Eq. 109; and see Beyjus v. Lodge, 1925, Ch. 350, 358.
(d) See Brandling v. Plummer, (1854) 2 Dr. at p. 430; 23 L. J. Ch. 960; Heywood v. Mallalieu, (1883) 25 Ch. D. 357, 364; 53 L. J. Ch. 492.
(e) Denny v. Hancock, (1870) 6 Ch. 1; Brewer v. Brown, (1884) 28 Ch. D. 309; 54 L. J. Ch. 605. See Arnold v. A., (1880) 14 Ch. D. 270.
(f) See Belworih v. Hassell, (1815) 4 Camp. 140; and in Equity, Vignolles v. Bowen, (1847) 12 Ir. Eq. R. 194.
(g) See Thompson v. Miles, (1794) 1 Esp. 184; Farrer v. Nightingal, (1798) 2 Esp. 639; Hearn v. Tomlin, (1793) 1 Pea. 253; Hibbert v. Shee, (1807) 1 Camp. 113.
(h) Per V.-c. Malins, in Torrance v. Bolton, (1872) 14 Eq. p. 130; 41 L. J. Ch. 643.
An agreement to sell land is, in the absence of any restrictive expressions, an agreement to sell the whole of the vendor's interest therein (l); and such interest, if not described, will be implied to be an estate in fee simple (m), free from incumbrances (n); but (unless the contract expressly provides that a good title will be made (o)) the legal implication may be rebutted by showing that the purchaser knew that the estate he was contracting for was not freehold (o), or that it was subject to restrictions incapable of removal or release (p). The interest offered for sale (whether it be absolute or qualified), will be presumed to be accompanied by all those advantages which are legally incidental to it (q). Therefore, an infringement of the rule, Cujus est solum ejus est usque ad cesium (r), is (if not mentioned in the particulars) sufficient to render the contract voidable by the purchaser (s). So, the defect was held fatal where there was no title to an underground cellar (t); where there was a want of title to such a proper access to a house as, under the description, the purchaser was justified in expecting (u); where on a sale of arable land no right of way was shown thereto for carts and carriages (x); where on a sale of a freehold ground rent powers of distress and entry could not be conferred on the purchaser (y). Where a lessee agreed to buy the house leased to him, and described as being then in his own occupation, it was held that he was not bound to complete except upon the terms of his having a cellar which passed by the lease, but which was not in his occupation at the date of the contract (z).