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.
(r) See Coleman v. Riches, (1855) 16 C. B. 104; 24 L. J. C. P. 125; Barwick v. English Joint Stock Bank, sup.; Brownlie v. Campbell, (1880) 5 A. C. 925; Mullens v. Miller, (1882) 22 Ch. D. 194; 52 L. J. Oh. 380. As to the authority of the secretary of a company to make representations, see Newlands v. Nat. Employers' Assoc, (1885) 54 L. J. Q. B. 428; 53 L. T. 242; Barnett v. South London Tramways Co., (1887) 18 Q. B. D. 815; 56 L. J. Q. B. 452.
(s) Per Lord Campbell, Wilde v. Gibson, (1848) 1 H. L. C. 615.
(t) See Brit. Mutual Banking Co. v. Charnwood R. Co., (1887) 18 Q. B. D. 714, 717; 51 L. J. Q. B. 449; Ruben v. Great Fingall Consold., 1904, 2 K. B. 712.
If a vendor knowingly refer the purchaser to an ignorant agent (x), or knowingly allow him to remain under a delusion as to a material fact which there is a duty to disclose (y) - for there may be a 6ilence which is as eloquent as words (z) - this will be equivalent to misrepresentation.
A vendor cannot, though the estate be sold subject to all faults (a), rely on the aid of the Court, if he omit to disclose a latent defect which the purchaser has no means of ascertaining (b): though the rule at Law would seem to have been otherwise, in the absence of fraud, if the sale be "with all faults"(c). Nor will an innocent purchaser be compelled to buy property which, if he takes no steps to prevent it, will expose him, as owner, to criminal proceedings by reason of its state at the time of sale (d).
Non-disclosure of latent defects contract rescinded, even if the defect is known to and not disclosed by, the vendor (f).
Where there is a latent defect, but the defect is not so material as to bring the case within the principle of Flight v. Booth (e) - where, in fact, if specific performance were decreed the purchaser would get substantially what he contracted for - he is not entitled to have the
(u) Lloyd v. Grace Smith & Co., 1912, 2 K. B. 489; 1912 A. C. 716.
(x) Wilson v. Fuller, (1843) 3 Q. B. at p. 75.
(y) See Sill v. Gray, (1815) 1 Stark. 434; Keates v. Earl Cadogan. (1851) 10 C. B. 591; 20 L. J. C. P. 76.
(z) Brownlie v. Campbell, (1880) 5 A. C. 925, 950.
(a) Sag. 14th ed. pp. 2 and 333.
(b) See Lucas v. James, (1849) 7 Ha. 410; 18 L. J. Ch. 329; Tildesley v. Clarkson, (1862) 30 Beav. 419; 31 L. J. Ch. 362.
(c) See Baglehole v. Walters, (1812) 3 Camp. 154, 156; Early v. Garrett, (1829) 9 B. & C. 928; 8 L. J. O. S. K. B. 76; Pickering v. Dowson, (1813) 4 Taun. 779; Freeman v. Baker, (1833) 5 B. & Ad. 79T; 3 L. J. N. S. Q. B. 17; Taylor v. Bullen, (1850) 5 Ex. 779; 20 L. J. Ex. 21.
(d) Hope v. Walter, 1900, 1 Ch. 257; 69 L. J. Ch. 166; and see Collins v. Hopkins, 1923, 2 K. B. p. 620.
(e) 1 Bing. N. C. 370.
Mere silence as regards a material fact which the one party is not under an obligation to disclose to the other, is not a ground for rescission or a defence to specific performance (g). A vendor is not bound to state that the property has been recently valued at a sum greatly less than the intended purchase-money; or that the tenant has complained of the rent as being excessive (h), or on the sale or lease of a mine, that he has himself worked it, but has abandoned the working as unprofitable, where the intending purchaser or lessee has had the opportunity of examination (i).
In Carlish v. Salt (k) it was held by Joyce, J. that service of a party wall notice under the London Building Act, and the issue of the usual award throwing upon the owner the liability to contribute to the cost of the work when completed, are material facts which a vendor is under an obligation to disclose, and non-disclosure, however innocent, will enable the purchaser to rescind and recover the deposit. But material facts which the vendor is under a duty to disclose, may be of such a nature that whilst the non-disclosure prevents the vendor obtaining specific performance the purchaser is not entitled to recover his deposit (l).
As to incumbrances and defects in title: - A vendor, so far as his prima facie liability in this respect is not negatived or restricted by the terms of the contract, must produce to the purchaser all such documents of title in his possession or power as are necessary, in order to deduce a marketable title for the usual or stipulated period, and must inform him of all material facts not apparent thereon (m). But by e. 10 (1) of the L. P. Act, 1925, it is provided that where title is shown to a legal estate in land, it shall be deemed not necessary or proper to include in the abstract of title an instrument relating only to interests or powers which will be over-reached by the conveyance of the estate to which title is being shown. By s. 44 (1), thirty years are substituted for forty years as the period of commencement of title under an open contract. By s. 45 (1) a purchaser is not to require (except as therein provided), the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law or stipulated for the commencement of the title; or require any information, or make any requisition or objection with respect to any such deed, will, or document, or the title prior to that time; and he is to assume, unless the contrary appears, that the recitals in the abstract of any document forming part of the prior title are correct, and give all the material contents,of the document recited. Sect. 44 (8) overrules Re Cox and Neve's Contract (n) by enacting that a purchaser is not to be deemed to be affected with notice of any matter or thing of which, if he had investigated the title or made enquiries in regard to matters prior to the period of commencement of title fixed by that Act, or by any other statute or rule of law, he might have had notice, unless he actually makes such investigation or inquiries.
As to matters of title.
(f) Shepherd v. Croft, 1911, 1 Ch. 521, Parker, J. (g) Turner v. Green, 1895, 2 Ch. at p. 208; 64 L. J. Ch. 539. (h) Abbott v. Stoorder, (1851) 4DeG.& S. 448, 460; 22 L. J. Ch. 235. (i) Haywood v. Cope, (1858) 25 Beav. 140; 27 L. J. Ch. 468; Jeffreys v. Fairs, (1876) 4 Ch. D. 448; 46 L. J. Ch. 113. (k) 1906, 1 Ch. 335. (l) Beyfus v. Lodge, 1925, 1 Ch. 351.