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.
(s) Dyne v. Nutley, (1853) 14 C. B. 122.
(t) Martyr v. Lawrence, (1864) 2 D. J. & S. 261, and cases there cited; Polden v. Bastard, (1865) L. R. 1 Q. B. 156; 35 L. J. Q. B. 92; but see Francis v. Hayward, (1882) 22 Ch. D. 177; 52 L. J. Ch. 291
(u) Watcham v. E. A. Protectorate, 1919, A. C. 533.
(x) Per Parke, B., Llewellyn v. Earl of Jersey, (1843) 11 M. & W. 189; 12 L. J. Ex. 243.
(y) Cowen v. Truefitt, 1899, 2 Ch. 309; 68 L. J. Ch. 563; Mellor v. Walmesley, 1904, 2 Ch. 525.
The contract for purchase cannot be used as evidence of what passed by the conveyance (/); but this does not preclude a purchaser from claiming, even after conveyance, compensation for misdescription where it is a term of the contract that he may do so (g), nor does it preclude a claim for rectification (h).
Contract not evidence.
(z) See Norton on Deeds, 2nd ed. 233 et seq. (a) See Shep. T. 248.
(b) Doe v. Galloway, (1833) 5 B. & Ad. at p. 51; 2 L. J. N. S. K. B. 182; and see Barnard v. Be Charleroy, (1899) 81 L. T. 497, where boundaries were ascertained by contemporary survey.
(c) Wood v. Rowclife, (1851) 6 Ex. 407; 20 L. J. Ex. 285; and see Norton on Deeds, p. 212. But see Doe v. Carpenter, (1850) 16 Q. B. 181, a case arising under a will. (d) 1908, 1 Ch. p. 196.
(e) Griffiths v. Penson, (1863) 9 Jur. N. S. 385.
(/) Williams v. Morgan, (1850) 15 Q. B. 782; and see Doe v. Webster, (1840) 12 Ad. & El. 442; Leggott v. Barrett, (1880) 15 Ch. D. p. 309; Teebay v. M. S. & L. R. Co., (1883) 24 Ch. D. 572; 52 L. J. Ch. 613: Greville v. Hemingway, (1902) 87 L. T. 443.
In a conveyance to a railway or waterworks company, if within the provisions of the Consolidation Acts, the mines and minerals, if intended to be included, must be actually specified; otherwise they will not pass (i). This was also the case, before 1926, with reference to assurances of copyholds and customary freeholds.
Mines, etc. if purchased by railway or waterworks company most be specified.
So, too (before 1926), on an enfranchisement of copyholds, if the grantee was to have the minerals and the right to work them, they had to be expressly mentioned, since the rights to minerals were not affected on an enfranchisement without the express consent in writing of the lord or tenant respectively (k). All copyholds are now enfranchised (l); but the lord's rights in the minerals are preserved (m).
Mines on enfranchisement.
The long enumeration formerly known in a conveyance as the "general words" has now in practice been superseded by the statutory provisions implying such words. Under s. 62 of the L. P. Act, 1925 (which takes the place of s. 6 of the Conv. Act, 1881), on a conveyance of land (n), having houses or buildings thereon (o), or of a manor (p), wide general words, suitable to each case respectively, are implied so far as a contrary intention is not expressed in the conveyance (q). This section does not in any way alter the rights of the parties under a contract, its object being merely to show what general words are to be taken as included in a conveyance of land where the conveyance is otherwise silent; hence under a contract for the sale of land "with the appurtenances" the purchaser is only entitled to have inserted such general words as he would have been entitled to before the commencement of the Act, and if the general words implied by the section are more extensive than the contract, the vendor is entitled to have them limited accordingly (r).
(g) See inf. p. 1006.
(h) Craddock Bros. v. Hunt, 1922, 2 Ch. 809; 1923, 2 Ch. 136.
(i) See R. C. C. Act, 1845, s. 77; Waterworks Cl. Act, 1847, s. 18.
(k) Copyhold Act, 1894, ss. 28, 24, and formerly under Copyhold Act, 1852, s. 48; and see Upperton v. Nicholson, (1871) 6 Ch. 436; 40 L. J. Ch. 401; Bellamy v. Debenham, 1891, 1 Ch. 412; 60 L. J. Ch. 166.
(1) L. P. Act, 1922, Part V.
(m) lb. 12th Sch. para. 5.
(n) Sub-s. (1); the expression "conveyance" in the Act includes an assent, see s. 205 (1) (ii); the term "land," land of any tenure, see s. 205 (1) (ix).
(o) Sub-s. (2); see Beddington v. Atlee, (1887) 35 Ch. D. 317; 56 L. J. Ch. 655; Broomfield v. Williams, 1897, 1 Ch. 602; 66 L. J. Ch. 305; Gregg v. Richards, 1926, Ch. 102, 521.
(p) Sub-s. (3).
If it is intended to except from a grant any right or quasi-right commonly enjoyed by the property prior to the grant, it is necessary to exclude expressly not only the operation of the section, but also the legal implication of the grant of the apparent right or usage arising from the mere grant of the property (s). But an easement which is not obvious or apparent will not pass under the implied general words (t). The operation of general words is of course restricted to the estate and interest which the grantor has at the date of the conveyance (u), and cannot be construed as giving a legal right against the grantor to a user which has been merely precarious (x).
(q) Sub-s. (4); see cases cited in note (o), sup.
(r) Be Peck and School Bd. for London, 1893, 2 Ch. 315; 62 L. J. Ch. 598; Be Hughes and Ashley, 1900, 2 Ch. 595; 69 L. J. Ch. 741; Re Walmsley and Shaw's Contract, 1917, 1 Ch. 93, 99. Of. Hansford v. Jago, 1921, 1 Ch. 322.
(s) See dictum of Fry, L. J., in Bayley v. G. W. B. Co., (1884) 26 Ch. D. 434, 457; and judgment of Lindley, L. J., in Broomfield v. Williams, 1897, 1 Ch. 602; 66 L. J. Ch. 305; Pollard v. Gare, 1901, 1 Ch. 834; Lewis v. Meredith, 1913, 1 Ch. 571. Of. Long v. Gowlett, 1923, 2 Ch. 177.
(t) Titchmarsh v. Boyston, (1900) 81 L. T. 673; Roe v. Siddons, (1888) 22 Q. B. D. 224; Acton Loc. Bd. v. N. & S. W. R., (1893) 37 Sol. J. 357, case of a level crossing over a railway; and see Long v. Gowlett, sup.
(u) Quiche v. Chapman, 1903,1 Ch. 659; 72 L. J. Oh. 373; Beddington v. Atlee, (1887) 35 Ch. D. 317; 56 L. J. Ch. 655; Williams v. Pinckney, (1897) 67 L. J. Ch. 34; Booth v. Alcock, (1873) 8 Ch. 663; 42 L. J. Ch. 587; and see judgment of Mellish, L. J., 8 Ch. at p. 667, as to the difference between a grant in general words and an express grant of a specific right. General words in a conveyance by the lord of the manor of a small piece of land, which had been copyhold and was afterwards surrendered to extinguish the copyhold tenure, were held not to re-create rights of common: Hall v. Byron, (1877) 4 Oh. D. 667; 46 L. J. Ch. 297.