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.
(e) Sug. 14th ed. 107, citing Camden v. Benson, (1837) 1 Ke. 671.
(f) Flower v. Eartopp, (1845) 8 Beav. at p. 200; 12 L. J. Ch. 507 ; and see Holland v. King, (1852) 20 L. T. (O. S.) 123.
(g) Fielder v. Higginson, (1814) 3 Ves. & B. 142, where the purchase seems to have been made under a decree; see Reynolds v. Blake, (1824) 2S. &S. 117.
(h) Thorpe v. Freer, (1819) 4 Mad. 466 ; Wyman v. Carter, (1871) 12 Eq. at p. 315 ; 40 L. J. Ch. 559.
A condition is usually inserted providing that if the purchaser shall make any valid objection or requisition which the vendors shall be unable to remove or comply with, the purchaser may rescind the contract with the sanction of the judge; and shall thereupon be entitled to a return of his deposit, but not (unless the judge shall otherwise direct) to any interest, costs, expenses, or damages in respect of his purchase (r).
Condition as to discharge of purchaser and return of deposit.
(0 See Lchnd v. Griffith, (1829) 2 Mol. 150 ; Pleasants v. Roberts, (1825) ib. 507 ; Barton v. Lord Downes, (1842) 11. &K. 633; Weir v. Chamley, (1851) 2 Ir. Ch. R. 5G6.
(k) See form of order, Perkins v. Ede, (1852) 1G Beav. 268 ; and Powell v. P, (1875) 19 Eq. 422, 425; 44 L.J. Ch. 311.
(/) Reynolds v. Blake, (1824) 2 S. & S. 117; A.-G. v. Corp. of Newark, (1836) 8 Si. 71 : Calvert v. Godfrey, (1813) 6 Beav. 97 ; 12 L. J. N. S. Ch. 305 ; Ward v. Trathen, (1844) 14 Si. 82 ; Lachhtn v. Reynolds, (1853) Kay, 52 ; 23 L. J. Ch. 8.
(m) Berry v. Johnson, (1837) 2 Y. &
C. 564, 565 ; Smith v. Nelson, (1826) 2 S. & S. 557.
(n) Mullins v. Hussey, (1866) 1 Eq. 488; 35 L. J. Ch. 348.
(o) Hide v. H., (1825) 1 Coop. t. Cott. 379 ; and see Howell v. Kightley, (1856) 8 D. M. & G. 325 ; 25 L. J. Ch. 341, 868. It appears that on a sale by the Crown under the 25th Geo. III. c. 35, authorizing the sale of the lands of Crown debtors or their sureties, the purchaser gets no costs if the title prove bad : R. v. Cracroft, (1825) 1 M'C. & Y. 460.
(p) Sherwood v. Beieridge, (1849) 3 De G. & S. 425.
(q) Williams v. Wace, (1838) C. P Coop. 42.
Where the sale has taken place under circumstances which, in the case of an ordinary sale, would he a defence to a suit for specific performance, except with a variation, but would not he a ground for rescinding the contract, the Court, as the property must be sold, is obliged to decide whether the sale is to be carried into effect, or the property is to be resold; but, as far as possible, the rules which regulate such cases between ordinary vendors and purchasers will be adapted to purchases under orders of the Court (s).
Although the practice has varied (t), it is now clearly the rule of the Court that, in a special case, as where the purchaser is entitled to relieve himself from paying interest, the Court will receive the purchase-money on his application, without his accepting the title (u) ; but the order will not be made except in a special case (x); nor, while the title remains unaccepted, will he be let into possession (y). The acceptance of the title, subject to a mere reservation of a claim to compensation in case the property should prove not to be tithe free, has, however, been held sufficient (z). Where a purchaser, without the authority of the Court, enters into possession, although with the consent of the vendor's solicitor, he will Le held to have accepted the title (a), and will be at once ordered to pay in his purchase-money (b) ; so, if in possession, without having paid for the estate, he may, on motion, without suit, be restrained from waste (c).
Purchase-money paid in without accepting title, when.
(r) As to the effect of such a condition, see Tamil v. P., (1875) 19 Eq. 422; 44 L. J. Ch. 311, where the purchaser was, under the circumstances, held entitled to interest on his deposit, with costs, charges, and expenses; and as to such a condition being a proper one for fiduciary vendors to employ, see Falkner v. Equitable Reversionary Soc, (1858) 4 Dr. 352; 28 L. J. Ch. 132.
(s) Alvanlcy v. Kinnaird, (1849) 2 M. &G. 1, 8.
(t) See Sug. 14th ed. 103; Denning v. Henderson, (1847) 1 De G. & S. 689 ; 17 L. J. Ch. 8 ; and Miter v.
Marriott, (1846) 10 Beav. 33.
(u) Per Lord Cottenham, De Visme v. De V., (1849) 1 M. & G. at p. 344; 18 L. J. Ch. 159 ; 19 ib. 52 ; Kindle v. Dakins, (1838) 1 Coop. t. Cott. 378 ; Morris v. Bull, (1847) 1 De G. & S. 691, n. ; Rutley v. Gill, (1849) 3 ib. 640.
(x) Ouseley v. Anslruther, (1849) 11 Beav. 399.
(y) Hutton v. Mansell, (1840) 2 Beav. 260 ; Butter v. Marriott, sup. ; Dempsey v. D., (1847) 1 De G. & S. 691.
(z) Man v. Bicketts, (1851) 5 De G. &S. 116; 13 L.J. Ch. 194.
When the purchase-money is paid into Court, it will not, prior to the execution of the conveyance, be applied, without the purchaser's consent, in discharge of incumbrances, even where he has been guilty of delay in preparing the draft conveyance (d) ; the object of impounding it being to preserve a lien to the purchaser. In order, however, to make this certain, it is usual, upon paying in the money, expressly to ask that it may not be paid out again without notice to the purchaser; an order to which effect prevents the distribution of the fund without the purchaser's consent given in Court, or upon his non-appearance and an affidavit of his having been served with a copy of the order for setting down the cause for further consideration, or of the application for distribution (e). Where, however, a purchaser accepted the title, with knowledge of an incumbrance, and paid his purchase-money into Court, it was held that he had no lien upon it in respect of the incumbrance (/). In one ease, where the fund was small, the Court inserted in the order for sale a special direction that the proceeds of sale should be distributed upon the Master's certificate; but that before distribution the purchasers should be served with a summons to show cause why the money should not be so distributed (g). In another case, Lord Langdale appears to have held that, although the estate was sold for payment of debts, the Court ought not to distribute the fund until an effectual conveyance could be made to the purchaser (h). But where the title had been accepted and the conveyance executed, the purchaser was unable to prevent the distribution of the fund, although an adverse claim had been made to the estate (i). He is not in any way responsible for its application; for by payment into Court he has discharged the only condition incumbent upon him (k).