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.
(b) Per Lord Herschell in Henthorn v. Fraser, 1892, 2 Ch. at p. 33; 61 L. J. Ch. 373; and see Potter v. Sanders, (1846) 6 Hare, 1; Herna-man v. Coryton, (1850) 5 Ex. 453; 19 L. J. Ex. 353; and cf. Luttges v. Sherwood, (1895) 11 T. L. R. 233.
(c) I.e., posted in accordance with the Post Office regulations: He London and Northern Bank, 1900, 1 Ch. 220; 69 L. J. Ch. 24.
(d) Byrne v. Van Tienhoven, (1880) 5 C. P. D. 344; 49 L. J. C. P. 316. The same rule applies to an acceptance by telegram: Raeburn v. Burness, (1895) 11 T. L. R. 399; Bruner v. Moore, 1904, 1 Ch. 305.
(e) Duncan v. Topham, (1849) 8 C. B. 225; 18 L. J. C. P. 310; Wall's Case, (1872) 15 Eq. 18; 42 L. J. Ch. 372; Household Fire Insurance Co. v. Grant, (1879) 4 Ex. D. 216; 48 L. J. Ex. 577.
(f) Adams v. Lindsell, (1818) 1 B. & Ald. 681; Dunlop v. Higgins, (1848) 1 H. L. C. 381.
(g) Quenerduaine v. Cole, (1883) 32 W. R. 185.
(h) Ogilvie v. Foljambe, (1817) 3 Mer. 61.
(i) Cowley v. Watts, (1853) 17 Jur. 172; 22 L. J. Ch. 591.
(k) Bleakley v. Smith, (1840) 11 Si. 150.
(l) Owen v. Thomas, (1834) 3 My. & K. 353; 3 L. J. N. S. Ch. 205.
Where an agreement refers (t) to an existing (u) plan or document, parol evidence is admissible to identify the plan or document (x), which must be sufficiently explicit to admit of a legal construction (y). So, an agreement to lease the " coals, etc," under specified closes, would seem to be too ambiguous to be enforced (z); but an agreement for a lease of a farm containing about 437 acres, " except thirty-seven acres thereof," which were not specified, was held capable of being enforced, the Court giving the lessor the right of selection (a). So, an agreement to take a lease of all those two seams of coal, known as the two-feet coal and the three-feet coal, "lying under lands hereafter to be defined in the Bank End Estate," was considered sufficiently definite, the true construction being that the boundaries of the whole estate were to be afterwards ascertained (b); so, the reservation in a contract of "the right to search for and work mines, minerals," etc. (c), and the words "goodwill, etc." in a contract for the 6ale of a foundry (d), have been considered sufficiently free from ambiguity to enable the Court to compel specific performance.
(m) Wood v. Scarth, (1855) 2 K. & J. 33.
(n) Ibid.; and see M'murray v. Spicer, (1868) 5 Eq. 527; 37 L. J. Ch. 505; and see Ex p. Nat. Prov. Bank, (1876) 4 Ch. D. 241; 46 L. J. Bk. 11.
(o) Naylor v. Goodall, (1877) 47 L. J. Ch. 53.
(p) Waldron v. Jacob, (1870) 5 Ir. E. Eq. 131.
(a) Shardlow v. Cotterell, (1882) 20 Ch. D. 90; 51 L. J. Ch. 353.
(r) Plant v. Bourne, 1897, 2 Ch. 281; 66 L. J. Ch. 643.
(s) Auerbach v. Nelson, 1919, 2 Ch. 383.
(t) As to what is sufficient reference, see Nene Valley Drainage Commissioners v. Dunkley, (1876) 4 Ch. D. 1.
(u) Adams v. Wheatley, (1855) 3 W. B. 96.
(x) Hodges v. Horsfall, (1829) 1 Russ. & My. 116.
(y) Monro v. Taylor, (1850) 8 Hare, 51; affd. 3 M. & G. 713; 21 L. J. Ch. 525; Nene Valley Drainage Commissioners v. Dunkley, (1876) 4 Ch. D. 1.
(z) Price v. Griffith, (1851) 1 D. M. & G. 80; 21 L. J. Ch. 78; and see Stuart v. L. & N. W. R. Co., (1852) 1 D. M. & G. 721; 21 L. J. Ch. 450; Lancaster v. De Trafford, (1862) 8 Jur. N. S. 873; 31 L. J. Ch. 554.
(a) Jenkins v. Green, (1858) 27 Beav. 437; 28 L. J. Ch. 817.
It is immaterial that the agreement does not distinguish the tenures of the several portions of the estate (e); or even the tenure of the whole estate, if this can be shown to have been in the knowledge of both parties (f). But there must be some description of the property: e.g., a memorandum that a party has disposed of "his writings" (i.e., title deeds) is insufficient (g).
But there must be some description.
On a contract for the sale of land the precise interest to be sold need not appear in the memorandum. Unless the contrary appears, such contracts are always assumed to be for the sale of the whole of the vendor's interest and, as against the vendor, for the sale of the fee simple free from incumbriancee (h). Hence, where the nature of the interest to be sold does not appear from the contract, the vendor cannot force the purchaser to accept (i), nor can the purchaser force the vendor to grant (k), any less estate than the fee simple. But an agreement by a vendor to sell " all his estate and interest" does not necessarily imply that the interest to be sold is the fee simple (l).
The estate in the land to be sold need not be mentioned.
(b) Haywood v. Cope, (1858) 25 Beav. 140; 27 L. J. Ch. 468.
(c) Parker v. Taswell, (1858) 2 D. & J. 559; 27 L. J. Ch. 812.
(d) Cooper v. Hood, (1858) 26 Beav. 293; 28 L. J. Ch. 212.
(e) Monro v. Taylor, (1850) 8 Ha. 51; affd. 3 M. & G. 713; 21 L. J. Ch. 525.
(f) Cowley v. Watts, (1853) 17 Jur. 172; 22 L. J. Ch. 591.
(g) Seagood v. Meale, (1721) Ch. Prec. 560.
(h) See sup. p. 109.
(i) Southern v. Harriman, (1866) 14 W. E. 487.
(k) E.g., to assign a lease: Hughes v. Parker, (1841) 8 M. & W. 244.
(l) Freme v. Wright, (1819) 4 Madd. 364; Priddle v. Wood, (1864) 4 N. R. 320; but it does imply that the vendor has some interest: May v. Platt, 1900, 1 Ch. 616; 69 L. J. Ch. 357.
So, all the essential terms of the contract must be fixed; or, as in the case of the arbitration bond, the means of compulsorily fixing them must be provided; and the Court will enforce a contract in general terms where the law can supply the details (m). For instance, where the memorandum of an agreement for the sale of a leasehold public-house stated that "the usual public-house contract" was to be entered into, parol evidence was admitted to show what were the usual terms of such a contract, and specific performance was ordered accordingly (n). An agreement for "a lease" must specify the intended duration of the term, the nature of the reservations (o), and the date of commencement of the term (p); though it is sufficient if the latter can be ascertained from the agreement read as a whole (q), or from circumstances referred to in the agreement (r); so, where, on the sale of the surface, it was provided that a royalty of 6d. per ton should be paid for the minerals, and that the same if not worked should be paid for as if gotten, the contract was held too uncertain in its terms to be enforced, there being no means provided for ascertaining what quantity would have to be paid for (s); so, a stipulation on the sale of a foundry that "a large portion" of the purchase-money was to be left in the business made the agreement too uncertain (t).