382, 392, 393

(g) Above, pp. 105, 106; Re Summerson, 1900, 1 Ch. 112, n.: Hepworth v. Pickles, ib. 108; see also Clippens Oil Co. v. Edinburgh, etc. Trustees, 1901, A. C. 61, 69, 70.

(h) Warde v. Dixon, 28 L. J. N. S. Ch. 315, 321; Fry, Sp. Perf. Sec. 890 (vi), 3rd ed.; see above, pp. 305, 901, n. (b).

(i) See above, pp. 251, 305, 901, n. {b).

(k) M'Queen v. Farquhar, 11

Suspicion of a fact affecting the title at law.

The effect of a judgment for specific performance, or of the dismissal of an action for specific performance, upon the right to recover damages at law for breach of the contract has been already considered (q); and the question has been particularly discussed of the vendor's right to damages, where his action for specific performance is dismissed because the Court considers the title too doubtful (r).

Effect of judgment for specific performance in barring action on the contract at law.

Ves. 467; Green v. Pulsford, 2 Beav. 70; and see Cockcroft v. Sutcliffe, 25 L. J. Ch. 313, 2 Jur. N. S. 323; Re Huish's charity, L. R. 10 Eq. 5, 10; Alexander v. Mills, L. R. 6 Ch. 124, 132; Sug. V. &P. 393, 779.

(l) Above, pp. 108, 33G &n. {b), 833, 834, 902, 903.

(m) Alderson, B., Cattell v. Corrall, 4 Y. & C. Ex. 228, 236; Williams on Commons, 3.

(n) Above, p. 97; Clippens Oil Co. v. Edinburgh, etc. Trustees, 1904, A. C. 64, 69; Heath v. Deane, 1905, 2 Ch. 86, 93.

(o) Sug. V. & P. 392.

(p) See Hartley v. Smith, Buck, 368, 380; Cattell v. Corral/, 4 Y. & C. Ex. 228, 237; and consider Grove v. Bastard, 2 Ph. 619,

1 De G. M. & G. 69, where the undue influence alleged would have rendered the will invalid at law. It is respectfully submitted that Sir Edward Fry, in his statement of the law (Sp. Perf. Sec.891 (vi.), 892, 893, 3rd ed.), does not lay sufficient stress on the distinction pointed out by Leach, V.-C, in Hartley v. Smith, ubi sup., between the suspicion of a defect affecting only the equitable title (where the purchaser, if attacked, could shield himself by the plea of purchaser for value of the legal estate without notice of the defect) and a suspicion, for which there is apparently reasonable ground, that the facts are in truth such as would avoid at law some assurance stated as part of the title.

In a vendor's action for specific performance, if upon the inquiry into title the certificate be against the title (s), there has, of course, been such a breach of the contract as justifies the purchaser in rescinding it (t); and the defendant may consequently claim, in the vendor's action, to have an order for repayment of his deposit, with interest thereon, and establishing his lien on the land sold for the deposit and interest and his expenses of investigating the title (u).

Certificate against the title in vendor's action.

If the purchaser of land sue for the specific performance of the contract, he is, as we have seen (x), entitled to an inquiry as to the title; but he takes this inquiry at his own risk. For if he be aware of objections to the title, and upon the inquiry the vendor fail to prove a good title according to the contract (which is all that he can be called upon to show), the purchaser must either waive his objections to the title, and pay the costs of the inquiry into title, or else he must submit to have his action for specific performance dismissed without costs (y). If he accept the latter alternative, he will not be precluded from suing at law for damages for the vendor's breach of contract, but he will be unable to recover from the vendor, as damages, his own costs of his action for specific performance (z). So also, if the vendor had disclosed such a title as the purchaser was bound to accept, and the purchaser subsequently sued for specific performance and claimed an inquiry into title, the purchaser would have to pay the costs of the inquiry. And if, in such case, the purchaser had raised objections to the title, which the Court would not uphold, and he had no other cause of complaint than the vendor's refusal to admit these objections, the purchaser would have to pay the vendor's costs of the action (a). The difference between the purchaser's position in proceedings for specific performance brought against him by the vendor, and that which he occupies in case he bring such an action himself, is a matter of the greatest importance to a conveyancer advising the purchaser on title. We have seen that in many cases a purchaser may resist specific performance at the vendor's suit unless the vendor produce a better title than he has contracted to show; whilst if, in the same circumstances, the purchaser seek actively to enforce his own right to specific performance of the contract, he will be obliged to accept such a title as, according to the construction placed on the agreement in a Court of law, the vendor has stipulated that he will provide (b).

Specific performance at suit of the purchaser.

{q) Above, pp. 969 - 973. It may also be noted that judgment for specific performance against either party to the contract will preclude him from successfully suing for damages at law; for, as a general rule, the judgment could not have been pronounced if the other party had committed a breach of contract (above, p. 991), so that question is concluded between them. And in the cases where a man may obtain an order for specific performance, notwithstanding that he has broken the contract at law (above, pp. 988, 989), the other party would, under the old practice, have been restrained from suing on the contract at law; so that he has now no right to bring such an action; Levy v. Lindo, 3 Mer. 81; Reynolds v. Nelson, 6 Madd. 290; Beaufort v. Glynn, 3 Sm. & G. 213, 226; and see Garbutt v. Fawcus, 1 Ch. D. 155; Wright v. Redgrave, 11 Ch. D. 24.

(r) Above, pp. 971 - 973.

(s) Above, p. 1005 & n. (z).

[t) Above, pp. 936, 937, 948.

(u) Kitton v. Hewett, 1904, W. N. 21; above, pp. 948 - 950.