Claims to compensation under an open contract.

(h) Above, pp. 512-51.5. (i) Above, p. 65. (k) Above, pp. 65, 610. (l) Above, p. 43.

(m) See Mortlock v. Butter, 10 Ves. 292, 306; Halsey v. Grant, 13 Ves. 73, 77; Clermont v. Tas-burgh, 1 J. & W. 112, 120; 2

Dart, V. & P. 956, 957, 5th ed.; 1083, 1084, 6th ed.; 998, 7th ed.; above, pp. 43, 44.

(n) Caleraft v. Roebuck, 1 Ves. jun. 221; Halsey v. Grant, 13 Ves. 73: Esdaile v. Stephenson, 1 S. & S. 122: Scott v. Ha 1 R. & M. L28: King v. Wilson, 6 Beav. 124; Powell v. Elliot, L. R. 10 Ch. 424; above, p. 176.

(o) Clermont v. Tasburgh, 1 J. &

W. 112, 120; Price v. Macaulay, 2 De G. M. & G. 339; Dimmock y.Hallett, L. R. 2 Ch. 21, 28, 31; Re Terry and White's Contract, 32 Ch. D. 14, 29.

(p) See Drewe v. Hanson, 6 Ves. 675, 679; Halsey v. Grant, 13 Ves. 73, 78, 79; Binks v. Rokeby, 2 Swanst. 222, 225; Peers v. Lambert, 7 Beav. 546; Fry, Sp. Perf. 548-557, 3rd ed.; Re Arnold, 14 Ch. D. 270; Jacobs v. Revell, 1900, 2 Ch. 858; Re Puckett and Smith's Contract, 1902, 2 Ch. 258. (In the last three then was a rendition excluding compensation.)

(q) Above, pp. 611, 612; Dyer v. Hargrove, 10 Ves. 505.

46(2)

So far we have dealt with the vendor's case. The purchaser under an open contract containing a misdescription of the property sold is in a different position. For the rule is that the vendor, having represented himself to be the owner of or to be entitled to sell a particular property, is estopped from showing in avoidance of the contract that he has the right to convey a part only and not the whole of what he purported to sell (t). The purchaser therefore is, as a rule, entitled, if it turn out that there is a mere deficiency, whether of area, estate or right, and whether substantial or not, between the property described in the contract and that offered in fulfilment thereof, to enforce the specific performance of the contract, taking such interest in the property sold as the vendor has and receiving compensation for the deficiency. For example, where a vendor described the land sold as containing a much greater quantity than its actual area (u), where a vendor could make no title to a considerable part of the land sold (x), and where a vendor who purported to sell the fee simple of certain land was entitled as tenant for life (y), tenant in remainder subject to a life estate (z), tenant pur autre vie (a), or to an undivided moiety only (b), he was obliged at the purchaser's suit to convey what estate ho had and to allow compensation for the deficiency. The exceptions to this rule appear to be the following: - The Court will not enforce specific performance with compensation at the purchaser's suit, where such an order would be prejudicial to the rights or interests of third parties (c); or where the only property which the vendor can convey is an entirely different kind of tiling from that described in the contract and the difference is incapable of estimation at a money value, as where land sold as unincumbered freehold is subject to restrictive covenants (d); or where the vendor has innocently made a serious error of description to his own disadvantage and it would be a great hardship to enforce specific performance with compensation against him (e). And where there has been a mistake in the description of land put up for sale by auction, and the mistake has been corrected orally by the auctioneer immediately before the sale, the purchaser cannot enforce specific performance with compensation, notwithstanding that he did not hear the correction (f). Besides this, it appears that where the purchaser bought with notice of the vendor's defect of title, he cannot enforce specific performance with compensation for the defect: except where the contract contained an express agreement that the vendor should show a good title or otherwise remove the defect (g). It is thought that if the contract for sale contain no stipulation at all respecting compensation for errors of description, but include the usual clause empowering the vendor to rescind in case of the purchaser's insistence on an unwelcome requisition (h), the vendor is at liberty to rescind the contract under this clause rather than comply with a requisition for compensation on account of a serious error of description innocently made to his own disadvantage (i).

The purchaser's right to specific performance with compensation .

(r) See Manser v. Back, 6 Hare, 443, 447, 448; 2 Dart, V. & P. 645, 5th ed.; 729, 6th ed.; 670, 7th ed.

(s) See Neap v. Abbott, C. P. Coop. (1837-8), 333; Helsham v. Langley, 1 Y. & C. C. C. 175; Manser v. Back, 6 Hare, 443, 447, 448; Leslie v. Tompson, 9 Hare, 268; Alvanleyv. Kinnaird, 2 Mac.

& G. 1, 7; Scott v. Littledale, 8 E. & B. 815; Webster v. Cecil, 30 Beav. 62; North v. Percival, 1898, 2 Ch. 128; 2 Dart, V. & P. 645, 5th ed.; 729, 6th ed.; 670, 7th ed.; above, p. 45.

(t) Mortlock v. Buller, 10 Ves.

292, 315: Castle v. Wilkinson, L. R. 5 Ch. 534, 536; Rudd v. Laseelles, 1900, 1 Oh. 815, 818.

(u) Hill v. Buckley, 17 Ves. 394 in which case it was also held that, where the contents of any land sold are stated in the description thereof, it must be takes that the price was fixed with reference thereto.

(x) Westernv. Russell, 3 V. &

B. 187. 192

(y) Cleaton v. Gower, Finch, 164.

(z) Bolingbroke 's case, 1 Sch. & Lef. 19. n., cited 2 Ph. 605; Nelthorpe v. Holgate, i Coll. 203; Barker v. Cox, 4 Ch. D. 464.

(a) Barnes v. Wood, L. R. 8 Eq. 424.

(b) Hooper v. Smart, L. R. 18 Eq. 683: Horrocks v. Rigby, 9 Ch. D. 180.

(c) Thomas v. Dering, 1 Keen, 729, 6 L. J. (N. S.) Ch. 267 . Willmott v. Barber, 15 Ch. D. 06.

(d) Rudd v. Lascelles, 1900, 1 Ch. 815; Fry, Sp. Perf. Sec. 1276, 3rd ed.; and cf. below, pp. 728, 729, 731.

(e) Durham v. Legend, 34 Beav. 611; Rudd v. Lascelles, ubi sup.; above, p. 45.

(f) Manser v. Back, 6 Hare, 443; Re Hare and O'More's Con-tract, 1901, 1 Ch. 93, where there was an express contract to make compensation. The purchaser is, however, in such case entitled to rescind the contract, if he be unwilling to complete without compensation: see the case last cited.