chaser) immaterial incumbrances on the property is not enough to deprive a vendor of his right to insist on the specific performance of the contract.

§ 1197. Thus, where tithes contracted to be sold were subject to sundry small charges, (ƒ) and where the estate sold was subject to quit-rents (which may be regarded as incidents of tenure, [g]) the court enforced the contracts, in one case with an inquiry whether there ought to be any and what indemnity in respect of the charge, (h) and in the others with compensation to the purchaser by way of abatement from the purchase-money.

§ 1198. And in a case where an estate sold as fen land, and so described in the particular, was subject, under a local but public act, to certain embanking and drainage taxes which were not mentioned in the particulars, the court, on the ground apparently of the act imposing the charges being a public act, decreed against the purchaser specific performance of the contract without compensation. (i)

§ 1199. Further, although, as we have seen, (j) a man who contracts to purchase an estate which is described as tithefree will not generally be compelled to complete his purchases, if it turn out that the land is subject to tithe,-it being considered that, as a general rule, the right to the tithe is so material to the enjoyment of the land as to have formed the inducement to the purchase,-still, where the circumstances show that the right to the tithe is not thus material, the general rule ceases to apply. For instance, where an estate of about 140 acres was described as subject to tithe except thirty-two acres, and the exemption from tithe of those thirty-two acres was not proved, (k) and again where the circumstances showed that the question whether the land was to be tithe free or not was an immaterial one in the view of the purchaser ;(7) the court compelled the purchaser to complete the contract with compensation. $1200. On the principle that a warranty or a represen

(e) Supra, § 1178.

(f) Halsey v. Grant, 13 Ves, 73; Horniblow v. Shirley, 13 Ves., 81. Cf. Drewe v. Hanson, 6 Ves, 675.

(g) Esdaile v. Stephenson, 1 S. & S., 122,

124.

(h) Halsey v. Grant, ubi supra.

(i) Barraud v. Archer, 2 Sim., 433; affirmed on appeal (not reported: see 2 R. & My., 751). (j) supra, § 1187.

(k) Binks v. Lord Rokeby, 2 Sw., 222. In this case there appears to have been a condition that errors of description should not vitiate the sale. See 2 Sw., 225.

(1) Smith v. Tolcher, 4 Russ., 302.

tation is not binding, where in respect of some defect that is perfectly patent, (m) the court will not give a purchaser compensation for defects of this nature: so that a contract was enforced, at a vendor's instance, without any compensation in respect to the misdescription of a farm described as lying within a ring fence, which did not so lie, as the purchaser had himself seen and knew; while in the same case compensation was given for latent defects. (n)

§ 1201. But in order that this principle shall apply, the defect must be perfectly visible to everybody: therefore, where a representation was made by a vendor as to the dryrot in a house, which was not a matter so perfectly visible, the court gave compensation :(0) and where a tenant in possession purchased the property, which was represented as forty-six feet in depth, but was in fact only thirty-three feet, he was held entitled to compensation, inasmuch as occupiers are not in the habit of measuring their premises. (p)

§ 1202. Moreover, if the purchaser, after he knows of a defect, acts in a manner implying a waiver of it, the vendor becomes entitled to insist on the completion of the purchase without compensation. Thus, where the abstract, delivered in January, showed part of the estate to be subject to a right of sporting, and in the following April the purchaser at his own request was let into possession, and afterward several letters passed between the parties, and most of the purchase-money was paid without any objection on the score of the right before, in October of the same year, the purchaser claimed compensation; it was held that he had waived the objection, and specific performance without compensation was decreed against him. (2)

§ 1203. In an Irish case specific performance was enforced, at the vendor's instance, without compensation for a deficiency of nearly one-half in acreage of property described in the contract as "about 200 acres of mountain land," the land being a waste of heath of trifling value. (r)

(m) Supra, §§ 658, 659, 849. Cf. Horsfall v. Thomas, 31 L. J. Ex., 322; 10 W. R., 650. (n) Dyer v. Hargrave, 10 Ves., 505. (0) Grant v. Munt, Coop., 173.

(p) King v. Wilson, 6 Beav., 124. (q) Burnell v. Brown, 1 J. & W., 168. Distinguish Hughes v. Jones, 3 De G. F. & J., 307.

(r) Corless v. Sparling, I. R. 9 Eq., 595.

1. (b) Vendor insisting upon the contract, there being a condition for compensation.

§ 1204. In the cases now to be considered, while the general principles already stated are applicable, and the rights of the vendor are usually somewhat extended by the language of the particular condition, at the same time, conditions of sale being, as we have seen, (s) construed strictly against the vendor, it is incumbent upon him, if he rely upon the condition to compel the purchaser to carry the contract into execution, taking compensation for some defect, to show that the defect is of such a nature as properly to fall within the condition. (t)

§ 1205. Quite apart from any consideration of fraud, where there is in a contract a misdescription "in a material and substantial point, so far affecting the subject-matter of the contract as that it may be reasonably supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation."(u)

§. 1206. Thus, where the particulars of a leasehold house in Covent Garden stated that, by the lease, "no offensive trade was to be carried on, and that the premises could not be let to a coffee-house keeper or working hatter," and there was a condition for compensation in case of error or misstatement, and the original lease, in fact, prohibited a vast variety of other businesses than those described, including the sale of any provisions, the purchaser was held to be entitled to rescind the contract. (v)

§ 1207. Again, where there was a condition for compensation in the case of error in the description of the premises, or of any other error whatsoever in the particulars, and the property which was described as copyhold turned out to be partly freehold, Lord Romilly, M. R., refused to compel specific performance by the purchaser: he had contracted to purchase one thing, and he might refuse to accept another.(w)

(8) Supra, § 1154 et seq.

(t) 8ee per Lord Westbury in Cordingly v. Cheeseborough, 4 De G. F & J., 384.

(u) Per Tindal, C. J., in Flight v. Booth, 1 Bing. N. C., 377.

(v) Flight v Booth, 1 Bing. N. C., 370. Dis. tinguish Grosvenor v. Green, 7 W. R., 140.

(w) Ayles v. Cox, 16 Beav., 23. In Hick v.

Phillips, Prec. in Ch., 575, a bill by a vendor of an estate, which in the articles was treated as freehold, was refused because about onesixth in value was copyhold, but nothing is stated as to the peculiar nature of the tenure. Cf. the observations of Romilly, M. R, in Hudson v. Cook, L. R. 13 Eq.. 420. See too Evans v. Robins, 8 Jur. N. S., 846.

§ 1208. In another case a yard, which was essential to the enjoyment of the property sold, was held from year to year, instead of for the term of twenty-three years for which the rest of the premises were held, and at a separate rent: this was considered to be a defect which the vendors were not entitled to bring within a condition for compensation for mistake in the description of the property or any other error whatsoever in the particulars. (x)

§ 1209. In Madeley v. Booth(y) leasehold property was sold for the residue of a term of ninety-nine years, which commenced on the 24th of June, 1838, under conditions which prohibited the purchaser from calling for the lessor's title, and stipulated that any error or misstatement of the property, term of years, or other description, should not vitiate the sale, but that a compensation should be given: the term sold was really not the residue described, but a derivative term less by three days than the original one: Knight Bruce, V. C., held that the underlease was not sub stantially the same thing, the resulting rights being different, and accordingly dismissed with costs a bill by the vendor praying for specific performance with compensation. This decision, however, has been judicially disapproved of, and does not seem to be consonant with principle.(z)

§ 1210. The principle under consideration of course applies where, though the whole land is conveyed, it, or a part of it, is subject to rights which materially affect its enjoyment: thus a right of way, which would render useless for building a close advertised as building-ground, has been held not to come within a condition for compensation;(a) so grants of rights to the owners of lower lands, to fetch water from a spring on the upper lands, to cut and cleanse drains leading the water to the lower lands, and other similar rights having reference to four and a half acres out of about thirty sold, were held to constitute a material defect in the title to the upper lands, and consequently were not the subject of compensation, notwithstanding a condition that a mistake in the description or an

(x) Dobell v. Hutchinson, 3 A. & E., 355. (y) 2 De G. & Sm., 718.

(2) See per Jessel, M. R., in Camberwell and South London Building Society v. Hollo.

way, 13 Ch. D., 760, and infra, § 1215. See too Darlington v. Hamilton, Kay, 557, 558; and Hayford v. Criddle, 22 Beav.. 477

(a) Dykes v. Blake, 4 Bing. N. C., 463.

error in the particulars should be the subject of compensation, and not annul the contract. (b)

§ 1211. Generally, where there is a proper case for compensation, and the amount can be reasonably estimated, the court is disposed to grant it. (c)

§ 1212. But where this reasonable estimate is not attainable, the court refuses to compel the purchaser to take compensation thus, where a house and grounds were sold by the court, and, pending the making out of the title, some ornamental timber was cut down, the purchaser was discharged, because the act affected the value of the property to the purchaser, as a residence, in a way which the court was unable to measure. (d) And where the particulars represented the average size of the timber in the wood, which was the property sold, as approaching fifty feet, but in no way specified the number of the trees; and the witnesses for the plaintiff (the vendor) treated no trees containing less than ten feet as timber trees, and on this basis showed an average of thirty-four feet six inches; whilst the defendant's witnesses, reckoning all trees containing not less than five feet as timber trees, showed an average of twenty-two feet only; it was held by Lord Hatherley (then Wood V. C.) that the subject-matter sold fell short of the description; but, in the absence of any representation as to the number of trees, the court had no data for calculation, and therefore could not give compensation, but dismissed the bill.(e)

§ 1213. The same principle seems to have governed another case, in which the premises were described as in the joint occupation of A. and B. as lessees, whereas they were in fact in their joint occupation, but not as lessees, but A. was the assignee from C., the original lessee: it was held that this was not a case for compensating the purchaser, but that he could not be forced to take an indemnity.(f)

$ 1214. On the other hand, where the conditions provided that any misstatement of the quality, tenure, out

(b) Shackleton v. Sutcliffe, 1 De G & Sm., 609. Cf. Nouaille v. Flight, 7 Beav., 521. (c) See infra, § 1242.

(d) Magennis v. Fallon, 2 Moll., 561, 584. Cf, Cox. v. Coventon, 31 Beav., 378.

(e) Lord Brooke v Rounthwaite, 5 Ha., 298. Cf. infia, § 1261.

(f) Ridgway v. Gray, 1 Mac. & G., 109. Distinguish Farebrother v. Gibson, 1 De G. & J., 602.