goings, or other particulars of the property, described by an innocent mistake as "valuable freehold estate," should be the subject of compensation; and one lot was in fact of copyhold tenure, but it appeared that under a composition with the lord of the manor the difference in value between copyholds in that manor and freeholds was very slight; it was held that the vendor was entitled to compel the purchaser to take the lot in question with compensation.(g) § 1215. Further, although, where a man sells a lease for a definite term of years, and nothing more is said on either side, he cannot make a good title unless he shows that it is an original lease, yet where the particulars and conditions of sale in effect tell the purchaser that the lease which is offered for sale is in fact an underlease, the vendor is entitled to enforce completion without compensation, and that notwithstanding a condition for compensation in the event of any error or mistake appearing in the description, or in the nature or quality of the vendor's interest therein, or in the particulars of the sale. For per se calling a thing a lease which is a lease is not a misdescription. (h) § 1216. The cases where the defect is, from its magnitude or importance, not a proper subject for compensation, have been already stated. We may now consider some other cases, where the doctrine will not be applied. § 1217. The principle of compensation, whether arising under the general doctrine of the court, or under a condition for compensation in case of any error or misstatement, will not be applied where there has been misrepresentation, (i) even, it seems, though the difference be of such a character that, if it had arisen from mere error, it would have been subject to compensation, as, for instance, in respect of the difference between copyholds nearly equal in value to freeholds and freeholds. (7) § 1218. Thus where, on a sale by auction, one of the lots was described as to be sold with a reservoir and waterworks (g) Price v. Macaulay, 2 De G. M. & G., 339 (h) Per Jessel M. R. in Cumberwell and South London Building Society v. Holloway, 13 Ch. D., 754, 761. Cr Darlington v tamil ton, Kay, 558; Hayford v. Criddle, 22 Beav, 477; Nouaille v. Flight, 7 Beav., 521; Henderson v. Hudson, 15 W. R., 860; Flood v. Pritchard, 40 I.. T., 873; Turner v. Turner, W. N. 1881, 70. (i) Per Plumber M. R. in Clermont v. Tasburgh, 1 J. & W., 119, 120; Duke of Norfolk v. Worthy, 1 Camp., 337, 340; Powell v Doubble, St. Leon. Vend., 23; stewart v. Alliston, 1 Mer. 26; supra, § 1164; and distinguish Powell v. Elliott, L. R. 10 Ch., 424. (j) Price v. Macaulay, 2 De G. M. & G., 339, 344. yielding a yearly rental of about £60, and it turned out that this rental arose from supplying with water from the reservoir some houses between which and the reservoir lay lands of other proprietors, through which the vendor had no right to carry the water except under a license from year to year for which he paid rent; it was held that the description contained such a misrepresentation as to debar the vendor from enforcing specific performance.(k) § 1219. Representation as to the tenancy of a house, the court refused to hold the purchaser to his contract and make him take compensation for the delay which would have been needed for an ejectment, although the purchaser bought for investment, and not for residence. (7) § 1220. Again, where the particulars of sale described a farm, which formed about one-third of the estate sold, as "lately in the occupation of A. at an annual rent of £290, 15s," and the facts were that A. had occupied the farm for a year and a quarter only, and then at the nominal rent of £3, for the first quarter, and that since his tenancy (which came to an end about sixteen months before the sale) the vendor had been willing to let the farm at £225, and knew that nothing like £290 a year could be obtained for it, the court held that such misrepresentation was not a matter for compensation, but entitled the purchaser to be discharged altogether from his purchase. (m) § 1221. But it seems that a mere flourishing description in particulars, such as that land is fertile and improvable, whereas part of it has in fact been abandoned as useless, cannot, except as in extreme cases-as for instance where a considerable part is covered with water, or otherwise irreclaimable-be considered such a misrepresentation as to entitle a purchaser to be discharged. (n) 2. (a) Purchaser insisting on the contract, there being no condition for compensation. § 1222. Although, as a general rule, where the vendor has not substantially the whole interest he has contracted (k) S. C See too Leyland v. Illingworth, 2 De G. F. & J., 248. (Lachlan v. Reynolds, Kay, 52. (m) Dimmock v. Hallett, L R. 2 Ch., 21. (n) S. C. 27 (per Turner, L J. See too Johnson v. Smart, 2 Giff., 151 ("substantial and convenient" dwelling.house). to sell, he, as we have seen, cannot enforce the contract against the purchaser, yet the purchaser can insist on having all that the vendor can convey, with a compensation for the difference (0) § 1223. "If," said Lord Eldon, (p) "a man, having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract; and, if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the court will not hear the objection by the vendor, that the purchaser cannot have the whole.”(q)' § 1224. The principle was acted on by Lord Nottingham, in the case of Cleaton v. Gower, (r) where the defendant Gower was tenant for life of certain estates in Shropshire, and he and his late father agreed with the plaintiff that the plaintiff should open and work certain mines, and should enjoy the minerals raised for ten years, if the defendant or his issue male should so long live, at a yearly rent of £25. The plaintiff sought a specific performance of this contract: the defendant objected that he was only tenant for life, and subject to account for waste, and that he could not execute the contract because it was inconsistent with his power: the court decreed the defendant to execute the contract so far as he was capable of doing it, and likewise to satisfy the plaintiff such damages as he had sustained in not enjoying the premises according to the contract. § 1225. The principle is also well illustrated by Lord (0) See e. g. per Turner, L. J., in Hughes v. Jones, 3 De G. F. & J., 315 The authority of James v. Lichfield, L. R. 9 Eq.. seems at least questionable. Compare Phillips v. Miller, L. R. 9 C. P., 196, 10 C. P., 420, with Caballero v. Henty, L R. 9 Ch., 447. See, however, Keays v. Carroll, I. R. 8 Eq, 97. (p) in Mortlock v. Buller, 10 Ves., 315. (q) See accordingly Attorney-General v. Day, 1 Ves. Sen., 224; Milligan v. Cooke, 16- 1 Clark v. Reins, 12 Gratt., 98; Waters v. Travis, 9 John., 450; Herbers v. Gadsden, 6 Rich.'s Eq., 281; Voorhee v. De Myer, 3 Sandf.'s Ch., 614; Jacobs v. Locke, 2 Ired.'s Eq, 286; Erwin v. Myers, 46 Pa. St., 96; Mapier v. Darlington, 70 id, 64; Weatherford v. James, 2 Ala., 170. Bolingbroke's case, (s) before Lord Thurlow. The incumbent of a living had contracted with a tenant in remainder for the purchase of the avowson, and on the faith of the contract had built a much better house on the glebe than he would otherwise have done: the tenant for life refusing to concur in the sale, Lord Thurlow compelled the tenant in remainder to convey a base fee for levying a fine, with a covenant to suffer a recovery on the death of the tenant for life. § 1226. In Wheatley v. Slade(t) Shadwell, V. C., held the principle under discussion not to apply where a largepart of the property could not be conveyed; and consequently, the contract in that case being for the sale of a lace manufactory, and it turning out that the vendors were only entitled to nine-sixteenths of the whole, and that those parts were subject to a debt which would exhaust nearly the whole of the purchase money, he refused specific performance. The vice chancellor's decision appears to have been influenced by the circumstance that the vendors entered into the contract under a mistaken impression that they were possessed of the entirety of the property. But the case, even if it can thus or otherwise upon its own particular circumstances be supported, is not, it is submitted, likely now to be followed. For it will be shown that, though the difference between the property contracted to be sold and that which the vendor can actually convey may be great, the court will generally, notwithstanding this circumstance, enforce the contract where it sees that its intention is the sale of whatever interest the vendor has. § 1227. Indeed the tendency of the court in recent years has been to apply the principle liberally. Thus where two vendors contracted to sell two-sixths of certain leaseholds "together with all other their rights and interests therein," and it turned out that they were only entitled to two twentyfirst parts each, the purchaser was held entitled to specific performance of the contract to the extent of the vendors' interests, with a proportionate abatement of the purchasemoney.(u) (8) 1 Sch. & Lef., 19 n., quoted by Lord Cottenham in Great Western Railway Co. v. Birmingham and Oxford Junction Railway Co., 2 Ph., 605. (t) 4 Sim., 126. See the observations of Lord St. Leonards on this case, Vend., 263; also Maw v. Topham. 49 Beav., 576, where the vendors were only entitled to threefourths. (u) Jones v. Evans, 17 L. J. Ch., 469. See too Leslie v. Crommelin, I. R. 2 Eq., 134. § 1228. Again, where A., who had only an estate per autre vie in property, the remainder in fee belonging to his wife, contracted to sell the fee simple to B. (who was ignorant of the state of the title), and then got his wife to concur with him in conveying it to C. (who knew of B.'s contract), it was held that B. was entitled to have a conveyance from C. of A.'s interest, with compensation in respect of his wife's interest which he was unable to convey or bind without her consent. (v) §1229. So where vendors contracted to sell the entirety of certain freeholds, and it was afterwards discovered that they were entitled to an undivided moiety only, the purchaser obtained a decree for the specific performance of the contract by the vendors to the extent of their moiety, with an abatement from the purchase money of one-half the amount.(w) § 1230. And so where A. and B. contracted to sell leasehold property to C., and on examining the title it appeared that A. was entitled to a moiety subject to a mortgage for its full value, and that B. had no interest at all-facts which were not known to C. at the time when he entered into the contract-C. was held entitled to an assignment of A.'s moiety, on the terms of covenanting to pay the rent and perform the covenants in the lease, and also to pay the mortgage-debt, and to indemnify A. in respect to those liabilities.(x) 1231. In each of the cases referred to in the last four sections, the purchaser was unaware, at the time when he entered into the contract, of the imperfection of the vendor's title.() But even if the purchaser has from the first been aware of the state of the title, that circumstance will not necessarily exclude him from the benefit of the principle under consideration.' (v) Barnes v. Wood, L. R. 8 Eq., 424. Cf. Nelthorpe v. Holgate, 1 Coll., 203. (w) Hooper v. Smart, L. R. 18 Eq., 683. (x) Horrocks v Rigby, 9 Ch. D., 180. 1 The law, as it now exists in this country, is stated by Mr. Justice Story. After considering the numerous conflicting cases on the subject, he says: "There is, however, a distinction upon this subject, which is entitled to consideration, and may, perhaps, reconcile the apparent diversity of judgment in some of the authorities. It is, that courts of equity ought not to entertain bills for compensation or damages, except as incidental to other relief, where the contract is of such a nature that an adequate remedy lies at law for such compensation or damages. But, where no such remedy lies at law, there a peculiar |