vendor of a coal mine, having, during delay of completion, worked the mine for his own benefit, was held bound to pay the purchaser the value in situ naturali of the coal taken, i. e. its market value at the place where it was to be sold, less the costs of severing it and taking it from the mine to that place. (h) § 1410. On the other hand, the purchaser will have to bear the loss from deterioration in the following cases: First, where it occurs after the time at which he ought to have taken possession. (¿) § 1411. Secondly, where it occurs during the period in which the vendor is in possession, but is the result of accident, without the fault of the vendor: so that where during this period the vendor was, in consequence of such an accident, compelled to expend money on or in respect of the property, as in shoring it up, or removing rubbish which had fallen on a neighbor's property, the vendor was held entitled to have this repaid by the purchaser: but the court refused to make the purchaser pay the expenses of a reference to the master in relation to the repairs, though that had been proper for the protection of the trustees of the estate. (j) § 1412. Thirdly, where the deterioration is due to the purchaser himself, the loss must fall on him though not in possession. Thus, where a purchaser agreed with a tenant of the estate that he should give up possession if the purchaser had a conveyance by a certain time, and the tenant, misconstruing the agreement, gave up possession though the purchaser had not the conveyance; the purchaser was held to be the innocent cause of the mischief, and so responsible for the deterioration which resulted.(k) 1413. The cases which arise where the vendor is himself in personal occupation of the estate correspond with those where he is in receipt of the rents, except that, instead of having to pay over the rents received from others, he will have to pay to the purchaser an occupation rent to be set upon the estate, himself receiving interest in return. (7) § 1414. In a recent case, the contract having stipulated (4) Brown v. Dibbs, 25 W. R, 776, following the principle of Jegon v. Vivian, L. R 6 Ch.. 742 (i) Binks v. Lord Rokeby, 2 Sw., 222; Minchin v. Nann, 4 Beav., 332. (j) Robertson v. Skelton, 12 Beav, 360. that, from the day named for completion, the purchaser should receive "all rents and profits," the vendors, remaining in occupation of the property after that day, were held bound to pay a fair occupation rent for the interval which elapsed before the purchase was completed. (m) § 1415. No such occupation rent, however, will be allowed where the purchaser ought under the contract to have taken possession, and the vendor has continued in possession, only by reason of the purchaser's wrongdoing.(n) § 1416. Thus where the property (a tavern), was occupied by the vendor, a licensed victualler, for the purposes of his business, and the purchasers a railway company, having made default in payment of the purchase-money on the day named for completion, the vendor continued the business on his own behalf, but under great inconvenience, all his arrangements having necessarily to be made subject to determination on payment of the purchase-money, it was held that the purchasers were not entitled to any allowance by way of occupation rent. (o) § 1417. Where the court fixes an occupation rent to be paid by the vendor, he will, it seems, be allowed to deduct the income tax on it as a "just allowance;" but the court will not insert any express provision on the point in the judgment.(p)' (2) Where the purchaser is in possession.' § 1418. It follows from the principles already stated and discussed in this chapter that generally, in the absence of (m) Metropolitan Railway Co. v. Defries, 2 Q. B. D., 189; affirmed, id., 387. (n) Dakin v. Cope, 2 Russ.. 170, 181. acres. (0) Leggott v. Metropolitan Ballway Co., L. R. 5 Ch., 716 (p) Sherwin v. Shakspear, 5 De G. M. & G., 517, 532. 1 Thomas v. Thomas, 1 Bibb.. 219, is not an inapplicable case. B., there, agreed to surrender fifty acres of land to A., upon the conveyance from A. to B. of 250 acres. A. conveyed the 250 acres, but B. refused to give up the fifty A. brought ejectment; B. his bill for an injunction. Held, that B. had no longer any claim to the fifty acres; and that an account of the rents and profits from the time of the commencement of the ejectment should be taken, and set off against the value of the improvements made by B.; it appearing that by agreement, all improvements were to be paid for. See Dike v. Greene, 4 R. I., 285. * Purchasers in possession will be holden to pay interest, but will not be held liable for mesue profits. Portland v. Miller, 3 Hawks, 628; McKay v. Melvin, 1 Ired.'s Ch., 73; Rutledge v. Smith, 1 McCord's Ch., 399; Liddell v. Rucker, 13 La. An., 569; Bryant v. Booth, 30 Ala., 311; Stevenson v. Maxwell, 2 Sandf.'s Ch., 273; 2 Comst., 408; Seldon v. James, 6 Rand., 465; Sebree v. Harper, 4 Dana, 66; Oliver v. Hallam, 1 Gratt (Va.), 298; see Irick v. Fulton, 3 id., 193; stipulation, a purchaser in possession of the estate which is the subject matter of the contract must pay interest on the unpaid purchase-money from the time when his possession under the contract commenced until completion. (2) § 1419. The rule that the purchaser in possession shall pay interest on the unpaid part of the purchase-money will be applied even in cases where the delay arises from the neglect of the vendor, and the purchaser makes no actual profit out of the land, (r) "The act of taking possession," said Grant, M. R., "is an applied agreement to pay interest for so absurd an agreement as that a purchaser is to receive the rents and profits to which he has no legal title, and the vendor is not to have interest, as he has no legal title to the money, can never be implied."(s) § 1420. Accordingly where a purchase was to be completed by a given day, when the purchaser was to have possession, and it was provided that, if from any cause whatever the purchase-money should not be then paid, the purchaser should pay interest, and a delay of six months was occasioned, but innocently, by the vendor in not delivering proper abstracts, he was put to his election to (g) See Supra, § 1372; and Fludyer v. Cocker, 12 Ves., 27; Binks v. Lord Rokeby, 2 Sw., 226; Neath New Gas Co. v. Gwyn, W. N., 1873, 200; Ballard v. Shutt, 15 Ch. D., 122. (r) Fludyer v. Cocker, 12 Ves., 25; Ballard v. Shutt, 15 Ch. D., 122. (8) Fludyer v. Cocker, 12 Ves., 27, 28. Walker v. Ogden, 1 Dana, 247. The fact that delay is caused by the neglect of the vendor is likewise held here not to alter the case. Brockenburgh v. Blyth, 3 Leigh, 619. And interest will be charged upon a purchaser, although the vendor has bound himself to make a good title before calling for the purchase money. Oliver v. Hallam, 1 Gratt. Va.), 298. But a tender of the money will exonerate the vendee from the payment of interest; and on a bill for a specific performance, he will be obliged to accept without interest. January v. Martin, 1 Bibb, 586. And, again, where the purchaser of land was prevented from improving it by reason of a suit against the vendor to recover the land, the court refused to charge the purchaser with interest upon the purchase money pending the suit at law, though it was agreed between the vendor and purchaser that the improvements should be at the risk of the purchaser, in case the title should be questioned. Wightman v. Reside, 2 Dessau., 578. But in cases of this kind, where there has been no injury done to the vendee in the hindrance of improvements, and the adverse title is ultimately defeated, the vendee must pay interest. Nor is it sufficient, to excuse the payment of interest in such a case, that the vendee has been willing and ready to pay the principal during the time of litigation, unless it appear that the money lay uselessly by him, and unproductive, and that he gave notice to the vendor that it was so unproductive. Selden v. James, 6 Rand., 465; Breckenridge v. Hoke, 4 Bibb, 272; see Rutledge v. Smith, 1 McCord's Ch., 399. In regard to delay occasioned by the vendor, a distinction has been taken between sales of productive and unproductive property. Where the land is vacant, and consequently yields no rents or profits. it has been said that a purchaser, although in possession, shall not pay interest. Stevenson v. Maxwell, 2 Sandf.'s Ch., 273. pay interest or give up rents, though notice had been given by the purchaser that the money was lying idle.(t) § 1421. In a case decided by Lord Romilly, M. R., the contract provided that the purchasers should pay interest on the purchase-money at four per cent from the time of their taking possession until the 1st of July, 1858 (the day for completion), at five per cent from the last mentioned date until the 1st of January, 1859, and afterwards at eight per cent until payment, with a proviso that the purchasers should not be entitled to withhold payment of the purchasemoney upon paying interest at the higher rates. The purchasers took possession before the end of 1857, but, without any misconduct on the vendors' part, completion did not take place until 1865. His lordship held that the stipulation for the payment of interest at the rate of eight per cent was a separate and distinct contract which the purchasers were bound to perform, and not as they contended, in the nature of a penalty to secure the completion of the purchase within a reasonable time.(u) The case well illustrates the principle that stipulations of this kind will have effect given to them according to their natural meaning.(v) § 1422. Again where a purchaser under a decree accepted possession, and on a report of an objection returned possession, he was ordered to pay interest from time to time at which he took possession, or at which a title was shown under which he might safely have done so, and even for the time during which he returned the possession.(w) $1423. But where a purchaser had been let into possession at the intended time for completion, and afterwards, difficulties having without any fault on his part arisen to delay completion, paid the purchase-money into a separate account at a bank, and gave notice to the vendors that the money was appropriated to the purposes of the contract, and that he was ready to complete; Lord Romilly, M. R., held that he was not chargable with interest after the date of his notice, but must pay to the vendors any interest he had received from the bank in respect of the sum paid in.(x) (t) Cowpe v. Bakewell, 13 Beav., 421. (u) Herbert v. Salisbury and Yeovil Railway Co., L. R. 2 Eq., 221. (v) See supra, § 1389. (w) Binks v. Lord Rokeby, 2 Sw., 222. See also Att-Gen. v. Christchurch, 13 Sim., 214. (x) Kershaw v. Kershaw, L. R. 9 Eq., 56. Distinguish Dickenson v. Heron, St. Leon. Vend., 516. 1424. For where the puhaser in possession makes any profit on any part of the appropriated purchase-money, he is discharged from the payment of interest only in respect of the purchase-money on which he has made no interest. Thus where a purchaser, on entering into possession, paid the money into his banker's, and gave the vendor notice that he was ready to invest in such manner as the vendor should require; and during the investigation of the title kept a balance at his banker's equal to the purchasemoney, except on four days, when it was a little less; Leach, V. C., said it was clear that the purchaser had made some profit with the money, "first, because his balance was in a small degree and for a few days reduced below the amount of the purchase-money, but principally because the purchase-money supplied the place of that balance which he must otherwise have maintained at his banker's:" he therefore directed an inquiry as to the average balance which the purchaser had maintained at his broker's for the three years preceding the purchase, and the average balance during the period of the investigation of the title, and declared that in respect of the difference between those balances he was not chargeable with interest on his purchasemoney.(y) § 1425. So strongly does the court hold to this principle, that a purchaser in possession shall pay interest on the unpaid purchase-money, that it will look at any contract which appears to prevent the application of this rule by the light of this general principle of justice, and, it seems, refuse execution of it where it grossly violates this principle: for "a court of equity interposes only according to conscience." (z) § 1426. So that where a contract stipulated that the interest on the remainder of the purchase-money should not commence till lady-day next, in case the title should be perfected and the assurances executed at that time; and if not, then should commence on the execution of such assurances; and the purchaser was let into possession under a stipulation in the contract to that effect, but the assurances were not executed for forty years; the House of Lords held (y) Winter v. Blades, 2 S. & S., 393. Lord St. Leonards doubted the correctness of this decision. St. Leon. Vend., 514. (2) Per Lord St. Leonards in Birch v. Joy, 3 H. L. C., 598. |