of the contract that it may reasonably be 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. Under such a state of facts the purchaser may be considered as not having purchased the thing which was really the subject of the sale." So in Phillips v. Caldcleugh (a), where the contract was for the sale of " a freehold residence "-which means free of all incumbrances (a)—and it appeared that the property was subject to restrictive covenants of some kind, the purchaser was held entitled to rescind, though the covenants were in a deed prior to that fixed by the contract as the commencement of the title. Specific In equity questions of this kind often arise in suits for specific perform. ance and performance between vendors and purchasers of real estate, when compensa- it is found that the actual tenure, quantity, or description of the tion in equity. Where variance not substantial, contract enforce able, but with compensation, at suit of either party. Where variance substan tial and property varies from that which was stated in the contract. The effect of the conditions of sale in the particular instance has almost always to be considered, and the result of the variance may be very different according to these, and according to the amount and importance of the discrepance between the description and the fact (b). (i). "If the failure is not substantial, equity will interfere " and enforce the contract at the instance of either party with proper compensation (c). The purchaser, "if he gets substantially that for which he bargains, must take a compensation for a deficiency in the value" (d). Here the contract is valid and binding on both parties, and the case is analogous to a sale of specific goods with a collateral warranty. (ii). There is a second class of cases in which the contract is voidable at the option of the purchaser, so that he cannot be forced to complete even with compensation at the suit of the capable of vendor, but may elect either to be released from his bargain or pecuniary to perform it with compensation. "Generally speaking, every tion, party purchaser has a right to take what he can get, with compensation estima (a) L. R. 4 Q. B. 159, 161. (c) Halsey v. Grant, 13 Ves. 73, 77. (d) Dyer v. Hargrave, 10 Ves. 506, 508. for what he cannot get " (a), even where he is not bound to misled accept what the other has to give him (b). may rescind con with com However a purchaser's conduct may amount to an affirmation tract, or of the contract and so deprive him of the right to rescind, but enforce it without affecting the right to compensation (c); again, special pensation. conditions may exclude the right to insist on compensation and leave only the right to rescind (d). Under this head fall cases of misdescription affecting the value of the property, such as a statement of the existence of tenancies, not showing that they are under leases for lives at a low rent (e); or an unqualified statement of a recent occupation at a certain rent, the letting value of the property having been meanwhile ascertained to be less, and that occupation having been peculiar in its circumstances (f); or the description of the vendor's interest in terms importing that it is free from incumbrances-such as "immediate absolute reversion in fee simple "—where it is in fact subject to undisclosed incumbrances (g). The proper mode of assessing compensation in a case of misstatement of profits has been recently considered in the Court of Appeal (). The treatment of this class of cases in equity is analogous to the rules applied at common law to the sale of goods not specifically ascertained by sample or with a warranty: see p. 465, above. tions. The doctrine that a vendor who has less than he undertook to Excep sell is bound to give so much as he can give with an abatement of the price applies, it is to be understood, only where the vendor has contracted to give the purchaser something which he professed (a) Hughes v. Jones, 3 D. F. J. 307, 315; Leyland v. Illingworth 2 D. F. J. 248, 252. (b) "If a person possessed of a term for 100 years contracts to sell the fee he cannot compel the purchaser to take, but the purchaser can compel him to convey the term." Per Lord Eldon, Wood v. Griffith, 1 Swanst. at p. 54 (though in this case not with compensation, see next page) and see Mortlock v. Buller, 10 Ves. 292, 315. : (c) Hughes v. Jones, supra. (d) Cordingley v. Cheeseborough, 3 Giff. 496, 4 D. F. J. 379, where the purchaser claiming specific per formance with compensation, and (e) Hughes v. Jones, 3 D. F. J. (g) Torrance v. Bollon, 8 Ch. 118. (h) Powell v. Elliott, 10 Ch. 424. Where variance not capa ble of esti mation, option to rescind simply. to be, and the purchaser thought him to be, capable of giving. Where a husband and wife had agreed to sell the wife's estate (her interest being correctly described and known to the purchaser), and the wife would not convey, the Court refused to compel the husband to convey his own interest alone for an abated price (a). Also the Court will not order vendors who sell as trustees to perform their contract with compensation, on account of the prejudice to the cestui que trust which might ensue (b). (iii). But lastly the variance may be so material (either in quantity, or as amounting to a variance in kind) as to avoid the sale altogether and to prevent not merely the general jurisdiction of the Court as to compensation, but even special provisions for that purpose from having any application. "If a man sells freehold land, and it turns out to be copyhold, that is not a case for compensation (c); so if it turns out to be long leasehold, that is not a case for compensation; so if one sells property to another who is particularly anxious to have the right of sporting over it, and it turns out that he cannot have the right of sporting, because it belongs to somebody else. . . in all those cases the Court simply says it will avoid the contract, and will not allow either party to enforce it unless the person who is prejudiced by the error be willing to perform the contract without compensation" (d). This class of cases agrees with the last in the contract being voidable at the option of the party misled, but it differs from it in this, that if he elects to adopt the contract at all he must adopt it unconditionally, since compulsory performance with compensation would here work the same injustice to the one party that compulsory performance without compensation would work to the other. Such was the result in the case now cited of the real quantity of the property (a) Castle v. Wilkinson, 5 Ch. 534. In a late case where the husband had the reversion in fee after a life interest to the wife, specific performance with compensation was granted Barker v. Cox, 4 Ch. D. 464; sed qu. : (b) White v. Cuddon, 8 Cl. & F. 766. (c) And conversely, a man who buys an estate as copyhold is not bound to accept it if it is in fact freehold. For "the motives and fancies of mankind are infinite; and it is unnecessary for a man who has contracted to purchase one thing to explain why he refuses to accept another" Ayles v. Cox, 16 Beav. 23. (d) Earl of Durham v. Legard, 34 Beav. 611. Where it is in 475 falling short by nearly one-half of what it had been supposed to be (a). But in a later case where the vendors were found to be entitled only to an undivided moiety of the property which they had professed to sell as an entirety, the Court found no difficulty in ordering specific performance with an abatement of half the price at the suit of the purchaser, as no injustice would be done to the vendors, who would be fully paid for all they really had to sell (b). The real question is whether the deficiency is such as to be fairly capable of a money valuation (c). It seems that where it is in the vendor's power to make good the description of the property, but not by way of money compensation, it may be in his option to perform the contract with the non-pecuniary vendor's compensation applicable to the circumstances or to treat it as power to make good rescinded. In a recent case a lot of building land (part of a his reprelarger estate intended to be sold together) was sold under sentations, restrictive conditions as to building, and in particular that no public-house was to be built; the purchaser assumed from the plan and particulars of sale, and in the opinion of the Court with good reason, that the whole of the adjoining property would be subject to like restrictions. One small adjacent plot had in fact been reserved by the vendor out of the estate to be sold, so that it would be free from restrictive covenants; but this did not sufficiently appear from the plan. The vendor sued for specific performance. It was held that he was entitled at (a) The price asked had been fixed by reference to the rental alone. Qu. how the case would have stood could a price proportional to the area have been arrived at. And see Swaisland v. Dearsley, 27 Beav. 430 (where it is left doubtful whether the purchaser could or could not have enforced the contract with compensation). Cp. D. 18. 1. de cont. emt. 22-24, enunciating precisely the same principle as that applied by our courts of equity. Hanc legem venditionis Si quid sacri vel religiosi est, eius venit nihil, supervacuam non esse, sed ad modica loca pertinere: ceterum si omne religiosum, vel sacrum, vel publicum venierit, nullam esse emtionem : and see eod. tit. 18, 40 pr. In Whittemore v. Whittemore, 8 Eq. 603, a case of material deficiency in quantity, it was held that a con dition of sale providing generally (b) Bailey v. Piper, 18 Eq. 683. (c) See Dyer v. Hargrave, 10 Ves. at p. 507; and on the distinction of the different classes of cases generally, per Amphlett, B. Phillips v. Miller, L. R. 10 C. P. 427-8. quare, Deposit &c. recoverable in equity as well as at law. General duty of vendor to give correct descrip tion. his option to a decree for specific performance, on the terms of entering into a restrictive covenant including the reserved plot, or to have his bill dismissed (a). It is rather difficult to see why the option should not have been with the purchaser. The vendor had the means of performing what must be taken to have really been his contract (for a man cannot be heard to say that the natural construction and meaning of the contract he proposes, whether by a verbal description of the subject-matter, or by words helped out by maps or other symbols, is not the meaning he intended: accipiuntur fortius contra proferentem (b): and it might have been a not unsound or unjust conclusion to hold that he was simply bound to perform it. This third class of cases may be compared (though not exactly) to a sale of goods subject to a condition or "warranty in the nature of a condition," so that the sale is "to be null if the affirmation is incorrect" (c). A purchaser who in a case falling under either of the last two heads exercises his option to rescind the contract may sue in the Chancery Division to have it set aside, and recover back in the same action any deposit and expenses already paid under the contract (d). And it seems that there is an independent right to sue in equity for the return of the deposit and expenses, at all events if there are any accompanying circumstances to afford ground for equitable jurisdiction, such as securities having been given of which the specific restitution is claimed (e). To return to the more general question, it is the duty of the vendor to give a fair and unambiguous description of his property and title. If he does not intend to offer for sale an unqualified estate, the qualifications should appear on the face of the particulars (f). In Torrance v. Bolton (g) an estate was offered for (a) Baskcomb v. Beckwith, 8 Eq. 100. The case comes very near Bloomer v. Spittle, 13 Eq. 427, and others of that class, explained pp. 416, 456, above. (b) 2 Sm. L. C. 525; D. 2.14. de pactis, 39 D. 18. 1 de cont. emt. 21. (c) Bannerman v. White, 10 C. B. N. S. 844, 31 L. J. C. P. 28. (d) E.g. Stanton v. Tattersall, 1 Sm. & G. 529, Torrance v. Bolton, 8 Ch. 118. (e) Aberaman Ironworks Co. v. Wickens, 4 Ch. 101, where the contract having been rescinded by consent before the suit was held not to deprive the Court of jurisdiction. (f) Hughes v. Jones, 3 D. F. J. 307, 314. (g) 8 Ch. 118. |