agreements, one only of which relates to an interest in land, then, if that part of the contract has been executed, the fact of the whole contract not being in writing, will not preclude an action on the other part, founded on a promise to be performed after such execution (k). (c) Effect of Part Performance. CH. XI. s. 5. Sale of Land (Requirement of Writing). Contract severable. Effect of part performance in taking contract out of statute. Caton. At law, part performance of a parol agreement will not exempt it from the operation of the 1st, 3rd, or 4th sections of the Statute of Frauds; but where there is a concluded agreement, although it be void within the statute, a Court of Equity will take it out of the statute, provided it has been partly executed: as where possession has been delivered and taken thereunder, or the like (1). And the reason of this rule has been said to be that Caton v. where one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract it would be a fraud on the other party to set up the invalidity of such contract (m). But in Britain v. Rossiter (n), the Court Britain v. of Appeal gave a different reason :-"The true ground of the doctrine in equity is that if the Court found a man in occupation of land, or doing such acts with regard to it as would, primâ facie, make him liable at law to an action of trespass, the Court would hold that there was strong evidence, from the nature of the user of the land, that a contract existed, and would therefore allow verbal evidence to be given to show the real circumstances under which possession was taken." But part payment of the purchase-money is not a part performance of the contract within this rule (o); though such part paid purchase-money may be recovered in an action for money had and received, see antea, p. 58. (k) Per Lord Campbell, C.J., Hodgson v. Johnson (1858), E., B. & E. 685, 689; Green v. Saddington (1857), 7 E. & B. 503. And see Pulbrook v. Lawes (1876), 1 Q. B. D. 284, which seems to be consistent with the dictum stated in the text, although not with the judgment of the Court in Hodgson v. Johnson; Mayfield v. Wadsley (1824), 3 B. & C. 357. (1) Thynne v. Earl of Glengall (1848), 2 H. L. C. 131, at pp. 151, 158; Mundy v. Joliffe (1865), 5 My. & Cr. 167, 177; Nunn v. Fabian (1865), L. R., 1 Ch. 35; Williams v. Evans (1875), L. R., 19 Eq. 547. (m) See per Lord Cranworth, C., Caton v. Caton (1865), L. R., 1 Ch. 137, 148. (n) Britain v. Rossiter (1879), 11 Q. B. D. 123, C. A., at p. 131; and a similar reason was given for this equitable doctrine by Jessel, M. R., in Ungley v. Ungley (1877), 5 Ch. D. 887, C. A., at p. 890; but see per Kay, J., in McManus v. Cooke (1887), 35 Ch. D. 681, at pp. 690, 691; citing Lord Selborne's judgment in Maddison v. Alderson (1883), 8 App. Cas. 467. (0) See Humphreys v. Green (1882), 10 Q. B. D. 148, C. A.; Britain v. Rossiter (1879), 11 Q. B. D. 123, C. A., per Cotton, L.J., at p. 131; and per Lord Selborne, L.C., in Maddison v. Alderson (1883), 8 App. Cas. 467, at pp. 478, 479. Rossiter. Part payment sufficient. CH. XI. s. 6. Sale of Land (Vendor's Action against Purchaser). Action for specific performance. General rule obligation to show good SECT. 6.-Action by Vendor against Purchaser for Breach of Contract. In case of breach, the vendor may sue the purchaser, either for specific performance or damages, or both. The specific performance can be sued for in the Chancery Division of the High Court only (p); subject to the exception that if the purchasemoney do not exceed 500l., the action may be brought in the County Court instead (2). After a decree for specific performance against a purchaser unable to complete, the vendor is only entitled to have the agreement rescinded, and cannot, at the same time, claim damages for its breach (r). It is a general rule, that the vendor of an estate cannot sue the as to vendor's purchaser on the contract to purchase, unless he, the vendor, has not only shown, or offered to show, a good title, if bound so to do, but has been always ready and willing to execute a conveyance to the purchaser in terms of the contract (s). title. Purchaser not entitled to re The purchaser is entitled, before completing the purchase, quire vendor to have evidence of the identity of the vendor, and of the to be present authority of his solicitor to receive the purchase-money; but at completion of purchase. he has not an absolute right to insist that the vendor himself shall be present at the completion of the purchase, so that he personally may receive the purchase-money (t). The exception for the case of trustees who might formerly be required to attend and receive the purchase-money personally or to have it paid into their joint names at a bank (the 56th section of the Conveyancing Act, giving the solicitor who produces an executed conveyance a right to receive the purchase-money, being held not to apply to trustees selling (u)), was abolished by sect. 2 of the repealed Trustee Act, 1888, and the abolition is continued by sect. 17 of the Trustee Act, 1893, 56 & 57 Vict. c. 53. Trustee vendors. Damages recoverable by vendor. And in an action by the vendor against the purchaser, for breach of his contract by the latter, the vendor is entitled to recover such damages as he may have actually sustained by reason of such breach (x). He may, therefore, recover from the vendee all the expenses which he has incurred in preparing for (p) Judicature Act, 1873, s. 34, sub-s. 3; and see post, Ch. XXIV. (q) County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 67 (4). (r) Henty v. Schröder (1879), 12 Ch. D. 666; explained and followed in Hutchings v. Humphreys (1885), 54 L. J., Ch. 650; and see Elmore v. Pirrie (1887), 57 L. T. 333; Jeffery v. Stewart (1899), 80 L. T. 17. (s) Poole v. Hill (1840), 6 M. & W. 835. (1) See Viney v. Chaplin (1858), 2 D., G. & J. 468, App. ; Essex v. Daniell (1875), L. R., 10 C. P. 538. (u) In re Flower and Metropolitan Board of Works (1884), 27 Ch. D. 592; In re Bellamy and Metropolitan Board of Works (1883), 24 Ch. D. 387, C. A. (x) Laird v. Pim (1841), 7 M. & W. 474. the sale, and also the loss, if any, which he may have sustained by a resale of the property. But, where there has been a resale, and the purchaser has paid a deposit, that is to be taken as payment in part of the purchase-money; and it must be brought by the vendor into account, in calculating the deficiency which may have been caused by the resale (y). And where the purchaser has paid a deposit, and the contract goes off by his default, the seller is entitled to retain the deposit, even although the contract may not contain a clause to that effect (2). CH. XI. s. 6. Sale of Land (Vendor's Action against Purchaser). Right of ven dor to retain deposit. trustee for Where a vendor keeps possession until completion of the Vendor in contract and payment of the purchase-money, he is trustee for possession the purchaser, and must, as such trustee, take reasonable care to purchaser. preserve the property. Therefore a vendor so in possession has been held liable to the purchaser for damage by a trespasser having without the knowledge of either removed large quantities of surface soil from the land sold (a). 66 interest. Delay in completion occasioned by remedying a defect in the Delayvendor's title which was not and could not have been known to him is not attributable to a default" on his part so as to prevent interest running against the purchaser, under the common form clause for payment of interest by the purchaser, "if from any cause whatever other than the default of the vendor" the purchase shall not be completed by the day fixed (b). SECT. 7.-Action by Purchaser against Vendor. If the seller violate the agreement on his part, either by General rules. omitting to show a good title in due time, or by refusing to execute the conveyance, the purchaser may maintain an action against the auctioneer (c) to recover the deposit, but not the expenses (1) or interest (e); or, against the vendor, to recover the (y) See Ockenden v. Henly (1858), E., B. & E. 485; Essex v. Daniell (1875), L. R., 10 C. P. 538. (=) Ex parte Barrell (1875), L. R., 10 Ch. 512; Hoe v. Smith (1884), 27 Ch. D. 89, C. A.; Soper v. Arnold (1887), 37 Ch. D. 96, C. A.; and as to forfeiture of deposit, see, too, Stone v. Smith (1887), 35 Ch. D. 188; and Kingdon v. Kirk (1887), 37 Ch. D. 141. (a) Clarke v. Ramuz, [1891] 2 Q. B. 456, C. A., following with approval Phillips v. Silvester (1874), L. R., 8 Ch. 173. (b) Woods and Lewis's Contract, In re, [1898] 1 Ch. 433, distinguishing Young (c) As a stakeholder between the (d) Lee v. Munn (1817), Holt, N. P. R. 569. (e) See Gaby v. Driver (1828), 2 Y. & J. 549. CH. XI. s. 7. deposit and interest with the expenses incurred; but not, in general, damages for the loss of his bargain (f). The purchaser has also a lien on the land, and that not only when the contract is determined by default on the part of vendor, but where it is determined without any default on his own part (g). Sale of Land (Action by Purchaser against Vendor). Purchaser must, in general, tender conveyance to vendor. What will render this unnecessary. Any good title not sufficient. Purchaser's knowledge of defect no excuse. But in order to recover the interest or expenses, the plaintiff must show that the defendant has entered into a valid contract, undertaking to make out a title; and he cannot recover more than the deposit, if, for example, the contract of sale be not signed according to the provisions of the Statute of Frauds (h). And if the contract be broken in the purchaser's lifetime, and a loss accrue to his personal estate, his personal representative may maintain the action (i). The purchaser cannot in general institute proceedings without tendering a conveyance to the vendor, unless he has been discharged from so doing by the latter (k). And the instrument tendered may be such as the vendor was, in conformity with his agreement, bound to execute (1). But the failure to produce a title (m); or the production of a bad title (n); or a wrongful resale by the vendor (o), will render the preparation and tender of a conveyance by the purchaser unnecessary. (b) Objections to Title. If the ability of the vendor to make a good title, depends on a doubtful question of fact or law, such title ought not to be deemed good or sufficient, as between him and the purchaser (p). It is clear, too, that the purchaser is entitled to have the title for which he bargained; and not merely any good title, which the seller may offer to make instead thereof (g). So, if the vendor contract to deduce a good title to the premises. sold, it affords no reason for his not performing that contract, (f) See post, sub-sect. (d). (g) Whitbread v. Watt, [1902] 1 Ch. 835, C. A. (h) Gosbell v. Archer (1835), 2 A. & E. 500; Casson v. Roberts (1862), 32 L. J., Ch. 105; but see Thomas v. Brown (1876), 1 Q. B. D. 714. (i) Orme v. Broughton (1834), 10 Bing. 533. (k) Poole v. Hill (1840), 6 M. & W. 835, 841. (1) Manning v. Bailey (1848), 2 Exch. 45; Vonhollen v. Knowles (1844), 12 M. & W. 602. (m) Thames Haven, &c., Co. v. Brymer (1850), 5 Exch. 696, 711, Ex. Ch. (n) Seward v. Willcock (1804), 5 East, 198. (0) Lovelock v. Franklyn (1846), 8 Q. B. 371. (p) Simmons v. Heseltine (1858), 5 C. B., N. S. 554; and see Clarke v. Willott (1872), L. R., 7 Ex. 313; Osborne v. Rowlett (1880), 13 Ch. D. 774. Under the Vendor and Purchaser Act, 1874, s. 2, sub-s. 2, a recital in a conveyance more than twenty years old, that the vendor was seised in fee simple, is sufficient evidence of that fact; and a prior abstract of title has been held to be not demandable, except so far as such recital is proved inaccurate. Bolton v. London School Board (1878), 7 Ch. D. 766; but see Williams, V. & P., vol. i., at p. 109 (i). (a) Forster v. 155; and see (1871), L. R., Hoggart (1850), 15 Q. B. that the purchaser was aware, at the time of the sale, that the title CH. XI. s. 7. was defective (r). Sale of Land (Action by Purchaser against Vendor). Vendor need But it is not necessary that the vendor should be actually in a situation to perform his contract at the time it is entered into, provided he be able in proper time to place himself in that situation. Thus, the fact of there being imperfections in the title, at the time of the contract, will form no ground of objection thereto, if such imperfections can be removed before the time for com- contract. pleting the purchase (s). So, where the vendor is able to make a good title to part only of the land agreed to be sold, it appears that equity will compel the purchaser to take that part at a proportionate price, unless the part to which title cannot be made is material to the possession and enjoyment of the rest of the estate (t). not have good time of the title at the Rule where only give title to part. vendor can rescission. Smith v. A vendor's power of rescission in event of his being unable or Power of unwilling to remove or comply with a purchaser's objections or requisitions must be handled by him in good faith, and he is not Wallace. entitled to keep it hanging over the purchaser for his own purposes independent of the contract. Therefore where a vendor having such a power took advantage of his possession of it for purposes of delay while he opened negotiations with a third person unknown to the purchaser, it was held that he deprived himself of his election to affirm the contract and to obtain specific performance of it, and that the purchaser was entitled to treat it as rescinded and to recover the deposit (u). The common conditions that the vendor shall deliver an abstract of title within 7 days, that all objections not delivered within 14 days afterwards shall be taken as waived, that in this respect time shall be the essence of the contract, and that the deposit is to be forfeited on non-compliance with the conditions do not apply to the case of a vendor having no title at all, but only to objections enforceable against a vendor having a valid title, and a purchaser who discovers and objects to a fatal defect after the expiration of the 14 days is not barred by time from recovering his deposit (x). This was held in Want v. Stallibrass, in which the defect was that trustees, with a power of sale after the death of a particular person, sold during his lifetime. (r) Barnett v. Wheeler (1841), 7 M. & W. 364; Cato v. Thompson (1886), 9 Q. B. D. 616, C. A. (s) Webb v. Austin (1844), 7 M. & G. 701; Stowell v. Robinson (1837), 5 Scott, 196; and see Shaw v. Rowley (1847), 16 M. & W. 810; Blackburn v. Smith (1848), 2 Exch. 783. (t) See Knatchbull v. Grueber (1815), 1 Madd. 153; per James, L.J., Arnold v. Arnold (1880), 14 Ch. D. 270, 279, (u) Smith v. Wallace, [1895] 1 Ch. (x) Want v. Stallibrass (1873), L. R., 8 Ex. 175, per Martin and Pollock, BB., Kelly, C. B., deciding on the ground that no complete abstract had been delivered, and therefore that the time for objections had not commenced running. Recovery of deposit on objection to root of title, though out of time. Want v. Stallibrass. |