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variance

estima

rescind

(iii.) But lastly the variance may be so material (either Where in quantity, or as amounting to a variance in kind) as to not caavoid the sale altogether and to prevent not merely the pable of general jurisdiction of the Court as to compensation, but tion, even special provisions for that purpose, from having any option to application. "If a man sells freehold land, and it turns simply. 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). A failure of title as to a part of the property sold which, though small in quantity, is important for the enjoyment of the whole, may have the same effect (e). 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 falling short by nearly one-half of what it had been supposed to be (f). But in

(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. As to leaseholds, it is a settled though perhaps not a reasonable rule that a contract to sell property held under

a lease is prima facie a contract to
show title to an original lease:
Camberwell and S. London Building
Society v. Holloway, 13 Ch. D. 754.
(d) Earl of Durham v. Legard,
34 Beav. 611.

(c)_Arnold v. Arnold (C. A.), 14
Ch. D. 270.

(f) 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

Where it is in

vendor's power to make good his

representations, quare.

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 (g). The real question is whether the deficiency is such as to be fairly capable of a money valuation (). 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 compensation applicable to the circumstances or to treat it as rescinded. In Baskcomb v. Beckwith (i) a lot of building land (part of a larger estate intended to be sold together) was sold under 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

at. And see Swaisland v. Dearsley,
27 Beav. 430 (where it is left doubt-
ful whether the purchaser could or
could not have enforced the con-
tract with compensation). Cp. D.
18. 1. de cont. empt. 22-24, enun-
ciating 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: ce-
terum si omne religiosum, vel
sacrum, vel publicum venierit,
nullam esse emptionem; 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 condition of sale
providing generally that errors of
description should be only matter
of compensation did apply, but
another excluding compensation
for errors in quantity did not; so
that on the whole the purchaser

could not rescind, but was entitled to compensation.

(g) Bailey v. Piper, 18 Eq. 683; Horrocks v. Rigby, 9 Ch. D. 180, where the moiety was so incumbered that the vendor in the result got nothing but an indemnity: Wheatley v. Slade, 4 Sim. 126, is practically overruled by these cases. Similarly as to leasehold, Burrow v. Scammell, 19 Ch. D. 175, where apparently Bailey v. Piper was overlooked. Maw v. Topham, 19 Beav. 576, is distinguishable, as there the purchaser knew or ought to have known that a good title could not be made to the whole.

(h) 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.

(i) 8 Eq. 100 (1869, before Lord Romilly, M. R.).

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 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 (k). It is 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 (1) 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" (m).

coverable

as well as

at law.

A purchaser who in a case falling under either of the Deposit, last two heads exercises his option to rescind the contract &c., remay sue in the Chancery Division to have it set aside, and in equity recover back in the same action any deposit and expenses already paid under the contract (n). 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

(k) The case comes very near Bloomer v. Spittle, 13 Eq. 427, and others of that class, explained pp. 430, 477, above.

(1) 2 Sm. L. C. 525 (7th ed.); D. 2. 14. de pactis, 39; D. 18. 1. de

cont. empt. 21.

(m) Bannerman v. White, 10 C. B. N. S. 844, 31 L. J. C. P. 28.

(n) E.g. Stanton v. Tattersall, 1 Sm. & G. 529, Torrance v. Bolton, 8 Ch. 118.

General duty of

vendor to

rect de

equitable jurisdiction, such as securities having been given of which the specific restitution is claimed (0).

To return to the more general question, it is the duty of the vendor to give a fair and unambiguous description of give cor- his property and title. And, notwithstanding the current scription. maxim about simplex commendatio, language of general commendation-such as a statement that the person in possession is a most desirable tenant-is deemed to include the assertion that the vendor does not know of any fact inconsistent with it. A contract obtained by describing a tenant as "most desirable" who had paid the last quarter's rent in instalments and under pressure has been set aside at the suit of the purchaser (p). If the vendor does not intend to offer for sale an unqualified estate, the qualifications should appear on the face of the particulars (q). In Torrance v. Bolton (r) an estate was offered for sale as an immediate reversion in fee simple. At the auction conditions of sale were read aloud from a manuscript, but no copy given to the persons who attended the sale. One of by correct these conditions showed that the property was subject to three mortgages. The plaintiff in the suit had bid and become the purchaser at the sale, but without having, as out at the he alleged, distinctly heard the conditions or understood their effect. The Court held that the particulars were v. Bolton. misleading; that the mere reading out of the conditions of sale was not enough to remove their effect and to make it clear to the mind of the purchaser what he was really buying; and that he was entitled to have the contract rescinded and his deposit returned.

Concealment in particu

lars not excused

statement

in conditions only read

sale:

Torrance

A misleading description may be treated as a misrepresentation even if it is in terms accurate: for example,

(0) 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.

(p) Smith v. Land and House Property Corporation, C. A., 28 Ch. D. 7.

(q) Hughes v. Jones, 3 D. F. J. 307, 314.

(r) 8 Ch. 118.

SALES OF LAND: DUTIES OF VENDOR AND PURCHASER.

where property was described as " in the occupation of A." at a certain rental, and in truth A. held not under the vendor, but under another person's adverse possession (s), or where immediate possession is material to the purchaser, and the tenant holds under an unexpired lease for years which is not disclosed (t). A misleading statement or omission made by mere heedlessness or accident may deprive a vendor of his right to specific performance, even if such that a more careful buyer might not have been misled (u).

503

All this proceeds on the supposition that the vendor's Duty of purchaser property and title are best known to himself, as almost in special always is the case. But the position of the parties may cases. be reversed: a person who has become the owner of a property he knows very little about may sell it to a person well acquainted with it, and in that case a material misrepresentation by the purchaser makes the contract, and even an executed conveyance pursuant to it, voidable at the vendor's option (a). So it is where the purchaser has done acts unknown to the vendor which alter their position and rights with reference to the property: as where there is a coal mine under the land and the purchaser has trespassed upon it and raised coal without the vendor's knowledge for here the proposed purchase involves a buying up of rights against the purchaser of which the owner is not aware (y).

On a sale under the direction of the Court a person offering to buy must either abstain from laying any information before the Court in order to obtain its approval, or he must lay before it all the information he possesses, and which it is material that the Court should have, to enable it to form a judgment on the subject under its consideration. It is no answer to say that the information given to

(s) Lachlan v. Reynolds, Kay 52. (t) Caballero v. Henty, 9 Ch. 447. (u) Jones v. Rimmer, 14 Ch. D. 588.

(x) Haygarth v. Wearing, 12 Eq.

320.

(y) Phillips v. Homfray, 6 Ch. 770, 779.

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