Vendor and Purchaser-Agreement by Vendor to produce only the Title made to himself Knowledge of adverse Claim by Purchaser-Specific Performance.

A. entered into a contract with B. for the purchase of B.'s interest in certain mud lands, for 3,0501., in the event of an act of parliament, which was to be applied for in order to reclaim them, being obtained. The contract provided that B. should be called upon to produce only the title from his vendor (C.) to himself. C. was one only of four claimants of the mud lands, but A. was aware of this circumstance when he entered into the contract. The act was passed, and A. took possession of the mud lands thereunder, and commenced operations to reclaim them, but he refused to complete his contract, upon the ground of there being conflicting claims to the mud lands. Upon a bill by A. against B. for specific performance of the contract,-Held, by Stuart, V.C., that evidence aliunde to shew want of title in C. was not admissible; and specific perform ance was decreed against A, on the ground that his contract with B. was for the purchase of such right, title and interest as the vendor might have under C. On appeal, the decree was affirmed by the Lords Justices on the latter ground.

Turner, L.J.-Representations, which a purchaser has chosen to accept from the vendor's agent on the subject of the vendor's title, and which turn out in fact, but not when made, to have been known by the agent to be untrue, do not amount to such fraud as absolves a purchaser from his contract.

In the session of 1858 the defendant Pocock and a Mr. Kingdon were the promoters of a bill in parliament for embanking and reclaiming certain waste lands or mud banks, between high and low watermarks, in Chichester Harbour. The bill did not pass in that year, but, in the ensuing session, it was again introduced into parliament by Messrs. Pocock and Kingdon. In the session of 1859, Lord FitzNEW SERIES, 35.-CHANC.

hardinge, then Admiral Sir Maurice Berkeley, claimed a portion of those mud lands, as lord of the hundred and manor of Bosham, and he threatened to oppose the bill then before parliament. The plaintiff thereupon, at the instance of Kingdon, entered into an agreement, dated the 2nd of June, 1859, with Admiral Berkeley, and it was thereby agreed that the latter should withdraw his opposition to the bill, that the plaintiff should pay Admiral Berkeley 2,000l. for his interest in the lands, with interest, within two years from the passing of the bill; but that if the bill did not pass, the agreement was to be void. It was also thereby agreed that Admiral Berkeley should not be called upon to produce any title to the lands, except the will of his father, whose right over them should be admitted.

By an agreement, dated the 3rd of June, 1859, and made between the plaintiff of the one part, and Kingdon and Pocock of the other part, reciting that Admiral Berkeley, by virtue of certain grants from the Crown was lord of the hundred and manor of Bosham, and that the plaintiff had agreed with Admiral Berkeley to purchase all his estate, right, title and interest in the above mud lands within the said hundred, except the part thereof in Bosham Creek, the plaintiff agreed to sell to Kingdon and Pocock, for 3,050., all his estate, right and interest in the same mud lands, in the event of the act being obtained; and it was thereby agreed that the plaintiff Hume "should be called upon to produce only the title from Admiral Berkeley to himself."

Sir M. Berkeley withdrew his opposition to the bill, and it was passed in the session of 1859. Kingdon and another had been named in the act as undertakers conjointly with the plaintiff Hume; but the whole interest in the undertaking afterwards became vested in the defendant.

In 1864 the defendant took possession of the waste lands comprised in the agreement of the 3rd of June, 1859, and commenced reclaiming them; but he refused to perform the agreement, and this suit was then instituted.

The bill prayed for specific performance of the agreement of the 3rd of June, 1859, and for an account and payment of what was due to the plaintiff in respect of

5 A

principal and interest; that, in default, the defendant might be restrained from exercising acts of ownership; that until payment the principal and interest might be declared to be a charge on the lands; that if specific performance could not be decreed, damages might be awarded in substitution for such specific performance, and that such damages might be assessed in such manner as the Court should direct.

The defence made by the answer was, that Lord Fitzhardinge had no estate, title or interest in the waste or mud lands intended to be embanked and reclaimed, and that, although the agreement of the 3rd of June, 1859, provided that the plaintiff should be called upon to produce only the title from Lord Fitzhardinge to himself, the defendant was not precluded by the agreement from shewing aliunde that Lord Fitzhardinge had no estate, title or interest whatever in the said waste lands or mud lands; that if the Court should be of opinion that the terms of the agreement precluded the defendant from shewing that Lord Fitzhardinge had no interest whatever in the waste lands or mud lands, he submitted that specific performance of the agreement ought not to be decreed against him, inasmuch as it was procured by the representations of William Padwick, the plaintiff's agent, that Lord Fitzhardinge was absolutely entitled to all the waste lands or mud lands, and that such representations were made in order to induce Kingdon and the defendant to enter into the agreement, and that they did enter into the agreement in reliance on those representations.

There was evidence, on the part of the plaintiff, to shew that the claim of Admiral Berkeley to the lands was a bona fide one, and that the defendant Pocock and Kingdon were aware, prior to their agreement with the plaintiff, that there were claims to the lands conflicting with those of the admiral.

The circumstances of the case will appear more fully from the judgments of the Vice Chancellor and of the Lord Justice Turner.

The defendant proposed to shew that Admiral Berkeley had no title to the mud lands, but the Vice Chancellor held, that, having regard to the terms of the contract, the defendant was not at liberty to produce

evidence to disprove the title of Lord Fitzhardinge.

Mr. Malins and Mr. Fry, for theplaintiff. Having regard to the knowledge possessed by Pocock when he entered into the agreement of the 3rd of June, 1859, that there were other claimants of the lands in question than Lord Fitzhardinge, and to the terms of that agreement, the plaintiff was bound to produce only the title from Lord Fitzhardinge to himself. All that the plaintiff contracted to sell was a qualified title. The defendant, moreover, was now in possession. He also failed to establish a case of misrepresentation. The whole circumstances of the case entitled the plaintiff to a decree for specific perform

ance.

Mr. Bacon and Mr. Macnaghten, for the defendant.—First, the evidence shewed that the agreement had been obtained through the false representation of Padwick, Lord Fitzhardinge's agent, that his lordship was entitled to the mud lands. Secondly, the agreement provided that Hume should be called upon to produce only the title from Lord Fitzhardinge to himself; but that did not preclude the defendant, the purchaser, from shewing that the title was bad, provided he could do so by other means than the production of the title by the vendor

Shepherd v. Keatley, 1 Cr. M. & R. 117; s. c. 3 Law J. Rep. (N.S.) Exch. 288. Darlington v. Hamilton, Kay, 550; s. c. 23 Law J. Rep. (N.S.) Chanc. 1000. Warren v. Richardson, 1 You. 1. Dart's Ven. and Pur. 3rd edit. 98. This case was distinguishable from

Freme v. Wright, 4 Madd. 364, in which it was held, that upon an agree ment to purchase from the assignees of a bankrupt, the interest of the bankrupt in an estate, "under such title as he lately held the same, an abstract of which might be seen at a particular place," the purchaser could not insist on any other title than such as the bankrupt had. Thirdly, the contract was ambiguous, because it was doubtful whether the defendant ever intended to pay 3,050. when he might get nothing whatever in return for that sumHarnett v. Yielding, 2 Sch. & Lef. 549;

and, lastly, this was not a case in which specific performance should be decreed. It resolved itself into a mere money demand, and the plaintiff ought to be left to his remedy at law.

STUART, V.C.-I think that this is a case in which the Court is bound to decree specific performance of the agreement. The objection to specific performance is, that the plaintiff has no title to the estate, and that, having no title, he cannot perform his agreement.

In a contract for the sale and purchase of property, the terms of the contract ought to be clear, in order that the Court may see how far the subject-matter of the purchase can be given by the party who has contracted to sell to the party who has contracted to buy. But the owner of a disputed or of a doubtful title may make a binding contract for the sale of that title, such as it may be. There is no doubt, also, that between vendor and purchaser, without reference to the special terms of the contract, it is implied that the purchaser shall have a marketable title; and even though the vendor may have entered into a contract that he shall not be bound to produce a title, yet if it appear that he has no title to what he has bound himself to convey, and therefore can convey nothing, the Court will not decree specific performance, because the specific performance of an agreement is to give specifically to a purchaser what the vendor has contracted to sell to him.

The case now before the Court is that of a contract for the purchase of property to which both of the contracting parties knew that there were four claimants. The circumstances also under which the contract was entered into were extraordinary, and evidence upon the subject has been entered into by both parties. The defendant, who was the purchaser, was engaged in an attempt to obtain from the legislature an act of parliament to authorize him to inclose certain mud lands. Pursuant to the requisitions of the legislature, he had been bound to state who were the owners, or reputed owners, of those mud lands; and four names were given by him as "owners, or reputed owners.' Of these, the name of Lord Fitzhardinge, under whom the plain

tiff claims, was one, and that of the Crown was another. In that state of things the agreement in question was entered into. It is one of the defects in the defendant's case that Kingdon, a co-contractor with the defendant, and an acting party in the contract, is an important witness on behalf of the plaintiff. In his evidence he says, that "previously to the application to parliament for the act, and long before I communicated with Mr. Padwick, as agent for Lord Fitzhardinge, I caused inquiries to be made, and from those inquiries I became satisfied and fully believed that Lord Fitzhardinge, then the Right Hon. Sir Maurice Frederick Fitzhardinge Berkeley, as lord paramount of the hundred of Bosham, was the owner of some portion of the mud lands intended to be reclaimed or of the lands adjacent thereto." Now, it has been discussed at the bar whether or not Padwick, and Padwick alone, was not the source of the information which induced the defendant to insert the names of the four claimants; but the defendant Pocock, in his answer, says, "that previously to the application to parliament for the said act, and in the month of October or November, 1858, the said Thomas Kingdon caused inquiries to be made as to the owners or reputed owners of the lands to be reclaimed, and of the lands adjacent thereto, and as to the names of all persons having or claiming any title or interest therein, and that on account of the information which he received, he caused the names of Lord Fitzhardinge, then the Right Hon. Sir Maurice Fitzhardinge Berkeley, and of the plaintiff, to be inserted in the books of reference." Now, in that paragraph there is not a syllable about Padwick. It is obviously an important matter for a person applying for an act of parliament under the circumstances in which the defendant was situated to get rid of the claimants. The agreement in question certainly had that object in view, and it was entered into with the knowledge on the part of all the contracting parties that there were four claimants of the property.

Under these circumstances, it recites that Lord Fitzhardinge was lord of the hundred and manor of Bosham; that Kingdon and Pocock, the parties of the other part to it

that is, the intended purchasers-had applied for an act of parliament for inclosing land situate within the hundred; that the act of parliament had not been passed by reason of the sudden termination of the session, and then it recites "that the plaintiff Hume had agreed with Lord Fitzhardinge for the purchase of all his estate, right, title and interest" in the lands in question. The plaintiff Hume then agrees with Kingdon and Pocock that he will use his utmost endeavours to procure the bill to pass into an act, and that in the event of the act being obtained, Hume shall and will sell to Thomas Kingdon and Thomas Pocock all his estate, right and interest in all such parts of the lands between high and low water-mark as are within the hundred of Bosham and are included in the lands proposed to be redeemed for the sum of 3,0501., and Kingdon and Pocock agree with Hume that in the event of the act being obtained, they will purchase all the said land at the sum of 3,0507.; and it is agreed that the purchase shall be completed within two years from the passing of the act, and the sum of 3,0507. is to bear interest from the 9th of April, 1859; and then comes the important provision, "that the said Robert Hume shall be called upon to produce only the title from Admiral Berkeley to himself."

Now, looking at the circumstances under which the agreement was entered into, the relative situations of the contracting parties and the terms of the agreement, they exactly fit the case of a bargain with one of several claimants for his interest in the lands in question; and the stipulation that the plaintiff shall only be bound to produce a title from Lord Fitzhardinge to himself, coupled with the other circumstances in evidence, seems to me conclusive upon the question of his being only bound to shew a title from Lord Fitzhardinge; and conclusive also upon the question that if the defendant, in a purchase made under such circumstances, should prove that not Lord Fitzhardinge but one of the other of the four claimants was the person entitled, that circumstance could not alter the terms of the contract. The contract also was to have its operation only when the act of parliament had passed, and when that had taken place, there could have been no

question as to title, because the act gave the undertaker compulsory powers for taking possession of these lands. The possession has been acquired; but now it is said that it was acquired, not from Lord Fitzhardinge, but from somebody else, although I do not know where that appears. The defendant has got the property, and through whom does he say he has derived a valid title? He says: "I have declined to perform the agreement, and I allege that the same was obtained by a fraudulent misrepresentation that Lord Fitzhardinge was entitled to the said waste lands; and I allege”—now he is alleging that the title is in somebody else -"and I allege that the Crown or the said Frederick Padwick or Sir Charles Taylor is or are entitled to so much of the waste lands as are situated in the said parish of Thorney"; so that he will not venture to say through whom he has got a valid title.

This is a case of a contract made under circumstances which plainly shew that the object of the purchasers was to get the title, such as it was, and it is an integral part of the contract that what the vendor was bound to produce was only a conveyance from Lord Fitzhardinge to himself. It is said, however, that there was fraudulent misrepresentation. The fraudulent misrepresentation seems to consist simply in this, that Lord Fitzhardinge had a good title. Of course, every claimant asserts that he has a good title, and the representation of Lord Fitzhardinge's agent was what every faithful agent would be bound to make, if in fact the person whom he represented made a claim and thought he had a title. Lord Fitzhardinge certainly seems to be lord of the manor of Bosham, at any rate that is the statement and representation recited in the contract and agreed to by both parties; and they are both clearly bound by that recital, unless it is proved to have been made upon any fraudulent misrepresentation. It may be that a man who has made a representation that he has a good title may prove to have a bad one, or none at all; but if he honestly believes he has a good title all imputation of fraud must entirely cease, and I can hardly imagine any case in which an allegation of fraud is maintainable under circumstances of this nature.-[The Vice Chancellor here reviewed the evidence

respecting the alleged misrepresentation, and said that it failed to make out such a case, and then proceeded as follows:]Putting the whole of this case together, it seems to me that it is of a different character from Shepherd v. Keatley, or any case of that kind. Looking at the circumstances under which the contract was entered into, and having regard to the facts within the knowledge of the contracting parties, and to the subject-matter of the contract, I am of opinion that there must be a decree for the plaintiff.

Declare that the agreement of the 3rd of June, 1859, ought to be specifically performed, and decree the same accordingly. Declare that, according to the true construction of the agreement, the plaintiff is not to be called upon to produce any other title than that from Lord Fitzhardinge to himself. Refer it to chambers to inquire whether a good title can be made having regard to the last-mentioned declaration, and to settle the conveyance. Compute the amount due for purchase-money and interest, and order payment, with costs up to the hearing. Reserve further consideration.

The defendant (March 22) now appealed from the Vice Chancellor's decree.

Mr. Malins and Mr. Fry, for the plaintiff, referred to

Spratt v. Jeffery, 10 B. & C. 242; s. c.
8 Law J. Rep. K.B. 114.
Freme v. Wright, 4 Madd. 364.
Duke v. Barnett, 2 Coll. C. C. 337; s. c.

15 Law J. Rep. (N.S.) Chanc. 173. Wilmot v. Wilkinson, 6 B. & C. 506 ; s. c. 5 Law J. Rep. K.B 196. Hanks v. Pulling, 6 El. & B. 659; s. c. 25 Law J. Rep. (N.S.) Q.B. 375. Mr. Bacon and Mr. Macnaghten, for the defendant, referred to-

Shepherd v. Keatley, supra.
Darlington v. Hamilton, supra.
Warren v. Richardson, supra.
Harnett v. Yielding, supra.

LORD JUSTICE TURNER (April 18).— The substantial question in this case is upon the construction of the agreement of the 3rd of June, 1859. The question is, whether the agreement was an agreement by the defendant to buy the land itself, or

whether it was an agreement by the defendant to buy such interest as Hume, under the purchase from Lord Fitzhardinge, had in the land. The agreement first recites that Lord Fitzhardinge, under certain grants from the Crown, is lord of the hundred and manor of Bosham. It then recites that Kingdon and Pocock applied for an act to enable them to inclose and reclaim part of the land situate in Chichester Harbour, and part of which lands are within the hundred, and comprised the land between high and low water-mark. It then recites that the Lords of the Admiralty caused a report to be made that the said act should not be granted, and, in consequence of the sudden termination of the last session of parliament, the act was stopped, and the right of the undertakers was reserved. Then it recites: "And whereas the said Robert Hume hath agreed (Hume being the plaintiff in the suit) with the said Sir Maurice Frederick Fitzhardinge Berkeley for the purchase of all his estate, right, title and interest in the mud lands or lands within the said hundred, between high and low water-mark, except such part as lies in Bosham Creek." Then the operative part of the agreement is this: "Now the said Robert Hume doth hereby agree with the said Thomas Kingdon and Thomas Pocock that he, the said Robert Hume, shall and will use his utmost endeavours to procure the said bill to pass into an act; that, in the event of the said act of parliament being obtained, he, the said Robert Hume, shall and will sell to the said Thomas Kingdon and Thomas Pocock all his estate, right and interest in all such parts of the said lands, between high and low water-mark, as are within the hundred of Bosham, and are included in the lands proposed to be redeemed and embanked under the provisions of the said intended act of parliament, at the sum of 3,050. And the said Thomas Kingdon and Thomas Pocock do hereby agree with the said Robert Hume that, in the event of the said act being obtained, they will purchase all the said lands at the sum of 3,0504; and it is agreed that the said purchase shall be completed within two years from the passing of the act, and that the sum of 3,0507. shall bear interest at the rate of 57. per cent. from the 9th of April last; that the