DEFECTS.-FALSE DESCRIPTION.

15

seller plastered up a defect in a main wall, and papered it over, so as to conceal the defect, and the purchaser was relieved from the contract.

So if there is a latent defect in your estate, of which you are aware, and which the purchaser could not by any attention whatever possibly discover, you are, it seems, bound to disclose it to him, although you should sell the estate expressly subject to all its faults. Upon this point, however, the authorities are divided.

This point has several times arisen on the sale of ships sold with all faults, yet described in an attractive manner, and kept afloat, so that the defects well known to the seller could not be discovered, and that has been held to be a fraud, which renders the sale void. But generally speaking, a sale with all faults is binding, and the seller is not bound to disclose faults within his own knowledge, although he must not conceal them. Where a seller knows there is a defect, which was concealed before he acquired the property-for example, where the defective wall was plastered and papered over before his purchase, and he only acquired a knowledge of the concealment after his purchase, and he sells with all faults, still he should disclose the defect, although this is a doubtful point in law.

If you actually describe the estate in the particulars of sale or agreement, you will, of course, be bound by the description. And if you misdescribe the estate with a fraudulent intent, it is unimportant that you expressly stipulated that an error in the description of it should not annul the sale. This was decided before the Reform Act, in a case where the estate was described to be about a mile from a borough-town; and it was provided in the conditions of sale that an error in the description should not vitiate the sale. It turned out that the

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MISDESCRIPTIONS.

estate was between three and four miles from the place, and therefore the purchaser resisted the contract, and brought an action for recovery of the deposit which he had paid. It was left to the jury to say, whether this was merely an erroneous statement, or the misdescription was wilfully introduced to make the land appear more valuable from being in the neighbourhood of a borough-town. In the former case, the contract remained in force; but in the latter case, the purchaser was to be relieved from it, and was entitled to recover back his deposit. The purchaser had a verdict; so that the jury must have thought the misdescription fraudulent.

The sale of "a ground-rent" cannot be enforced if the rent is a rack-rent. Where the sale was of a "brickbuilt house," and the house was built partly of brick and partly of timber, and some parts of the exterior were composed of lath and plaster only, without any partywall to the house, the purchaser was not compelled to complete the purchase. There must not be a substantial misdescription.

But although you misrepresent the nature of the property, yet the purchaser cannot be relieved if he bought with full knowledge of the actual state of it: thus, if you describe an estate to be in a ring-fence, and the buyer knew that it was intersected by other lands; or you warrant a house to be in perfect repair, and he knew that it was without a roof or windows, he cannot in either case object that the property does not agree with the description of it.

But it would not be safe to rely upon the purchaser's knowledge in opposition to your own statement. If you were to state that a house was in good repair, knowing that it had the dry rot, and were not to communicate this fact to the purchaser, and the state of the house

CONCEALED ENCUMBRANCES.-FALSEHOODS.

17

was not perfectly visible to everybody, you could not enforce the contract, although the purchaser might take the property if he pleased, with a compensation for its defective state.

The same rules apply to encumbrances on the estate, and defects in the title to it, as to defects in the estate itself. You must either deliver to the purchaser the instrument by which the encumbrances were created, or on which the defects arise, or you must acquaint him with the facts, if they do not appear on the title-deeds. If you neglect this, you are guilty of a direct fraud, which the purchaser, however vigilant, has no means of discovering. And if your attorney keep back any encumbrance, he as well as you will be answerable for the fraud.

*

Thus I have told you what truths you must disclose. I shall now tell you what falsehoods you may utter in regard to your estate. In the first place, you may falsely praise, or, as it is vulgarly termed, puff your property; for our law, following the civil law, holds that a purchaser ought not to rely upon vague expressions uttered by a vendor at random in praise of his property. And it has even been decided, that no relief lies against a vendor for having affirmed, contrarily to truth, that a person bid a particular sum for the estate, although the buyer was thereby induced to purchase it, and was deceived in the value. So you may affirm the estate to be of any value which you choose to name, for it is deemed a purchaser's own folly to credit a bare assertion like this. Besides, value consists in judgment and estimation, in which many men differ.

Again, you may, with impunity, describe your land as uncommonly rich water-meadow, although it is imperfectly watered. In selling an advowson you may, in like * Turn to page 25.

B

18

MISREPRESENTATION.-PUFF.

manner, state that an avoidance of the living is likely to occur soon. So where a renewable interest is sold, and a fine on renewal is payable, the seller may state it to be a small fine, although it is of considerable amount. Such statements are cautions to purchasers to inquire. So mere puff, as that a house is fit for a respectable family, is entitled to no weight; but you must not, in answer to inquiries, assert, contrary to the fact, that your house is not damp. You are not bound to inform the purchaser, that upon the tenant's complaint, the full amount of rent has not been paid; nor are you bound to tell him what offers have previously been made to you; for a concealment, to be material, must be of something that the party concealing was bound to state. But you must disclose any right of sporting over the estate, or any right of common over it, or any right to dig for mines upon it, or the liability to repair the chancel of a church, or the like. And you may not refer a purchaser to an agent who is ignorant of circumstances affecting the property of which you yourself are aware. If your agent should be guilty of a fraudulent representation, or a fraudulent concealment, you would be liable.

If you should affirm that the estate was valued by persons of judgment, at a greater price than it actually was, and the purchaser act upon such misrepresentation, you could not enforce the contract in equity. Nor can you with impunity misstate the quantum of rent paid for the estate, because that is a circumstance within your own knowledge: the purchaser may have no other source of information; or your tenants, if he were to apply to them, might combine with you, and so misinform and cheat him. And the purchaser will have a remedy against you for the fraud, although he did not depend upon your statement, but inquired further.

PARTICULARS AND CONDITIONS OF SALE.

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What I have hitherto said applies mostly to your own conduct. I have still a few cautions to give you in regard to those things which must be performed by your agents.

Although it is the usual practice, yet you should never permit the particulars and conditions of sale to be prepared by an auctioneer. Auctioneers know nothing of the title, and continual disputes arise from their misstatements. When a man has an estate to sell he generally goes first to an auctioneer: I advise you to go to an attorney. I may, however, caution you against allowing your attorney to frame unusual conditions, throwing upon the purchaser expenses which, according to the general practice, ought to be borne by the seller, and compelling him to accept such a title as he would not be bound to accept under a common contract. It may be necessary to provide for special circumstances; but rely upon it that judicious buyers do not attend an auction where improper conditions of sale have been issued; and I advise you, in the character of a purchaser, never to do so without sufficient cause.

If the estate which you intend to sell has been in your family for a length of time, or the title has not been recently investigated, it would be prudent to have an abstract of it submitted to counsel in the first instance. This will enable you to clear up any objection which occurs, before you enter into a contract for sale of the estate. By this precaution you will prevent any delay on your part which might impede the completion of the sale by the time stipulated; and you will, in many cases, avoid the expense necessarily attending tedious discussions of a title. Another advantage of this measure is, that if there should be any defect in the title which cannot be cured, it will be known only to your own agents and counsel. It is, believe me, of the