As to the doubtfulness of the title as a defence to an Doubtfulness action for specific performance, it is established that the of the title. Court will not oblige the purchaser to perform specifically a contract for the sale of land, if the title shown by the vendor be such as the Court considers too doubtful to force upon an unwilling purchaser (r). We have seen (s) that it is a condition precedent to the enforcement of a contract for the sale of land that the vendor shall show a good title to the property sold, and that this rule appears to be of equitable origin. On the principle that he who seeks equity must do equity, Courts of Equity would not grant the extraordinary relief of a decree for specific performance against a purchaser of land, unless the vendor proved that he had the right to convey what he had contracted to sell and could show good title for its secure enjoyment by the purchaser (f). On this ground it was established that in every suit for specific performance of a sale of land, whether brought by the vendor (t) or the purchaser (u), it is the pur- Inquiry as to chaser's right (x) to have an inquiry directed, whether a good title can be made to the property sold (y); that is, a good title according to the contract (z). If the (r) Marlow v. Smith, 2 P. W. 198; Shapland v. Smith, 1 Bro. C. C. 75; Cooper v. Denne, 4 Bro. C. C. 80, 1 Ves. jun. 565; Sheffield v. Mulgrave, 2 Ves. jun. 526; Roake v. Kidd, 5 Ves. 647; Vancouver v. Bliss, 11 Ves. 458, 464466; Sloper v. Fish, 2 V. & B. 149; Blosse v. Clanmorris, 3 Bligh, 62, 71; Willcox v. Bellaers, T. & R. 491; Pyrke v. Waddingham, 10 Hare, 1, 7, sq.; Collard v. Sampson, 4 De G. M. & G. 224; Parker v. Tootal, 11 H. L. C. 143, 158; above, pp. 106, 107, & nn. (w, y), 158, 168, 332, 360. (s) Above, pp. 75, 726, 727, 937, 938. (t) Above, p. 75 & n. (b). (u) Bennett v. Fowler, 2 Beav. 302; see above, p. 69. (a) The right is the purchaser's only; Bennett v. Fowler, ubi sup., (y) Above, p. 132, n. (7). (2) Upperton v. Nickolson, L. R. 6 Ch. 436, 442; above, p. 69 & n. (c). The inquiry as to title takes place in the judge's chambers; any point in dispute may be referred to one of the conveyancing counsel to the Court for his opinion; after which the point raised may be discussed before the master, and, if necessary, reserved for the decision of the judge in chambers or in court. The decision of the Court as to the title is then embodied in the master's certificate, which becomes binding on all parties to title. Court consider the title to be good, the purchaser must carry out the contract (a), subject of course to his right of appealing from the judge's decision. If it be certified that a good title cannot be made, he is entitled to rescind the contract or to claim damages for its breach (b). But the decision of the Court as to the validity or invalidity of the title is only binding on the parties to the action and those claiming under them (c) ; and the Courts of Equity have considered that, before a purchaser of land shall be obliged to perform the contract specifically, he shall (subject to the special stipulations contained in the agreement) have such a title as he in his turn will be able to force upon purchasers from him (d). Hence it is that if the Court consider it to be doubtful whether the title attains this standard, the Court will simply decline to enforce the contract specifically (e), without prejudice, as it appears (ƒ), to the vendor's right to retain the deposit or to recover damages for the purchaser's refusal to perform the agreement. It is impossible to state exhaustively in what circumstances the Court will consider a title too doubtful to be forced upon an unwilling purchaser. The practice of the Court has fluctuated; and even the principles upon which it acts are by no means perfectly ascertained (g). By the labours of Sir Edward Fry (h), the the action, unless within eight days an application be made to discharge or vary it; R. S. C. 1883, Ords. LI. r. 7, LV. rr. 65, 69, 70; Dan. Chan. Pract. 1136, 7th ed.; Dan. Chan. Forms, 767, 5th ed.; 2 Dart, V. & P. 1228; Fry, Sp. Perf. §§ 1372, 1376, 3rd ed. (a) Seton on Judgments, 2248, 6th ed. (b) Ib. 2249; above, pp. 937, 947-949, 971. (c) Rose v. Calland, 5 Ves. 186, 188, 189; Pyrke v. Waddingham, 10 Hare, 1, 10; Osborne to Rowlett, 13 Ch. D. 774, 781; Re Ailesbury Settled Estates, 62 L. J. Ch. 1012. (d) See Braybroke v. Inskip, 8 Ves. 417, 428; Pyrke v. Waddingham, 10 Hare, 1, 8. (e) Above, p. 1005 & n. (r). (f) Above, pp. 971-973. (g) See cases cited, below, p. 1008, n. (g); Fry, Sp. Perf. §§ 882 -888, 3rd ed. (h) Sp. Perf. §§ 890, 891, decisions on this subject have been partially classified, and the substance of this classification is given below. In the first place, the Court will not oblige the pur- Reasonable chaser to take the title where it is reasonably probable probability of litigation. that its acceptance would involve him in litigation (i). In other words, the Court will not compel the purchaser to buy a law suit (k). But the litigation contemplated must be such as, in the opinion of the Court, may possibly be successful (1). And if a stranger to the contract assert some claim on the land sold, which the Court considers to be entirely unfounded, the Court will enforce the contract specifically, notwithstanding that the stranger have commenced proceedings against the vendor, and registered them as a lis pendens (m). Possibly the whole sum and substance of the rule about too doubtful titles is contained in the proposition that specific performance will not be decreed against a purchaser if it would expose him to the risk of litigation at suit of a stranger to the contract asserting, with apparent or reasonably possible right (n), a claim adverse to the title shown (o). But the following points should be particularly mentioned, though perhaps they are merely corollaries to this proposition. 3rd ed. The reader is also referred to the summary of cases on this subject contained in 2 Dart, V. & P. 1137, 5th ed.; 1272, 6th ed. (i) Cattell v. Corrall, 4 Y. & C. Ex. 228, 237; Pegler v. White, 33 Beav. 403; Re New Land Development Assn. and Gray, 1892, 2 Ch. 138, 145, 146, 147; Scott V. Alvarez, 1895, 2 Ch. 603, 613 (above, pp. 167, 168); Re Hollis's Hospital and Hague's contract, 1899, 2 Ch. 540, 555 (above, p. 600, n. (k)). (k) Rose v. Calland, 5 Ves. 186, 187; Sharp v. Adcock, 4 Russ. 374, 375. (1) See Lyddal v. Weston, 2 Atk. 19; Glass v. Richardson, 9 (m) Bull v. Hutchens, 32 Beav. Questions of law: previous adverse decision of equal Court, though doubted. Previous favourable decision doubted. Adverse decision of inferior Court. As regards doubtful questions of law:-The Court considers the title too doubtful where there has been a decision of a Court of co-ordinate jurisdiction adverse to the title or to the principle on which the title depends, although the Court thinks that decision to be wrong (p); or where there has been a similar decision favourable to the title, but the Court is of opinion that the decision was not right (p). But at the present time the Court of Appeal, or other superior Court, does not consider the title to be too doubtful merely because a Court of inferior jurisdiction has pronounced a decision adverse to the title, if the Superior Court think that decision to Title depend- be clearly wrong (q). Again, the Court will not oblige ing on the a purchaser to take a title depending on the construction construction of an ill- and legal operation of some ill-expressed and inartificial instrument, if the Court consider that its own view of the question is open to reasonable doubt in some other Court (r). But if the title depend on a question of the general law of the land, the Court will, as a rule, decide the question and, if its opinion be in favour of the title, order the specific performance of the contract by the purchaser (s). And this rule applies also where the question, though one of construction, turns upon a drawn instrument. Title depending on a question of general law. Title depend ing on some general rule of construction. (p) Mullings v. Trinder, L. R. 10 Eq. 449, 454; and see Rose v. Calland, 5 Ves. 186. This rule applies equally where there have been previous conflicting decisions of Courts of co-ordinate jurisdiction; Re Carter & Kenderdine's contract, 1897, 1 Ch. 776, 778. (a) Beioley v. Carter, L. R. 4 Ch. 230, 236, 240; Alexander v. Mills, L. R. 6 Ch. 124, 132; Radford v. Willis, L. R. 7 Ch. 7; Collier v. Walters, L. R. 17 Eq. 252, 260; Osborne to Rowlett, 13 Ch. D. 774, 781; Re Carter and Kenderdine's contract, 1897, 1 Ch. 776. In earlier cases it had been held that the Court would not enforce specific performance, notwithstanding that its opinion was in favour of the title, if it considered that that opinion might fairly and reasonably be questioned by competent persons; Marlow v. Smith, 2 P. W. 198, 201; Price v. Strange, 6 Madd. 159, 164; Pyrke v. Waddingham, 10 Hare, 1, 7, 8; Collier v. McBean, L. R. 1 Ch. 81, 84; Hamilton v. Buckmaster, L. R. 3 Eq. 323, 328; Fry, Sp. Perf. § 884, 3rd ed. (r) James, L. J., Alexander v. Mills, L. R. 6 Ch. 124, 132. (s) James, L. J., Alexander v. Mills, L. R. 6 Ch. 124, 132; Forster v. Abraham, L. R. 17 Eq. 351, 354; Osborne to Rowlett, 13 Ch. D. 774; Re Carter & Kenderdine's contract, 1897, 1 Ch. 776. construction statute. general rule of construction, unaffected by any special context in the instrument (t). It has been held that, Title dependwhere the title depends on the construction of some ing on the general statute, the true construction thereof may, of a general owing either to the absence of any decision or to the conflict of previous decisions, be regarded by the Court as a question sufficiently doubtful to justify the Court in not enforcing the contract specifically as against the purchaser (u). But the latest expression of judicial opinion in the Court of Appeal is that in this case also a Superior Court will follow the modern general rule, and will decide the question of construction, and, if necessary, oblige the purchaser to take the title accordingly (r). fact. With respect to questions of fact:-The Court may Questions of consider the title too doubtful where it depends on the establishment by oral evidence of facts of a complicated nature (y); especially where the witnesses necessary to repel an adverse claim may be dead or difficult to find. when the claim is asserted (2). And where the title Title dependdepends on a presumption of fact, it is considered to be ing on a presumption of too doubtful if it would be the duty of a judge charging fact. a jury upon the evidence offered, not to direct them that they were bound to find in favour of the presumption, but to leave them to draw their own conclusion. from the evidence (a). This principle is illustrated where a title depends upon some fact of a negative nature, which is not capable of positive proof, but is (t) Radford v. Willis, L. R. 7 Ch. 7, 11. (u) C. A., Palmer v. Locke, 18 Ch. D. 381, 388; Re Thackwray & Young's contract, 40 Ch. D. 34, 38, 39. (x) Mogridge v. Clapp, 1892, 3 Ch. 382, 396, 401; Re Carter & Kenderdine's contract, 1897, 1 Ch. 776; Cozens-Hardy, L. J., Re Handman & Wilcox's contract, (y) Re Douglas & Powell's con- (a) Above, p. 106 & n. (w). |