Where the facts raise a presumption of the in validity of the title. Mere suspicion of an equitable defect. really a matter of inference only (b). Thus we have seen that a purchaser will not be forced to accept a title depending on the fact that the vendor had no notice of some equitable incumbrance (c). Other examples of the application of this rule are where the fact to be established is that there was no creditor capable of taking advantage of an act of bankruptcy by the vendor (d), or that a voluntary settlement was not avoided under the old law by a subsequent conveyance for value (e). But where the title depends on a fact, which is capable of positive proof and is satisfactorily proved (ƒ), or where it depends on a presumption of fact, and a judge would be bound to direct a jury to find in favour of the presumption, the purchaser will be obliged to perform the contract specifically (g). The Court may consider the title too doubtful, where the facts stated in support of it raise the presumption (though not an irrebuttable presumption) that it is invalid in some respect; as that an appointment abstracted was a fraud upon the power (h). On the other hand, where the facts neither amount to proof nor raise any presumption of the invalidity of the title, but merely give ground for a suspicion of fraud or other like defect, which might render the title invalid in equity, and a good title to the legal estate is shown on the face of the abstract (i), the Court will not absolve the purchaser from the obligation of performing the contract specifically (k). It should (b) Above, p. 104. (c) Above, pp. 107, 158, 332, 430. (d) Lowes v. Lush, 14 Ves. 547. 375. (f) Smith v. Death, 5 Madd. 371, 374; and see Spencer v. Topham, 22 Beav. 573 (above, pp. 905, 906); Re Bridges & McRae's contract, 30 W. R. 539; Games v. Bonnor, 54 L. J. Ch. 517, 33 W. R. 64; Kekewich, J., Mogridge v. Clapp, 1892, 3 Ch. 382, 392, 393. (g) Above, pp. 105, 106; Re Summerson, 1900, 1 Ch. 112, n. ; Hepworth v. Pickles, ib. 108; see also Clippens Oil Co. v. Edinburgh, &c. Trustees, 1904, A. C. 64, 69, 70. (h) Warde v. Dixon, 28 L. J. N. S. Ch. 315, 321; Fry, Sp. Perf. 890 (vi), 3rd ed.; see above, pp. 305, 901, n. (b). (i) See above, pp. 251, 305, 901, n. (b). (k) M'Queen v. Farquhar, 11 be noted, however, that if the facts stated raise a Suspicion of a fact affecting suspicion of some defect in the title at law, the pur- the title at chaser will have no protection in case the suspicion be law. well-founded (7). The law applicable to these circumstances appears to be this :-On the one hand, the Court will never presume fraud (m); the presumption is that everything has been rightly done (n); and the vendor is entitled to the benefit of this rule, and cannot be called upon to give evidence to disprove any mere suggestion by the purchaser of some hypothetical fact, which would adversely affect the title (6). But against this, it appears that where there is a real ground of suspicion of some matter which would cause a defect in the legal title to the property sold, the Court may, unless the suspicion be removed by sufficient evidence, pronounce the title to be too doubtful to be forced on the purchaser, or may at least do so if its acceptance would leave him exposed to the reasonable probability of adverse litigation (p). The effect of a judgment for specific performance, or Effect of of the dismissal of an action for specific performance, specific perjudgment for Ves. 467; Green v. Pulsford, 2 (7) Above, pp. 108, 336 & n. (b), 833, 834, 902, 903. (m) Alderson, B., Cattell v. Corrall, 4 Y. & C. Ex. 228, 236; Williams on Commons, 3. (n) Above, p. 97; Clippens Oil Co. v. Edinburgh, &c. Trustees, 1904, A. C. 64, 69; Heath v. Deane, 1905, 2 Ch. 86, 93. (0) Sug. V. & P. 392. (p) See Hartley v. Smith, Buck, 368, 380; Cattell v. Corrall, 4 Y. & C. Ex. 228, 237; and consider Grove v. Bastard, 2 Ph. 619, 1 De G. M. & G. 69, where the formance in on the con tract at law. upon the right to recover damages at law for breach of barring action the contract has been already considered (q); and the question has been particularly discussed of the vendor's right to damages, where his action for specific performance is dismissed because the Court considers the title too doubtful (→). Certificate against the title in vendor's action. Specific performance at suit of the purchaser. In a vendor's action for specific performance, if upon the inquiry into title the certificate be against the title (s), there has, of course, been such a breach of the contract as justifies the purchaser in rescinding it (†); and the defendant may consequently claim, in the vendor's action, to have an order for repayment of his deposit, with interest thereon, and establishing his lien on the land sold for the deposit and interest and his expenses of investigating the title (u). If the purchaser of land sue for the specific performance of the contract, he is, as we have seen (x), entitled to an inquiry as to the title; but he takes this inquiry at his own risk. For if he be aware of objections to the title, and upon the inquiry the vendor fail to prove a good title according to the contract (which is all that he can be called upon to show), the purchaser must either waive his objections to the title, and pay the costs of the inquiry into title, or else he must submit (9) Above, pp. 969-973. It may also be noted that judgment for specific performance against either party to the contract will preclude him from successfully suing for damages at law; for, as a general rule, the judgment could not have been pronounced if the other party had committed a breach of contract (above, p. 991), so that question is concluded between them. And in the cases where a man may obtain an order for specific performance, notwithstanding that he has broken the contract at law (above, pp. 988, 989), the other party would, under the old practice, have been restrained from suing on the contract at law; so that he has now no right to bring such an action; Lery v. Lindo, 3 Mer. 81; Reynolds v. Nelson, 6 Madd. 290; Beaufort v. Glynn, 3 Sm. & G. 213, 226; and see Garbutt v. Fawcus, 1 Ch. D. 155; Wright v. Redgrave, 11 Ch. D. 24. (r) Above, pp. 971-973. (8) Above, p. 1005 & n. (z). (t) Above, pp. 936, 937, 948. (u) Kitton v. Hewett, 1904, W. N. 21; above, pp. 948-950. (x) Above, p. 1005. to have his action for specific performance dismissed without costs (y). If he accept the latter alternative, he will not be precluded from suing at law for damages for the vendor's breach of contract, but he will be unable to recover from the vendor, as damages, his own costs of his action for specific performance (z). So also, if the vendor had disclosed such a title as the purchaser was bound to accept, and the purchaser subsequently sued for specific performance and claimed an inquiry into title, the purchaser would have to pay the costs of the inquiry. And if, in such case, the purchaser had raised objections to the title, which the Court would not uphold, and he had no other cause of complaint than the vendor's refusal to admit these objections, the purchaser would have to pay the vendor's costs of the action (a). The difference between the purchaser's position in proceedings for specific performance brought against him by the vendor, and that which he occupies in case he bring such an action himself, is a matter of the greatest importance to a conveyancer advising the purchaser on title. We have seen that in many cases a purchaser may resist specific performance at the vendor's suit unless the vendor produce a better title than he has contracted to show; whilst if, in the same circumstances, the purchaser seek actively to enforce his own right to specific performance of the contract, he will be obliged to accept such a title as, according to the construction placed on the agreement in a Court of law, the vendor has stipulated that he will provide (b). The cases, in which the vendor or purchaser is entitled to obtain an order for specific performance of the con (y) Above, p. 69. (z) Above, pp. 69, n. (e), 966, 971. (a) See Lyde v. Yarborough, John. 70; Phillipson v. Gibbon, (b) Above, pp. 32, 69, 70, 157 Specific per formance with com pensation. Failure to comply with a judgment for specific performance. Proceedings to enforce the judgment. tract with compensation for some error of description, have been already discussed in connection with the subject of the completion of the contract (c). If either party to a sale of land fail to comply with an order of the Court that he shall perform the contract specifically (d), the other may at his election adopt one of two courses (e). First, he may apply to the Court to enforce the judgment. That is to say, he may obtain an order fixing a time and place for conveyance and payment of the purchase money, or fixing a time within which the judgment for specific performance is to be obeyed, and in default of compliance with this order he may proceed against the disobedient party for conVesting order. tempt (ƒ). And if the party in default be the vendor, the purchaser may obtain a conveyance of the land to himself by means of a vesting order or an order appointing a person to convey under the Trustee Act, 1893 (g). Secondly, in case of failure to comply within a reasonable time with a judgment for specific performance, or to comply with an order fixing a time for completion, the party not in default may obtain an order for the rescission of the contract (h). Besides Order for rescission of the contract. (c) Above, pp. 634-644. (e) Fry, Sp. Perf. §§ 1171- (f) Seton on Judgments, 2285 -2287, 6th ed. (g) Stat. 56 & 57 Vict. c. 53, ss. 26-34; above, p. 469, n. («); Seton on Judgments, 2287, 2288, 6th ed.; and see stat. 47 & 48 Vict. c. 61, s. 14. (4) Above, pp. 948, 949, n. (m), 952, n. (f), 969, n. (d). This case appears to form an exception to the rule that an election once exercised to affirm or rescind a contract cannot afterwards be revoked (above, pp. 745, 896); for by obtaining judgment for specific performance of the agreement the party had previously affirmed it; above, pp. 947, 969; see Baker v. Williams, 62 L. J. Ch. 315. It is thought that the ground of this exception is that, if one party commit a contempt of Court in disobeying an order that he shall perform the contract specifically, this is such an absolute repudiation of his duty under the contract that it would be a hardship to oblige the other to carry out the agreement and not to allow him to recede from it. The writer has followed Sir Edward Fry's statement (above, n. (e)), that in the above-mentioned circumstances rescission may be claimed by either party |