Discharge for impossibility of perform ance. the contract for either party to rescind it (such as the common power for the vendor to rescind on an unwelcome requisition (p)), has been well exercised (g). This was so decided on the ground that the Vendor and Purchaser Act only excluded the consideration of questions of the initial existence or validity of the contract, and did not prohibit the Court from pronouncing on the true construction of a power to rescind, which was an express term of the agreement itself (r). The construction of any clause contained in the contract may certainly be determined in a Vendor and Purchaser summons (s); but it is submitted that the excluded questions are not only those relating to the initial validity or existence of the contract. And it is thought that if either party contend that the contract has been discharged by mutual assent (f), otherwise than under an express power of rescission, and the other party dispute this, the controversy could only be determined by the Court in an action. As to discharge for impossibility of performance (u), it appears that the Court might in a Vendor and Purchaser summons determine whether, upon the true construction of the contract, the sale were made subject to such a condition as would, in case of the impossibility of its fulfilment, cause the parties to be discharged from their agreement (x). But if this were decided in the affirmative, it is thought that the question, whether the parties were in fact so discharged, could only be tried in an action. It is also submitted that an action is the proper proceeding for the trial of disputed questions of fact, as to whether the contract has been discharged by bankruptcy (y) or by (p) Above, pp. 147-150, 914, 915. (9) This point is established by numerous decisions besides that cited in the next note; see cases cited above, pp. 147-150. (r) Re Jackson & Woodburn's contract, 37 Ch. D. 44. performance (z), or whether the right of action arising from a breach of the contract has been discharged by any means (a), or barred by any Statute of Limitations (b). It has been decided that on a Vendor and Purchaser Order for rescission of summons the Court may not only answer any question the contract properly submitted to it, but may also direct such and consequential things to be done as would be the natural consequence relief. of the Court's decision. If, therefore, a purchaser of land take out a summons claiming that his requisitions have not been sufficiently answered and that a good title has not been shown, and the Court uphold his contention (so that he would be entitled to rescind the contract, or to claim damages for its breach (c)), the Court has jurisdiction in the summons to make an order rescinding the contract and to order the vendor to return the deposit with interest, and to pay the purchaser's costs of investigating the title (d). And it has been further held that, if a vendor take out a summons, claiming that he has shown a good title, and the Court decide that he has not, the purchaser may in the same proceeding obtain an order for the rescission of the contract, repayment of the deposit with interest, and payment of his costs of investigating title (e). But it is considered that this jurisdiction does not go beyond authorising an order for payment to the purchaser of such expenses as he could recover at law either in the event of his rescinding the contract (f) or as damages (z) Above, p. 922. (a) Above, p. 941. (b) Above, p. 943. (e) Above, pp. 937, 947. (d) Re Higgins & Hitchman's contract, 21 Ch. D. 95; Re Hargreaves & Thompson's contract, 32 Ch. D. 454; Re Bryant & Barn ingham's contract, 44 Ch. D. 218, (e) Re Higgins & Percival, 59 Whether an order can be made giving effect to the purchaser's lien. according to the rule in Flureau v. Thornhill (g); and that if the purchaser claim substantial damages, as for a wilful breach of the vendor's duty to convey the land (h), he must assert his rights by action (i). It is a question whether the Court has jurisdiction on a Vendor and Purchaser summons, where an order is made at the purchaser's instance for the rescission of the contract, to make a further order establishing the purchaser's lien for the deposit and interest and his expenses of investigating title (k). It is laid down in the judgments of Pearson, J., in Re Yeilding and Westbrook (1) and Chitty, J., in Re New Land Development Association and Gray (m), that the purchaser is entitled to such an order; but in the former case the order was not in fact made (n), and in the latter the order made was affirmed on different grounds and the point was not dealt with in the Court of Appeal. An order charging the vendor's interest was made in the Irish case of Re Priestley and Davidson (o); but in England it has not been the general practice for purchasers to claim or for the Court to make an order (p); and it does not appear that this question has ever been discussed in the Court of Appeal. We have seen, however, that the purchaser's right to a lien in case of his rescission of the contract is clearly established (q); and it seems to be just as much a necessary consequence of the rescission (r) as his right to recover the deposit, with interest, and his costs of investigating title from the vendor personally. The point, therefore, seems to fall within the principle on which the jurisdiction was established to make an order (g) 2 W. Black. 1078; above, p. 961. (h) See above, pp. 962, 963, 968. (i) Re Hargreaves & Thompson's contract, 32 Ch. D. 454, 457, 459; Re Wilsons & Stevens' contract, 1894, 3 Ch. 546. (k) Above, p. 950. (2) 31 Ch. D. 344, 345. (m) 1892, 2 Ch. 138, 146. (n) Seton on Judgments, 2269, 6th ed. (0) 31 L. R. Ir. 122. (p) See cases cited above, p. 1021, n. (d); Seton on Decrees, 2266, 2267. (2) Above, p. 950. () See above, p. 1021. on summons against the vendor personally for payment of these items (8). We have already pointed out (t) the curious consequences arising from the fact that whilst the applicant and respondent in a Vendor and Purchaser summons are in the position of parties to an action for specific performance as regards the determination of the particular question raised (u), they are in the position of parties to an action at law with respect to any consequential order for the repayment of the deposit. made in a It has been held that when a party to the contract Course to be taken on nonhas obtained in a Vendor and Purchaser summons an compliance order in his favour, and the other party makes default with an order in compliance therewith, the proper course for the V. & P. sumformer to take is to apply to the Court for the enforce- mons. ment of the order, and not to bring an action for specific performance of the contract or for damages (~). Of course, any order made in a Vendor and Purchaser summons, that either party shall do some act or pay some money, may be enforced by appropriate process of execution (y). We may observe, however, that although Where a the Court may make a declaration on such a summons only is made. that the vendor has sufficiently answered the purchaser's requisitions, and can make a good title to the property sold, it does not appear that the Court has ever made an order in these proceedings that the contract shall be specifically performed (≈). And in default of any such (s) Above, p. 1021. (t) Above, pp. 32, 165 sq. (u) Above, p. 1016. (x) Thompson v. Ringer, 29 W. R. 520, 1881, W. N. 48. (y) R. S. C. 1883, Ord. XLII. rr. 3, 7, 24; Seton on Judgments, 421 sq., 6th ed. (z) See Seton on Judgments, 2264 sq., 6th ed.; and see above, p. 1021. And see the observations of Kekewich, J., in Re Wallis & declaration Contract to grant a lease. Voluntary gift. order it is difficult to see what process of execution could issue to coerce a party who acted in disregard, not exactly of a declaration made against him, but merely of the logical effect of such a declaration. In one celebrated case, in which the Court of Appeal had made such a declaration on a Vendor and Purchaser summons, and the purchaser declined, on the ground of objections subsequently discovered, to complete the contract, the vendor brought an action for specific performance of the contract; and it does not appear that the propriety of this course was questioned (a). In that case the purchaser counter-claimed, by leave of the Court, to review the previous decision in the matter, on the ground that it was obtained in ignorance of material facts, which were then unknown to him and which he had subsequently discovered, but could not, with reasonable diligence, have discovered any earlier; and in the event he was enabled to avoid specific performance of the contract. If, however, the purchaser had had no such ground of defence it does not appear that the vendor could have taken any other proceedings than an action for specific performance, in order to enforce compliance with the logical result of the declaration that he had shown a good title. An application by way of Vendor and Purchaser summons may be made in case of a contract to grant a lease of land (b), as well as of a sale of leaseholds (c). But such proceedings are not applicable to a voluntary gift of or a gratuitous promise to convey land. They may, however, be taken in the case of a contract for a nominal consideration (d). (a) Re Scott & Alvarez's contract, 1895, 1 Ch. 596, 609, 610, 1895, 2 Ch. 603; above, pp. 167, 168. (b) Re Lander & Bagley's con tract, 1892, 3 Ch. 41. (c) See above, p. 78, n. (k). (d) Re Marquis of Salisbury, 23 W. R. 824. |