An action for money had and received was brought to recover the amount of a deposit paid by the plaintiff to the defendant, on an agreement for the purchase of an estate, the defendant having failed to make out a good title on the day when the purchase was to be completed. The abstract of the title delivered to the plaintiff began in the year 1793, and after reciting that the deeds relating to the estate had been lost, stated a fine and non-claim. Upon inquiry it was found that the fact of the deeds having been lost was not true. The counsel for the defendant said, they were ready to make out a good title. Kenyon, C. J.:-" As to the sentiments which I have long entertained relative to the purchase of real estates, I find no reason for receding from them. They have been confirmed by conversing with those whose authority is much greater than mine. The vendor must be prepared to make out a good title on the day when a purchase is to be completed. Indulgence, I am aware, is often given for the purpose of procuring probates of wills, letters of administration, and acts of parliament. But this indulgence is voluntary on the part of the intended purchaser; it is the duty of the seller to be ready to verify his abstract at the day on which it was agreed that the purchase should be completed. If the seller deliver an abstract, setting forth a defective title, the plaintiff may object to it. No man was ever induced to take a title like the present. A fine and non-claim are good splices to another title, but they will not do alone. There are many exceptions in the statute in favour of infants, femes covert," &c. Erskine, for the defendant: "Do I understand your Lordship to say, that though the defendant can now make out a good title, yet as that title did not form a part of the abstract, the plaintiff may avail himself of that circumstance?" Kenyon, C. J.: "He certainly may, and avoid the contract. When the abstract is delivered by the seller, he must be able to verify it by the title deeds in his possession. As a good title was not made out at the day fixed, I shall direct the jury to find a verdict for the deposit, with interest up to that day." The jury found a verdict for the plaintiff accordingly (s). If a precise day is not fixed by which it is incumbent on the vendor to deduce a good title, the law implies that he shall have a reasonable time (t). A contract to make a good title means a title good both at law and in equity. Therefore in an action to recover back the deposit on a purchase, upon the vendor's failure to make a good title, a court of law will collaterally inquire whether the title be good in equity (u). And where upon a sale there is such a doubt upon the vendor's title as to render it probable that the purchaser's right may become a matter of investigation, the court will not compel (s) Cornish v. Rowley, B. R. Middlesex Sittings after M. T. 40 Geo. III. MSS. See Hanslip v. Padwick, 5 Exch. 615623, per Alderson, B. (t) Sansom v. Rhodes, 6 B. N. C. 261. (u) Maberley v. Robins, 5 Taunt. 625; 1 Marsh. 258. See Willett v. Clarke, 10 Price, 207. the purchaser to complete the purchase (x). But in assumpsit to recover a deposit upon the purchase, upon an allegation that the defendant had failed to make proper title, the Court of C. B. held, that they would not consider, whether the title was of a doubtful description, such as a court of equity would not compel an unwilling purchaser to take, but simply whether the defendant had or had not a legal title to convey (y). “We are not to consider ourselves as a court of equity, where the seller is seeking to enforce the purchase by a bill for a specific performance, in which case that court frequently refuses the aid of its authority to enforce a performance, where the title is of an unmarketable or even doubtful description; leaving the party to his action at law for damages; but we are called upon to answer the simple question on this record, whether, on the construction of a deed, the defendant has or has not a legal title to convey to a purchaser: and although the deed appears to be inartificially framed, we think, upon the proper construction of it, the defendant has, and at the time of the exposure to sale had, good right and title to sell and assign to the plaintiff, and consequently that the present action, grounded on that breach of contract, cannot be maintained (2). In every contract for the sale of an existing lease, there is an implied undertaking by a vendor (if the contrary be not stipulated in express terms) to make out the lessor's title to demise; and from the short residue of the term, the small value of the property, and the absence of any premium for the lease, it cannot be inferred, that the vendee intended to waive his right to call for the production of the lessor's title (a). Auctioneers who take upon themselves to describe in their particulars the property to be sold, should truly describe it (b); for the buyers act on the faith of those descriptions. Hence, where leasehold houses were described in the particulars and conditions of sale as a well secured rental with reversionary interest, and as an eligible investment, and no notice was given that, by the provisions of a local act power was given to a market company to purchase and take the property for the purposes of the act, it was held, that the purchaser was entitled to rescind the contract (c). A lessee of lands subject to a covenant against certain obnoxious trades, with a proviso for re-entry, granted under-leases of houses erected (x) Curling v. Shuttleworth, 6 Bingh. 121, stated by Alderson, J., in Boyman v. Gutch, 7 Bingh. 390, to have been questioned in K. B. (y) Boyman v. Gutch, 7 Bingh. 379. (z) Per Tindal, C. J., delivering judgment of court in Boyman v. Gutch, ubi sup. But see Jeakes v. White, 6 Exch. 873, in which case Alderson, B., and Platt, B., held that by a "good title" was to be understood such a title as a court of equity would adopt as a sufficient ground for compelling specific performance, and such a title as would be a good answer to an ejectment by a claimant; but Martin, B., held that it was sufficient to establish a legal title only. (a) Souter v. Drake, 5 B. & Ad. 992; Hall v. Betty, 4 M. & Gr. 413. (b) Coverley v. Burrell, 5 B. & A. 257. (c) Ballard v. Way, 1 M. & W. 520; and see Lachlan v. Reynolds, 23 L. J., Chan. 8. on the land, not containing a similar covenant and proviso: it was held, that a purchaser by auction of houses on the same land, and of the improved ground-rents of the houses so underlet, might recover his deposit, this omission in the under-leases not having been mentioned in the conditions of sale (d). When certain goods were put up for sale, and each lot was described as being of so many yards, and the goods were open to public inspection for two days before the sale, and by the printed conditions of sale the purchaser of any lot was to pay down a deposit; the lots to be taken away with all faults, imperfections, or errors of description, on a day specified, and the remainder of the purchase-money to be paid on delivery, the biddings at the sale being at so much per yard; it was held, that in such a sale no condition is implied, that a purchaser may inspect and measure the lots before paying the remainder of the purchase-money; and that payment before delivery meant delivery for any purpose (e). A written paper, delivered by an auctioneer to a bidder to whom lands were let by auction, containing the description of the lands, the terms for which they were let to the bidder, and the rent payable, does not require a stamp, unless it be signed by some of the parties or by the auctioneer; nor is it such a writing as will exclude parol evidence (f): but if signed by the auctioneer, and delivered to the bidder, it ought to be stamped (g). Where, by the conditions, the only authority given to the auctioneer is to receive the deposit money, and no agent is named for the purpose of receiving the remainder of the purchase money, the payment of such remainder ought to be made to the vendor or his general agent, which the auctioneer is not. At all events, the auctioneer, under such conditions, has no authority to receive the purchase money by means of a bill of exchange (h). In an action against the vendor of an estate to recover the deposit on a contract for the purchase, if the defendant, on notice, produce the contract, the plaintiff need not prove its execution; for an instrument produced on notice by a party claiming an interest under it, does not require to be so proved (i). proved (i). A sale by public auction at a horse repository, out of the city of London, is not a sale in market overt (k). One of the conditions of a sale by auction was:-" If the purchaser shall fail to comply with the conditions, the deposit shall be (d) Waring v. Hoggart, 1 Ry. & M. 39. (e) Pettitt v. Mitchell, 4 M. & G. 819; 5 Scott's N. R. 721, distinguishing the cases of Howe v. Palmer, 3 B. & Ald. 321; and Lorymer v. Smith, 1 B. & C. 1. (f) Ramsbottom v. Tunbridge, 2 M. & S. 434; Ingram v. Lea, 2 Campb. 521; Adams v. Fairbain, 2 Stark. N. P. C. 277. (g) Ramsbottom v. Mortley, 2 M. & S. 445. (h) Sykes v. Giles, 5 M. & W. 645. (i) Bradshaw v. Bennett, M. & Rob. 143; Doe v. Wainwright, 5 A. & E. 520, 528. (k) Lee v. Bayes, 18 C. B. 599; 25 L. J., C. P. 249. actually forfeited to the vendor, who shall be at liberty to resell, and any deficiency upon resale, together with the expenses, shall be made good by the defaulter, and, on non-payment, shall be recoverable as liquidated damages; but any increase of price at the second sale shall belong to the vendor." Default having been made by a purchaser at the auction, and the property resold at a reduced price, it was held, that the vendor could recover from the defaulter, in addition to the deposit, only so much of the difference between the two prices and of the expenses of re-sale as the deposit did not cover (1). (1) Ockenden v. Henley, 27 L. J., Q. B. 361. VOL. I. Departing or Remaining Abroad . 229 Bankruptcy or Insolvency in India or Colonies. ib. In case of Traders Departing or Remaining Abroad Departure from Dwelling-house Otherwise Absenting himself Beginning to keep House Yielding himself to Prison . Procuring Arrest or Execution Fraudulent Transfer of Property. Lying in Prison Escaping out of Custody Filing Declaration of Insolvency Petition for Adjudication Paying Money, &c., to Petitioning Creditor |