the title to certain other property exposing him to the hazard of being evicted by reason of a breach of the covenants in respect of that other property. He objected, therefore, to the title, and his objection prevailed. This is an instance of the first category propounded by V. C. Hall, and later set down by L. J. Fry. There is, however, a criticism to be made in passing on a passage in the judgment of V. C. Page-Wood (afterwards Lord Hatherley) in that case, wherein it is asserted that if a purchaser obtains information aliunde that the vendor's title is not clear and distinct he may, whatever be the terms of the contract, insist upon an objection on that ground. Were this correct the second category of cases would be so much surplusage; they would go by the board. But, as has been judicially declared, there is no authority to warrant the wideness of the proposition as so stated.

"I think," remarks North, J., in National Provincial Bank of England v. Marsh ([1895] 1 Ch. 190, at p. 197), "the dictum of Lord Hatherley goes too far. It professes to be founded on two cases which do not really warrant it." Shepherd v. Keatley (1 C. M. & R. 117) is one of the two cases. A condition of sale in respect of leasehold property provided that the vendor" should not be obliged to produce the lessor's title." The purchaser, however, did aliunde discover a defect in that title, and raising a consequent objection carried it. This is merely an illustration of the class of case belonging to the first category. It is now open to no doubt whatever that a vendor may tie down the purchaser, and the latter may bind himself to accept any narrowed or restricted form of title. A condition may, to use the words of one of the Judges, "preclude enquiries from all quarters and in all ways. This opens up the second category of cases. In the case of Hume v. Bentley (5 De G. & S. M. 520) leasehold premises were the subject of u sale by auction. Among the provisions of the contract appeared the following stipulation:

. . . the lessors' title will not be shown and shall not be enquired into." Notwithstanding this express provision, the purchaser adduced certain Acts of Parliament to establish that the lessor had in him no power to lease to the vendor, and so the latter could not deal with the property. But the purchaser failed in this

contention by reason that the stipulation particularly asserted that no title was either to be shown or enquired into. The acceptance of the title was to be unconditional. Obviously it was inconsistent to press forward that which must have been the result of the very thing contracted against-enquiry. The purchaser was bound by his contract. This decision gains distinction by reason that in the judgment delivered by V. C. Parker lies clearly and accurately expressed the principle which guides the Court in construing conditions of sale relative to title: See per Blackburn, J., in Waddell v. Wolfe (L. R. 9 Q. B. 515, at p. 519). We pick these observations from the learned ViceChancellor's judgment: "According to the ordinary rule, a vendor of leasehold property was under an obligation to show the lessor's title; but there was no doubt the vendor might stipulate that he should be relieved from that stipulation," and later he says: "If the purchaser could show by any means in his own power that the vendor had a defective title he might do so . . . but there could be no doubt upon the authorities that if it had been a stipulation in the contract that the purchaser should accept the title without objection or enquiry, that would be a lawful agreement. Here the contract was that the title would not be shown and should not be enquired into. The question was, did that oblige the purchaser to accept the lessor's title, such as it was; or what was the meaning of the stipulation? The only reasonable meaning of the stipulation was that enquiry was precluded for every purpose. (To be continued.)

THE CONVEYANCER.

VOL. IV., No. 7.

THE CONVEYANCER is published monthly. Notice of non-receipt of any number must be given to the Publishers not later than the end of the month of issue. After the end of that month the Publishers accept no liability for non-delivery. COMMUNICATIONS respecting matters of an Editorial nature should be addressed to The Editor of the Conveyancer," at 3, Chancery Lane, London, W.C.2. CONTRIBUTIONS or manuscript forwarded with a view to insertion in the publication must be sent at the risk of the sender, although every effort will be made to return drafts or unsuitable copy. SUBSCRIPTION RATES :-Annual Subscription (payable in advance), £1 10s., inclusive of Postage; Single Copies, 2s. 9d. (postage, 2d. extra). EDITORIAL AND PUBLISHING OFFICES:-3, Chancery Lane, London, W.C.2.

Notes of Recent Cases.

A theatrical artiste may, in an action for breach of contract against her employer, recover damages for loss of publicity as well as for loss of salary; but it depends on the terms of the contract and the circumstances. See Turpin v. Victoria Palace, Lim. ([1918] 2 K. B. 539).

The decision of the Court of Appeal in the case of Macmillan v. London Joint Stock Bank ([1917] 2 K. B. 439) as to the duty of a customer to his banker in drawing cheques and the responsibility of the banker in cashing cheques, noted in Vol. 3 of The Conveyancer, p. 33 (Mag.), has been reversed in the House of Lords, [1918] A. C. 777.

Where the trustees of a debenture trust deed hold as part of the specifically mortgaged property shares in another company, they are, in the absence of any contract restricting their rights, entitled to exercise the voting rights in respect of the shares in such manner as they may deem best, notwithstanding that the security is not yet enforceable. Where a right to demand a poll is by articles of association given to members holding a specified number of shares, joint holders of the specified number may demand a poll without the support of any other member. So held by the Court of Appeal in Siemens Brothers & Co. v. Burns ([1918] 2 Ch. 324; 87 L. J. Ch. 572).

VOL. 4.

As to whether a corporation can sell land forming part of its old possessions without the consent of the Local Government Board under the Municipal Corporations Act, 1882, ss. 108, 109, see Plymouth Corporation and Walter, In re ([1918] 2 Ch. 354).

It was held that estate duty did not become payable on the death of a tenant for life of a settled legacy who died before the expiration of a year from the death of the testator and before the legacy was paid or appropriated and who therefore never became entitled to any income in respect of the legacy-Harrison, In re ([1918] 2 Ch. 374).

Under her marriage settlement made in England and sanctioned under the Infants Settlement Act, 1855, A. B., the infant wife of a Frenchman domiciled in France, had a general power over the settled funds "by will or codicil executed in such manner as to be valid according to the law of her domicile." The settlement contained a declaration that it should be construed according to the law of England. A. B., being then an infant aged nineteen, made an unattested holograph will in France appointing her husband her "legataire universel." Held, that the testamentary power under the settlement had been effectually exercised to the extent of one-half of the property under the power. Lewal's Settlement Trust, In re ([1918] 2 Ch. 391; 87 L. J. Ch. 588).

By two memoranda of charge A. B. charged an estate in favour of his sisters with specified loans and further advances. The sisters deposited certain securities with A. B.'s bank as a collateral security for his loan account with the bank. After A. B.'s death the bank realised the securities so deposited and applied the proceeds in discharge of A. B.'s loan account. Held, that the moneys so applied were to be treated as further sums advanced by the sisters within the meaning of the memoranda of charge. Smith, In re ([1918] 2 Ch. 405).

H

An estate of the late Lord Ellesmere, consisting of farms, accommodation holdings, private houses, shops and business premises, with a considerable area of woodland in several detached blocks, was sold by his successor in one lot after being well advertised. It was held that the purchase-money might not represent the market price of the estate within the meaning of section 7 of the Finance Act, 1894, and section 60, sub-section 2 of the Finance (1909-10) Act, 1910, for the purpose of assessing the estate duty-but that the true market price was the aggregate of the prices the estate would have fetched if it had been sold in suitable lots. Ellesmere (Earl) v. Inland Revenue Commissioners ([1918] 2 K. B. 735).

Dividends on shares in a foreign company held by trustees domiciled in the United Kingdom on behalf of a foreign subject domiciled abroad, if such dividends are paid direct to the beneficiary abroad, are not chargeable with income tax. Williams v. Singer ([1918] 2 K. B. 749).

It was held by the Court of Appeal that arbitrators had not exceeded their jurisdiction by making their award in an alternative form(1) a Special Case for the Court if either party should give to the other fourteen days' notice in writing of his desire to take the opinion of the Court and should set the award down for argument within fourteen days from the service of such notice and (2) a final award if such notice was not given and the case was not set down for hearing within the prescribed time. Olympia Oil and Cake Co. and MacAndrew Moreland & Co., In re ([1918] 2 K. B. 771). For precedent of such an award, see page 571.

Where the purchaser of a piano under a hire-purchase agreement sold the piano to the defendant before all the instalments were paid, no instalment being then in arrear, it was held, in an action of detinue and conversion, that the measure of damages was the amount of the unpaid instalments which had been paid into Court, and that the plaintiffs were not entitled to recover the piano or its full value. Whiteley v. Hilt ([1918] 2 K. B. 808).

Title.

Concerning Restrictive Provisions or Stipulations as to Title; and their Relation to the Question of Specific Performance.

(Continued from page 48, Mag.)

Another example of the second category is afforded by the case of National Provincial Bank of England v. Marsh ([1895] 1 Ch. 190, 64 L. J. Ch. 255), where upon a sale of land as belonging to the vendors in fee, one of the conditions of sale provided that the title should commence with a conveyance dated in 1869, and that the prior title "shall not be required, investigated or objected to." The purchaser discovered aliunde that, by reason of a certain will, the grantor in the 1869 conveyance had only a life estate in the property, and that consequently the vendors could not show a title in fee. The condition of sale was held binding, and the purchaser's objection inadmissible. North, J., intimated that he was unable to distinguish the condition in Bentley's Case from the condition in Marsh's. A further example is represented by Scott and Alvarez, In re ([1895] L. R. 2 Ch. D. 603; 64 L. J. Ch. 821). The headnote in the law reports runs thus: A purchaser bought property under a strict condition of sale that he should not make any objection as to the intermediate title between a certain lease and the assignment of it; but should assume that the assignment vested a good title in the assignees. The purchaser discovered aliunde a vital defect, and that the assignees had no title to the property. Held, that the purchaser was bound by law to the condition. But there is an important commentary still to be made in regard to these cases where no title is to be shown or enquired

into. It emphasises the capital fact that all such conditions are to be construed strictly, and the mere prohibition on the purchaser to use the weapon of enquiry to destroy his contract must not be confounded with the situation of a vendor arming the purchaser with the knowledge that a blot or defect is upon the title he is about to give him. Consider this aspect in the light of an actual case. In Smith v. Robinson (49 L. J. Ch. 20; 13 Ch. D. 148), decided in 1877, freehold property was sold subject to a condition that the title should begin with a deed dated in 1867, and that no earlier or other title should be required or enquired into by the purchaser. Notwithstanding this restraint in the contract, the Court decided that such a condition did not preclude the purchaser from insisting on an objection to the prior or earlier title which was not, be it clearly apprehended, discovered by any enquiry made by the purchaser, but was, albeit accidentally, disclosed by the vendor himself. Mr. Justice Fry (as he was then), who decided the case, put it this way: "The first question is whether the purchaser is precluded by the condition from raising his objection. In my opinion he is not. The condition precludes the purchaser from two things: first, from making any requisitions to earlier title; and secondly, from making any enquiry into it. It does not preclude the vendor from disclosing or admitting some blot on his title about which the purchaser does not enquire. And that is what the vendor has actually done. He has himself actually confessed the objection to the title; it has not been discovered by the purchaser. If I were to hold that the condition applied, I should be stretching its meaning. Similar conditions have in many cases, such as Waddell v. Wolfe (supra), been construed strictly. It appears to me that the condition cannot apply to a case where the vendor has himself raised the difficulty and confessed a doubt on his title." This is a striking lecture on the particularity with which such conditions will be construed.

Having thus examined the character of these limitations on a vendor's obligation as to title, and their effect at law, we proceed to dispose of our last topic, namely, the remedy in these cases by specific performance. Hitherto we have discussed the construction

and sanction which in the region of the common law restrictive conditions as to title re

ceive. When we come to the remedy by specific performance, we get, to use a phrase of Lord Lindley's, into an entirely different region of law. Here a sharp distinction manifests itself, indicative not of opposition to the law, but of the principles which regulate and the circumstances which influence the exercise of a remedy inherent in equity, and which the common law knows nothing about. "The foundation of the doctrine of specific performance was this, that land has quite a character of its own, that the real meaning, between the parties to the contract for sale of land, was not that there should be a contract with legal remedies only, but that a purchaser should get the land and should not be put off, in an ordinary case, by offering him damages. That is the main part of the doctrine of specific performance that the purchaser is actually to get the land; and if a case arises in which he cannot get the land in any substantial sense, it seems to me the doctrine of specific performance is not applicable: Per L. J. Rigby in Scott and Alvarez, In re (supra, at p. 615). Ergo, a Court of Chancery will not decree specific performance where the title to land is shown by the purchaser to be bad and that "he cannot get the land in any substantial sense." It is important to understand what precisely for this purpose a bad title means: When you say a title is bad, the expression is ambiguous and must be contrasted with what is called a good title. I understand a good title to be one which an unwilling purchaser can be compelled to take. Contrasted with that, any title which an unwilling purchaser cannot be forced to take is a bad one. But there are bad titles and bad titles; bad titles which are good holding titles, although they may be open to objections which are not serious, are bad titles in a Conveyancer's point of view, but good in a business man's point of view ": Per Lord Lindley, in Scott and Alvarez, In re (supra, at p. 613). This defines ad unguem the sense of equity in relation to the conditions of sale we are dealing with on the question of specific performance. In the class in which Darlington v.Hamilton (supra) and Shepherd v. Kertley (supra) fall specific performance will not be decreed because the purchaser is entitled to insist on his objection

66

to the title even at law. In such a case he is entitled to a title "in a conveyancer's point of view," a title good in a technical point of view. The purchaser has done nothing to bind himself to take in quantity and quality a title less than an altogether unobjectionable title. He has merely relieved the vendor from producing his title; the vendor has not, so to speak, to put his cards on the table, but the purchaser by any other means and aliunde, as the term goes, may track out that title, and if in that way he discovers that the vendor is not possessed of a perfectly good title in a technical point of view, he may repudiate the contract of purchase. But the case undergoes a pregnant change when he has so tied his hands, so restrained his rights, that for every purpose and in every way, the title he contracts for is the title he must take. Here he may not repudiate his contract at law, and he may or may not find himself in equity obliged to carry it, as Story in his Commentaries says, into specific execution. And this is where Lord Lindley's definition of a good holding title comes in. And it comes in in this way: The remedy of specific performance is purely discretionary. It is so in the way early described in this article. It is the creature of a Court of Equity, to be applied or withheld as and when that Court in its wisdom and justice deems it fitting. Now a Court of Equity will do injustice neither to a vendor nor a purchaser. It exercises its correcting vigilance in regard to the conduct of both. In cases within which the examples of Hume Bentley, National

66

V.

Provincial Bank of England v. Marsh, and Scott and Alvarez, In re (supra) come, she has careful regard to the fact that a contract was made, and, so long as the enforcement of that contract into specific execution is, as Lord Eldon puts it in Bousfield v. Hodges (6 Ves. 665), "founded in a principle of conscience, she will execute it. When then, in such a case, is the specific execution of the contract

founded in a principle of conscience"? The answer is, whenever the purchaser will get such a title as is described by Lord Lindley in the passage we have above recited. Not what has been called "a mere semblance of a title," but one in which he gets "a title which the Judge directing specific performance looks upon as a holding title-as a title, in all probability, which he could set up so as to enable him to

retain the possession actually given him." See per L.J. Rigby in Scott and Alvarez, In re (supra, at p. 615). Such was the case in Hume v. Bentley (supra), where specific performance was decreed; similarly in Duke v. Barnett (2 Coll. 337) and Cattell v. Corrall (3 Y. and C. Ex. 413). In Scott and Alvarez, In re (supra), however, the Court exercised its discretion in favour of the purchaser. This case brings into relief the whole principle and essence of the equitable remedy. There the vendor could not give the perchaser a holding title, and the Court refused to decree specific performance, and left the parties merely to their remedy at law. For, in that case, had the purchaser been made to carry his contract into specific execution, he would have been exposed to the danger of eviction, and to enforce this specifically would have been, as Lord Lindley (then L.J.) said, to compel the purchaser to pay his money for nothing at all, when he shows the Court that the title he is asked to have forced on him is bad in the sense that he can be turned out to-morrow. But it must be carefully recollected that these considerations apply only after the condition has been held binding, for, if the condition be invalid, no case for specific performance exists, and the remedy foreign to the matter in hand. If we, therefore, gather in the fruits of the cases and principles, we can express the law as regards both the question of restrictive stipulations and the remedy by specific performance in the following rules: (1) If A. by contract agrees to give B.

stipulated title, and beyond that B. is not to make requisitions upon or enquiries from A., in such a case discovery of a defect in the title by B. aliunde entitles him to repudiate the contract and (of course) to resist specific performance. Darlington v. Hamilton (supra); Shepherd v. Keatley (supra). (2) If A. by contract agrees to give B. a stipulated title, and beyond that B. is not to make any enquiry whatever in such a case the discovery of a defect in the title by B. aliunde will not entitle him to repudiate the contract.-N.B.Whether B. can resist a suit for specific performance will depend upon whether A. can give him a good holding title in the sense defined by L.J. Lindley in Scott and Alvarez, In re (supra). Hume