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being received, whether by the vendor or by the purchaser. The doctrine of the common law is, that misdescription of the property debars the vendor from obtaining any damages against a purchaser who refuses to complete the contract. But, on the other hand, the purchaser, if he wishes to fulfil the contract, cannot, at law, get any compensation in respect of that part of the property agreed to be sold which he could not obtain. Equity, however, holds that, under such circumstances, the contract ought not, in general, to be altogether set aside, but enforced so far as practicable; compensation being given, or taken, for that part of it which cannot be performed. This doctrine was carried to a great length in some of the older cases ;1 but it is now settled that the court will not compel a purchaser specifically to perform his agreement, with an abatement in the price, unless he gets substantially what he bargained for. A purchaser, for instance, has been held 2 not to be bound to carry out a contract to buy a wharf and jetty, when it turned out that the jetty was removable at the pleasure of a third person; nor 8 one for the purchase of land described as containing 349 acres or thereabouts, the real number being about 100 acres less; and that, notwithstanding a condition that the property should be taken at the quantity stated, whether more or less.
But where the purchaser can get that which it was his real object to obtain, he must carry out his contract, and take compensation for the deficiency in
1 Howland v. Norris, 1 Cox, 59; Poole v. Shergold, 2 Bro. C. C. 117, and the case cited, ib. 118 n.
2 Peers v. Lambert, 7 Beav. 546. 3 Portman v. Mill, 2 Russ. 570.
4 And see Perkins v. Ede, 16 Beav. 193; and as to the purchase of more than one lot, Cassamajor v. Strode, 2 My. & K. 706, 725.
value. The compensation will be fixed according to the actual loss sustained by him, not ratably according to the quantity of the property sold. A purchaser therefore has been compelled to perform his contract, with an abatement in the price, where a good title could be shown to the whole of a large estate except six acres ; and where a lot sold contained ten acres less than stated. And the same principle has been applied in a case where the property was not in as good a state of cultivation as represented. Conversely, a vendor has been compelled to carry out a contract, making compensation, where he contracted to sell a fee-simple in possession, and it turned out to be a fee-simple in remainder ; 6 where the estate was said to contain 217 acres, and wanted 26 acres out of that number ; 7 and where it contained 573 square yards instead of 753 as stated, although in this last case there was a special condition against the vendor's being bound to give compensation."
It will be gathered from some of these cases that the insertion of the condition under consideration, whichever way it may be framed, is not allowed to override the rule of equity that a purchaser is only bound to carry out his contract, with an abatement in the price, if he can get substantially that which he bargained for. Still less will the condition be permitted to cover wilful omissions or misstatements. Thus, it has been held that a condition providing for compensation was of no force where property was
1 Dyer v. Hargrave, 10 Ves. 505, 597; and see Drewe v. Hanson, 6 Ves. 675, 678; Halsey v. Grant, 13 Ves. 73, 78.
2 Hill v. Buckley, 17 Ves. 394.
5 Dyer v. Hargrave, 10 Ves. 505; Canada Permanent Building Society v. Young, 18 Grant, 566.
6 Nelthorpe v. Holgate, 1 Coll. 203; and see Hoy v. Smithies, 22 Beav. 510.
7 Hill v. Buckley, 17 Ves. 394.
1 sold as “ freehold,” without mentioning that it was subject to restrictive covenants; where2 it turned out that the mines and minerals under the property were reserved to a third person ; and, in a case of the sale of leasehold property, where the conditions stated that no “ offensive trade” could be carried on upon the premises, which were situate in Covent Garden, but concealed the fact that the business of a fruiterer was amongst the prohibited trades. It has also been held 5 that a clause providing against any compensation being claimed by either party only covers small errors, and that a purchaser may, notwithstanding, claim compensation for a serious deficiency. But if the deficiency is great, and there is, besides the condition against compensation, another, entitling the vendor to rescind the contract, the purchaser cannot enforce specific performance of the contract unless he waives his claim to compensation. Since it is the vendor's duty to ascertain the nature and particulars of the property which he offers for sale, a condition against compensation would probably be construed more strictly against him, if the property should turn out to be larger or more valuable than stated.7
The tenth condition provides for the payment of the Tenth the convey
Condition. 1 Phillips v. Caldcleugh, L. R. 4 Q. B. 159. 2 Upperton v. Nickolson, L. R. 6 Ch. 436. 8 Flight v. Booth, 1 Bing. N. C. 370.
+ And see Price v. North, 2 Yo. & C. (Ex.) 620; Robinson v. Musgrove, 2 Moo. & R. 92.
6 Whittemore v. Whittemore, L. R. 8 Eq. 603.
6 Cordingley v. Cheeseborough, 31 L. J. (Ch.) 617 ; Durham v. Legard, 11 Jur. (N. S.) 706 ; Mawson v. Fletcher, L. R. 6 Ch. 91.
7 Martin v. Cotter, 3 Jo. & L. 496, 512; and see a case of Walker v. Barnett, Dart, V. & P. 594.
Payment of remainder of the purchase-money on a specified day the purchasemoney.
(which should be such as will allow of a fair interval for investigating the title, and preparing the conveyance ?), and the execution by the vendor, on payment of the purchase-money, of a proper assurance of the property. It is the duty of the purchaser, in any case, and at his own expense, to
prepare ance, and tender it to the vendor for execution. The condition, however, goes beyond that, for besides stipulating that the conveyance shall be left, at a fixed time beforehand (usually ten days or so), for perusal by the vendor's solicitors, it proceeds to throw upon the purchaser many expenses which would not, otherwise, fall upon him. Such are those attending the getting in of any outstanding estate or interest, or procuring the execution of the conveyance by any parties other than the vendor. It will be observed that the vendor is not relieved by this condition from his ordinary duty of getting in such estates or procuring such execution. For it only provides for the expenses attendant on bis so doing. This condition also, when necessary, restricts the purchaser's rights to the usual covenants for title, but since we propose to go into this question when treating of purchase deeds, we will not, at present, do more than refer to it.
The eleventh condition provides that the rents and possession shall be received and retained, and the outgoings paid, by the vendor up to the day fixed for completing the purchase, after which date both the benefit and the liabilities of the property are to devolve upon the purchaser; the rents and outgoings being, if necessary, apportioned between the parties. If leasehold property is sold in lots, considerable difficulty is often felt as to the apportionment of the 1 1 Dav. Con. 559, note (c).
2 1 Dav. Con. 500.
liability to pay the rent, and observe the covenants, of the original lease ; since the lessor is entitled to distrain upon any part of the property for the whole rent due from it. The best plan seems to be i to insert a condition providing for the assignment of the lease to the purchaser of the largest lot; the other purchasers taking under-leases from him of the term, wanting one day; and, each of them, covenanting to indemnify the holder of the original lease against the acts of all the other sub-lessees.
The effect of the eleventh condition, coupled with the previous one, is to raise implied covenants, by the vendor and purchaser respectively, that, on a specified day, the purchase shall be completed, by execution of the conveyance on the one side, and payment of the purchase-money on the other. But since the covenants are mutual, it follows that a purchaser cannot claim possession of the property unless he is ready to pay the purchase-money, nor can the vendor claim payment unless he has shown a good title to the property. At law, the party not ready, on the specified day, to perform his part of the contract loses all his rights under the contract. But, if he be subsequently ready to carry it out, equity will enforce specific performance of it, at his suit; 3 unless there has been an express condition as to time ; 4 or unless the nature of the property, or the known object of one of the contracting parties for entering into the contract, made time of the essence of the contract.' Under the Judicature Act 1873 7 the rules of the
1 1 Dav. Con. 476; Dart, V. & P. 120.
3 Seton r. Slade, 7 Ves. 265, and, with notes, 2 L. C. 513; Boehm v. Wood, 1 Jac. & W. 419; Roberts v. Berry, 3 De G., M. & G. 284.
4 Hudson v. Temple, 30 L. J. (Ch.) 231. 5 Hudson v. Temple, 30 L. J. (Ch.) 251; Coslake v. Till, 1 Russ. 376. 6 Tilley v. Thomas, L. R. 3 Ch. 61. 7 36 & 37 Vict. c. 66, § 25, sub 8. 7.