Page images

Courts of Equity as to time being of the essence of the contract are to obtain in all the courts.

The condition goes on to provide that if " from any cause whatever” any purchase shall not be completed on the specified day, the purchaser shall pay a fixed rate of interest on all money due from him, until completion; and shall not be entitled to any compensation for the vendor's delay, or otherwise. In the absence of such a condition, a purchaser is liable to pay interest on his purchase-money from the time only when he has taken, or might safely have taken, possession of the property. And if there is a delay in completion, arising from the vendor's fault, the purchaser may elect whether he will pay interest on his purchase-money from the day fixed, charging the vendor with the rents and profits of the estate, or whether he will waive his right to the l'ents and profits and pay no interest. In cases where the above condition is inserted, some little hesitation appears to have been felt at one time by the Court of Chancery as to enforcing it, where the delay did not arise from any fault of the purchaser. In one case it was suggested that a purchaser paying interest under such circumstances was entitled, notwithstanding the condition, to receive from the vendor compensation for non-performance of the latter's part of the contract.2 But it is now settled that the mere existence of difficulties in the title, although justifying the purchaser in refusing to complete until they are renewed, does not exempt him from the condition respecting payment of interest. And he will only be entitled to the clear rents and profits actually received, without any claim for compensation. But he may charge the vendor with an occupation rent, if the latter remains in actual occupation of the property.

1 Binks v. Rokeby, 2 Swan. 222; Jones v. Mudd, 4 Russ. 118.

De Visme v. De Visme, 1 M. & G. 336, 347. 8 Palmerston v. Turner, 33 Beav. 524; Williams v. Glenton, L. R. 1 Ch. 200.

The condition, however, will not be enforced by the court where there has been gross misconduct, or wilful delay on the part of the vendor. The purchaser's best plan, in such a case, appears to be to lodge the purchase-money at a bank, to a separate account, giving notice of his having done so to the vendor, and stating at the same time that he will not be bound by the condition. It may be added that if the vendor remains in possession he is bound to keep the property in repair (of course at the purchaser's expense), and that the purchaser may set off against the interest payable by him the amount of any extra deterioration arising from the vendor's neglect in this respect.4

The twelfth condition provides for the retention, by Twelfth the vendor, of such of the title-deeds as relate to prop


Title-deeds. erty other than that sold ; he entering into a covenant to produce them when required by any purchaser, at the expense of the latter. It also stipulates that such of the title-deeds as do not relate to any other property than that sold, but which embrace more than one lot, shall be handed over to the purchaser of the largest part, in value, of property held by the same title, who is, in like manner, to covenant to produce them, when required, to the purchasers of the other lots or purchasers from them. But the greater part of this condition will be rendered un

1 See as to this Sherwin v. Shakspear, 5 De G., M. & G. 517. 2 See Esdaile v. Stephenson, 1 S. & S. 122. 8 See Winter v. Blades, 2 S. & S. 393. 4 Philipps v. Silvester, L. R. 8 Ch. 173.

necessary by the Vendor and Purchaser Act 1874.1 which enacts, with reference to contracts entered into after the 31st December, 1874, that, subject to any stipulation to the contrary, when a vendor retains any part of an estate to which documents of title relate, he shall be entitled to retain all such documents.

Thirteenth The thirteenth condition is one which occasionally Condition.

gives rise to disputes between vendors and purchasers, Objections and Requisi- but its proper construction is now tolerably well settions.

tled. It provides that each purchaser shall send in his objections and requisitions, in respect of the title and of all matters appearing on the abstract, particulars, or conditions of sale, within a limited time from the date of the delivery of his abstract; that, in this respect, time shall be of the essence of the contract; and that in default of such requisitions or objections the purchaser shall be deemed to have accepted the title. The condition is sometimes so worded as to fix times for the various matters consequent on sending in requisitions, such as that for making further requisitions, and so on; but this mathematical accuracy can seldom be attained in practice, and an attempt at it is very likely to lead to difficulties.

The abstract delivered must be a “perfect” abstract; that is, an abstract as perfect as the vendor can make it at the time; and if this is done, time will begin to run against the purchaser from the delivery of the abstract, although it shows a defective title.3 For the condition only precludes the purchaser from making, after the expiration of the time fixed, any requisitions which he might have made before that date, and does not prevent him 1 37 & 38 Vict. c. 78.

2 S. 2. 3 Dart, V. & P. 115.


from making further inquiries arising out of the answers given to his first set of requisitions. He is not bound by the condition if the abstract shows that the vendor has in fact no title; as where ? trustees profess to sell under a power of sale which the abstract shows not to have arisen ; for, in such a case, the abstract of itself points out that the purchaser is entitled to rescind the contract. Neither is the condition as to time being of the essence of the contract binding on a purchaser, if a day is fixed for delivering the abstract, and it is not delivered on that day. It has been laid down that in such the time for taking the objections, and the mode in which they are to be considered as waived, should depend upon the general principles of equity.8 No precise rule appears to exist as to what would be considered a proper time, but it is clear that an unreasonable length of time in delivering the abstract may entitle the purchaser to rescind the contract altogether.4


The condition goes on to provide that if the purchaser shall insist on any objection or requisition, as to the title, particulars, or conditions, which the vendor is unable or unwilling to remove or ply with, the vendor may, by notice in writing, rescind the contract, notwithstanding any negotiation or litigation in respect of the requisitions ; and shall thereupon return the purchaser his deposit, but without any interest, costs of investigating the title, or other compensation or payment whatever. It will be remembered that the vendor has, by a previous condition, guarded himself against the contract being annulled on the ground of mistake or misstatement, and the present condition will not, therefore, be allowed to operate in cases which come clearly within the former. The power of rescinding the contract, when allowed, extends to requisitions or objections made in respect of matters arising subsequently to the delivery of the abstract, and not appearing on the original abstract. But it would seem that the

1 Ward v. Ghrimes, 9 Jur. (N. S.) 1097. 2 Want v. Stallibrass, L. R. 8 Ex. 175. 8 Upperton v. Nickolson, L. R. 6 Ch. 436, 443.

Venn v. Cattell, W. N. (1872) 183.

unwillingness” of the vendor to comply with requisitions must in any case be reasonable.?

If the purchaser has insisted on requisitions which he knows the vendor cannot comply with, the latter may at once rescind the contract, without giving him further time in which to waive his requisitions.3 But the very wording of the condition shows that the mere fact of a requisition being made does not allow the vendor immediately to rescind the contract. Nor can he, under color of such a condition, evade compliance with reasonable requisitions, nor rescind against a purchaser who is willing to waive his owjections to the title and take the property without an abatement in price. The value of the condition consists in enabling a vendor who has, in fact, a good title, to rescind upon a requisition being insisted on, which is either frivolous or untenable, or with which, on the ground of expense, or other sufficient cause, he cannot reasonably be expected to comply.4

Fourteenth The fourteenth and last condition provides that if
Forfeiture of any purchaser fail to comply with the conditions, his
Deposit. deposit shall be, thereupon, forfeited, and that the ven-

dor may proceed to resell the property; the purchaser

1 Gray v. Fowler, L. R. 8 Ex. 249.

2 Mawson v. Fletcher, L. R. 6 Ch. 91, 94; Gray v. Fowler, L. R. 8 Ex. 249, 265, but see s. c., p. 273. 3 Duddell v.

Simpson, L. R. 2 Ch. 102. 4 Dart, V. & P. 146; and see Mawson v. Fletcher, L. R. 6 Ch. 91.

« EelmineJätka »