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principle of this decision appears to have been ignored in a recent case it is conceived that this was due to a mistake in drawing up the order (m).

Forfeiture where no Express Provision.-Where there is no provision in the contract for forfeiture of the deposit, such forfeiture will depend upon the intention of the parties, to be collected from the whole instrument (n); but where the purchaser has so acted as to repudiate on his part the contract, he cannot recover the deposit from the vendor (o).

Whether, if the purchaser evades performing the contract on the grounds that it is not sufficiently evidenced in writing to satisfy the Statute of Frauds he can recover his deposit, is a doubtful point, as the authorities are conflicting (p).

If the deposit is large in amount its investment between the sale and the completion of the purchase is frequently provided for, in which case the vendor will be entitled to any increase, and must bear any loss in the value of the investment (q).

Lien for Deposit.-The lien of the purchaser for his deposit attaches from the moment of payment, conditional on this, that the purchase does not go off through his own fault.

(m) Griffiths v. Vezey, [1906] 1 Ch., at p. 798. was undefended, and Ockenden v. Henly was not cited.

(n) Palmer v. Temple (1839), 9 A. & E. 508.

The case

(0) Hoe v. Smith (1884), 27 Ch. D. 89; Cornwall v. Henson, [1899] 2 Ch. 715; [1900] 2 Ch. 298.

(p) Cf. Thomas v. Brown (1876), 1 Q. B. D. 714; and Casson v. Roberts (1862), 31 Beav. 613.

(q) Burroughes v. Browne (1852), 9 Hare, 609.

To the extent to which the purchaser has paid his purchase money, he acquires a lien exactly in the same way as if on payment of a part of the purchase money the vendor had executed a mortgage to him. of the estate to that extent (r). The purchaser may still be entitled to a lien although through delay he has lost his right to specific performance. Thus, in Levy v. Stogdon (s), where the vendor became bankrupt prior to completion, it was held that the purchaser was a secured creditor to the extent of his deposit, and could enforce his lien even after the lapse of ten years. It is presumed, however, that after twelve years the lien would be barred by s. 8 of the Real Property Limitation Act, 1874. If the purchase goes off through the fault of the purchaser, of course he has no lien for his deposit (t). A man who declines to perform his contract can have no lien for money which he has expended in part performance of it. But the purchaser can enforce his lien not only when the contract goes off for want of title, but also where the contract is rescinded under a condition enabling the purchaser to rescind on the happening of a particular event (u).

If the contract is vacated by reason of a defect of title, the purchaser's lien extends not merely to the deposit and interest, but also to the costs of investigating the vendor's title (), and the costs of any

(r) Rose v. Watson (1864), 10 H. L. Cas. 683.

(s) [1898] 1 Ch. 478.

(t) Dinn v. Grant (1852), 5 De G. & Sm. 451; Ridout v. Fowler, [1904] 1 Ch. 658.

(u) Whitbread & Co., Limited v. Watt, [1902] 1 Ch. 835. (x) Kitton v. Hewitt, [1904] W. N. 21.

proceedings brought by the vendor to enforce specific performance, and the costs of a summons under the Vendor and Purchaser Act (y).

SECTION 4.

RESCISSION BY THE VENDOR.

It is now a common condition that if any requisition as to title shall be insisted upon by a purchaser, which the vendor shall be unable or unwilling to remove or comply with, he may at any time, notwithstanding any attempt to remove or comply with, or any previous negotiation or litigation in respect of such requisition, by notice in writing annul the sale upon returning the deposit, without interest or costs of investigating title or other compensation.

This condition is construed strictly, and is only applicable to an honest case (~).

Objections as to Conveyance.-There is, of course, a distinction between requisitions as to conveyance and requisitions as to title, although the distinction is sometimes very refined. Requisitions requiring a legal estate (a) or outstanding day of a term (b) to be got in, requiring the concurrence of mortgagees (c),

(y) Furneaux v. Aird, [1906] W. N. 215.

(2) Bowman v. Hyland (1878), 8 Ch. D. 588.

(a) Kitchen v. Palmer (1877), 46 L. J. Ch. 611; In re Deighton and Harris's Contract, [1898] 1 Ch. 458.

(b) In re Scott and Eave's Contract (1902), 86 L. T. 617.

(c) Sober v. Kemp (1847), 6 Hare, 158; Greaves v. Wilson (1858), 25 Beav. 290. Aliter, if the mortgage debt exceeds the purchase money or the mortgage is not immediately redeemable.

or of the customary heir of copyholds (d), or the appointment of trustees for the purposes of the Settled Land Acts (e), are requisitions as to conveyance only. So also is a requisition requiring the vendor to procure admissions to copyholds (ƒ), or to carry out repairs of the property for which he is liable to a tenant (g). On the other hand, a requisition requiring the concurrence of legatees or annuitants whom the vendor cannot compel to concur is a requisition as to title (h). Whenever

it is a matter of conveyance and not of title, it is the duty of the vendor to do everything that he is enabled to do by force of his own interest and also by force of the interests of others whom he can compel to concur in the conveyance (i). It has been said that it is not in general proper to make the condition as to rescission apply to requisitions as to conveyance (j). But it is now a common practice so to do, and even where the condition does not in terms refer to an objection as to conveyance, if it is expressed to include objections as to "the title, particulars, conditions, or any other matter or thing relating or incidental to the sale," this has been held to be sufficient (k).

(d) Minton v. Kirwood (1868), L. R. 3 Ch. 614.

(e) Hatten v. Russell (1888), 38 Ch. D. 334.

(f) In re Wilson's and Stevens' Contract, [1894] 3 Ch. 549. (g) Sale v. Lambert (1874), 43 L. J. Ch. 470.

(h) Page v. Adam (1841), 4 Beav. 269.

p. 209.

(i) Bain v. Fothergill (1874), L. R. 7 H. L., at
(j) Hardman v. Child (1885), 28 Ch. D., at p. 718.

(k) In re Deighton and Harris' Contract, [1898] 1 Ch., at

p. 463.

The condition as to rescission which extends to objections to title applies to a case where no title at all can be made to part of the property sold (1), but if there has been a misrepresentation on the part of the vendor sufficient to avoid the sale, the purchaser is entitled to say, "I will avoid the contract condition and all, and will have what the law gives me apart from the condition" (m).

When Right to Rescind Arises.--Where the condition enables the vendor to rescind upon the purchaser insisting (n) upon, or persisting (o) in, his requisitions, the vendor cannot exercise the power if the purchaser waives his objection at once.

But if the word "make" simply is used, the vendor's right to rescind arises directly the requisitions are sent in, without giving the purchaser any locus pœnitentiæ (p).

How Right is Lost.-The words "notwithstanding any previous litigation" refer to pending litigation.

Thus, where a vendor has taken out a summons under the Vendor and Purchaser Act, 1874, and judgment has been given against him, he cannot subsequently annul the sale under this condition (q);

(1) Jackson and Haden's Contract, [1906] 1 Ch. 412. (m) Holliwell v. Seacombe, [1906] 1 Ch. 426.

(n) Greaves v. Wilson (1858), 25 Beav. 290; Duddell v. Simpson (1866), 2 Ch. 102.

(0) Mawson v. Fletcher (1870), 6 Ch. 91.

(p) In re Starr-Bowkett Building Society and Sibun's Contract (1889), 42 Ch. D. 375; In re Dames and Wood (1885), 29 Ch. D. 626.

(q) In re Arbib and Class's Contract, [1891] 1 Ch. 601.

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