Generally it may be laid down that if the purchaser does not get substantially what he contracted to buy he may be entitled to say that he will not have compensation for it. A fortiori when he is excluded from compensation (t).

Condition excluding Right to Compensation.-In some cases the condition stipulates not only that a misdescription shall not annul the sale, but that no compensation shall be allowed in respect thereof.

In such a case, the court will not, where the misdescription is a substantial one, enforce specific performance against the purchaser, with or without compensation (u).

Thus, where the property was described as "bordering on a fine sheet of ornamental water" known as Shortwood Lake, the inability of the vendor to make a title to a rood and a half of land which separated the rest of the property from the lake was held to be fatal (c). Again, where the particulars represented that there was a good water supply, and it turned out that water could only be obtained with the consent of a neighbour who could at any time refuse his permission, the purchaser was held to be entitled to rescind the contract (y).

On the other hand, the purchaser is precluded from insisting on specific performance, with compensation for the misdescription (). If the purchaser

(t)

Jacobs v. Rerell, [1900] 2 Ch., at p. 864.

(u) Whittemore v. Whittemore (1869), L. R. 8 Eq. 603.

(c) Jacobs v. Revell, [1900] 2 Ch. 858.

(y) In re Evershed Trustees and Champion's Contracts (1900), 45 Sol. J. 44.

() In re Terry and White's Contract (1886), 32 Ch. D. 14.

wishes to enforce the contract, he must do so at the price originally stipulated (a), and cannot obtain specific performance at a reduced price.

Under a general compensation clause, it is presumed that the vendor may claim to have the purchase money increased by way of compensation when the land sold is in excess of the dimensions stated in the particulars (b). Notwithstanding the decision of KAY, J., in Lett v. Randall (c), it is submitted that evidence is admissible to show that the purchaser claiming compensation was not in fact deceived by the misdescription (d); but even although the purchaser is tenant of the premises, he is not presumed to know their correct measurement (e).

SECTION 7.

RESTRICTIVE STIPULATIONS GENERALLY.

We now come to consider the stipulations frequently inserted in contracts for sale and purchase of real estate restrictive of the purchaser's right to such a deduction of title as in the absence of such stipulations he would be entitled to call for; and with reference to stipulations of this character, and, in fact, to all stipulations having a restrictive tendency, it is to be remarked that such stipulations

(a) Cordingley v. Cheesebrough (1862), 3 Gif. 496.

(b) Cf. Leslie v. Tompson (1851), 9 Hare, 268; Re Orange and Wright's Contract (1885), 52 L. T. (N.s.) 606.

(c) (1883), 49 L. T. 71.

(d) Cobbett v. Locke-King (1900), 16 T. L. R. 379. (e) King v. Wilson (1843), 6 Beav. 128.

must be expressed in terms the most clear and unambiguous (ƒ); and if there be any misapprehension as to their meaning, they will be construed in favour of the person whose rights are restricted (g).

Concurrence of Beneficiaries. Thus a condition on a sale by trustees that the remaindermen or their assigns shall, if required, join in the conveyance to the purchaser, amounts to a warranty that the remaindermen, or those representing them, are in a position to join in an effectual conveyance (h).

If the condition stipulates that the purchaser shall not be entitled to require the concurrence of the beneficiaries, this does not preclude the purchaser from taking the objection that the vendor has no power to sell without such concurrence (i); unless the condition expressly provides that the purchaser shall accept the title of the vendor as trustee for sale (k).

Persons acting in a fiduciary character, as we have seen, are usually authorised, by the document under which they derive their powers, to sell, subject to such special or other stipulations, either as to title or evidence of title as they may think fit, and such an authority is implied by statute in the case of instruments coming into operation after December

(f) Symons v. James (1842), 1 Y. & C. C. C. 487.

(g) Osborne v. Harvey (1846), 7 Jur. 229; Seaton v. Mapp (1846), 2 Coll. 556; Drysdale v. Mace (1854), 5 De G. M. & G. 103.

(h) Mosley v. Hide (1851), 20 L. J. Q. B. 539.

(i) In re Molyneux and White (1884), 15 L. R. Ir. 383. (k) Wilkinson v. Hartley (1852), 15 Beav. 183.

31st, 1881 (7). The words "may think fit" must, of course be construed as meaning, may honestly think fit in a proper exercise of their discretion (m).

Thus, trustees are not justified in using special conditions, which depreciate the property, where there is no necessity for them (n); but no conveyance can be upset on this ground unless there has been collusion between the purchaser and the trustees (o).

Before conveyance, a sale by trustees may be impeached if it appears that the consideration has been rendered inadequate by the depreciatory nature of the conditions (p).

SECTION 8.

COMMENCEMENT OF TITLE.

One of the most common conditions restrictive of the rights of a purchaser with reference to title is as to the commencement thereof.

The Conveyancing and Law of Property Act, 1881, s. 3 (3), provides:

"A purchaser of any property shall not require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall

(1) Trustee Act, 1893, s. 13.

(m) Cf. Smith v. Thompson, [1896] 1 Ch. 71.

(n) Dance v. Goldingham (1873), L. R. 8 Ch. 902; Dunn v. Flood (1885), 28 Ch. D. 586.

(0) Trustee Act, 1893, s. 14 (2).

(p) Ibid., s. 14 (1).

he require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwithstanding that any such deed, will, or other document, or that prior title, is recited, covenanted to be produced, or noticed."

Investigations of Prior Title. A condition that the abstract shall commence with a specific document will not preclude the purchaser from investigating the earlier title aliunde, if he has the means of doing so (9); but the fact that recited instruments appear from such recitals to be of a suspicious character will not, it is conceived, entitle him to make requisitions as to them (r).

Moreover, the condition may be framed in such a way as to preclude inquiry and investigation for every purpose (s). Such a condition is construed strictly, and must be expressed in clear and unambiguous language (t).

The following condition seems to answer this purpose, viz., "The title shall commence with an indenture of, etc., and the prior title, whether appearing in any abstracted document or not, shall not be required, investigated or objected to."

If, however, the vendor discloses some blot on the prior title which was not discovered through any

(g) Sellick v. Treror (1843), 11 M. & W. 722; Darlington v. Hamilton (1854), Kay, 550.

(r) In re Scott and Alvarez's Contract, [1895] 1 Ch. 596. (8) Hume v. Bentley (1852), 5 De G. & Sm. 520; In re National Provincial Bank of England and Marsh, [1895] 1 Ch. 190.

(t) Waddell v. Wolfe (1874), L. R. 9 Q. B. 515.