with an abatement out of the purchase money for so much as the quantity falls short of the representation (c). Thus, where there is any defect in the quantity or quality of the land sold, the purchaser is generally entitled to specific performance with compensation, whether there is a condition as to compensation or not. Upon the same principle, if a vendor having only a partial interest, such as a life estate, acts as an absolute owner, and contracts to sell the fee simple, the purchaser can compel him to convey such estate as he possesses, and can enforce a partial performance of the contract with an abatement in the purchase money (d). The difficulty in such a case is to ascertain what is a just price.

Where the bargain between the parties contains no provision for compensation, or such provision does not apply, the court will not enforce partial specific performance in the following cases:

(1) Where there is no evidence of improper conduct or misrepresentation on the part of the vendor (e).

(2) Where the purchaser knew of the limited interest of the vendor (ƒ).

(3) Where performance of the contract would be

(c) Hill v. Buckley (1811), 17 Ves. 394.

(d) Thomas v. Dering (1837), 1 Keen, 729; Mortlock v. Buller (1804), 10 Ves. 315; Hooper v. Smart (1874), L. R. 18 Eq. 683.

(e) Price v. Griffiths (1851), 1 De G. M. & G. 80; Lumley v. Ravenscroft, [1895] 1 Q. B. 683.

(f) Hoperaft v. Hopcraft (1897), 76 L. T. 341.

unreasonable or prejudicial to other persons interested in the property (g).

(4) Where it is impossible to assess the compensation (h).

SECTION 6.

ANCILLARY ORDERS AND COSTS IN SPECIFIC
PERFORMANCE ACTIONS.

The ordinary judgment (formerly called "decree") in a specific performance action simply declares the rights of the plaintiff and directs an inquiry as to title, if not proved at the hearing or waived by the purchaser, with other consequent directions as to accounts and conveyance. The ultimate direction is in form conditional, viz., that on due execution of the conveyance the purchase money be paid (i), and, therefore, cannot be enforced by any process of execution.

Vendor's Action. In a vendor's action, if the defendant purchaser prove recalcitrant, the plaintiff must resort to one of the following remedies: (1) The plaintiff may execute the conveyance as an escrow and deposit it with the titledeeds in court, and thereupon obtain a peremptory "four day order" for payment to him of the purchase money. This form of order, sometimes known as the order in

(g) Thomas v. Dering (1837), 1 Keen, at p. 747; Naylor v. Goodall (1877), 47 L. J. Ch. 53.

(h) Rudd v. Lascelles, [1900] 1 Ch. 815.

(i) Seton, p. 2237.

Morgan v. Brisco (k), may be enforced by

fieri facias, elegit or sequestration.

(2) Instead of executing a conveyance, the plaintiff may obtain a peremptory order for payment of the purchase money into court to the credit of the action. Such an order can be enforced by writ of sequestration but in no other way (1).

(3) The plaintiff (when there is the usual condition as to forfeiture of the deposit and resale of the property) may obtain an order declaring his right to forfeit the deposit and resell the property and giving judgment for the difference between the purchase price and the price realised on the resale (m).

(4) The plaintiff may obtain an order for rescission of the contract and costs (n). If the order is taken in this form no claim to damages can be made, and it seems doubtful whether the court will declare the plaintiff's right to retain the deposit, even where there is an express condition as to forfeiture, since if the contract is rescinded it seems logically to follow that all the conditions of the contract are rescinded (o). If there is no

(k) (1886), 32 Ch. D. 192.

(1) R. S. C., Order XLII. r. 4; Robinson v. Galland (1889), 37 W. R. 396.

(m) Griffiths v. Vezey, [1906] 1 Ch. 796.

(n) Olde v. Olde, [1904] 1 Ch. 35.

(0) In the absence of such declaration it is presumed that the purchaser could not recover the deposit if he has been in

express condition as to forfeiture it is clear that no such declaration can be obtained (p).

Purchaser's Action. In a purchaser's action, if the vendor is in default, the plaintiff's remedy is more simple, viz., to pay the purchase money into court and obtain a vesting order or an order appointing some person to convey under ss. 31, 33 of the Trustee Act, 1893 (9).

COSTS.

Lastly, with regard to the costs of obtaining specific performance, the general rule in a vendor's action is that if he does not show a good title before the commencement of the action, he must pay the costs up to the time when a good title was first shown (r). But, if the purchaser raises the defence that there is no contract there is a question prior to the question of title, and the costs of establishing the prior question fall upon the purchaser (s).

In a purchaser's action, it is presumed that if the action is commenced prematurely and the vendor does not resist specific performance and shows a good title, the plaintiff would be mulcted in costs. If the certificate was against the title, a purchaser's

possession of the property, for in that case there is not a total failure of consideration (Hunt v. Silk (1804), 5 East, 449.

(p) Jackson v. De Kadich, [1904] W. N. 168.

(4) Seton, pp. 2287, 2288.

(r) Ibid., pp. 2236, 2258.

(8) Abbott v. Calton (1853), 22 L. J. Ch. 936.

action before the Judicature Act was dismissed without costs (t). But, since the Act, the purchaser, if he makes an alternative claim to damages in case a good title is not shown (u), is entitled to the costs of the action (x). If, however, the purchaser elects to complete notwithstanding that the certificate is against the title, he may be ordered to pay the costs of the inquiry (y).

(t) Malden v. Fyson (1846), 9 Beav. 347.

(u) See Seton, p. 2228.

(x) Pearl Life Assurance Co. v. Battenshaw, W. N. (1893)

123.

(y) Bennett v. Fowler (1840), 2 Beav. 302.