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IV. That within (h) days from the day of the sale, the CONDITIONS OF
SALE OF vendor shall, at his own expense, make and deliver to every FREEHOLUS OR purchaser, or his solicitor, an abstract of the title of the_COPYHOLDS. vendor to the lot or lots purchased by him respectively (i).
other incidental circumstances, the purchase is not completed on the day named in the conditions. In that case, the general rule is, that the purchaser must pay interest on the unpaid part of his purchase-money, and take the rents and profits of the estate from the day on which the purchase ought to have been completed. (2 Sugd. V. & P. ch. x. sect. 1).
But this rule does not hold good if the delay of completion has been owing to the vendor, and either the purchase-money has been kept in hand without producing interest, and with notice of that fact given to the vendor, or the interest exceeds the amount of rents and profits. (Sugd. V. & P. ubi supra).
These exceptions lead to so many disputes and to such vexatious inquiries, (see Winter v. Blades, 2 Sim. & Stu. 395), that it has become an almost universal practice to stipulate, that if, from any cause whatever, the purchase shall not be completed on the day named, the purchaser shall pay interest, and take the rents and profits. See Esdaile v. Stephenson, 1 Sim. & Stu. 122; and see the form of such a condition, infra, page 39. In case it be used in the present conditions, it will take the place of the words following the word “completed."
It is to be observed, that if the delay arise from the state of the title, or Vendor's liaany other default of the vendor, and he be receiving interest, he will be bility. chargeable as a trustee, not only with the rents he actually receives, but also with those which, without his own wilful default, he might have received ; (Wilson v. Clapham, 1 Jac. & Walk. 36; Acland v. Gaisford, 2 Man. 28); and also with any damage which the estate may have sustained in the interim by his improper management. (2 Sugd. V. & P. 23).
(h) The abstracts ought to be prepared prior to the sale, so that nothing Delivery of abmay remain to be done subsequently, beyond making copies proportioned stract. to the number of purchasers. If the vendor fail to deliver his abstract within, or at, the time appointed, any conditions binding the purchaser to make his objections within a specified time from the delivery of the abstract, fails of effect. (Southby v. Hutt, 2 My. & Cra. 207, 211. See, too, infra, Conditions as to Time, page 42).
) It is very usual to add“and shall deduce a good title thereto:” or, “and shall deduce a good title thereto, subject to these conditions :" but the expressions are superfluous; for every vendor is, by the mere contract to sell, bound to deduce a good title, and that obligation is qualified by the conditions of sale, (if there be any), without the aid of an express stipulation. (1 Sugd. V. & P. 331 ; ante, Vol. 1, pp. 83, 84).
V. That upon payment of the remainder of the purFREEHOLDs or chase-money, at the time and place above mentioned, the
vendor shall execute proper conveyances to the respective purchasers of the several lots purchased by them respectively; but such conveyances are to be prepared by and at the expense of the respective purchasers, and are to be tendered or left by them, on the said — day of — , at the office aforesaid, for execution by the vendor (k).
VI. That if any mistake be made in the description of the property, or any other error whatever shall appear in the particulars of sale, such mistake or error (if capable of
Conditions for (k) The language of the fifth condition applies to freehold property. copyholds.
If the property be copyhold, the following condition may be employed
See another form of condition in the next page. Whether an It does not seem necessary to stipulate that the vendor will surrender, agreement to as that will be a consequence of the covenant; or that he will execute convey implies an obligation to proper covenants for the title, since that may be as well implied as in the covenant for case of the conveyances of the freehold. And in practice, certainly, contitle.
ditions of sale never do any thing more than stipulate that the vendor shall execute proper conveyances, although it has been held, that a person who is bound to make a conveyance, is not thereby bound to covenant for title. (Coles v. Kinder, Cro. Jac. 571; Hanroyde v. Lococke, Cro. Jac. 115; Comyn's Dig. Condition (H), Conditions to make assurance ; 1 Russ. 252, 256. Probably, however, at the present day, the foregoing cases would be held to be overruled by the practice of conveyancers ; for, when the vendor has agreed to execute a proper conveyance, conveyancers invariably insert covenants for title, unless the vendor is a trustee, or other person who does not usually enter into such covenants : and it has even been maintained, that, unless the purchaser can have the usual covenants for title, he is not bound to complete. The editor has not made any deviation from the usual form of the condition; because, there is no occasion to make an additional stipulation for the vendor to fulfil, the
compensation) shall not annul the sale, but a compensa- CONDITIONS OF tion() shall be allowed or given by the vendor or pur- p
BALE OF FREEHOLDS OR COPYHOLDS.
absence of which will not, in the slightest degree, prejudice the sale. The alteration can, however, be easily made by any vendor who may approve of it.
In the following condition for the sale of copyholds, a stipulation as to Another form covenants for title has been introduced within brackets :
of condition for
copyholde. “ That as soon after payment of the remainder of the purchase-money, at the time and place above mentioned, as circumstances will admit, the vendor shall, at the expense of the respective purchasers, make proper surrenders to them of the several lots purchased by them respectively; [and shall also enter into proper covenants for title with the respective purchasers: but the deeds containing such covenants are to be prepared by and at the expense of the respective purchasers, and to be left by them, on the said
— day of --, at the office aforesaid, for execution by the vendor, after the said surrenders shall have been made"].
If the property sold be partly freehold and partly copyhold, a conditionIf the property, may be framed from the condition in the text and one of the two preced- be ir ing, so as to suit the circumstances; but it is better to have two distinct copy conditions-one as to the conveyance of the freehold, and the other as to that of the copyhold property.
It is to be observed, that, independent of stipulation, a purchaser is General rule as bound, at his own expense, to prepare and tender a conveyance; (1 Sugd. to preparing the V. & P. 246, 247, 450; Price v. Williams, 1 Mee. & Wels. 6); and, if the property be copyhold, the purchaser must bear the expense both of surrender and admission. (1 Sugd. V. & P. 450). It is, however, the invariable custom to make a special condition on the subject. As to the necessity of preparing and tendering a conveyance, when the vendor fails to make out a good title, see 1 Sugd. V. & P. 248; Rippinghall v. Lloyd, 5 B. & Ad. 742.
(1) It is a well-settled rule, that, when circumstances will not permit Compensation. of the entire performance of a contract, a court of equity will not, in ordinary cases, and in the absence of stipulation, compel the performance, in part, of the contract, with an indemnity or compensation for the part that cannot be performed. (Ante, Vol. 1, p. 94 ; 1 Sugd. V. & P. ch. vi.) llence a condition, similar to the above, is employed on every sale by auction, and frequently on sales by private contract; and it then becomes
SALE OF FREEHOLDS OR COPY HOLDS.
CONDITIONS of chaser, as the case may require, such compensation to be
or settled by two referees or their umpire, in manner follow
a matter for the consideration of the court, in each particular case, whether the mistake or error is such as to be capable of compensation. It is clear, that, notwithstanding a condition of the above nature, if the description given of the premises in the particular be intentionally false or exaggerated, the purchaser is entitled to rescind the contract altogether ; (Dykes v. Blake, 4 Bing. N. C. 463; Robinson v. Musgrove, 2 Moo. & Rob. 92); but not so, perhaps, if the mistake be unintentional, although of such a nature as to mislead a purchaser. (Wright v. Wilson, 1 Moo. & Reb. 207). The general principles of the law on this subject are thus laid down by Tindal, C. J., in the case of Flight v. Booth, 1 Bing. N. C. 370 :-“ It is extremely difficult to lay down, from the decided cases, any certain definite rule, which shall determine what mistatement or misdescription in the particulars shall justify a rescinding of the contract, and what shall be the ground of compensation only. All the cases concur in this—that where the mistatement is wilful or designed, it amounts to fraud, and such fraud, upon general principles of law, avoids the contract altogether. But with respect to mistatements which stand clear of fraud, it is impossible to reconcile all the cases; some of them laying it down, that no mistatements which originate in carelessness, however gross, shall avoid the contract, but shall form the subject of compensation only; (Duke of Norfolk v. Worthy, 1 Camp. 340; Wright v. Wilson, ubi supra); whilst other cases lay down the rule, that a misdescription, in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale. (Jones v. Edney, 3 Camp. 284 ; Waring v. Hoggart, 1 Ry. & Moo. 39 ; Stewart v. Alliston, 1 Mer. 26). In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is, in a material and substantial point, so far affecting the subject-matter of the contract, that it may reasonably be supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of the sale."
The condition is always so worded, as to allow the vendor to obtain compensation, if he has sold what he did not intend to sell : but this right is very seldom exercised. It must, indeed, be a very strong case of mistake for a vendor (who has full means of ascertaining, with the utmost accuracy, what he intends to sell,) to succeed in obtaining compensation, or, in other words, an increase of his purchase-money, for an alleged mistake he has himself made.
Vendor's claim to compensation.
SALE OF FREEHOLDS OR
ing: (that is to say), each party shall, within fourteen days CONDITIONS OP after notice of the mistake or error shall have been given, e appoint one referee, by writing, and the referees so ap- COPYHOLDS. pointed shall, before they commence their duty, appoint an umpire, by writing; and the decision of such referees, if they agree, or of such umpire, if they disagree, shall be final. In case either party shall neglect or refuse to appoint a referee within the time specified, the referee appointed by the other party shall make a final decision alone.
VII. That if any purchaser shall neglect or fail to comply with the above conditions, his deposit shall be thereupon actually forfeited to the vendor (1), who shall be at
Sometimes, instead of the condition in the text, the following form is Variation in the used :
form of the con
dition. “The description of the property in the particulars of sale is taken from a recent survey, and is considered, and shall be taken to be, correct; and if any error or mistake shall appear in the particulars, the sale shall not be thereby annulled, nor shall any compensation be allowed or given in respect thereof, unless the same shall relate to the amount of rents or incumbrances, in which case a compensation shall be allowed or given, &c.” [Proceed as in the text].
However, such a condition is not unlikely to throw a suspicion on the sale, which would not be occasioned if the form in the text the usual form, were adhered to.
(1) It seems, that a court of equity will relieve against the forfeiture of Forfeiture of the deposit, and allow it to be set off against the deficiency which may deposit. arise on a second sale, at least, when the purchaser has become bankrupt. (Ex parte Hunter, 6 Ves. 94; see Ex parte Bridger, 1 Dea. 581). It will, however, be right to retain the usual provision, till it has been decided that equity will, in all cases, relieve against the forfeiture of the deposit.
Even in the absence of express stipulation, the vendor having a lien Re-sale on defor his purchase-money on the estate, will, if the purchaser make de- fault. fault, be entitled to have it re-sold, and to recover the deficiency (if any) from the purchaser, or prove it as a debt upon his estate, if he shall have become bankrupt. (Bowles v. Rogers, 6 Ves. 95, n. (a); Cooke's B. L. 146; Ex parte Lord Seaforth, 19 Ves. 235; 1 Rose, 106; Ex parte Gyde, 1 Glyn. & Jam. 323; Hope v. Booth, 1 B. & Ad. 498). But the common condition on the subject should always be retained ; because,