57. But in equity it has been held, that quit-rents are subjects of compensation, probably because they are regarded as incidents of tenure (e).

58. As Sir John Leach observed, in Esdaile v. Stephenson, rentcharges are not incidents of tenure, but are created by the voluntary act of the vendor or those under whom he claims; and *he added, that it would be a good rule, that a purchaser should not be bound to complete his purchase unless they were noticed in the agreement or conditions of sale, but he feared that the habit of the Court had been, not to proceed upon the distinction between quit-rents and rent charges, but to compel the purchaser to complete where the rentcharge is small.

59. In Lord Thurlow's time, the rule was larger than it is now. He laid it down as settled, that wherever it is possible to compensate the purchaser for any article which diminishes the value of the subject matter, he must be satisfied with such compensation, or to speak in the usual terms, wherever the matter lies in compensation; but he could not lay down this rule as universal, for a case might be so circumstanced, that the party might have purchased purely for the sake of the very particular wanting.

60. Acting upon this rule, where an estate had been sold as tithe free, which turned out to be, with other lands, subject to 147. per annum in lieu of tithes, Lord Thurlow held the charge to be a subject for compensation (ƒ).

61. This was going a great way, and it has been justly observed, that no case is to be found where this doctrine of compensation has been applied beyond rentcharges of small amount (g).

62. And as a general rule-if it admit of any exceptions, it must be in a rare case-the Court will not, as we have seen, compel the purchaser to take an indemnity, nor the vendor to give it (h). But this subject will be resumed when we come to the consideration of the title to which a purchaser is entitled.

63. Where the benefit of quit-rents is sold, a mistake in their amount will not be material. In Cuthbert v. Baker (i) the quit rents of a manor were stated in the particulars of sale, to be 21. a year, and they amounted to only 30s. a year; but a specific performance was decreed, and it was referred to the Master to ascer

tain what compensation should be allowed for the deficiency and a mistake in the amount of quit-rents charged on the estate sold would be equally a subject of compensation.

*SECTION II.

OF WANT OF TITLE TO A PART OF THE ESTATE.

1. Mistake as to what is sold.

3. Want of title to part fatal at law.

4. Separate valuations.

under it.

17. Sale in lots good as to those with title.

5. Enforced partially against purchaser 20. Unless complicated with the rest.

where part small.

6. Sale of house and wharf.

7. Opinions upon it.

22. Rule acted upon at law.

25, 31. Lord Kenyon's doctrine.

27, 29, 30. Lord Eldon's.

8. Not binding on purchaser where por- 28, 29. Lord Brougham's.

1. Ir a purchaser of an estate thinks he has purchased bona fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, that neither party may be damaged ; because it is impossible to say, one shall be forced to give that price for part only which he intended to give for the whole; or that the other shall be obliged to sell the whole for what he intended to be the price of part only (a). Upon the other hand, if both understood the whole was to be conveyed, it must be conveyed. But again, if neither understood so, if the buyer did not imagine he was buying any more than the seller imagined he was selling the part in question, then a pretence to have the whole

(a) See 13 Ves. jun. 427; and see Higginson v. Clowes, 15 Ves. jun. 516, stated, as to this point, supra, p. 37;

and see Neap v. Abbott, C. Coop. 333; Chamberlain v. Lee, 10 Sim. 445.

conveyed is as contrary to good faith on his side as a refusal to sell would be in the other case (b).

2. A defect of the nature we are now about to consider, arises, either where the seller has not a good title to a portion of the estate *which he has sold, or having a good title to the estate, it does not contain the quantity represented in the contract.

3. As to the first line of cases: where an estate is sold in one lot, either by private contract, or public sale, and the vendor has not a title to the whole estate, he cannot enforce the contract at law. At law, indeed, neither a vendor can, on an entire contract, recover part of the purchase-money, where he cannot make a title to the whole estate sold; nor would a purchaser be suffered in a court of law to say, that he would retain all of which the title was good, and vacate the contract as to the rest: such questions being subjects only for a court of equity (c) (1).

4. In a case at law (d), where an estate consisting of a house and land was sold by private contract for 1,000l., but there had been two distinct valuations, one of the house at 300l., and the other of the land at 700l., at which several prices the different properties, by a memorandum in writing signed by the sellers, had been agreed to be sold, previously to the more regular contract for the whole at one sum, the purchaser was evicted from the house for want of title in the sellers, before the conveyance was completed, and as he had built upon the land, he retained that, but brought an action for money had and received, to recover the money which he had paid for the land, in which he succeeded. Lord Alvanley, in delivering the judgment of the Court, observed, that his difficulty had been, how far the agreement was to be considered as one contract for the purchase of both sets of premises, and how far the party could recover so much as had been paid by way of consideration, for the part of which the title had failed, and retain the other part of the bargain. If the question were how far the particular part, of which the title had failed, formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered in a court of law to say, that he would retain all of which the title was good, and recover a proportionable part of the purchase-money for the rest. Possibly the

(b) Per Lord Thurlow; see 1 Ves. jun. 211; and see 6 Ves. jun. 339.

162.

(c) Johnson v. Johnson, 3 Bos. & Pull. (d) Johnson v. Johnson, ubi sup.

(1) See Parham v. Randolph, 4 Howard (Miss.) 435.

part which he retained might not have been sold, unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. But a court of equity may inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a compensation according to the real state of the transaction. The Court, however, held that there were two distinct contracts for the *house and land, and observed that it had not been suggested that they were necessary to the occupation of each other, and so the purchaser was allowed to recover.

5. But if the part to which the seller has a title was the purchaser's principal object, or equally his object with the part to which a title cannot be made, and is itself an independent subject, and not likely to be injured by the other part, equity will compel the purchaser to take it at a proportionate price (1); and in these cases it will be referred to the Master, to inquire, "whether the part to which a title cannot be made, is material to the possession and enjoyment of the rest of the estate (e)." The question generally arises where the part to which a title cannot be made is comparatively small, for if it be a considerable portion, that upon the face of it would be deemed material; for when a man buys a large estate, he must be supposed to want what he buys; on the other hand, it matters not how trifling the subject is if it is necessary to the enjoyment of the rest, or was the purchaser's object in his purchase (2).

6. This equity was at one period exercised against purchasers to

(e) M'Queen v. Farquhar, 11 Ves. jun. 467; Reg. Lib. B. 1804. fol. 1095; Knatchbull v. Grueber, 1 Madd. 153;

Bowyer v. Bright, 13 Price, 698; see
Prendergast v. Eyre, 2 Hogan, 81.

(1) See Buck v. M'Caughtry, 5 Monroe, 230; Pratt v. Law, 9 Cranch, 458; Simpson v. Hawkins, 1 Dana, 305; Collard v. Groom, 2 J. J. Marsh. 488.

(2) See Cooper v. Denne, 1 Vesey jr. (Sumner's ed.) 565, 567, note (5) of Mr. Hovenden; Reed v. Noe, 9 Yerger, 283; M'Kean v. Reid, Litt. Sel. Cas. 395; Parham v. Randolph, 4 Howard (Miss.) 435. Where there is a substantial defect in the estate sold, either in the title itself, or in the representation or description of the nature, character, situation, extent, or quality of it, which is unknown to the vendee, and in regard to which he is not put upon inquiry, then, a specific performance will not be decreed against him. 2 Story Eq. Jur. §778; Fonbl. Eq. B. 1, ch. 3, §9, note (i); Young v. Lillard, 1 Marsh. 482; Kelly v. Bradford, 3 Bibb, 317; Butler v. Ò'Hear, 1 Desaus. 382; 2 Kent (6th ed.) 475, 476, 471, and notes; Watts v. Waddle, 6 Peters, 389.

Upon a like ground a party, contracting for the entirety of an estate, will not be compelled to take an undivided aliquot part of it. 2 Story Eq. Jur. §778; Reed v. Noe, 9 Yerger, 283; Dalby v. Pullen, 3 Sim. 29; S. C. 1 Russ. & My. 296; Bates v. Delavan, 5 Paige, 300.

VOL. I.

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[*357]

an extent which is not now followed, but the stream of authority sets the other way (ƒ). In a case (g) before Sir Thomas Sewell, a man who had contracted for the purchase of a house and wharf, was compelled to take the house, although he could not obtain the wharf, and the wharf appeared to be the whole object of his making the purchase; indeed, it is stated that his object was to carry on his business at the wharf.

7. Lord Thurlow said, that if he had been to have judged of that case, and if it had appeared that the purchaser was in a trade, in which that wharf was essentially useful, and that he made that purchase for the sake of his trade, he (Lord Thurlow) should not have thought that it interfered with the general rule, if he had discharged him from his contract (h). But this has been carried much further. Lord Kenyon said it was a determination contrary to all justice and reason, and the case has never been quoted without being disapproved of (i). It is quite clear, that if such a case *were now to call for a decision, although the purchaser did not require the wharf for his trade, yet if the house and wharf were connected together as one property, the want of title to the wharf would authorize the purchaser to rescind the whole contract. It would require some special ground in such a case to induce the Court to even direct an inquiry upon the subject (1).

8. This subject was fully discussed in a case before the late Master of the Rolls in Ireland, already referred to, where a title could not be made to one of the estates sold, containing 700 acres, which was sold subject to a fee-farm rent of 100l. per annum (k), and the purchaser was released from the whole of the contract.

(f) See 13 Price, 702.

(g) See 6 Ves. jun. 678; 7 Ves. jun. 270, cited; and see M'Queen v. Farquhar, 11 Ves. jun. 467.

(h) See 1 Cox, 61, 62.

(i) See 1 Esp. Ca. 152; 6 Ves. jun.

66

679; 13 Ves. jun. 78, 228, 427. In
Stewart v. Alliston, 1 Mer. 26, Lord El-
don expressed himself much more
strongly against the principle of these
cases, than appears by the report.
(k) Prendergast v. Eyre, 2 Hogan, 81.

(1) The good sense and equity of the law on this subject," says Mr. Chancellor Kent, is, that if the defect of title, whether of land or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchaser, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether." "If there be a failure of title to part, and that part appears to be so essential to the residue, that it cannot reasonably be supposed the purchase would have been made without it; as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value; the contract may be dissolved in toto." 2 Kent (6th ed.) 475, 476; Parham v. Randolph, 4 How. (Miss.) 435. See Pringle v. Witten, 1 Bay, 256; Gray v. Handkinson, ib. 278; Tunno . Flood, 1 M'Cord, 121; Marvin v. Bennett, 8 Paige, 312; Stoddart, v. Smith, 5 Binney, 355, 363; Waters v. Travis, 9 John. 465.