CHAPTER III. OF THE SUBJECT-MATTER OF CONTRACTS (a). PARTIES are allowed the fullest latitude with regard to the subject-matter of their agreements. The law only requires that no illegal object be embodied in the consideration, or the matter stipulated to be performed or omitted. Subject to this exception there is no encroachment on the liberty of contracting. The agreement may relate to a past, a present, or a future transaction (b); it may have reference to a thing itself, or to the mere use or possession of it; and it is in general no legal objection to a contract, that the subject-matter is of a trifling, unimportant, or ridiculous nature (c). SECTION I.-Of Contracts not under Seal respecting Real Property. II.—Of Contracts not under Seal respecting Personal III.-Of Contracts respecting the Person. IV. Of Contracts respecting Services and Works. V.—Of Contracts respecting Moneys. SECTION I. Of Contracts not under Seal respecting Real Property. 1stly. OF AGREEMENTS FOR THE PUR CHASE OF REAL PROPERTY. 1. In general. 4. Of an Action by the Vendee against the Vendor upon such Contract. 2. How they are affected by the Sta- 2ndly. OF CONTRACTS NOT UNDER 1stly. Of Contracts relating to the Purchase of Real Property. 1. IN GENERAL. Capacity to Purchase.-Sir Edward Sugden, in his excellent treatise on the Law of Vendors and Purchasers of Estates (d), considers that incapacity to purchase real property is, by the rules of law and equity, of three different kinds; 1st, absolute; 2ndly, to hold, although not to purchase; and 3rdly, to purchase, except sub modo. Under the first head are classed parishioners or inhabitants of any place, or churchwardens, who were incapable of purchasing lands by those names, except in London, where it seems the parson and churchwardens are a corporation to purchase lands (e); and also except in the case of a workhouse for the poor, which churchwardens and overseers were enabled by the statute 9 Gco. I. c. 7, s. 4, to purchase as trustees (f). But now by the 5 & 6 Will. IV. c. 69, overscers and guardians of the poor are empowered to sell and purchase and dispose of workhouses, buildings, effects, and other property belonging to pa (d) 8th ed. cap. 14, page 595 to 617; 9th ed. vol. ii. 105 to 127. (e) Warner's Case, Cro. Jac. 532; Hargrave's n. (4) to Co. Lit. 3. (f) See further, ante, 232; Steer P. L. 89. rishes and unions; and the guardians of poor are by the 7th section of that act incorporated, and as a corporation empowered to accept, take, and hold property belonging to the parish. Under the second division are classed aliens (g), persons who have committed felony or treason, or been guilty of the offence of præmunire (h), who may respectively purchase but not hold against the crown; and corporations, sole or aggregate, lay or ecclesiastical, who cannot hold without license from the crown or act of parliament (i). Under the third head, which relates to persons incapable of purchasing, except sub modo, are ranged infants, who may at full age either confirm or waive the purchase (k); femes covert, whose husbands may disagree, and bring an action for the purchase money; although it seems married women may purchase lands pursuant to an authority given by the husband, and that he cannot afterwards avoid it (1). Here also may be mentioned lunatics and idiots, who cannot themselves, it appears, waive the purchase, even when they recover their senses; but in case of their death during their lunacy or idiocy, their heirs may avoid the purchase (m); so may the king upon office found (n); and also the committee after the lunatic is found so by inquisition (o). In addition to the legal incapacity which obtains in these instances, there are certain rules of equity which restrict persons holding particular characters from making a valid agreement for the purchase of the property with which they are, by reason of their sustaining such characters, connected. The class of persons thus affected comprises (p) agents, arbitrators, attorneys, where they act as such on behalf of their vendors, assignees of bankrupts, auctioneers, commissioners, creditors who have been consulted as to the mode of sale, or other persons confidentially consulted or employed in the management of a bankrupt's affairs; commissioners of inclosure, before the expiration of five years from the time of making their award (g); trustees except when merely nominal; and mortgagees in trust for sale. It appears that a court of equity will not refuse to enforce a contract for the sale of an estate, on the behalf of the vendor or purchaser, on the ground of mere inadequacy of consideration, unless it were induced by fraud or gross misrepresentation, or by an industrious concealment of a defect in the estate (r). Particulars and plans for sale should be so framed as to convey clear information to the ordinary class of persons who frequent sales by auction, and they would only become a snare to the purchaser if, after the bidder has been misled by them, the seller should be able to avail himself of expressions which none but a lawyer would understand or attend to (s). It is often provided in the conditions of the sale, that any error or mis-statement in the particulars shall not vitiate the sale, but that an allowance shall be made in the purchase-money. But this provision does not apply where the error is of a material and substantial nature, as where a part of the property turns out to have had no existence, or cannot be found, or where the vendor has mala fide given a very exaggerated description of the property; the purchaser may in such cases rescind the contract in toto (t). Tindal, C. J., in delivering the judgment of the court in Flight v. Booth (u) observes, "In the state of discrepancy between the decided cases, we think it is at all events a safe rule to adopt, that when 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 be reasonably 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." And therefore where the misdescription is a material one, the (g) 41 G. 3, c. 109, s. 2. (r) Ante, 31. Sugd. V. & P. 241, 242, and the cases there cited; see also Turner v. Harrey, 1 Jac. 169. (s) Dykes v. Blake, 4 Bing. N. C. 463; 6 Scott, 320, S. C.; and a pur chaser is discharged from purchase against catching conditions of sale; Adams v. Lambert, 2 Jurist, 1078. (t) See Robinson v. Musgrove, 8 C. & P. 469; 2 Moo. & Rob. 92. (u) 1 Bing. N. C. 377. contract may be avoided, though such misdescription were not wilfully or fraudulently made; and the distinction formerly taken in this respect should seem no longer to exist, though any misdescription, however trivial, if made with a fraudulent intention to deceive the purchaser, would entitle the latter to avoid the contract. In the Duke of Norfolk v. Worthy (x), the estate sold was described as being "about one mile from Horsham," (a borough town). The conditions contained a clause to the above effect. The purchaser brought an action to recover the deposit, the estate being between three and four miles from Horsham. Lord Ellenborough said, that he conceived the clause in the conditions was meant to guard against unintentional errors, not to compel the purchaser to complete the contract if he had been designedly misled. His lordship left it entirely to the jury whether this was merely an erroneous mis-statement, or the misdescription was wilfully introduced to make the land appear to be more valuable. And the plaintiff had a verdict. This doctrine was recognised in a subsequent case (y) by Best, C. J. The particulars in that case described two houses as Nos. 3 and 4, and stated that the taxes of No. 3 were paid by the tenant. The houses ought to have been described as Nos. 2 and 3, but the names of the occupiers were correct; and it should have been said, that the taxes of No. 3 were farmed by the landlord. The houses Nos. 2 and 4 were of the same rate, but No. 4 was in the best state of repair. It was held that these misdescriptions were not cured by the provision "that no error should vitiate," &c. In Sherwood v. Robins (z), Lord Tenterden adopted the distinction between unintentional mistake and wilful misdescription, but said "that he thought even an unintentional error would vitiate the sale, notwithstanding the clause in question, where no calculation can possibly be made as to the amount of compensation which should be allowed or paid to the purchaser." In Dobell v. Hutchinson (a) where on a sale of a leasehold interest of lands, described in the particulars as held for a term (r) 1 Camp. 337. (y) Leach v. Mullett, 3 C. & P. 115. (z) Mood. & M. 194; S C. & P. 339, S. C. In this case the sale was of a reversionary estate, described "as absolute on the death of a person aged sixty-six." That person was only sixty-four, and the reversion was not absolute, as the property would be divided if he left more children than one. (a) Dobell v. Hutchinson, 3 Ad. & E. 355, 372. |