that he has performed, or been ready and willing to perform, his own part of it. prepare and vendor, on sale When the subject of sale is land, it is, as a rule, incum- Duty of bent on the vendor to show a good title, to furnish an abstract of the same at his own expense (t) and of land; to be ready to execute a conveyance according to the terms of the contract (u). If the title is good as to part only (v), or if the vendor has incurred a forfeiture, as by breach of a covenant to insure (w), the purchaser may be able to obtain a proportionate abatement of the purchase-money or to rescind the contract. goods. On a sale of goods there is, in general, an implied on sale of warranty of title, and the vendor cannot recover the price from the purchaser, if the latter has been obliged to deliver them to a third party on account of the vendor's want of title (x); unless it appear from the circumstances of the sale that the vendor did not intend to assert ownership; as, where he sold in a particular capacity, for instance, as auctioneer, sheriff, pawnbroker &c. (y). Where unredeemed (t) Ante, pp. 84, 94 et seq.; Sugd. 406; Dart, 125; Add. Con. 395. A purchaser may waive his right to a good title, but such waiver must be in writing; Goss v. Lord Nugent, 5 B. & Ad. 58. (u) Poole v. Hill, 6 M. & W. 835; Dart, 959. As to the purchaser's right to have separate conveyances in lots on payment of the additional expense, see Earl of Egmont v. Smith, 6 Ch. D. 469; 46 L. J. Ch. 566. (v) Ante, p. 70; Dart, 1076; Sugd. 315. (w) Wilson v. Wilson, 14 C. B. 616; 2 C. L. R. 818; 23 L. J. C. P. 137; 18 Jur. 581. It is, moreover, the duty of the vendor to keep the land let and in cultivation until completion of the purchase; Earl of Egmont v. Smith, ubi supra. As to the respective rights of the parties to windfalls, crops &c., see Dart, 247. (x) Add. Con. 489; Beuj. 511; Pasley v. Freeman, 3 T. R. 51, 57. If the purchaser has paid the vendor, he can recover back the money; Eichholz v. Bannister, 17 C. B. N. S. 708; 34 L. J. C. P. 105; cf. Adamson v. Jarvis, 4 Bing. 66, 73. (y) Simms v. Marryat, 17 Q. B. 281; 20 L. J. Q. B. 458; Leake, 109, 402; Add. Con. 490; always supposing that there was no fraud, such as selling while knowing that he had no title; Peto v. Blades, Duty of purchaser, on sale of land; pledged goods were put up for sale by auction, it was held that the pawnbroker did not assert that he had a good title, but merely that the goods had been pledged with him and were not redeemed (2). So, on a sale by a sheriff, the sheriff does not warrant his title to sell, but merely asserts that he does not know of any defect in his title or authority to sell (a). Where a boiler was sold by auction, under a distress for a poor-rate, to the defendant, who subsequently resold it to the plaintiff, after acquainting him with the circumstances, and the mortgagees of the premises prevented the plaintiff from removing it, it was held that the plaintiff could not recover the price of the boiler from the defendant (b). The vendor must also have been ready and willing to deliver the goods according to the contract; though he will be excused from delivering them at the time specified, if the purchaser has requested him to postpone delivery (c). And, in the absence of a condition to the contrary, the seller must afford the buyer an opportunity of inspecting the goods before accepting them, in order to see whether they are the goods that he bargained for (d). Unless otherwise agreed, it is the duty of the purchaser, at his own expense, to prepare and tender to the vendor a deed of conveyance, and to be ready to pay the amount due in respect of purchase-money, and interest, if any; unless the vendor is unable to show a good title, or has incapacitated 5 Taunt. 657. As to the auctioneer's liability to the real owner in such cases, see ante, p. 35. (z) Morley v. Attenborough, 3 Ex. 500; 18 L. J. Ex. 148. (a) Chapman v. Speller, 14 Q. B. 621; 19 L. J. Q. B. 241. The real owner may affirm the sale and claim the proceeds from the sheriff; Oughton v. Seppings, 1 B. & Ad. 241. (b) Bagueley v. Hawley, L. R. 2 C. P. 625; 36 L. J. C. P. 328. himself, as by conveying the estate to another, from completing the contract (e). On a sale of goods, the purchaser must have been ready on sale of goods. and willing to accept and pay for the goods. But where goods are to be delivered and paid for by instalments, mere non-payment of an instalment does not necessarily deprive the purchaser of his right to delivery of the remainder of the goods (ƒ), unless it amounts to an absolute refusal on his part to perform the contract, or takes place under such circumstances as to give the seller reasonable ground for believing that the purchaser will be unable to pay the future instalments (g). remedies on sale of If a conveyance has been executed, and the purchaser Vendor's refuses to pay the purchase-money, the vendor can recover the amount, together with interest on the same from the land: day on which it ought to have been paid (h). action for pur for But if the purchaser refuses to execute a conveyance, and chasethe right of property remains in the vendor, the latter can- money; not sue for the purchase-money (i), but may bring an action damages; for damages, in which he can claim the expenses incurred in preparing for the sale, and the difference, if any, between the price agreed to be paid and, if he resell, the price realized upon the resale (j), or, if he keep the property in his own. (e) Dart, 959; Add. Con. 412; Sugd. 241; Morgan v. Swansea Urban Sanitary Authority, 9 Ch. D. 582, where it was held that a purchaser in possession was not entitled to execution of the conveyance, until he had paid the purchase-money. (f) But he will be liable in damages to the vendor for such nonpayment; see Freeth v. Burr, ubi inf. (g) Freeth v. Burr, L. R. 9 C. P. 208; 43 L. J. C. P. 91; Bloomer v. Bernstein, ib. 588; Honck v. Muller, 7 Q. B. D. 92; 50 L. J. Q. B. 529. As to bankruptcy of purchaser, see post, p. 201. (h) Dart, 957; Add. Con. 416; Leake, 1070. As to the right to interest, see Dart, 627 et seq.; Sugd. 628; ante, 104. (i) Laird v. Pim, 7 M. & W. 474. (5) See ante, pp. 108 et seq. It seems that, even in the absence of for specific perform ance, of a parol agreement, hands, the presumed market value of the land (k). If, upon resale, the estate produce more than the original purchasemoney, the vendor is entitled to retain the surplus (1). Where the purchaser has taken possession of the land before execution of the conveyance, he must pay interest upon the purchase-money, pending the completion of the contract (m); and if he subsequently refuse to perform the contract, he is liable for the use and occupation of the land from the date of such refusal (n). A purchaser cannot elect to forfeit his deposit and avoid the contract (0); but where a deposit has been paid, the vendor must bring it into account on seeking to recover for the loss occurring upon a resale of the property (p). Or the vendor may bring an action for specific performance (9) of the contract, claiming damages for any loss that he may have suffered from its non-performance (r). And now he may prefer an alternative claim for damages for breach of the contract in the event of the court refusing to grant him specific performance (s). And a court of equity will decree specific performance of express stipulation, the vendor has a right to resell and to charge the purchaser with the deficiency; Noble v. Edwardes, 5 Ch. D. 378. (p) Ockenden v. Henly, E. B. & E. 485; 27 L. J. Q. B. 361; 4 Jur. N. S. 999; Essex v. Daniell, L. R. 10 C. P. 538; 32 L. T. N. S. 476. (q) This action must be brought in the Chancery Division; Jud. Act, 1873, s. 34. (r) Jacques v. Millar, 6 Ch. D. 153. And the ordinary rules as to payment of interest by the purchaser apply; In re Pigott & the Great Western Ry. Co., 18 Ch. D. 146, 150. (s) Tamplin v. James, 15 Ch. D. 215, 222; 29 W. R. 311; 43 L. T. N. S. 50; Thompson v. Ringer, W. N. 1881, 48; Jud. Act, 1875, O. xix., a parol agreement within the 4th section of the Statute of Frauds in the following cases (t): 1. where the defendant has by fraud prevented a compliance with the statute (u); 2. where the defendant by his pleadings admits the agreement (v); 3. where there has been a part performance by the plaintiff. ance. The part performance must be "an act such that the where part Court shall, by reason of the act itself, without knowing performwhether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract" (w). Delivery of possession is sufficient (x), provided that it is not merely a constructive delivery. Where a person who had purchased at an auction certain market-tolls belonging to a corporation paid a month's rent in advance and received the keys from the person in charge of the market, through an error on the part of the latter and contrary to the directions of the town-clerk, this was held not to be such a part performance on his part as would entitle him to maintain an action for specific performance (y); (t) Dart, 1023. (u) Lincoln v. Wright, 4 De G. & J. 16; Haigh v. Kaye, L. R. 7 Ch. 469. It is not fraud in a purchaser to decline to sign the fair copy of an agreement he had assented to when in draft, and which he had promised to sign as soon as the fair copy was made; Wood v. Midgley, 2 Sm. & G. 115. (v) It must be remembered that a defence founded on the Statute of Frauds cannot now be raised by demurrer; Jud. Act, 1875, 0. xix., r. 23; Catling v. King, 5 Ch. D. 660; 46 L. J. Ch. 384; Shardlow v. Cotterell, W. N. 1881, 2. (w) Per Wickens, V.-C., in Dale v. Hamilton, 5 Hare, 369, 381; cf. Coles v. Pilkington, L. R. 19 Eq. 174; Williams v. Evans, ib. 547. (x) Ungley v. Ungley, 5 Ch. D. 887; 46 L. J. Ch. 854; Alderson v. Maddison, 7 Q. B. D. 174, 180; 50 L. J. Q. B. 466; and see the judgments in Hunt v. Wimbledon Local Board, 4 C. P. D. 48. (y) Mayor of Kidderminster v. Hardwick, L. R. 9 Ex. 13; 43 L. J. Ex. 9. |