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defendant. The vendee is entitled to have a good title, vide ante, p. 292, but this right is lost by failure to take objections to that disclosed on the abstract within the time limited by the contract. Rosenberg v. Cook, 8 Q. B. D. 162, C. A. In this case the vendee was held entitled to delivery of possession, only, of the land by the vendor. When the defendant's title, as stated in the abstract, is objected to, it will not be enough to prove that the title has been deemed by conveyancers to be insufficient; the defect must be pointed out; Camfield v. Gilbert, 4 Esp. 221; and the plaintiff cannot, at the trial, insist upon any objection to the title, as stated therein, which he neglected to take at the time of rescinding the contract, and which might have been remedied by the vendor if taken before. Todd v. Hoggart, M. & M. 128, cor. Ld. Tenterden, C. J. The vendor may compel delivery of particulars of every matter of fact relied upon as an objection; but not of matter of law. Roberts v. Rowlands, 3 M. & W. 543. If no particulars have been given, and the pleadings are general, the vendee will be at liberty to prove any infraction of the conditions of sale. Squire v. Tod, 1 Camp.

293.

As to how long the vendor is entitled to exercise a condition to rescind the contract, on objection taken to his title, see Gray v. Fowler, L. R., 8 Ex. 249, Ex. Ch.

As to when the vendee is entitled to sue the vendor for not completing on the day fixed, vide ante, pp. 294, et seq.

As to action for deposit, vide post, p. 301. After the purchaser has recovered the deposit only from the auctioneer, he may, in a special action against the vendor, recover interest and the expenses of investigating the title. Farquhar v. Farley, 7 Taunt. 592. The expenses of investigating the title cannot be recovered under a claim for money paid. Camfield v. Gilbert, 4 Esp.

221.

As a general rule, the vendee is bound to tender a conveyance to the vendor for execution by him. Poole v. Hill, 6 M. & W. 835. Yet, even when he is bound by the express terms of the contract to tender one, if a bad title be produced, he may maintain an action for the recovery of his deposit without tendering it. Seaward v. Willock, 5 East, 198, 202, per Ld. Ellenborough; and in Lowndes v. Bray, Sugd. V. & P., 14th ed. 364 (b). So, where the vendor has, by selling the estate, incapacitated himself from executing a conveyance to the purchaser, further trouble and expense on the plaintiff's part are unnecessary, and he may sustain an action without tendering a conveyance, or the purchase money. Lovelock v. Franklyn, 8 Q. B. 371. As to the vendee's right to rescind the contract on the ground of want of title in the vendor, vide ante, p. 294.

After the completion of the conveyance the purchaser may, if he was induced to enter into the agreement by fraud, maintain an action to set aside the agreement and recover his purchase money. Raddy v. Williams, 3 J. & L. 1; or, for damages, vide post, Action for Deceit and Misrepresentation. Where he was induced to enter into it by an innocent misrepresentation he may maintain an action to set it aside, and to recover his purchase money; but he cannot, in the absence of a special term in the agreement of purchase that he shall be allowed compensation, maintain an action for damages. Vide Id. Whether he can maintain such action on a special term in the agreement, or whether the whole agreement is merged in the conveyance, and the purchaser is thereby remitted to his rights on any covenants therein, is a question as to which there is much conflict of authority. In Bos v. Helsham, L. R., 2 Ex. 72; In re Turner and Skelton, 13 Ch. D. 130, Jessel, M. R.; and Palmer v. Johnson, 12 Q. B. D. 32, Smith, J., it was held that such action might be brought; whereas in Manson v. Thacker, 7 Ch. D. 620, Malins, V.-C., held that the action would not lie. This latter view is

Claim for Deposit.-Damages.

301

in accordance with that expressed in Sugden's V. & P. 14th ed., p. 549, and Dart's V. & P. cap. xiv. ss. 5, 6, and with the decisions in Besley v. Besley, 9 Ch. D. 103; Allen v. Richardson, 13 Ch. D. 524; Brett v. Clowser, 5 C. P. D. 376; and Joliffe v. Baker, 11 Q. B. D. 255, where, however, the point did not directly arise, as the contracts contained no clause for compensation.

Claim for deposit.] To enable the purchaser to maintain an action for money had and received to recover the deposit, the contract must be disaffirmed ab initio. Some of the grounds upon which it may be rescinded are stated, ante, p. 294. As to when the purchaser is entitled to rescind the contract on the ground of non-completion of the contract on the appointed day, vide ante, pp. 294, 295. If the purchaser has taken possession of the premises under the contract, he has adopted the contract, and cannot disaffirm it afterwards by quitting the premises; as the parties cannot be put in the same situation in which they before stood. Hunt v. Silk, 5 East, 449. See also In re Gloag and Miller's Contract, 23 Ch. D. 320, cited ante, p. 294. His remedy is then on the contract itself. Blackburn v. Smith, 2 Exch. 783. If the purchaser repudiate the contract, he cannot recover the deposit, though there be no clause of forfeiture in the contract. Ex pte. Barrell, L. R., 10 Ch. 512. And, even if the contract be oral only, the purchaser cannot, by repudiating it, after he has obtained the abstract and sent requisitions thereon, entitle himself to recover the deposit. Thomas v. Brown, 1 Q. B. D. 714.

When the plaintiff seeks to recover the deposit, he must prove payment of it to the defendant. A payment to the agent of the vendor is, in law, a payment to the principal; and in an action against the latter for the recovery of the money, it is immaterial whether it has actually been paid over to him or not. Norfolk, Dk. of, v. Worthy, 1 Camp. 337. But, if the deposit has been paid to the auctioneer, an action for it will lie against him before payment over to his principal, for he is in the nature of a stakeholder; Burrough v. Skinner, 5 Burr. 2639; or, if he has paid it over after notice of the defect in the title; Edwards v. Hodding, 5 Taunt. 815; and even, it should seem, after payment over to the principal without notice; for he ought to keep the deposit until the sale is complete, and it appears to whom it ought to be paid. Gray v. Gutteridge, 1 M. & Ry. 614. No notice to the auctioneer previous to the action being brought against him as stakeholder, is necessary. Duncan v. Cafe, 2 M. & W. 244. Interest on the deposit cannot, in general, be recovered in such action. Lee v. Munn, 8 Taunt. 45; Farquhar v. Farley, 7 Taunt. 594. But it may be given by the jury under 3 & 4 Will. 4, c. 42, s. 28, as damages, if a demand for the repayment of the money has been made with a notice that interest will be claimed; vide post, Action for interest. Where an auctioneer does not disclose the name of principal, an action will lie against himself for damages for the breach of contract. Hanson v. Roberdeau, Peake, 120; Simon v. Motivos, 3 Burr. 1921.

Damages.] Where the contract is oral the vendee can recover the deposit only, for he cannot sue upon the special contract. Walker v. Constable, 1 B. & P. 306. In other cases the purchaser may recover, in a special action against the vendor, the deposit with interest, and the expenses of investigating the title, searching for judgments, &c. Hodges v. Lichfield, El. of, 1 N. C. 492; Turner v. Beaurain, Sugd. V. & P., 14th ed., 362; Farquhar v. Farley, 7 Taunt. 592. And, such expenses as a solicitor's bill, may be recovered under an averment that plaintiff "had been put to great expenses, to wit, &c., in and about investigating the title," &c., although not actually paid. Richardson v. Chasen, 10 Q. B. 756. If the purchase money has been lying ready without any interest being made of it, and it was reason

pos

defendant. The vendee is entitled to have a good title, vide ante, p. 292, but this right is lost by failure to take objections to that disclosed on the abstract within the time limited by the contract. Rosenberg v. Cook, 8 Q. B. D. 162, C. A. In this case the vendee was held entitled to delivery of session, only, of the land by the vendor. When the defendant's title, as stated in the abstract, is objected to, it will not be enough to prove that the title has been deemed by conveyancers to be insufficient; the defect must be pointed out; Camfield v. Gilbert, 4 Esp. 221; and the plaintiff cannot, at the trial, insist upon any objection to the title, as stated therein, which he neglected to take at the time of rescinding the contract, and which might have been remedied by the vendor if taken before. Todd v. Hoggart, M. & M. 128, cor. Ld. Tenterden, C. J. The vendor may compel delivery of particulars of every matter of fact relied upon as an objection; but not of matter of law. Roberts v. Rowlands, 3 M. & W. 543. If no particulars have been given, and the pleadings are general, the vendee will be at liberty to prove any infraction of the conditions of sale. Squire v. Tod, 1 Camp.

293.

As to how long the vendor is entitled to exercise a condition to rescind the contract, on objection taken to his title, see Gray v. Fowler, L. R., 8 Ex. 249, Ex. Ch.

Ás to when the vendee is entitled to sue the vendor for not completing on the day fixed, vide ante, pp. 294, et seq.

As to action for deposit, vide post, p. 301. After the purchaser has recovered the deposit only from the auctioneer, he may, in a special action against the vendor, recover interest and the expenses of investigating the title. Farquhar v. Farley, 7 Taunt. 592. The expenses of investigating the title cannot be recovered under a claim for money paid. Camfield v. Gilbert, 4 Esp.

221.

As a general rule, the vendee is bound to tender a conveyance to the vendor for execution by him. Poole v. Hill, 6 M. & W. 835. Yet, even when he is bound by the express terms of the contract to tender one, if a bad title be produced, he may maintain an action for the recovery of his deposit without tendering it. Seaward v. Willock, 5 East, 198, 202, per Ld. Ellenborough; and in Lowndes v. Bray, Sugd. V. & P., 14th ed. 364 (b). So, where the vendor has, by selling the estate, incapacitated himself from executing a conveyance to the purchaser, further trouble and expense on the plaintiff's part are unnecessary, and he may sustain an action without tendering a conveyance, or the purchase money. Lovelock v. Franklyn, 8 Q. B. 371. As to the vendee's right to rescind the contract on the ground of want of title in the vendor, vide ante, p. 294.

After the completion of the conveyance the purchaser may, if he was induced to enter into the agreement by fraud, maintain an action to set aside the agreement and recover his purchase money. Raddy v. Williams, 3 J. & L. 1; or, for damages, vide post, Action for Deceit and Misrepresentation. Where he was induced to enter into it by an innocent misrepresentation he may maintain an action to set it aside, and to recover his purchase money; but he cannot, in the absence of a special term in the agreement of purchase that he shall be allowed compensation, maintain an action for damages. Vide Id. Whether he can maintain such action on a special term in the agreement, or whether the whole agreement is merged in th his rights on any conveyance, and the purchaser is thereby remitted

nants therein, is a question as to which there

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Jessel, M. R.; and Palmer v. Johnso

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able to keep it so lying, interest may be recovered as damages. Sherry v. Oke, 3 Dowl. 349. But, a person who has agreed to advance a sum on a mortgage, cannot recover interest on it where the negotiation falls for want of title, unless there be a special contract to pay it. Sweetland v. Smith, 1 Cr. & M. 585.

The purchaser cannot recover expenses incurred previously to entering into the contract; nor, the expenses of a survey of the estate made before he knows the title; nor, the expense of a conveyance drawn in anticipation; nor the extra cost of a suit for specific performance brought by the vendor; nor, losses on the re-sale of stock prepared for the farm. Hodges v. Lichfield, El. of, ante, p. 301. So, where the vendee filed a bill for specific performance which was dismissed in consequence of the defective title, he was not permitted to recover these costs in an action against the vendor for breach of contract. Malden v. Fyson, 11 Q. B. 292. Nor, can the vendee recover any expenses incurred in preparing a conveyance after the defect in title was discovered; Pounsett v. Fuller, 17 C. B. 660; 25 L. J., C. P. 145; or, in further fruitless negotiations. Sikes v. Wild, 1 B. & S. 587; 30 L. J., Q. B. 325, Ex. Ch. ; 4 B & S. 421; 32 L. J., Q. B. 375. And, where a lessee, with power to alter and improve, had an option to purchase, and after laying out money in improvements, elected to purchase, and the title proved bad, he was held entitled only to damages for the breach of contract; but, not for expense of improvements. Worthington v. Warrington, 8 C. B. 134. Where the defendant agreed to demise lands to the plaintiff and to deduce a good title thereto, and the plaintiff had formed a company to establish certain works on it, and the title proved to be a bad one, it was held that the plaintiff might recover the expenses of the agreement, of investigating the title and endeavouring to procure a good one and to obtain the lease; but, not the expense of raising the purchase money with interest, or of forming, establishing, and registering the company, nor the profits that would have accrued either to the company from the lease, or to the plaintiff as their solicitor, in carrying their project into effect; the latter heads of expense being either premature or speculative. Handslip v. Padwick, 5 Exch. 615. The vendee is not in general entitled to recover compensation for the fancied goodness of his bargain, where the vendor is, without fraud, incapable of making a title. Flureau v. Thornhill, 2 W. Bl. 1078; Bain v. Fothergill, L. R., 7 H. L. 158. This rule is of general application, and the exception engrafted thereon by Hopkins v. Grazebrook, 6 B. & C. 31; Robinson v. Harman, 1 Exch. 850, is no longer law. S. C. The purchaser can by an action for deceit only, recover any further damages. S. C., per Ld. Chelmsford, Id. 207; Engel v. Fitch, L. R., 3 Q. B. 314; L. R., 4 Q. B. 659, Ex. Ch. Where, however, the sale does not go off for want of title, but by reason of the refusal of the vendor to take the necessary steps to give possession to the vendee, it seems that the plaintiff can recover damages for the loss of the bargain, the measure of damages being the difference between the contract price and the market price at the time of the breach. S. C. The price at which the estate was afterwards sold is prima facie evidence of its market value. S. C.; and see Godwin v. Francis, L. R., 5 C. P. 295, cited sub. tit. Action on warranty of authority, post. Where A. agreed to let premises to B., knowing his intention to carry on a trade thereon, B. was held entitled to recover from A., for the breach of this agreement, damages for the loss of anticipated business during the time he necessarily occupied in getting other premises. Jaques v. Millar, 6 Ch. D. 153. As to the effect of a provision in the contract for the payment of a penalty or liquidated damages, vide ante, p. 297. As to what damages are recoverable under a claim for the deposit, vide ante, p. 301.

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