And even if the purchaser was, at the time of the contract, ignorant of the defects, and the vendor was acquainted with them, and did not disclose them to the purchaser; yet, if they were patent, and could have been discovered by a vigilant man, no relief will be granted against the vendor. The disclosure of even patent defects in the subject of a contract, may be allowed to be a moral duty; but it is what the civilians term a duty of imperfect obligation. Vigilantibus, non dormientibus jura subveniunt, is an ancient maxim of our law, and forms an insurmountable barrier against the claims of an improvident purchaser. In this respect, equity follows the law. But it has been decided, that if a vender, during the treaty, industriously prevent the purchaser from seeing a defect which might otherwise have easily been discovered, he is not entitled to the extraordinary aid of a court of equity: and it is conceived, that he could not even sustain an action against the purchaser for a breach of the contract. And if a vendor know that there is a latent defect in his estate, which the purchaser could not, by any attention whatever, possibly discover, it is not clear that he is not bound to disclose his knowledge, although the estate be sold, expressly subject to all its faults (d). By the civil law vendors were bound to warrant, both the title and estate against all defects, whether they were or were not conusant of them. To prevent, however, the inconveniences which would have inevitably resulted from this general doctrine, it was qualified by holding, that if the defects of the subject of the contract were evident, or the buyer might have known them by proper precaution, he could not obtain any relief against the vendor. The rule of the civil law also was, "simplex commen (d) See post, ch. 6. s. 2. datio non obligat." If the seller merely made use of those expressions, which are usual to sellers, who praise at random the goods which they are desirous to sell; the buyer, who ought not to have relied upon such vague expressions, could not upon this pretext procure the sale to be dissolved (e). The same rule prevails in our law (ƒ), and has received a very lax construction in favour of vendors. It has been decided, that no relief lies against a vendor for having falsely affirmed, that a person bid a particular sum for the estate, although the vendee was thereby induced to purchase it, and was deceived in the value (g). Neither can a purchaser obtain any relief against a vendor for false affirmation of value (h); it being deemed the purchaser's own folly to credit a nude assertion of that nature. Besides, value consists in judgment and estimation, in which many men differ (i). So, where a church lease was described in the particulars of sale, as being nearly of equal value with a freehold, and renewable every ten years, upon payment of a small fine, the purchaser was not allowed any abatement in his purchase money, although the fine was very considerable, and it was proved that the steward of the estate had remonstrated with the vendor before the sale, upon his false description (). But if a vendor affirm, that the estate was valued by persons of judgment, at a greater price than it actually (e) 1 Dom. 85. (f) Chandelor v. Lopus, Cro. Jac. 4. (g) 1 Rol. Abr. 101. pl. 16. See 1 Sid. 146; Kinnaird v. Lord Dean, stated infra, n.; Dawes v. King, 1 Stark. 75. (h) Harvey v. Young, Yelv. 20. B2 See Duckenfield v. Whichcott, 2 (i) See Ekins v. Tresham, I Lev. 102; reported 1 Sid. 146, by the name of Leakins v. Clissel. (k) Brown v. Fenton, Rolls, 23 June, 1807, M.S.; S.C. 14. Ves. Jun. 144. was, was, and the purchaser act upon such misrepresentation, the vendor cannot compel the execution of the contract in equity (), nor would he, it should seem, be permitted to maintain an action at law for non-performance of the agreement. And a remedy will lie against a vendor, for falsely affirming that a greater rent is paid for the estate than is actually reserved (m) (I); because that is a circumstance within his own knowledge. The purchaser is not bound to inquire further: for the leases may be made by parol, and the tenants may refuse to inform the purchaser what rent they pay; or the tenants may combine with the landlord, under whose power they frequently are, and so misinform and cheat the purchaser. It has been decided also, after great consideration (n), that a purchaser may recover against a vendor for false affirmation of rent, although he did not depend upon the statement, but inquired what the estate let for. However, where it can be satisfactorily proved, that the purchaser did not rely upon the vendor's assertion, a jury would undoubtedly give trifling damages.. (1) Buxton v. Cooper, 3 Atk. 383. S.C. M.S. (m) Ekins v. Tresham, ubi sup. Lysney v. Selby, 2 Lord Ray m. 1118. 1 Salk. 211. S. C. nom. Risney v. Selby. (n) Lysney v. Selby, ubi sup. (1) In the 1st vol. of Coll, of Decis. p. 332, the following case is reported:-An heritor having solemnly affirmed to his tacksman at setting the lands, that there was paid, by the preceding tenants, for each acre, great deal more than really was paid, and thereby induced him to take it at a very exorbitant rate, whereby he was leased ultra dimidium ; yet continued to possess two years before he complained. The Lords found the alledgeance of circumvention and fraud, both in consilio and in eventu, not sufficient to reduce the tack, and that the tenant should have informed himself better what was the true rent, and not have relied on the setter's assertion, and ought to have tried the quality of the ground, and, his eye being his merchant, he had none to blame but himself, especially now that he had acquiesced two years, Kinaird v. Lord Dean. It It seems that the same remedy will lie against a person not interested in the property, for making a false representation to a purchaser of value or rent, as might be resorted to in case such person were owner of the estate (o); but the statement must be made fraudulently, that is, with an intention to deceive; whether it be to favour the owner, or from an expectation of advantage to the party himself, or from ill-will towards the other, or from mere wantonness, appears to be immaterial (p). And in cases of this nature it will be sufficient proof of fraud to shew, first, that the fact, as represented, is false: secondly, that the person making the representation, had a knowledge of a fact contrary to it. The injured party cannot dive into the secret recesses of the other's heart, so as to know whether he did or did not recollect the fact; and therefore, it is no excuse in the party, who made the representation, to say, that though he had received information of the fact, he did not, at that time, recollect it (q). A purchaser is not liable to an action of deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity than the price which such proposed buyer offers (r). Nor is a purchaser bound to acquaint the vendor with any latent advantage in the estate: for instance, if a purchaser has discovered that there is a mine under the estate, he is not bound to disclose that circumstance to the vendor, although he knows the vendor is ignorant of it (s). Equity will not, however, interfere in favour of a purchaser who has (0) Pasley v. Freemen, 3 TermRep. 51; Eyre v. Dunsford, 1 East, 318; Ex parte Carr, 3 Ves. and Bea. 108. (p) Haycraft v. Creasy, 2 East, 92; Tapp v. Lee, 3 Bos, and Pull. 367; and see 6 Ves. Jun. 186, 13 Ves, Jun. 134; 12 East, 631, B 3 n.; Hutchinson v, Bell, 1 Taunt, 558; De Graves v. Smith, 1 Camp. Ca. 533. (9) Burrowes v. Lock, 10 Ves. Jun. 470, per Sir Wm. Graut. (r) See Vernon v. Keys, 12 East, 632. (s) See 2 Bro. C.C. 420. misre misrepresented the estate to any person who had a desire of purchasing it (t). The same rules apply to incumbrances and defects in the title to an estate, as to defects in the estate itself. Both law and equity require the vendor to deliver to the purchaser the instrument by which the incumbrances were created, or on which the defects arise; or to acquaint him with the facts, if they do not appear on the title-deeds. If a vendor neglect this, he is guilty of a direct fraud, which the purchaser, however vigilant, has no means of discovering: and Lord Hardwicke laid it down (u)," that even if an attorney of a vendor of an estate, knowing of incumbrances thereon, treat for his client in the sale thereof, without disclosing them to the purchaser or contractor, knowing him a stranger thereto, but represents it so as to induce a buyer to trust his money upon it, a remedy lies against him in equity (x): to which principle it is necessary for the court to adhere, to pre serve integrity and fair dealing between man and man; most transactions being by the intervention of an attorney or solicitor." The same observation applies, and indeed with much greater force, to the attorney or agent of the purchaser. It can, however, seldom happen, that the attorney or agent of the purchaser, is conusant of any incumbrance on the estate intended to be purchased, unless he be employed by both parties; which the same person frequently is, in order to save expense. This practice has been discountenanced (t) See Howard v. Hopkyns, 2 Atk. 371; and Young v. Clerk, Prec. Cha. 538. (u) Per Lord Hardwicke, 1 Ves. 96; and see 6 Ves. Jun. 193; Burrowes v. Lock, 10 Ves. Jun. 470; and Bowles v. Stewart, 1 Sch. and Lef. 227. (x) It seems clear that relief might now be obtained at law. by |