Chap. XIX. peditious in applying to the court,(k) he will, according to some authorities, be allowed to forfeit his deposit (if any,) and abandon the contract: but this will not be conceded on the mere ground of the price being excessive,(7) nor in the case of a person without authority buying the estate to prevent a sale at an undervalue;(m) nor, it is conceiv ed, under an ordinary state of circumstances.[2]

(k) See Price v. North, 2 Y. & C. 620, 626.

(1) In re Birch, cited Sug. 89.

(m) Nelthorpe v. Pennyman, 14 Ves. 517.

broker had an interview with the attorney concerned in the sale, who stated, that the rent payable for the house was the 567., and the broker valued the estate accordingly. A written agreement was not entered into, but the contract was approved of by the master, and the money paid into the bank. The purchasers then moved the court to rescind the contract, on the ground of mistake, and the broker proved that the purchasers had not informed him of the rent of 2107.; and that he was ignorant of the er istence of it at the time he made his valuation: and the court ordered the purchase-money to be repaid, and rescinded the contract. "This however," says Sugden, " may be considered a strong case. It might be argued that the purchaser's only equity was their own negligence."

[2] There has been much discussion and diversity of opinion" says Kent, (2 Kent Com. 475) on the subject of rescinding, and of enforcing the specific performance of contracts, in the cases of partial failure of the consideration. In one case, Lord Kenyon observed, when sitting in chancery, that the court had gone great length in compelling parties to go on with purchases, contrary to their original agreement and intention; but he said a case might be made out sufficient to put an end to the whole contract, when the seller could not make a good title to part of the subject sold. In the case of the Cambridge wharf, the seller made title to all the estate but the wharf, and that part of the land, was the principal object of the buyer, in making the purchase, and the buyer who had contracted for the house and wharf, was compelled to complete the purchase without the wharf. But, as Lord Kenyon truly observed, that was a determination contrary to all justice and reason. There have been a number of hard cases in chancery, and in which performance has been enforced, though there was a material variance between the actual and supposed circumstances of the subject, and when those circumstances were wanting which were the strong inducement to the contract. These cases had gone to such extravagant lengths, that Lord Erskine declared he would not fol low them, nor decree specific performance when the main inducement to the purchase had failed. In many cases however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed with a rateable reduction of the purchase-money, by way of compensation for the deficiency. The good sense and equity of the law on this subject, is, that if the defect of title, whether of lands, or chat

tels, be so great as to render the thing sold unfit for the use intended, and Chap. XIX. not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. This is the principle alluded to by Pothier, and repeated by Lord Erskine and Lord Kenyon. In South Carolina, it has been held, that if the deficiency in the quantity of land, be so great as to defeat the object of the purchase, the vendee may rescind the bargain; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price; and this doctrine applies equally to defects in the quantity and quality of land. The same principle was declared in Pennsylvania in the case of Stoddart v. Smith, 5 Binn. Rep. 355; on a contract for the purchase of land. 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. But the court in the last case, limited very much the right of rescinding a contract for a partial failure of title; for if the sale was of lots in different parts of a city, it was not dissolved by the failure of title to some of the lots, not adjoining or particularly connected with the others, nor essential to their use or enjoyment. It is to be regretted, that the embarrassment and contradiction, which accompany the English and American cases on this subject, cannot be relieved, by the establishment of some clear and definite rule, like that declared in France, which shall be of controlling influence and universal reception.

INDEX.

[When Chapters, or several consecutive pages, are referred to, see Table
of Contents.]

ABANDONMENT.

Of parol agreement, letter suggesting, is no contract, 99.

Of contract-purchaser in possession not liable for use and occupation,

119.

in vendor's lifetime-its effect on rights of his represen-

tatives, 123.

in purchaser's lifetime, its effect &c,. 125.

entitles vendor to have abstract returned, 130.

by assignees of bankrupt purchaser, 465.

by purchaser from the Court, whether allowable, 573.

Of possession by husband and wife, of her estate, 194.

of vendor's lien for purchase-money, what amounts to, 346, et seq.
Of objection to title by purchaser, its effect on costs, 544.

ABATEMENT.

Of rent, agreement for, must be in writing, 96.

Of price, for misdescription, 54.

when claimable for defects in estate, 307, et seq.

vendor when compelled to convey estate, on being allowed,

499, et seq.

purchaser unsuccessfully claiming in suit, pays costs, when,

545.

Of incumbrances, obtained by purchasing partner, enures to benefit of
firm, 434.

ABSENCE.

Of husband, may prove illegitimacy, 170.

Without tidings, raises presumption of death, 172.

ABSOLUTE.

Interest contracted for, purchaser need not take redeemable, 504.
ABSTRACT.

In conditions, means "perfect abstract," 58.

When perfect, what it must contain and show, 131 to 134.
Purchaser's right to, and right to retain, 130.

Condition restricting, when expedient, 58.

Vendor pays for, except on sale to railway company &c., 130.
Condition contra, mortgagee may sell under, 77.

ABSTRACT-continued.

What must be furnished in various cases, 134 to 140.

Effect of condition for its commencement with specified document, 68.
Condition respecting, how to be framed, if early title lost or defective, 68.
Production of, prior to sale, when expedient 69.

As to its preparation, contents, and delivery, 140 to 147.
On sale by Court, 562, 567.

Condition for delivery of, 57.

How waived in Equity, 213, et seq.

Delivery of, cannot supply want of written contract, 99, 478.

But must precede application for payment of purchase-money into Court,
on sale under decree, 572.

Non-delivery of, its effect on conditions as to time, &c., 58, 72.
Or on condition as to interest, 300, et seq.

Long retention of, without objection, a waiver of title, 531.

As to its examination and perusal, 147, to 149.

expenses of, when recoverable by purchaser, 147, 446.
Master proceeds on, on referenee of title, 522.

As to its verification, 69, 149 to 200.

Must be verified, although deeds not to be produced, 67.

Should be verified at vendor's expense, on sale in lots, 70, 77.

Erroneous, purchaser reselling on faith of, yet not allowed damages for

loss of bargain, 447.

Must be returned if contract finally abandoned, 130.
ABSTRACTION.

Of part of subject-matter of contract, pendente lite, 534.
ACCEPTANCE.

Of lease by assignees in bankruptcy, 37.

Payment by, to agent of vendor, when valid, 87.

Of right of pre-emption, 98, n. (q).

Of offer, by post, 101, 105.

Of offer, binding if not conditional, 104.

Conditional, its effect, 104.

Of abstract, after time fixed for delivery, when inexpedient, 146.

Of title shown by abstract, its effect, 149.

Subject to removal of specified objection, its effeet, 217, 521.

Not always required of purchaser moving to pay purchase-money into
Court., 564.

And see WAIVER.

ACCESS.

Doctrine as to, as respects illegitimacy, 170.

ACCESSION.

In correspondence, by both parties to same terms, is an agreement,
104.

ACCIDENTAL.

Loss or improvement after contract is borne or taken by purchaser, 116
to 118.