Fraud.

Befect of title.

sit, may show that the contract is absolutely void on account of fraud practised against him by the plaintiff: as, where the plaintiff has fraudulently misrepresented the quality or value of the property: or wilfully misdescribed its locality, so as to make it appear more valuable.(1) And if persons have been employed to bid for the owner at a public sale, not for the purpose of preventing a sale at an under-value, but to take advantage of the eagerness of bidders and screw up the price, (the effect of which bidding for the owner has been to raise the price of the estate above its true value,) this seems also to be a fraud practised upon the defendant. (2)

The defendant may show a defect of title in the vendor, and on that ground rescind the contract: as, where the vendor had an interest in the premises for a shorter term than he contracted to sell ;(3) or where the premises are subject to an incumbrance(a) or annual payment; of which no notice had been given.(4) If the purchaser has not made an application for the title before the commence

(1) D. of Norfolk v Worthy, 1 Campb. 337. 12 East, 637.

(2) See Smith v Clark, 12 Ves: 483; and the cases collected on this subject, in Sugden's Treatise on the law of Vendor and Purchaser, p. 17-22.

2

(3) Farrer v Nightingale, Esp. N. P. C. 639. Hibbert v Shee, 1 Campb. 113.

(4) Turner v Beaurain, MS. case stated in Sugden's Law of Vendor & Purchaser, 227. Barnwell v Harris, 1 Taunt. 430.

(a) If at the time of the contract, there was a lease outstanding, which was unknown to the vendee, he is not bound, but may rescind the contract, the vendor not being in a situation to give a perfect title. Tucker v Woods. 12 Johns. Rep. 190. A registered mortgage on the land is such an incumbrance as authorizes the purchaser to rescind the sale, although the registry is in law constructive notice of the existence of the mortgage. Judson v Wass, 11 Johns. Rep. 525. Vide Parker v Parmele, 20 Johns. Rep. 130. If a seller will not make an assurance when reasonably demanded, he loses the bargain, and the purchaser is not bound to wait until he is able to convey; and it seems that after a continued neglect and inability of the seller for six years subsequent to a request and refusal to convey, neither a court of law or equity would interefere to enforce the performance of the agreement. Van Benthuysen v Crapser, 8 Johns. Rep. 257.

ment of the action, and no time is fixed for completing the contract, he cannot object that the title was defective at the time when the contract was made: it will be sufficient, in such a case, if the vendor show a complete title at the time of the trial, though it was not complete when the action was commenced.(1)

Secondly, as to the action by the purchaser.

If the purchaser has paid any part of the purchase money, and the seller refuses to complete his part of the contract, the purchaser may make his election, either to affirm the contract by bringing an action for the non performance, or to disaffirm the contract ab initio, and bring an action for money had and received to his use.(2)(a) The contract must be disaffirmed ab initio, or not at all. If the purchaser has had an occupation of the premises

(1) Thompson v Miles, 1 Esp. N. P. C. 184.

(2) Dutch v Warren, cited by

Lord Mansfield, 2 Burr, 1011.
Farrer v Nightingale, 2 Esp. N.
P. C. 641.

Putnam v West

(a) Acc. Judson v Wass, 11 Johns. Rep. 525. cott, 19 Johns. Rep. 73. If the contract of sale were by parol merely, and not in writing, as required by the statutes of frauds, the purchaser who has paid part of the consideration cannot, there being no default on the part of the vendor, maintain an action to recover it back. Dowdle v Camp, 12 Johns. Rep. 451. A party who has advanced money, or done any act in part performance of an agreement, but refuses to proceed to the completion, and execution of the contract, the other party having performed, or being ready to perform, every thing agreed to be done on his part, cannot recover back the money he has advanced, nor is he entitled to compensation for what he may have done in part performance; and after such refusal to proceed, or voluntary abandonment of the contract by the vendee, the vendor is at liberty to sell the land to another. Ketchum & Sweet v Evertson, 13 Johns. Rep. 359. To entitle a purchaser to recover back part of the consideration money, paid on a contract for the purchase of land, he must shew that he has tendered the residue of the purchase money and demanded a deed, so as to put the vendor in default. Hudson v Swift, 20 Johns. Rep. 24.

Whether the purchaser must not prepare and tender the conveyance to be executed by the vendor. Quære, such seems to be the law in England, ib.

2. Action by vendee.

65

Action to recover deposit.

under the contract, he adopts the contract, and cannot affirm it afterwards by quitting the premises, as the parties cannot be put into the same situation, in which they before stood; consequently, in such a case, an action for money had and received cannot be maintained, (a) but the only remedy is on the special agreement.(1) The plaintiff in this case, as in the last, will have to prove the contract, the conditions of sale, the performance of every thing requisite on his part, and the breach of the contract on the part of the defendant.

When the plaintiff's claim to recover the deposit rests on a defect of title in the vendor, the plaintiff must prove the title defective; and it will not be enough to prove, that the title has been deemed by conveyances to be insufficient.(2) The vendor is to give a good title; and

(1) Hunt ▾ Silk, 5 East, 449. N. P. C. 221.
(2) Camfield v Gilbert, 4 Esp.

(a) An agreement was entered into, in January, 1814, for the sale and conveyance of land, a part of the consideration to be paid on the first of March ensuing, and the residue to be secured by mortgage, at which time the vendor was to execute a conveyance. The land was at that time incumbered by a mortgage, of which the vendee had notice. The vendee went into possession of the land, removed a nursery and some buildings from it, and made several payments on account of the principal and interest of the purchase money, but the execution of the deed and mortgage was postponed by mutual con sent. In 1817, the land not having been sold under the prior mortgage, the vendee brought an action to recover back the money paid on account of the agreement; and it was held, that after such a lapse of time, and acts of ownership and payments made, with notice of the incumbrance, the vendee could not rescind the contract, especially as he could not put the vendor in statu quo, but that if he did intend to rescind it because the vendor could fot make a good title, he ought to have expressed his determination at the time when the first payment became due, and that his remedy was in equity and not at law. If, however, the land had been actually sold under the prior incumbrance, before the commencement of the suit, so that the vendor could not give a title, it seems that the action would have lain. Caswell v the Black River Manufacturing Co. 14 Johns. Rep. 453. See farther, Ellis v Hoskins, 14 Johns. Rep. 363. Conner v Henderson, 15 Mass. Rep. 319.

must be prepared to make out a good legal title on the day when the purchase ought to be completed ;(a) and if he is not then ready to verify his abstract by the title-deeds in his possession, the purchaser may avail himself of the default, and avoid the contract.(1) In the case of Chambers v. Griffiths, (2) the property, which the plaintiff had purchased, and on which he had paid the deposit, consisted of several parcels, and were sold at a public auction in distinct lots, yet Lord Kenyon held, that as the vendor had given an abstract of the title only to a single lot, and refused to deliver an abstract as to the rest, the purchaser might rescind the whole contract: Lord Kenyon considered the purchase of the several lots as having been made with a view to a joint concern, and that the contract, for the convenience and interest of the purchaser, must be understood to be one entire contract for the whole. However, since according to the rule of law there seems to have been a distinct contract upon each distinct lot,(3) perhaps it may be doubted whether a breach of contract upon one lot would be a breach as to any of the rest.(b)

(1) Cornish v Rowley, MS. case, stated in 1 Selw. N. P. (2) 1 Esp. N. P. C. 149.

(3) See Emmerson v Heelis, 2 Taunt. 38.

66

(a) If the deed is not to be delivered until a future period, and on the payment by the vendee of the whole or a specified portion of the purchase money, he cannot, on account of an incumbrance on the land, disaffirm the contract, and recover back whatever money he may have paid; but he must pay the whole or the stipulated part of the consideration, and put himself in a condition to demand a deed, before he can charge the vendor with a default. Greenby v Chee. vers, 9 Johns. Rep. 126.

(b) So, in the case of Van Eps v the Mayor, &c. of Schenectady, 12 Johns. Rep. 436, it was held, that where land is sold at auction in separate lots, and several of the lots are purchased by one person, it is not an entire contract; and if the vendor cannot give a title as to all the lots, the vendee cannot rescind the agreement in toto, but must take a conveyance for such of the lots as the vendor is authorized to convey: Et vide Greenwalt v Born and Ensminger, 3 Yeates' Rep. 6.

Equitable defect of title.

Costs of claiming the title. 67

Whether an equitable defect of title, (that is, such a defective title, as a party would not be compelled by a court of equity to accept, in case of a bill for specific performance,) is a sufficient ground for rescinding the contract, in an action to recover the deposit, is a question, upon which there has been some difference of opinion. In the case of Elliot v. Edwards, (1) the Court of Common Pleas held, that an equitable incumbrance was a reasonable objection to the title offered by the vendor. However, the better opinion seems to be, that a court of law will not inquire into such defects. In the case of Alpass v. Watkins(2), which was determined two years before the last mentioned case, though not there referred to, Lord Kenyon, in answer to an objection, that the title would be moulded in equity to a variety of purposes, and consequently that the defendant could not make out a perfect title, said, he was clearly of opinion, they could not do otherwise than determine, sitting as they were in a court of law, that as the defendant could make out a good legal title. he was not liable to repay the deposit money. And in the late case of Sir S. Romiliy v. James,(3) where it was suggested in argument, that the plaintiff would not be entitled to recover back the deposit, if any doubt could be cast on the title of the vendor, the Lord Chief Justice Gibbs expressed an opinion, that although a court of equity might not perhaps have obliged an unwilling purchaser to ratify the contract, yet that as the party had resorted to a court of law, he must abide by the decision of a court of law.

Where the contract is unexecuted on account of the default of the defendant, and has consequently been rescinded ab initio, the plaintiff may not only recover the deposit with interest, but also the expenses of investigating the title, as special damages: (4) such expenses, how

(1 3 Bos. Pull. 181.

(2) 8 T. R. 516.

(3) 1-Marshall, 600.

(4) Richards v Barton, 1 Esp.

N. P. C. 268. Turner v Beurain, MS. case stated in Sugden's Law of Vendor & Purchaser, 193.