Bower v Cooper
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1842 |
| Date | 01 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 168
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 287; 6 Jur. 681.
168 BO WEE V. COOPER 2 HARE,408. [408] bower v. cooper. April 22, 26, 27, May 3, 1842; Jan. 27, March 16, 1843. [S, C. 11 L. J. Ch. 287; 6 Jur. 681.] An agreement to sell land, not expressing what interest in it, is construed to mean the whole of the interest of the vendor in the land. An agreement to purchase land for an annuity for the life of the vendor, to be a charge on the land and to be paid quarterly, entitles the vendor, not only to the security of the charge, but to the covenant of the purchaser for the payment of the annuity. The Court may not perhaps enforce the specific performance of a contract for the sale of an estate where the consideration is uncertain (as a life annuity), if such consideration be greatly inadequate; but a difference of seven or eight per cent, is not such inadequacy. Separation of the costs occasioned by a defence, founded on a statement of fact, disproved by the evidence. A party is entitled to a writ of assistance, under the 13th Order of August 1841, to enforce obedience to a decree, although the memorandum in the form prescribed by the 12th Order of August 1841, endorsed upon the copy of the decree served, intimated that the party neglecting to obey it would be liable to process by attachment, serjeant-at-arms or sequestration. The bill was brought for the specific performance of the following agreement:- "Memorandum of an agreement made this 22d day of January 1841 between Keuben Cooper, of Hinton, of the one part, and Charles Bower, of High Cliff, both in the parish of Christchurch, in the county of Southampton, of the other part. The said E. Cooper hereby agrees to sell to the said Charles Bower the following:-A certain cottage and land recently purchased by the said E. Cooper of J. Lane; two cottages and land purchased of W. Lane; both in the parish of Christchurch-the cottage and garden purchased by the said E. Cooper of T. Burt, in the parish of Milton, in the said county, which premises were lately in the respective occupations of J. Davy, the said R. Cooper, T. Cratchley and W. Church, and one of the said cottages purchased of W. Lane, being now or lately void, together with the crop in the ground thereof, for an annuity of 30, payable during the life of the said E. Cooper; and the said C. Bower hereby agrees to purchase the said premises for the said annuity : and it is hereby agreed that the said annuity shall be charged on the said premises by an instrument giving the said E. Cooper power, upon non-payment of the same, to sell such premises for the purpose of raising the arrears thereof; and it is further agreed that the said annuity shall be payable quarterly from the 5th day of January, and that the first payment thereof shall be made in advance, and that the said C. Bower shall be entitled to the possession and rents and profits of the same premises from the said [409] 5th day of January, and that all expenses incurred in or about the said sale shall be borne by the said C. Bower, and that th'e deeds of the said premises shall be deposited with Mr. Druitt, of Christchurch, solicitor, on behalf of both parties. (Signed) Reuben Cooper, Charles Bower." The first quarterly payment of the annuity was made in advance on the execution of the agreement. The performance was resisted on four grounds : First, on the allegation that the Defendant was in a state of intoxication at the time of making and executing the agreement, and that the Plaintiff took advantage of his incapacity: Coles v. Trecothick (9 Ves. 234), LigUfoot v. Heron (3 Y. & Coll. 586), Story, Com. Equity Jurisp. p. 194, ss. 232, 233. Secondly, that the agreement was uncertain, inasmuch as it did not express what interest in the premises it was intended should pass to the Plaintiff: Western v. Russell (3 V. & B. 187). Thirdly, that, by the agreement, no provision was made for any covenant or security to be given for the payment of the annuity to the Defendant beyond the security of the premises ; and that a Court of Equity would not enforce an agreement involving such an inequality and hardship : Remington v. Deverall (2 Anstr. 550). And, lastly, that the consideration for the purchase, assuming the subject to be the fee-simple of the premises, was inadequate, which, with 2HARE,0. BO WEE V. COOPER 169 respect to a contract founded on a consideration necessarily uncertain in its amount, was a ground for refusing specific performance: 1 Sug. Vend. & Pur. p. 440, 10th ed. citing Pope jr. Soots (1 Bro. P. G. 370, Tom. ed.), Mortimer v. Capper (1 Bro. C. C. 156), and Jackson v. Lever (3 Bro. C. C. 605). [410] Mr. Sharpe and Mr. Lewin, for the Plaintiff, and Mr. Anderdon and Mr. James, for the Defendant. May 3. the ViGE-CHANCELLOR held that the agreement must be construed as referring to and importing the whole of the Defendant's interest in the premises; that, under the agreement, the Defendant was entitled, not only that the annuity should stand as a charge upon the premises, but also to the personal covenant of the Plaintiff for its payment; and that the Defendant had failed in proving any incapacity on his part to enter into the contract;, none of the first three grounds relied upon by the Defendant, therefore, constituted any defence; and the Plaintiff must be declared to be entitled to the costs occasioned by the defence founded on the alleged incapacity, which had failed,; Wright v. Howard (1 Sim. & St. 205), Deggs v. Colebrooke (1 Atk. 396), Watts v. Manning (1 Sim. & St. 421), Mounsey v. Burnham (I Hare, 22); although the separation of the costs was- not to be adopted in practice upon light grounds, nor unless the respective costs applied to...
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