Darlington v Hamilton
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1854 |
| Date | 25 April 1854 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 233
HIGH COURT OF CHANCERY
S. C. 2 Eq. R 906; 23 L. J. Ch. 1000. See Geoghegan v. Conolly, 1859, 8 Ir. Ch. R. 602; Waddell v. Wolfe, 1874, L. R. 9 Q. B. 521; Best v. Hamand, 1879, 12 Ch. D. 5 Camberwell, &c., Building Society v. Holloway, 1879, 13 Ch. 760; Cresswell v. Davidson, 1887, 56 L. T. 811; In re National Provincial Bank of England and Marsh [1895], 1 Ch. 190.
Specific Performance. Leaseholds. Covenants. Notice.
KAY, 550. DARLINGTON V. HAMILTON 233 [550] darlington v. hamilton. April 25, 1854. [S. C. 2 Eq. E. '906; 23 L. J. Ch. 1000. See Geoghegan v. Cmolly, 1859, 8 Ir. Ch. E. 602; Waddell v. Wolfe, 1874, L. E. 9 Q. B. 521; Best v. Hamand, 1879, 12 Ch. D. 5; Camberwell, &c., Building Society v. Holloway, 1879, 13 Ch. D. 760; Cresswell v. Davidson, 1887, 56 L. T. 811; In re National Provincial Bank of England and Marsh [1895], 1 Ch. 190.] Specific Performance. Leaseholds. Covenants. Notice. If a lessee for a term of jears under-let for a less term, and the under-lessee sell by auction, the lesser term describing it as a lease, and one of the conditions of sale is that the lessor's title shall not be inquired into; the vendor's title being good : Qucere, whether the purchaser can refuse to complete because there is a term interposed between the vendor's interest and the freehold. But, in such a case, where the property was included in the original lease, together with other hereditaments, subject to general covenants, and a power of re-entry for breach of any of them, and the purchaser had discovered these facts aliunde: Held that he was entitled to refuse to perform his contract, notwithstanding that the original lease contained provisions for the apportionment of the rent and of the power of re-entry. It is a formidable objection to the title of a vendor of leasehold property that he has under-let it by a lease which does not contain similar covenants to those by which he is bound to his own lessor, for example, covenants to build, or to paint at certain periods; for the vendor may thus have put it out of his power, during the underlease, to perform covenants for the breach of which the original lessor can re-enter. Qucere, whether the doctrine that a purchaser of leaseholds, or of freeholds subject to a lease, has notice of the covenants in the lease can be extended to fix him with notice of collateral facts stated fn such covenants 1 If such facts disclose a defect in the vendor's title the Court will not compel the purchaser to perform his contract, whether he had notice or not. John Darlington, the Plaintiff in this suit, on the 14th of July 1853 caused a certain messuage and the appurtenances to be put up for sale by public auction at the City Auction Mart, pursuant to printed particulars and condition of sale previously advertised and pub-[551]-lished. The particulars of sale described the property as follows :- " The well-built house and shop, eligibly situate on the Crown Estate, and being 33 Upper Albany Street, Eegent's Park, comprises," stating the rooms on each floor. "Let to Mrs. Lucy Phillips on lease for 14 years, at per annum . . . . . . . 56 0 0 Held by lease for a term of 95| years, from 29th September 1829, at a ground^rent of per annum . . .1600 40 0 0" And the 5th condition of sale was as follows:- " That, within four days from the day of the sale, the vendor shall, at his own expense, deliver to the purchaser an abstract of his title, commencing with an indenture of the 13th day of January 1830, being the lease by which the premises were granted to him. The purchaser shall not require proof or production of the lessor's title, or any title prior to such lease; and if he insist on any evidence in proof of the identity of the premises, or that the covenants in the lease, or any of them, have been-duly performed, the same must be had at his own expense." The abstract was duly delivered. It stated, first, a lease of the premises in question, by deed, dated the 13th of January...
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