Dawson v Brinckman
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1850 |
| Date | 02 December 1850 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 181
HIGH COURT OF CHANCERY
[53] dawson v. brinckman. July 18, 19, 20, Dec. 2, 1850. A. B. became the purchaser of a mansion-house and park under conditions of sale, which stated that the whole property was freehold except eight acres which were copyhold, but undistinguished except as to not including any of the buildings. The abstract of title having been delivered and discussions thereon having taken place, which raised difficulties in the way of completing the purchase, a supplemental agreement was entered into, detailing what requisitions as to title, &c., should be complied with. Among these requisitions was one in the following words: "Declaration of identity of lands mentioned in deeds to those now sold." Held, on a bill filed by the vendor for specific performance, that the supplemental agreement was a substitution for the original contract, and that A. B. was not entitled to demand that the vendor should distinguish the freehold from the copyhold parts of the premises so as to shew that the latter did not include any of the buildings. This was an appeal from a decree of the Vice-Chancellor Knight Bruce, directing, as against the Defendant, the specific performance of an agreement for the purchase of a mansion-house and certain lands attached thereto under the following circumstances :- The property in question, being Lots 1 and 2 mentioned in certain printed particulars and conditions of sale, was therein described as being, " freehold except about eight acres which are of copyhold of inheritance of the manor of Clewer, but undistinguished except as to not including any of the buildings." Of these lots Sir T. H. L. Brinckman became the purchaser by private contract on the 9th September 1847. An abstract of title was delivered, but difficulties occurred in completing the purchase. At last, and with the view [54] of finally settling the terms on which the purchase should be carried into effect, a memorandum of agreement, dated the 26th April 1848, was entered into between the parties, the terms of which are fully stated in the judgment of the Lord Chancellor. It may be, however, well to state here, that among the requisitions which it stipulated should be complied with was one in the following words: "11. Declaration of identity of lands mentioned in deeds to those now sold." Immediately after this second agreement the purchaser took possession of the property; but he subsequently became desirous of withdrawing from the purchase on the ground that the fact of the copyhold lands not including any of the buildings had not been established. On the 25th August 1848 the Plaintiffs filed their bill for a specific performance of the agreement. The cause was heard before the Vice-Chancellor on the 22d March 1849, and on the 30th March 1849 His Honour made the decree now appealed from, in favour of the Plaintiffa. The question in substance was, whether under the terms of the llth requisition referred to in the agreement of the 26th April 1848, the Plaintiffs were bound to distinguish the freehold hereditaments comprised in the original contract from the copyhold parts of the same hereditaments, with the view of shewing that the latter included no part of the buildings. Mr. Malins, Mr. Eoundell Palmer and Mr. Borton, in support of the decision of the Vice-Chancellor, submitted that the whole question depended upon the construction to be put upon the llth requisition as connected with the original contract; and that 182 DAWSON V. BRINCKMAN 3 MAC. & Q. M. the Vice-Chancellor was right in the view which ho had [55] taken, namely, that the language of the requisition in question did not extend to the matter of the tenure of the buildings. They referred to Burnett v. Brown (1 J. & W. 168); and to Sugcl. Vend. & Purch. vol. 2, pp. 11, 12, Ed. 10. Mr. Wigram, Mr. Holt and Mr. Craig, fdr the Defendant, contended that the llth requisition kept open to the purchaser the same right of identification as he had under the original contract, which was, that the copyholds included no part of the buildings; and that there was evidence sufficient to shew that the mansion-house did stand on copyhold land. They submitted that neither by taking possession, which had been done under a special agreement, nor by any other acts, had the Defendant waived his right to insist on the terms of the first contract; Ogborne v. Harvey 1 Y. & C. C. C. 116), Vancouver v. Bliss (11 Ves. 458), Stewart v. Alliston (1 Mar. 26). They further insisted that it was contrary to the principles of the Court to decree specific performance, in a case where it was clear that the title was bad. They cited also Warren v. Richardson (Younge, 1), Shepherd v. Keatley (1 C. M. & R. 117), Blaeh-ford v. Kirkpatrick (6 Beav. 232), Crompton v. Lord Melbourne (5 Sim. 353), The Marquii Twmshend v. Stangromn (6 Ves. 328), Harnett v. Yeildiny (2 Sch. & Lef. 549). Story Eq. Jur., vol. 2, pi. 742 ; Sugd. Vend. & Pureh. vol. 1, p. 406, Ed. 10. Mr. Malins, in reply. Dec. 2. the lord chancellor [Truro]. This is an appeal from a judgment of His Honour Vice-Chancellor Knight Bruce. The bill is filed for [56] a specific performance of a contract for the purchase of an estate, consisting of a mansion and of a park, containing about eighty acres. The particulars of sale stated the whole to be freehold, except about eight acres, which were copyhold of inheritance of the manor of Clewer, but undistinguished except as to not including any part of the buildings. The conditions of sale annexed to the particulars do not contain anything materially affecting the question in the cause. Under the original terms of the contract, the purchaser was entitled to call for òevidence to shew that the buildings stood upon freehold ground. An abstract of title was delivered, and various communications and negotiations on the subject of the title took place, into which it is not necessary minutely to enter. They ended in a supplemental agreement of the 26th April 1848, embodying the terms upon which the title was to be accepted; and it is upon the effect of this supplemental agreement, as òconnected with the original purchase-contract, that the question in the cause depends. The supplemental agreement (in its more material parts) was as follows:-" St. Leonard's estate. Memorandum to be annexed to the conditions of sale. It is agreed on behalf of the vendors and purchaser:-1st. That immediate possession of the within-mentioned estate may be taken by Sir Theodore Brinckman, Baronet, upon the following understanding. 2nd. That the title be accepted subject to the òdocuments mentioned in the annexed list being furnished, and the requisitions therein being complied with, Messrs. Lacy & Co. hereby personally undertaking to furnish those documents and comply with those requisitions. 3d. That the interest upon the purchase-money at [57] 4£ per cent, from the time named in the contract for completion up to this date be divided between the vendors and purchaser, Sir Theodore Brinekman paying his moiety thereof on completion of the purchase. 4th. That interest at the rate of 4^ per cent, from this date be paid by Sir Theodore Brinekman up to completion of the purchase. 5th. That £7000, part of the purchase-money, be allowed to remain on mortgage at 4J per cent, for a term of years, and that the mortgage and conveyance be completed on the 6th of May next. 6th. The usual searches to be made on both sides, and any incumbrances to be disclosed by such searches to be discharged." The list annexed of documents to be furnished, and requisitions to be complied with, was numbered from 1 to 16 inclusive, those material to the present question being Nos...
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Monro v Taylor
...to be made; and, on this point, they referred to Price v. Strange (6 Madd. 159), Stapylton v. Scott (16 Ves. 272), Dawson v. Brinckman (3 Mac. & G. 53). They submitted that the case was not one to which the principle of compensation could be applied ; that no waiver by the Defendant had bee......