Hipwell and Another v Knight
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1835 |
| Date | 13 July 1835 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 163
IN THE COURT OF EXCHEQUER IN EQUITY
hipwell and another v. knight. May 16, 18, July 13th, 1835.-Time will, in equity, be deemed of the essence of the contract, in all cases where it can be collected from the terms of the contract, that the parties intended that the time for its completion should be strictly adhered to. But where, upon an agreement for the purchase of an estate, the parties entered into a stipulation that an abstract of title should be delivered immediately,, and that, in case the contract was not completed by a given day, the purchaser should be released from his contract, and the abstract was not immediately delivered, but communications on the subject of the title were continued between the parties until the time limited by the contract had expired : Held that, under these circumstances, the benefit of the stipulation as to time was waived by the pui chaser.-Where a person had contracted for the purchase of an estate from trustees under a deed of release and assignment for the benefit of the creditors of a trader, upon a stipulation that a good title should be made by a given day, and that day fell within the period during which a fiat in bankruptcy might have issued against the trader: Held, that he was in the situation of a purchaser who had waived a stipulation that time should be of the essence of the contract.-Where parties contract that the purchase of land (a) See Mead v. Young, 4 T. R. 28. 164 HIP WELL I1. KNIGHT 1 Y. & C. EX 2. shall be completed within so many months, calendar and not lunar months are intended. [S. C. 4 L. J. Ex. Eq. 52. See 4 Y. & C. Ex. 566.] William Pool, of Steventon, in the county of Bedford, baker and farmer, being indebted to the plain-[402]-tiffs and other persons, by indentures of lease and release and assignment, dated respectively the 7th and 8th days of September, 1832, but which were not gazetted pursuant to the provisions of the stat. 6 Geo. 4, c 16, s 4, conveyed all his real and personal property to the plaintiffs, upon trust to sell the same absolutely, and to apply the proceeds for the equal benefit of his creditors. In pursuance of these trusts, the plaintiffs caused certain freehold and copyhold premises belonging to Pool to be put up to auction on the 31st of Oetobei, 1832, in fifteen lota, subject to certain conditions of sale. By the third of these conditions, each purchaser was immediately to pay a deposit of 201. per cent on his purchase-money into the hands of Mr. Eagles, the vendor's solicitor, and to sign an agreement for paying the remainder on the 6th of January following, when the puichase was to be completed; and if the completion of the purchase were delayed by any cause whatever beyond the 6th of January, the vendors were to be entitled to interest after the rate of 51. per cent, for the remainder of the purchase-money The sale took place, and the defendant, by his agent Thomas Knight, was declared the purchaser of lots 1, 2, 8, and 15, for the sum of 30851. Thomas Knight thereupon signed an agreement for the payment of 6171., as a deposit, upon a given day, and of the remainder of the purchase-money on the 6th of January following The defendant soon afterwards took possession of the three first-mentioned lots, and demised them to Thomas Knight, who planted an orchard upon them, and exercised various other acts of ownership. On the 6th. of January, 1833, the day appointed for the completion of the purchase, no abstract of the title had been delivered to the defendant. A coi respondence then took place between the solicitors of both parties, in the course of which, and particularly by letters dated the 7th and 19th of March, the solicitors for the defendant [403] threatened to abandon the contract, and insisted that, at all events, as the purchase was not completed on the 6th of January, their client ought not to pay the interest which had been stipulated to be paid from that day In consequence of this correspondence, an interview between the solicitors of both parties took place on the 23rd of March, on which occasion a fresh agreement was drawn up and signed by them, in the following terms:- " Memorandum of an agreement, made and entered into the 23rcl of March, 1833, between, &c Whereas, John Knight, of Harrold, gentleman, by his agent, Thomas Knight, lately purchased by public auction lots 1, 2, 8, and 15 of certain estates at Steventon, belonging to the assignees of Mr. William Pool, the purchase of which was to have been completed, under the conditions of sale, on the 6th day of January lastt and the said John Knight paid the sum of 6171., exclusive of the auction duty, on account of the purchase-money, amounting to 30851. ; and whereas the'said John Knight entered into possession of the said purchased premises, but hath not yet completed his purchase, no abstract of title having been yet deliveied to him or to his solicitor; and whereas the said John Knight is now ready to complete his purchase, it is agreed as follows ò-That an abstract of title shall be immediately delivered, and a good title made according and subject to the conditions within four months from the date hereof. That at that period, or sooner, if the title is completed, the purchase-moaey shall be paid That with respect to a sum of 20001, part of the said purchase-money, no interest whatever shall be paid thereon from this time, and as to the remainder of the said purchase-money, 41. 10s. per cent only shall be allowed from thia time. That if the title shall not be perfected within the time aforesaid, the said Joha Knight shall be released from his contract; and instead of the said John Knight receiving from his brother Thomas Knight, or whosoever may be in the occa-[4Q4]-patin of the said premises, the rents and profits thereof, the vendors shall receive them ; the said John Knight hereby guaranteeing that the rents shall be paid from the time of possession being taken, until Michaelmas next. That if the title shall not be completed as aforesaid, the deposit money and auction duty shall be returned to the said John Knight, with interest, as is usually allowed in such cases. That the said John Knight shall, if requested, join the vendors in giving a notice to 1Y&C.EX.M3. HIPWELL V, KNIGHT 165 the said Thomas Knight to quit the premises at the expiration of his current year tenancy, or holding thereof, it being,understood that the said John Knight shall not be under any obligation to compel the said Thomas Knight to quit the premises, although he will eoneur in any act which may be thought necessary foi that purpose at the request of the vendors and at their expense. That the said John Knight will, at tie request of the vendors or their solicitor, invest the said sum of 20001., either in Exchequer bills or on such other government securities as may be thought advisable, the vendors indemnifying the said John Knight from any loss in case the title should not be perfected, and allowing him 41 per cent, on the money." On the 3oth of March, an abstract of title to p.irt of the premises was furnished to the defendant's solicitor, and on the 13th of April, at their request, an abstract of title of the remaining part was sent to them On the 18th these were returned with several observations and requisitions on the part of the defendant's solicitors, who considered the title very imperfect. From that day till the 21st of July communications took place between both parties relative to the title; the solicitors for the defendant complaining that the abstract, and further abstracts, sent, were not satisfactory. There were expressions contained in the letters of both parties...
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