HM Attorney General and the Commissioners of Woods and Forests, Plaintiffs; Sir George Sitwell, Bart., Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1835 |
| Date | 05 December 1835 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 228
IN THE COURT OF EXCHEQUER IN EQUITY
His, majesty's attorney-general and the commissioners of woods and forests, Plawtiffs ò sir george sitwell, bart., Defendant. Dec 3, 4, 5, 1835.-The Commissioners of Woods and" Forests, having power, under the stat. 57 Geo. 3, c. 97, to make sale of any royalties, honours, hundreds, manors, lordships, or franchises, "or any rights, members, or appurtenances thereof," belonging llf.4C.EX.B6ft ATTORNEY-GENERAL V. SITWELL 229 to the Crown, within the ordering and survey of the Exchequer, contracted for the Kle of the crown manor of E., and all courts baron, courts leet, and all fines, reliefs, rents, profits, waifs, strays, deodands, and "all other rights, members, emoluments, and appurtenances thereunto belonging " Held, that this being in effect a contract for sale by the Crown, the advowson of E , which was appendaut to the manor, did not pass under the contract, and, consequently, that the purchaser was bound to take a conveyance of the manor without the advowson. -Semble, that if the contract had been between subject and subject, the advowson would have passed; although, at the time of the contract, it was not known by either party to be appendant to the manor, and therefore the sale of it was not in their contemplation.-Where a contract is entered into for the sale of an estate, and, under the general words, property passes, which the vendor insists he did not mean to sell, but the purchaser by his answer denies or does not admit that it was not in his contemplation at the time of the purchase, semble, that the vendor cannot sustain a bill against the purchaser to have the contract rectified, on the ground of mistake, and earned into execution -Quaere, whether, consistently with the Statute of Frauds, the Court can entertain a bill for rectifying an executory contract for the sale of lands, and carrying it, when rectified, into execution, even where the mistake is admitted by the answer.-Under the statutes 57 Geo. 3, c. 97, and 10 Geo. 4, c. 50, the issuing of a special wanant from the Treasury to the Commissioners of Woods and Forests is not a condition precedent to the making of any contract between the commissioners and the purchasers of crown lands; it is sufficient if a special warrant be obtained befoie certificates of sale are granted to the purchaser. [S. C. 5 L. J. Ex. Eq. 86.] By the stat. 57 Geo. 3, c. 97 (which has since been repealed), the Commissioners of His- Majesty's Woods and Forests were empowered to purchase lands on behalf of [560} the Crown, lying adjacent to the royal forests, or to other extensive propeities of the Crown. In order to provide a fund for the payment of the purchase-monies for such estates, the commissioners were, by the fourth section of the act, authorized and empowered from time to time to contract for the sale, and absolutely to make sale of any part or parta of the possessions or land revenues of the Crown within the ordering and survey of the Exchequer in England, which should consist of any royalties, honours, hundreds, manors, lordships, or franchises, or any rights, members, or appurtenances thereof, or thereto belonging or appertaining, or any fines, issues, amerciaments, profits, dues, or monies arising therefrom, or incident to, or receivable in respect thereof, or any messmages, lands, tithes, rents, mines, minerals, collieries, woods, wood grounds, fens, marskes, waste lands, or any other tenements or hereditaments whatsoever, or any other revenues belonging to the Crown, within the ordering and survey aforesaid, which should, in their judgment, be desirable to be sold, for the best prices or considerations in money which the Commissioners for the time being of His Majesty's Woods and Forests should, under the direction and with the approbation of the Lord High Treasurer or Commissioners of the Treasury for the time being, or any three or more of them, be able to procure for the same. By the fiftk section of the act it was enacted that no contract for the purchase or sale of any estate or estates should be made under the authority of this act, unless by special warrant to be issued for that purpose by the Lord High Treasurer or the Commissioners of the Treasury, or any three or more of them for the time being By the sixth section it was enacted that whenever the commissioners should have entered into any contract for the sale of any of the crown property thereby authorized to be sold, they should grant to the purchaser or pur-[561]-chasers a certificate, describing the premises to be sold, and the amount of the purchase-money, which certificate, upon payment of the purchase-money within thirty-one days after its date, was to- be signed or indorsed with a receipt by the cashier of the Bank of England, and was to be enrolled in manner directed by the act. And it was further enacted that, fiom and after such enrolment, the respective purchasers, their heirs or successors, should be adjudged and taken to be in the actual seism and possession of the premises purchased, and should hold and enjoy the same peaceably and quietly, freed ajid discharged from all claims and demands of his Majesty, his heirs and successors, or of 230 ATTORNEY-GENERAL V. SIT WELL l Y. & C EX. 562. any person or persons claiming under him or them, as fully and amply to all intents and purposes as his Majesty, his heirs and successors, might or could have held and eojoyed the same, if such sale had not taken place. The eighth section enacted, that whenever any of such possessions or land revenues of the Grows should be sold by the Commissioners of His Majesty's Woods and Forests, under the authority of this act, with the approbation and under the authority of a warrant from the Commissioners of the Treasury issued for that purpose, the purchaser or purchasers thereof should not be bound or required to make any further inquiry whether the same were saleable under the authority of the act, or into the powers of the commissioners in making such sale, but every such purchaser or purchasers having ascertained the same to have been sold under the authority of a warrant, and having obtained such certificate, and paid the purchase-money, and procured the receipt of the cashiers of the Bank of England, and having enrolled the certificate arid receipt, should hold the premises so purchased, and should have free, quiet, and peaceable possession thereof, and should not be liable to be thereafter disturbed under any pretences whatsoever [562] In pursuance of this act, the Commissioners of Woods and Forests, in May, 1828, caused the manor of Eckmgton, in the county of Derby, together with divers lands aad tenements situate at Eckington, belonging to the Crown, to be put up to public sale in 96 lots. The commissioners, however, omitted to obtain a special warrant from, the Treasury previous to the sale, as required by the fifth section of the act. The warrant obtained by them for the purposes of this sale was not dated till the 16th of August following. The auction took place, but part only of the lots were sold; and the defendant, being desirous of purchasing by private contract several of the lots which remained unsold, a written, memorandum of the contract for such purpose was drawn up, dated the 10th of June, 1828, and signed by Messrs. Drivers on the part of the commissioners, and by Mr. Humble on the part of the defendant. The general purport of the contract was, that the defendant agreed to purchase seven specified lots of the above estate, as described in the printed particulars of sale used at the auction, at the price of 34,0001, subject, with some few exceptions, to the printed conditions of sale used at the auction ; that he was to pay 10001. by way of deposit, and the purchase-money by instalments The first instalment. 10,0001, to be paid on the 29th of September following, and the remainder of the purchase-money in April, 1829 Upon failure of payment of the first instalment at the time specified, interest to be paid on the whole purchase-money at the rate of 51. per cent. One of the lots, upon which the main question in this cause depended, was described in tke particulars of sale as " the valuable manor of Eckington, extending over about 6900 acres, of which about 3000 acres are copyhold, with numerous messuages and homesteads held of the said manor, subject to the payment of a fixed fine, upon alienation, of 6d. for each acre, or for any portion [563] less than an acre, and the like sum for each messuage or scite ; the quit or chief rents payable to the manor, amounting to 431. 2s. 7d. a year; arid all courts baron, courts leet, and all fines, reliefs, rents, profits, waifs, strays, deodands, and all other rights, members, emoluments, and appurtenances whatsoever thereunto belonging, except the coals and minerals under lot 1, &c." The ninth condition was, that if any mistake were made in the description of the premises, or any other error whatsoever should appear in the particulars of the estate, excepting as regarded the quantities or boundaries thereinafter provided for, such error or mistake should not annul the sale, but a compensation or equivalent should be given or taken, as the case might require When the above contract was entered into, it was not known either to the commissioners or the defendant that the advowson of Eckington was appendant or appurtenant to the manor of Eckington. The King had, from time to time, exercised the right of presentation ; but the advowson, being considered an advowson in gross, was not deemed by either party to be included in the contract. After the contract had been signed and the defendant let into possession, but before the purchase-money had been paid, it was ascertained that the advowson in question was appendant to the manor of...
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