Maw v Topham
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1854 |
| Date | 08 December 1854 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 474
ROLLS COURT.
[576] maw v. topham. Noa. 13, Dec. 7, 8, 1854. When a vendor can make a title to three-fourths only of the property sold, the purchaser is not entitled to take the three-fourths with an abatement, but he may take the three-fourths at the price agreed on for the whole. The Court will not decree a specific performance which involves a breach of trust. In January 1851 Mr. Maw agreed with Mrs. Topham to purchase a house and premises at Scarborough for 650. Mr. Tinker (the brother of Mrs. Topham) had furnished 500 (trust money) towards the previous purchase of the property, and it was in contest, whether this sum had been invested by him by way of purchase, or as an advance on a mortgage of the premises ; the Court, however, held the latter. The Plaintiff immediately entered into possession with his family, and paid Mrs. Topham for the fixtures, and 150, the balance of the purchase-money, after deducting the 500, which latter sum it was agreed should remain on mortgage. It appeared that in March 1851 the Scarborough Public Market Company was WBEAV. 8T7. MAW V. TOPHAM 475 projected, and the saleable value of the premises thereupon became enhanced, [577] from the probability that they would be required for the purposes of the company. The Act passed in May 1852, and notice was afterwards given that the property would be required; the Plaintiff thereupon claimed 2000 compensation for the property, and for the loss and removal of his business. There being a dispute as to the ownership, a jury was summoned to assess the compensation. In February 1853 they assessed the amount of compensation payable to the Plaintiff (in case he should be found to be the owner), at the sum of 1100, and to Messrs. Topham and Tinker (in case it should appear they were the owners), at the sum of 751. The company paid 1100 into Court to the credit of the cause, and took possession of the premises. This suit was instituted by the purchaser for the specific performance of the contract, and a decree was made in December 1853, to inquire whether a good title could be made to the premises in question, and when it was first shewn. The chief clerk found that a good .title could be made to three-fourths of the property, from 15th of November 1826, but that no title could be made to the remaining one-fourth. In truth, the Defendants had no interest in the one-fourth, which was vested in other persons. The Plaintiff accepted...
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