Nelthorpe v Holgate
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1844 |
| Date | 08 May 1844 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 384
HIGH COURT OF CHANCERY
S. C. 8 Jur. 551. See Barnes v. Wood, 1869, L. R. 8 Eq. 429; Mawson v. Fletcher, 1870, L. R. 10 Eq. 219; L. R. 6 Ch. 91; Ex parte Burrell, 1876, 1 Ch. D. 542, n.; Davenport v. Charsley, 1886, 54 L. T. 374; In re Jackson and Haden's Contract [1906], 1 Ch. 420.
[203] nelthospe v. holgate. May 4, 8, 1844. [S. C. 8 Jur. 551. See Barnes v. Wood, 1869, L. E. 8 Eq. 429; Mawson v. Fletcher, 1870, L. E. 10 Eq. 219 ; L. E. 6 Ch. 91 ; Exparte Stirrell, 1876, 1 Ch. D. 542, n.; Davenport v. Charsley, 1886, 54 L. T. 374; In re Jackson and Haden's Contract [1906], 1 Ch. 420.] A. contracted to purchase an estate of B., being -at the same time under a secret understanding with C. to sell the estate to him ; and a contract was afterwards entered into between A. and C. to that effect. Held, that a bill for specific performance was maintainable by A. and C. against B.; and the price being adequate, and it not being suggested by B. that he had ever refused, or was unwilling, or would have objected to treat with B., or might have obtained better terms from him had he known the real circumstances of the case, the Court decreed specific performance against him. If a Defendant cannot object to a party being made a Co-defendant, he cannot object to his being made a Co-plaintiff, if the interests of the several Co-plaintiffs are not conflicting. Quaere, in what cases successive purchasers are properly made parties to a suit for specific performance 1 A person, seised in fee of an estate subject to the life interest therein of his mother, and having knowledge of his mother's interest, contracted to sell the estate to a party who had no actual knowledge of her interest, but knew, or might have known, that she resided on the property as tenant or occupier. Held, that, although the mother's residence might, as between heir and the purchaser, have carried constructive notice of her rights, it was not necessarily notice as between the vendor and purchaser (in those respective characters), so as to deprive the purchaser of his right to compensation in respect of the life interest. A vendor contracted to sell an estate in fee, with a stipulation that if any dispute should arise as to the title, the same should be submitted to some eminent conveyancer, and that in case he should be of opinion that a good title could not be made the contract should be rescinded. Upon the delivery of the abstract, it appeared that the vendor's mother had a life interest in the premises, and that her interest was known to the vendor at the time of the contract. Upon her refusing to join in the conveyance to the purchaser, Held, that the vendor was not entitled to rely on the before-mentioned stipulation as a ground for rescinding the contract, but that the contract must be specifically performed, with compensation in respect of the life interest. The original bill was filed by Sir John Nelthorpe, Bart., and Lawson Holmes, against Edward and Sarah Holgate, for the purpose of enforcing the specific performance of a [204] contract for the sale of an estate to the Plaintiffs, or one of them, under the following circumstances :- Edward Holgate, being seised in fee, subject to the life interest therein of his mother, Sarah Holgate, of a certain freehold messuage and lands situate at Sturton, in the parish of Scawby, in the county of Lincoln, and upon which he and his mother had resided since 1816, agreed in March 1841 with Lawson Holmes for the sale of the premises to him at the price of £6000, and thereupon an agreement in the following terms was signed by the parties :- " Memorandum of agreement made and entered into on the 29th March 1841 between Edward Holgate, of &e., farmer, for himself, his heirs, executors and administrators, of the one part, and Lawson Holmes, of &e., for himself, his heirs, executors and administrators, of the other part, as follows :-First, the said Edward Holgate 1 COLL. 205. NELTHORPE V: HOLGATE 385 hath agreed to sell, aod the said Lawsoii Holmes hath agreed to purchase, all the messuages, &c. [here followed the parcels of the property agreed to be purchased], at or for the price or sum of ,£6000 subject to a quit-rent, out-rent or tithe-rent of 3s. 9d. per annum, charged upon some portion of the estate. The purchaser shall take the quantity as above stated, whether more or less. . . . The purchase to be completed on the 6th day of April 1842, when the purchaser is to have possession of all the said premises, except the messuage or tenement and garden, of which the purchaser is to enter into possession on the 13th day of May 1842. The said Edward Holgate, at his own expense, to make out a good title to the said estate, and the purchaser to be at the expense of his own conveyance. And it is hereby agreed and declared that if any dispute shall arise as to the title, the same shall be submitted to some eminent conveyancer, to be agreed upon by both parties; such objections to be stated in writing,, within six months of this date, to' Mr. Robert Owston, the solicitor to the vendor: and in ease he shall be of opinion that a good title cannot be made out, [205] subject as aforesaid, that then either of the said parties hereto shall be at liberty to rescind the contract on two calendar months' notice after the opinion of counsel shall be obtained. '. . . And it is hereby further agreed, that all outgoings, payable for and in respect of the said premises to the said 6th day of April 1842, shall be paid by the said Edward Holgate, his executors and administrators. And lastly, the said Lawson Holmes hereby agrees to pay the sum of £6000 on the 6th day of April 1842, on having a proper conveyance of the said premises made and executed to him agreeably to this agreement. As witness the hands of the said parties, the day and year first above written. Edward Holgate, Lawson Holmes." In July of the same year Holmes agreed with Sir John Nelthorpe, who possessed property in the same parish, for the sale to him of the premises upon the same terms and conditions under which Holmes had contracted to purchase them. This agreement was reduced into writing and dated the 24th July 1841, and was signed by Holmes of the one part, and Henry Grantham, as agent for Sir John Nelthorpe, of the other part. On the 29th July the Defendant, Edward Holgate, by his solicitors, caused an abstract of title of the premises to be delivered to Nicholson & Hett, the solicitors of Holmes, who were also the solicitors of Sir John Nelthorpe. It appearing by the abstract that Sarah Holgate had a life interest in the premises, Nicholson & Hett, upon returning the abstract, required that the tenant for life should join in the conveyance, or release the estate. An answer was returned by Holgate's. solicitor, dated the 18th December 1841, stating the refusal of Mrs. Holgate to accede to this requisition. A correspondence then ensued between the solicitors on both sides; the Defendant's solicitors insisting that the objection on the part of the tenant for life to join in the conveyance was an unforeseen difficulty as to title, and that [206] as such it came within the operation of that clause of the agreement of March 1841 relating to disputes as to title; and they suggested that, if necessary, the point should be referred to a conveyancer, under the terms of that clause. On the other hand, the Plaintiffs'' solicitors insisted that their clients were entitled to specific performance, with compensation in respect of Mrs. Holgate's life interest. In a letter from them to the Defendant's solicitors, dated the 12th February 1842, they observed that the vendor was bound to obtain the signature of the tenant for life; that the matter in question was not within the clause referred to; that it was not a dispute of title; that the vendor must have been perfectly aware, when he contracted, that his mother's-signature was requisite; and they proposed to leave an adequate part of the money in the purchaser's hands during Mrs. Holgate's life; and that the vendor should enter into a bond of indemnity for, the purpose of securing to the purchaser during that time the quiet enjoyment of the estate. They afterwards offered, upon receiving possession of the farm, to allow Mrs. Holgate to remain in the dwelling-house during her life. The propositions on the part of the Plaintiffs were resisted by the vendor, who asserted that, when he originally contracted, he had no knowledge of his mother's objection to join, and that he had no power to give up the premises upon such conditions. A letter, however, referring to the last offer of the Plaintiffs, was sent by the Defendant's solicitor to one of the Plaintiffs' solicitors on the 29th of April 1842, and V.-C. Viii.-13 386 NELTBOBPE V...
To continue reading
Request your trial
-
Hindson v Weatherill
...475); Podmore v. Gunning (7 Sim. 644); ttdworth v. Marriott (1 Myl. & K. 643); Dent v. Bennett (4 Myl. & Cr. 269); Nelthrope v. Holgate (1 Coll. 203); Billage v. Southee (9 Hare, 534); Hainan v. Loynes (4 De G. Mac. & G. 270). Mr. Malins and Mr. Fischer, for the Appellant, were not called u......
-
Baines v Tweddle
...referred in his Judgment. 33 Sir Richard Henn Collins, after referring to a decision of Vice-Chancellor Knight Bruce in the case of Nelthorpe v. Holgate said: "Now, what is the element that the Vice-Chancellor is seeking for there which determines the case? It seems to me to be an element o......
-
Hoy v Smythies
...with a compensation. The case is precisely within the rule established by Painter v. Newby (11 Hare, 26), [515] and Nelthorpe v. Holgaie (1 Coll. 203). The continuance of the correspondence after the offer to rescind was a waiver of the condition ; Mwley v. Cook (2 Hare, 106); and the vendo......
-
Farrar v Barraclough
...Court. (1) See Fenton v. Brown, 14 Ves. 144; BoUnson v. Watt, 10 Beav. 61; Southty v. Hutt, 2 My. & Cr. 207 ; Nelthorpe v. Holgate, 1 Coll. 203; Seaton v. Mapp, 2 Coll. 556 ; ShacMeton v. Sutdiffe, 1 De G. & S. 609. 2 SM. & GIFF. 233. EARRAR V. BARRACLOUGH 379 The co-trustee died many years......