Okill v Whittaker
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 1847 |
| Date | 14 July 1847 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 973
HIGH COURT OF CHANCERY
S. C. 1 De G. & S. 83; 16 L. J. Ch. 454; 11 Jur. (O. S.), 681. See Besley v. Besley, 1878, 9 Ch. D. 109; Allen v. Richardson., 1879, 13 Ch. D. 541.
[338] okell . whittaker. July 14, 1847. [S. C. 1 De G. & S. 83 ; 16 L. J. Ch. 454 ; 11 Jur. (O. S.), 681. See Bexhy v. BeAey, 1878, 9 Ch. D. 109; Allen v. Richardson., 1879, 13 Ch. D. 541.] ' Premises were sold for the residue of a term of which both parties at the time supposed that eight years only were unexpired, and the price was fixed expressly on that supposition. It afterwards appeared that twenty years were in fact unexpired at the time of the sale. But a bill by the vendor to make the purchaser a trustee of the term for the twelve additional years was dismissed. The Plaintiffs were trustees, for sale, of, amongst other property, certain leasehold premises, which they held under a demise executed in 1755, for a term of three lives and twenty-one years; and, in March 1836, they put the leaseholds up to auction under particulars of sale, in which they were advertised to be sold " for the remainder of a term of twenty-one years, which commenced on or about the 3d of December 1823," the Plaintiff's being then under the impression that the last survivor of the lives had died about that time, although the last life did not in fact drop until March 1835. The property not having been sold at the auction, they agreed a few days afterwards to sell it under the same description to one Whittaker for 300 ; and by an indenture, dated the 22d of March 1835, after reciting the indenture of demise, and "that the last survivor of the lives died on the 3d of December 1823, when the term of twenty-one years commenced; and that the Plaintiffs had agreed with Whittaker for the sale thereof to him for 300 for the residue then unexpired of the lease ;" it was witnessed that, in consideration of the said sum of 300, the Plaintiffs, in exercise of the said power, &c., assigned the premises to Whittaker, " to hold the same for all the residue then to come and unexpired of the said term of twenty-one 'years granted by the said lease, and which term commenced on or about the 3d of December 1823." The purchase-money was duly paid, and Whittaker took possession of the premises, and remained in such possession till his death in 1842, when they passed to [339] the Defendants, his executors. In 1845 the Plaintiffs filed this bill, alleging that they had lately discovered their mistake as to the time when the last life dropped, and praying that, under the circumstances, it might be declared that Whittaker was in equity only entitled to the premises for the residue of a term of twenty-one years, computed from the 3d of December 1823, and that the Defendants might be decreed to re-assign them, and to account for the rents as from the 3d of December 1844. The Defendants, by their answer, admitted that the last surviving life did not in fact drop until March 1835 ; but they stated their belief that Whittaker had attached 974 DUNSTAN V. PATTERSON 2 PH. 340. very little importance to the precise length of time the lease had to run, having bought, as they believed, with a view to obtain a renewal, which, though not a matter of right, would, in all probability, be obtained. It was, however, proved, on the part of the Plaintiffs, by the agent who had negotiated the sale to Whittaker, that, in the discussion of the terms, the latter inquired particularly how much of the lease remained unexpired, and that, in the written proposal signed by Whittaker to be submitted to the Plaintiff's, these words, "there being eight years from December next," were inserted at the express request of Whittaker himself. It was also in evidence that the fair price of the property on that supposition would have been about 294; but, for the longer period, 495 at least. Vice-Chancellor Knight Bruce having, at the hearing, dismissed the bill, with costs, the Plaintiffs appealed. Mr. Anderdon and Mr. Hall, for the appeal, contended that, upon the principle on which money paid by one party to another under a mutual misapprehen-[340]-sion or ignorance of facts, Kelly v. Solan (9 Mees. & W. 54), Bell v. Gardiner (4 Man. & G-r. 11), the Court would relieve the Plaintiffs in this case, as had been done in Bine/ham v. Bingtiam (1 Ves. sen. 126)...
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Leslie v Tompson
...to be sold the whole must pass: the Plaintiffs cannot have a specific performance of the contract with a variation: Okill v. Whittaker (2 Ph. 338, 340, per Lord Cottenham). Taking it, however, that the acreage is to be regarded, as to some extent, an ingredient in the terms of the contract,......