Richard Boyman Boyman v John Matthew Gutch
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 147
COURT OF COMMON PLEAS
S. C. 5 Moo. & P. 222; 9 L. J. C. P. (O. S.) 63. Discussed, Simmons v. Heseltine, 1858, 5 C. B. (N. S.) 569. Referred to, Stevens v. Austen, 1861, 3 El. & El. 692.
richard boyman boyman v. john matthew gutch. 1831. [S. C. 5 Moo. & P. 222; 9 L. J. C. P. (0. S.) 63. Discussed, Simmons v. Heseltine, 1858, 5 C. B. (N. S.) 569. Eeferred to, Stevens v. Austen, 1861, 3 El. & El. 692.] 1. In assumpsit to recover money deposited upon a purchase, upon an allegation that the Defendant has failed to make a proper title, this Court will not consider whether the title is of a doubtful description, such as a court of equity would not compel an unwilling purchaser to take, but simply whether the Defendant has or has not a legal title to convey.-2. S. P., who had a life-interest in some funded property, and in a leasehold house, with reversion to her son, joined with her son in assigning the property to the Defendant " to hold, receive, and take the leasehold, funds, and other premises, to the Defendant upon trust that he should receive, and convert the same into money; and for that purpose should at his own discretion sell the leasehold, and the reversionary interest in the funds; provided that he should not, during five years from the date of the deed, put in force the trusts declared of the premises in such manner as to deprive S. P. of her life-interest therein during that period :" Held, that at the end of the five years the Defendant had power to sell S, P.'s life-interest in the funds. This was an action of assumpsit, brought to recover the sum of 1111. and 101. 15s. lid. interest thereon, together with the costs for examining into the title of the Defendant to certain property sold by auction to the Plaintiff. [380] The declaration contained two special counts; the first of which stated, in substance, that Defendant, by his auctioneers and agents in that behalf, on the 30th of November 1827, caused to be put up and exposed to sale by public auction, the life-interest of a widow lady represented to be of the age of fifty-eight years, in the sum of 7601. New 4 per cents., to commence on the 30th July 1828; also the reversion to the principal sum receivable upon the demise of the lady, provided any of her five children then living should survive her, who then were of the respective ages of between thirty-three and thirty-six, thirty-one, twenty-nine, twenty-seven, and twenty-four ; upon and subject to the following amongst other conditions, that is to say, Third condition; that the purchaser should pay down immediately a deposit of 201. per cent, in part of the purchase-money, and sign an agreement to pay the remainder on or before the 21st of December 1827; but if, from any cause, the purchase should not be completed, interest should be paid on the balance of the purchase-money at the rate of 51. per cent, up to the time of completing the purchase: that the purchaser should be entitled to all advantages from the hour of sale: Fourth condition; that the purchaser should have a proper assignment of the property at his or her own expense, on payment of the remainder of the purchase-money agreeably to the third condition. And the Plaintiff in fact said, that, on such exposure to sale as aforesaid, to wit, on the 30th of November 1827, the Plaintiff was declared to be and became the purchaser of the said life-interest and reversion, upon and subject to the aforesaid conditions, for a certain sum of money, to wit, the sum of 5551.; and then and there paid down 1111. as a deposit of 201. per cent, in part of the said purchase-money, and then and there signed an agreement to pay the remainder of the pur-[381]-chase-money on or before the 21st of December 1827: and thereupon afterwards, to wit, on, &c. in consideration that the Plaintiff, at the special instance and request of the Defendant, had then and there undertaken and faithfully promised the Defendant to perform and fulfil all things in the said conditions of sale contained on the part of the Plaintiff, as purchaser as aforesaid, to be performed and fulfilled, the Defendant undertook and then and there faithfully promised the Plaintiff.to perform and fulfil all things in the said conditions mentioned on the part of the Defendant, as vendor as aforesaid, to be performed and fulfilled : but that, although the Plaintiff on the 30th 148 BOYMAN V. GUTCH 7 BING. 382. of November 1827, and from thence untiland upon the 21st of December 1827, and from thence hitherto, had been always ready and willing to perform and fulfil all things in the said conditions mentioned on his part and behalf as purchaser as aforesaid, to be performed and fulfilled, and to pay the remainder of the said purchase-money, and the expense of a proper assignment of the said life-interest and reversion, and to complete the said purchase, whereof the Defendant, on, &c. had notice, and was then and there requested by the Plaintiff to make him a proper assignment of the said life-interest and reversion, and to perform the said conditions, and his, the Defendant's, promise on his part, nevertheless the Defendant, not regarding- his promise and undertaking, nor the said conditions of sale, then and there craftily and subtilly deceived the Plaintiff in this, to wit, that, at the time of the exposure to sale, and from thence until and upon the 21st December 1827, and from thence hitherto, the Defendant had not a good right or title to sell or assign, or cause to be assigned to the Defendant the life-interest and reversion, in pursuance of the conditions of sale, and did not, nor would at the time for completing the said purchase, or at any [382] time before or since shew or make, or procure to be made to the Plaintiff a proper title to the said life-interest and reversion, or make or procure to be made such proper assignment as aforesaid, or shew a title enabling him to do so according to the said conditions, but wholly neglected and refused, &c.; by reason whereof the Plaintiff had been and was deprived of all benefits and advantages which would have arisen from the completion of the said purchase; and had been put to great expenses, amounting in the whole to a large sum of money...
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