Shackleton v Sutcliffe
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1847 |
| Date | 18 November 1847 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 1217
HIGH COURT OF CHANCERY
S. C. 12 Jur. 199. See Manson v. Thacker, 1878, 7 Ch. D. 624.
1DE G. & SM. 609. SHACKLETON ò V. SDTCLIITE 1217 [609] shackleton v. sutoliite. Nov. 5, 6, 8, 18, 1847. [S. C. 12 Jur. 199. .See Manson v. Thacfor, 1878, 7 Ch. D. 624.] The owner of land, situated on an acclivity, conveyed, by a deed of 1816, a portion of lower land, with liberty to enter on upper lands, and fetch water from a spring, and to cut open, cleanse and cover in such gutters and drains as might be necessary for the purpose of conducting the spring to the conveyed land : and also with liberty to pass and repass, for ingress and egress, on the upper land around or adjoining the conveyed land, and to put any ladders against the cottages then intended to be built upon the conveyed land. By another deed of 1820 other part of the lower land was conveyed, with liberty to take water from specified springs in the higher land, and to make such reservoirs in a particular field, part thereof, as might be necessary for taking up water for family use and other necessary purposes, and with liberty to pass for ingress and egress in the upper land surrounding or adjoining the conveyed land. By other deeds of 1824 other portions of the lower land were released, with all watercourses, particularly as the same ran to an inn on the conveyed land from the upper land. By other deeds of 1825 further portions of the lower land were released, with liberty to fetch water for family and domestic uses at a well on the higher land. By other deeds of 1834 other part of the lower land was released, with liberty to the relessee to make a covered goit, or watercourse, across the bottom part of a field, part of the upper land, and to open and repair the same when necessary. Several years afterwards the upper land was sold, according to a particular, describing it as fit for building, and subject to conditions of sale, providing-that, if any mistake were made in the description of the premises, or if any other error should appear in the particulars, such error or omission should not annul the sale, but compensation should be given or taken. The existence of the easements was not stated in the particulars or conditions. Held, first, that the circumstances of the purchaser living in the neighbourhood, being acquainted with the property, and passing constantly some of the wells on the lower land, supplied from the upper land, did not affect him with notice of the existence of the easements. Secondly, that the existence of the easements, granted by any one of the deeds of 1816, 1820 and 1834, alone constituted a material defect in the title to the upper land., Thirdly, that the existence of the easements, granted by the deeds of 1824 and 1825^ would have been alone sufficient to render the title subject to such serious doubt that a purchaser could not be compelled to accept it. Fourthly, that, under the circumstances, and inasmuch as the whole purchased land did not exceed thirty acres, the purchaser could not be compelled to take the title, with compensation as to the lands prejudicially affected, which admeasured about four acres and a half. be insolvent or incapable of paying his debts, or in such other cases as the Master shall think fit; and it shall not be necessary to include, in any subsequent call, any contributory against whom any balance or claim shall have been abandoned, but the whole amount of every subsequent call shall be apportioned among the other contribu-tories : Provided always, that nothing herein contained shall extend to discharge the estate of any such contributory so left out of any call, from any claim which may exist against the same on behalf of the company or any other contributory thereof; but that it shall be lawful for the official manager to prove for the amount thereof in the matter of such bankruptcy or insolvency (if any), and to receive dividends thereon, or to proceed against such contributory for the same whenever it may appear expedient so to do ; and any monies so to be recovered shall be dealt with as part of the assets of the company, or otherwise as the Master shall direct." T.-C. vin.-39 1.21.8 SHACKLETO2ST V. SUTCLIFFB 1DE G. & SM. 610. The Plaintiffs were devisees in trust of the will of Edmund Wa'dsworth, and under the trusts of the will had power to sell a certain farm and lands, called Higher Murgatshaw, near Halifax. In execution of the trusts, they put up the farm and lands for sale by public auction, pursuant to a certain particular of sale, which described the property as eligible for building purposes, and subject to certain conditions, among which were the following:- 7th. " That the vendors shall, within six weeks from the day of sale, make out, at their own expense, an abstract of their title to the premises, according to the tenure thereof stated in the particulars on the other side; such abstract to be delivered to the purchaser, or his or her solicitor, on [610] application for the same, at the office of Messrs. Sutcliffe, solicitors : and such purchaser shall, within one month after such abstract shall have been delivered to him, or his or her solicitor, give notice to the vendors or their solicitors, whether the title is satisfactory or not; and, in case he or she shall declare himself or herself dissatisfied therewith, the vendor's agent or solicitor shall be at liberty to return the deposit money, and resell the premises, or compel an execution of the contract, as the vendors may think fit; and in case the purchaser does not give such notice of his or her being dissatisfied with the title, within one month, as aforesaid, the purchaser shall be considered as having accepted the title as developed by the abstract." 14th. "That, if any mistake be made in the description of the premises, or, if any outpayment (other than Parliamentary or parochial taxes), to which the premises may be subject, shall be omitted to be mentioned and specified at the sale, or if any other error whatsoever shall appear in the particulars of the estate, such error or omission shall not annul the sale, but compensation or equivalent shall be given or taken, as the case may require." The 16th condition provided that, if the purchaser should neglect or fail to comply with the above conditions, or any of them, in any respect, his or her deposit monies should be actually forfeited to the vendor, who was to be at liberty to resell the premises, either by public auction or private contract, and the deficiency (if any) in price, arising from such second sale, together with all expenses attending the same, were to be made good by the purchaser making such default. The Defendant was declared the purchaser at...
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