Simmons v Heseltine
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1858 |
| Date | 08 December 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 224
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 129; 5 Jur. N. S. 270; 7 W. R. 133. See Stevens v. Austen, 1861, 3 El. & El. 700; Osborne to Rowlett, 1880, 13 Ch. D. 797.
simmons v. heheltenj!;. Dec. 8th, 1858. [S. C. 28 L. J. C. P. 129; 5 Jur. N. 8. 270; 7 W. R. 133. See Stevens v. Austen, 1861, 3 El. & El. 700; (hborne to Rowlett, 1880, 13 Ch. D, 797. Where the ability of the vendor to make a good title to a portion of the premises sold depends on a doubtful question of fact or of law, the title will not be deemed a good or sufficient title as between vendor and purchaser. - Where, therefore, A. bought certain premises the description of which in the particulars included a stall, which was claimed by the purchaser of the adjoining house under the same vendor, and it was doubtful aa a matter' of fact whether the description had been corrected at the time of the sale to A. so as to exclude the stall, and as a matter of law whether the stall was included irr the conveyance to the purchaser of the adjoining premises, and a court of equity had refused to decree specific performance against A. :-Held, that A. was entitled to recover back his deposit and interest, and the expenses of investigating the title, in an action against the vendor. This was an action brought by the purchaser of a house in Queen Street, Hoxtion, in, the county of Middlesex, against the vendor, to recover the deposit-money and interest, together with the experrses of investigating the title, on the ground that the vendor had failed to make a good title to a portion of the premises comprised in the contract of sale. The declaration container! counts for money received by the defenclarrt to the use of the plaintiff, and for- money found due from the defendant to the plaintiff upon accounts stated between them. There was also a special count stating, that, theretofore, to wit, on the [555] 8th of April, 1856, the defendant put up for sale certain tenements, described by him as a freehold estate, comprising a dwelling-house and shop, No. 1 Queen Street, Hoxton, with inclosed stall adjoining, fronting both Queen Street and Pitfield Street, under and subject to certain conditions, that is to say, &c. (setting them out); that the plaintiff became the highest bidder for and purchaser of tlje said tenement at and for a certain sum of money, to wit, 6001., under and according to the sa}d conditions; arrd that the plaintiff and defendant then agreed that the defendant should sell and the plaintiff should purchase the said tenements, at and for the said price, under and according to the said conditions, and that each of them should perform all things in the said conditions contained oir his part to be performed : Averment of performance by the plaintiff of all things necessary on his part to entitle him to have a good title to sell and convey the said tenements made out to him by 3 C. B. (N. S.) 856- SIMMONS V. HBSELTINE 225 the defendant according to the said conditions, arid that a reasonable time for the defendant to make out and have such title, had elapsed : Breach, that the defendant did not make out or have such title, but therein wholly failed and made default, whereby divers costs and expenses incurred by the plaintiff in investigating the title of the defendant, and in preparing to complete the said purchase on his part, became and were wholly lost to him, and he was deprived of the interest which he might and otherwise would have made of the deposit paid by him, according to the said conditions, and of the residue of the purchase-money which he had prepared and kept ready to complete the said purchase, and was also put to and incurred the costs of defending a suit in Chancery instituted by the defendant against him to enforce speeific performance of the said agreement, and was and is otherwise injured. Claim, 4001. [656J The defendant pleaded, amongst other pleas,-first (to the common counts), never indebted,-secondly (to the residue of the declaration), that the defendant did, pursuant to the said contract, make out to the plaintiff, and had, such a title as was contemplated and provided for by the said conditions of sale,-thirdly, that the plaintiff, under and according to the third condition, waived certain objections to the defendant's title, and that the defendant did in all other respects, pursuant to the said contract, make out to the plaintiff, and had, a good title to sell and convey the the said tenements,-fourthly, that the defendant did not agree as alleged. Issues thereon. The cause was tried before Williams, J., at the first sitting in Middlesex in Easter Term last. The facts which appeared in evidence were as follows:-The house in question was No. 1 Queen Street, a street running at right angles with another street called Pitfleld Street, the corner house of which last-mentioned street (No. 24) was partly in Queen Street and partly in Pitfield Street, but in front of that portion which faced Queen Street, there was an area or vacant space of the width of four feet two inches, running along that side of the premises, and lying between them and the footway of Queen Street. Upon this vacant space was a covered shed or stall. The freehold of the premises No. 24 Pitfield Street, was put up for sale by the defendant at public auction, in September, 1854, when one Dr. Dawson became the purchaser. The particulars of sale on that occasion described the property to be sold as "comprising a dwelling-house and shop No. 24 Pitfield Street, let on lease to and in the occupation of Mr. William Dawson for a term of twenty-one years from the 25th of Mareh, 1849, at the rent of 451. per annum, the tenant paying all [557] rates and taxes, whether parliamentary or parochial, including the land-tax and sewers-rate (property-tax only excepted), also insuring the premises, arid doing the repairs." In William Dawson's lease, the premises were described thus :-" All that piece or parcel of ground, with the messuage or tenement and buildings thereon erected and built, situate, lying, and being in Pitfield Street, in the parish of St. Leonard, Shore-ditch, in the county of Middlesex, with the appurtenances, and now in the possession of the said William Dawson, and which said messuage or tenement is numbered 24, and the site of which said piece or parcel of ground and premises, with the several dimensions thereof, be the same more or less, and the abuttals thereof, are described in the ground-plan of the same drawn in the margin of these presents." In the indenture whereby the premises so purchased by Dr. Dawson were conveyed to him, and which indenture bore date the 17th of January, 1855, they were described as "all that piece or parcel of ground, with the messuage or tenement and buildings thereon erected and built, situate, lying, and being in Pitfield Street, in the parish of St. Leonard, Shoreditch, in the county of Middlesex, with the appurtenances, now or late in the occupation of William Dawsou, and which said messuage or tenement...
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