Sir Edward Knatchbull, Bart. and Dame Mary his Wife, Henry Curson and Bridget his Wife, George De Billinghurst and Ann his Wife, Henry Michael Goold and Eleanor his Wife, Plaintiffs, and Stephen Henry Grueber, Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1817 |
| Date | 28 July 1817 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 48
HIGH COURT OF CHANCERY
See Colly v. Gadsden, 1865, 34 Beav. 419; In re Arnold, 1880, 14 Ch. D. 279; Jacobs v. Revell, [1900] 2 Ch. 863.
[124] Sir edward knatchbull, Bart, and Dame mauy his Wife, henry Ccmsox and bridget his Wife, george de billinghurst and ann his Wife, hknuy michael goold and eleanor his Wife, Plaintiffs, and stephen hhnuy grubber, Defendant. July 28, 1817. LSee Golly v. Gadsden, 1865, 3-1 Beav. 410 ; In re Arnold, 1880, H Ch. D. 27!) ; Jacobs v. Revell, [1900] 2 Ch. 863.] l/Ihis case was very fully argued before the Lord OhancMor at different times, both on the general doctrine of the Court as to the Execution of a Contract with Compensation for a partial defect of Title, and on the particular circumstances of the Case itself ; but, from the view which his Lordship has taken of it, it seems unnecessary to report those Arguments.] On a Bill by Vendor, for specific performance, with an allowance to the Defendant by way of compensation for a part of the Estate to which the Plaintiff is unable to make a good title; the Defendant having taken possession under the Agreement, one of the terms of 3MER. 125. KNATOHBULL V. ORCJEBER 49 which was " that immediate possession should be given " ; and, in the course of disputes which arose subsequently as to the title to this part of the Estate, having been turned out of the possession so taken ; held, that the Vendor, in so turning him out of possession, has abandoned his right to a specific performance ; and the Bill dismissed accordingly : without going into the question as to the materiality of the defective part. The Lord Chancellor [Eldon]. This Case (reported, 1 Madd. 15o) comes before the Court upon an Appeal from a Decree pronounced by the Vice-Chancellor. It appears by the Bill, that, in October 1811, the Plaintiffs, who were seised of the Estate in question, had [125] proposed to sell it by auction, in lots, us described in the printed particular, arid under certain conditions. The Particular (which was referred to in the Contract afterwards entered into between the Plaintiffs and Defendant), pointed out a somewhat more prudent mode of dealing between the Vendors and any person who should happen to become the Purchaser at the Auction, than seemed to be afterwards thought of in framing the Contract, of which this Bill seeks the performance. By that Particular the property was distinguished into three lots, the first of which was represented as a valuable freehold Estate, containing a spacious mansion-house and several pieces of land-some of them (as, I now understand, is admitted on all hands) forming a part of the Estate called Cole Nash (a circumstance which seems not to have been ascertained to the satisfaction of both parties when the Bill was filed) : the second of which lots was described under the name of The Manor-Farm, but which, in the proceedings, is denominated The Stone-Stile Farm, and is part of the premises afterwards sold to Wildman : and the third is called Marsh Land, and is described as distinct from all the rest of the property, and as constituting the third lot entirely by itself. This Hale by Auction, however, being intended to take place only in case the Estate should not be sold by private contract, it is admitted that an Agreement was entered into on the Loth of October 1811, between the Plaintiffs and Defendant, for a sale of the Estate to the Defendant : but it was nevertheless agreed (and I now mention the circumstance because the Bill alleges that it was at the suggestion of the Defendant, who wished to become purchaser of a part only, and not the whole of the property ; while the Answer insists, as I think is also established in Evidence, that it was not at the instance of the Defendant, but of Sir Edward Knatchbuli) [126] that the Estate should still be made the subject of a Sale by Auction, notwithstanding the Contract. It is necessary to attend very particularly to the terms of the Agreement so entered into between the parties. It begins by stating, that the Plaintiffs (parties to the Agreement of the first part) " have sold by private contract to the (Defendant) " for 52,000, and the (Defendant) hath agreed to purchase for that sum, the fee-" simple of Estates of the late Mr. Hate-kins, advertised to be sold by auction at Fever sham on the 10th inst. in three lots, including the timber and underwood, " free from all incumbrances, except the quit-rents and reliefs, the land-tax, the " existing lease of Stune-titile Farm, and the other incumbrances set forth in the " printed particulars of sale. That the (Defendant) shall pay Mr. J. Humphries " (the agent of the vendors) on the execution of this agreement, as and by way of " deposit, the sum of 5000, to be paid to the vendors on the title being approved '' of ; the sum of 12,300 to the vendors on the 1st of February next; the further ' sum of l7,.'iOO to the vendors on the 1st of A ui/ust next ; and the sum of 17,400 " (being the remainder of the said sum of 52,000) on the 2lJth of September next ; '' with interest upon the unpaid instalments, from the date of this agreement, until [laid, after the rate of 5 per cent, per ann." Then follows this part of the agreement-and a very material part, in my view of the case, it is -" That the (Defendant) shall have, immediate possession of the mansion-house, gardens, and back-orchard at Nimli, and also of the wood-land " and marsh-land on hand, and shall receive the rents of titone iStiie farm,, and of " the farm at Nash, and other parts of the Estates, which are let, from Michaelmas " day last, to which [127] time all outgoings shall be paid by the vendors ; but tl u " vendors shall attain possession of the title deeds until the above consideration money and interest shall be fully paid, and the purchase completed ; and, in the 50 KNATCHBtTLL I1. RRtTEBER 3 MER. 128. " mean time, the unpaid part of the consideration money shall stand charged and " secured upon the Estate." The first of the. terms of this agreement therefore is, that immediate possession shall be given to the purchaser ; and then follows this stipulation-" That the taking " possession, and receipt of the rents, shall not he considered as an acceptance of the " title ; but the (Defendant) shall, notwithstanding, have a good and marketable " title made out to him.'1 The agreement then goes on-" That the vendors shall, at their expense, forthwith furnish to (the Defendant) an abstract of the title to the Estates, and make " out a good and marketable title to the same, free from incumbrances. That this " agreement shall, on or before the 1st of February next, be carried into execution " by such conveyances and assurances as shall be advised by and on behalf of the " (Defendant), and such part of the purchase-money as shall remain unpaid shall be secured according to the intent of this agreement, in such manner as shall be " advised and approved by C. Butler of Lincoln's Inn, on the part of the vendors, " and by G. Cooke, of the Temple, on the part of the (Defendant). That the expenses '' of all fines and recoveries (if any necessary), and the making out the title, and such " other expenses as are usually paid by vendors upon sale by private contract, shall be borne by the vendors ; and the expenses of the conveyances and such other " deeds as shall be deemed necessary for securing the payment of the in-[128]-stal-" ments shall be borne by the (Defendant). That the (Defendant) shall, if he thinks " proper, have the furniture and fixtures in and about the mansion-house, upon paying for the same according to valuation, in the usual way ; otherwise the said " furniture and fixtures shall be forthwith removed from the premises. That the " sale of the Estates shall take place as advertised ; but the same shall he bought " in on the part of the vendors ; and, if any part is sold, such sale shall be on the " account and at the risk of the (Defendant), as well in respect of the auction duty " (if any shall be incurred) as in all other respects, except with regard to the expenses " already incurred, by advertizing, by catalogues, and for the commission of the Auctioneer ; and, if by any accident or oversight the auction duty for what is bought in shall become payable, it shall be referred to two persons, one to be chosen by the vendors, the other by the (Defendant), to consider and decide by whom the " said auction duty shall be borne,-whether by the vendors, or by the (Defendant); " and, in case they differ, the arbitrators shall chuse an umpire, whose decision shall " be final...
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