Sir Thomas Wilde and Dame Augusta Emma, his wife, - Appellants; Magnus Gibson, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 06 June 1848 |
| Date | 06 June 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 897
House of Lords
Mews' Dig. x. 143, 150; xiv. 1247. S.C. 12 Jur. 527; and in Ch. sub nom. Gibson v.D'Este, 2 Y. and C. Ch. 542. Adopted in Donegal (Marquis of) v. Greg, 1849, 13 Ir. Eq. R. 43, 44; Brett v. Clowser, 1880, 5 C.P.D. 388; Brownlie v. Campbell, 1880, 5 A.C. 937; Joliffe v. Baker, 1883, 11 Q.B.D. 272; and see Parr v. Jewell, 1855, 1 Kay and J. 673; Debenham v. Sawbridge, 1901, 17 T.L.R. 441.
Vendor and Purchaser - Completed contract - Imputed fraud - Pleading.
THOMAS WILDE and Dame AUGUSTA EMMA, his wife,-Appellants; MAGNUS GIBSON,-Respondent [May 22, 23, and 25; June 6, 1848]. [Mews' Dig. x. 143, 150; xiv. 1247. S.C. 12 Jur. 527; and in Ch. sub nom. Gibson v.D'Este, 2 Y. and C. Ch. 542. Adopted in Donegal (Marquis of) v. Greg, 1849, 13 Ir. Eq. R. 43, 44 ; Brett v. dowser, 1880, 5 C.P.D. 388 ; Brownlie v. Campbell, 1880, 5 A.C. 937; Joliffe v. Baker, 1883, 11 Q.B.D. 272; and see Parr v. Jewell, 1855, 1 Kay and J. 673; Debenham v. Sawbridge, 1901, 17 T.L.B. 441.] Vendor and Purchaser-Completed contract-Imputed fraud-Pleading. A Bill filed by a purchaser to set aside a purchase and conveyance of an estate, on the ground of fraudulent concealment of a right of way, dismissed with costs, there being no proof of concealment by the vendor, although the dealings were inconsistent with any right of way. To set aside a purchase, perfected by conveyance and payment of the purchase money, for fraudulent concealment by the vendor of a defect in the title, where there was no warranty or statement that there was no defect; proof H.L. ix. 897 . 29 I H.L.C., 606 WILDE V. GIBSON [1848] of concealment by the vendor's agent, is not sufficient, there must be proof of direct personal knowledge and concealment by the principal. A purchaser of an estate, having made no inquiry respecting the title from an agent for the sale, is not entitled to any relief for non-communication of any defect by him. Constructive knowledge of an agent, or knowledge acquired by him otherwise than as an agent for the sale, of a fact, the non-communication of which is made the ground for relief against the purchase, does not at all affect the contract. Constructive notice is resorted to, from the necessity of finding a ground of preference between equities otherwise equal, but cannot be applied in support of a charge of direct personal fraud. Where a purchaser seeks to be relieved against the purchase on the ground of personal fraud by the vendor, and the alleged fraud is not proved, he is not entitled to relief on any other grounds. This was an appeal from a decree (2 You. and Col. 542) and order of Vice-Chancellor Knight Bruce, upon a bill filed by the respondent, for rescinding a contract made by him in August, [606] 1838, for the purchase of a messuage and land from the appellant, Lady Wilde, then Augusta Emma D'Este, spinster, and completed by a conveyance and payment of the purchase money in December the same year. The messuage and land in question formed part of an estate at Ramsgate, formerly the property of Lady Augusta De Ameland, the said appellant's mother, who conveyed it to her in fee in 1829. In August 1838, Mademoiselle D'Este caused the whole estate to be set up for sale by auction, in lots, for building purposes. Printed particulars and conditions of sale were published: The third condition stated " that a deposit of 20 per cent., in part of the purchase money, should be paid to the auctioneer at the sale, the purchaser to enter into an agreement for payment of ihe remainder at the office of Messrs. Farrer and Parkinson, Lincoln's Inn Fields, or at the office of H. Wightwick, Esq., Ramsgate, on or before the 25th of March, 1839, at which time, and at one of those places the purchase is to be completed." The fifth condition was, " that no purchaser should be entitled to require or inspect any title prior to the deeds by which the property was respectively conveyed to the vendor or Lady Augusta De Ameland respectively; or to require or inspect the title to any of the respective roads, walks, or pleasure-grounds, or to any of the premises, except the lot or lots purchased by him or her; arid that the vendor should not be called upon to identify the respective lots with the former descriptions thereof; and all the recitals and statements contained in any document should be deemed conclusive evidence thereof." The sixteenth was, " that towards effecting an esplanade and steps to the sea, each purchaser should pay 5 per cent, upon his purchase money, into the hands of the said H. Wightwick, as a trustee for those purposes." The last of the lots, which was that purchased by the respondent, was described in the particulars as " The [607] capital freehold mansion-house, called Mount Albion, with the offices, etc., and pleasure grounds, containing about one acre, two roods, twenty-thres perches." And it was added that the purchaser should inclose this lot by a wall or iron railing. In a map annexed .to the particulars and conditions, the last mentioned lot was described as bounded on the south-west by a new road, called " Victoria Road," forty feet wide; and on the east side of that road, next the lot was marked a dotted line, representing the boundary between the liberty or town of Ramsgate and the parish of St. Lawrence. The respondent having been declared the purchaser of this lot, at the price of 2030, paid the deposit of 20 per cent, to the auctioneer, and also 5 per cent, to Mr. Wightwick, in pursuance of the conditions. In the abstract of title, which was soon afterwards delivered to him by Messrs. Farrer and Parkinson, Mademoiselle D'Este was represented to be owner in fee of the premises which were described as adjoining the liberty way, and unaffected by any right or liberty of way over them. The respondent having accepted the title, the premises were conveyed to' him by lease and release, dated the 28th and 29th of December, 1838. In the release the premises were described as being situate without the liberty of Ramsgate, in the parish of 898 WILDE V. GIBSON [1848] I H.L.C., 608 St. Lawrence, and bounded as they appeared in the map before mentioned. The respondent paid the remainder of the purchase money, and being then let into possession, proceeded to build the wall inclosing the premises, according to the conditions of purchase and to a covenant on his part contained in the deed of conveyance. In May 1839, the officers of the parish of St Lawrence applied to the respondent for payment of two shillings and sixpence, as an annual acknowledgment to that parish [608] of a right of way, called " the Liberty Way," through the property on the Victoria Road side, within the wall which he had just erected there; and in January 1840, the officers of the town of Eamsgate applied for the like payment as a similar acknowledgment to their town. They stated that " the Liberty Way " was situated partly within the liberty of the town, and partly in the parish of St. Lawrence, and that part of it was in fact included with the newly erected wall. It appeared on further inquiry that, in the year 1820, Lady De Ameland had, with the permission of the officers of the town and of the parish, inclosed so much of the liberty way as passed through her property, and she thereupon executed a deed poll, which recited that the consent of the vestry of the said parish was given to such inclosure, on condition that, during the time the liberty way should be so enclosed, another road, six feet wide, without the enclosure, should be found and maintained by her, and at the expence of her and her heirs; that the part of the liberty way so enclosed should be marked out by proper mark-stones, and that a deed should be executed by her, acknowledging for her and her heirs, that the said liberty way was enclosed by permission, and not of right, and that the same should be opened whenever the said parish vestry should require it, aftd that by way of acknowledgment a yearly rent of five shillings should be reserved in respect of such enclosed way, payable in moieties to the surveyors of the said town and parish-by all which terms and conditions she (Lady De Ameland) declared that she, her heirs and assigns, were bound. It was also ascertained that this nominal rent to the said town and parish had been regularly paid by the agents of Lady De Ameland and of Mademoiselle D'Este. The respondent refused to pay the sums' so demanded, and conceiving that the value of the property was materially diminished by such a claim, and his enjoyment of it [609] liable to be disturbed at any time, applied to the vendor's solicitors to take it back, and repay his purchase money, with his costs and other expences. The application was refused. The respondent filed his bill against Mademoiselle D'Este in 1840, stating to the effect before stated, and further stated, that, until the said rent was demanded of him, he was wholly ignorant that any part of the liberty way was included within the purchased premises, or that the said town or parish had any right of way through any part of them; and the bill charged that the defendant, as well as Lady De Ameland, had acknowledged such right of way; that no notice thereof, express or constructive, was given to the respondent, and that from the abstract of title delivered to him, and from the map annexed to the particulars and conditions of sale, it appeared, and he, in fact, believed, that the liberty way was not included within the premises, but adjoined them, and was comprised in the Victoria Road; and he charged that the defendant fraudulently concealed from him the said deed poll, and the fact that Lady De Ameland and herself had regularly paid the yearly rents of two shillings and sixpence to the said town and parish, in acknowledgement of their right to the said way; that the premises were represented to him to be...
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