Souter against Drake
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1058
IN THE COURT OF KING'S BENCH
S. C. 3 N. & M. 40; 3 L. J. K. B. 31. Followed, Doe v. Stanton, 1836, 1 Mee. & W. 701; Ellis v. Rogers, 1885, 29 Ch. D. 670.
sotjtbe against drake. 1834. In every contract for the sale of an existing lease, there is an implied undertaking by the seller (if the contrary be not expressed) to make out the lessor's title to demise; and without shewing such title, the seller cannot maintain an action at law against the buyer, for refusing to complete the purchase. Where a lessee in possession contracted to sell the residue of his term, being three years and a quarter, at the rent of 421. per annum, the vendee paying 301. for the fixtures, as per list: Held, that it was not to be inferred from the short residue of the term, the small value of the property, and the absence of any premium for the lease, that the vendee intended to waive his right to call for the production of the lessor's title. [S. C. 3 N. & M. 40; 3 L. J. K. B. 31. Followed, Doe v. Stanton, 1836, 1 Mee. & W. 701; Ellis v. Rogers, 1885, 29 Ch. D. 670.] Declaration stated that the plaintiff was lawfully possessed of a messuage or tenement by virtue of a certain indenture of lease for the residue of a term of years, at the rent of 421., together with certain fixtures therein of a large value, and that on the 24th of February [993] 1831, the defendant agreed with the plaintiff to take the said house and the said lease for the remainder of the term from Lady-Day then next, at 421. per annum, and to pay to the plaintiff 301. for the said fixtures as per list thereof, and in consideration thereof the plaintiff promised to assign the lease to the defendant, and to deliver up possession of the messuage together with the fixtures as per list at Lady-Day; The declaration, after stating mutual promises to perform the 5 B. & AD. 994. SQUTER V. DRAKE ,1059 agreement, averred that the plaintiff delivered to the defendant an abstract of his title to the lease and premises for the purpose of his making and preparing a proper assignment thereof, and that he the plaintiff was ready and willing to execute an assignment of the lease and premises, according to the effect of the agreement, and of his promise and undertaking, and was at Lady-Day ready and willing to deliver possession thereof, together with the fixtures as per list, and afterwards, on the 23d of March 1831, required the defendant to accept and take possession of the messuage or tenement, together with the fixtures, and prepare the assignment, and to pay to the plaintiff the said sum of 301. Breach, that the defendant would not take the messuage and premises, and fixtures, or prepare the assignment, or pay the 301. for the fixtures, but wholly refused so to do. Plea non-assumpsit. At the trial before Denman C.J., at the London sittings after Michaelmas term 1832, the due execution by the defendant of the agreement mentioned in the declaration was admitted ; and it appeared that the residue of the term agreed to be purchased was three years and a quarter. It was proved that the plaintiff had produced an abstract of the lease and assignment of it to himself; but the defendant's solicitor insisted that the purchaser could not be compelled [994] to perform the contract, unless the vendor substantiated the validity of the lease, by shewing a good title in his lessor to the freehold out of which it was derived. This the plaintiff refused to do. The Lord Chief Justice directed a verdict for the plaintiff, but reserved liberty to move to enter a nonsuit. A rule was obtained accordingly, and in Trinity term 1833, Comyn shewed cause (a). The plaintiff, who was the vendor of a leasehold estate in his own possession, was not bound to shew that the lessor, under whom he held, had a good title to demise. The cases which will be relied upon on the other side arose in Courts of Equity, and are all collected in Purvis v. Bayer (9 Price, 488), but there is no...
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Reid v Charles et Al; Charles v Reid et Al
...“In contracts for the sale of real estate, an agreement to make a good title is always implied, of which the case of Soutar v Drake (5B. & AD. 992) is a strong instance.” In other cases, and especially in Ogilvie v Foliamba ( 3 Mer. 53) the right to require a good title appears to be spoken......
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