Southcomb v The Bishop of Exeter
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1847 |
| Date | 05 August 1847 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1145
HIGH COURT OF CHANCERY
S. C. 16 L. J. Ch. 378; 11 Jur. 725. See M'Murray v. Spicer, 1868, L. R. 5 Eq. 537; Venn v. Cattell, 1872, 27 L. T. 470.
6 HARE, 213. SOUTHCOMB V. THE BISHOP OF EXETER 1145 [213] southcomb v. the bishop of exeter. April 24, 27, 28, 29, June 21, July 6, August 5, 1847. [S. C. 16 L. J. Ch. 378; 11 Jur. 725. See M'Murray v. Spic&r, 1868, L. E. 5 Eq. 537 ; Fewm v. Catted, 1872, 27 L. T. 470.] A contract for the sale of the vendor's interest in a manor under a lease for lives was made on the 16th of October 1840. Objections were taken to the title, and a correspondence between the solicitors of the vendors and purchaser took place, and continued until the 20th of August 1841, when the purchaser gave notice to the vendors that, the title being defective, he rescinded the contract. The correspondence with reference to the title still proceeded (the purchaser's solicitor claiming his right to insist upon the notice, but giving the vendors two months more to complete the title) until the 17th of January 1842, when the purchaser intimated that he should fall back to his position under the rescinded contract. The bill was filed on the 30th of August 1843 : Held, that the interval between the 20th of August 1841 and the 17th of January 1842 ought not to be regarded in the question of laches, but that the delay after the 17th of January 1842, before the bill was filed, precluded the vendors from sustaining their suit for specific performance. The fact that the purchaser allowed the deposit to remain in the possession of the vendor from the time he (the purchaser) declared the contract to be rescinded until shortly before the bill was filed, when he brought his action to recover it, did not affect the question of laches. The possession of part of the property comprised in the contract, taken under a mutual arrangement, and in ignorance of the objection to the title which was afterwards discovered and relied on, did not affect the question of laches. The tendency of the Court in modern cases has been to restrict the exercise of its jurisdiction in enforcing specific performance of contracts to those cases in which the Plaintiff has been prompt in seeking his equitable remedy. The purchaser being in possession of part of the property under the arrangement, and being advised to rescind the contract and assert his paramount title to the property, was not bound to give up the possession before he could assert such paramount title by making a formal entry on the property. When the vendor's bill for specific performance is dismissed on the ground of his laches instituting the suit, and without any decision on the question of title, the Court will not order the deposit to be returned to the purchaser, but will leave both parties to their legal remedies. A bill brought by the vendors for the specific performance of a contract for the purchase of their interest in a lease for three lives of the manor of Bishop's Nympton, in the county of Devon. The manor was [214] held of the See of Exeter, and the Plaintiffs claimed to be the owners of the manor, under a lease granted by a former bishop, in March 1823, upon the surrender of a then subsisting lease for lives granted in 1790. Prior to the contract, which was the subject of the suit, a question had been raised as to the validity of th-e lease of March 1823, on the ground of a doubt whether the lease of 1790 had been duly surrendered. The contract which the suit was brought to enforce was dated the 16th of October 1840, and thereby the Plaintiffs agreed to sell, and the Defendant agreed to buy, jail the estate and interest of the Plaintiffs in the manor under the lease of March 1823 (excepting some copyhold estates holden of the manor) at the price of 8000, paying a deposit of 20 per cent, immediately, and the balance on the 29th of September 1841, at which time the contract was to be completed, and ,the purchaser to have possession, and (if from any cause the completion of the purchase should be delayed) to pay interest at 5 per cent. The vendors were forthwith to prepare and deliver to the purchaser an abstract, and the same to be returned to the vendors within twenty-one days after delivery, with the opinion of the purchaser's counsel or solicitor thereon : and the agreement provided that the vendors should deduce a good title 1146 SOUTHCOMB V. THE BISHOP OF EXETER 6 HARE, 215. to the premises, save that the bishop, the purchaser, should not (if the purchase should be completed in his lifetime) object to the validity of the lease of March 1823, on the ground of any defect or omission in the surrender of any former lease; but if the purchase should not be completed in his lifetime, the representatives of the bishop to be entitled to require proof of the validity of the lease of March 1823; and in that case the vendors to be at liberty to rescind the contract, returning the deposit without interest or expenses. [215] The deposit of 1600 was paid upon the execution of the contract. The abstract was delivered on the 30th of October 1840, and the bishop's solicitor, on the 4th of November, asked for an earlier title to the lease than the abstract shewed. Some intermediate correspondence passed, and on the 2d of December the vendors' solicitor delivered a further abstract. Observations on the abstract were answered by the latter solicitors on the 30th of December, and the correspondence continued until the 27th of February 1841, when the solicitor of the purchaser first noticed the objection that the conveyance of five-eighths of the interest in the lease of March 1823, to Lewis Southcomb, one of the Plaintiffs, purported to be effected by the exercise of a power of appointment given to a married woman, since deceased, but which power did not appear to be well executed. The solicitors on both sides were under the impression that the difficulty with respect to the execution of the power might be removed by a second attestation, but on the 7th of May 1841 the purchaser's solicitor informed the vendors' solicitor that he had been advised the defect could not be so cured; and on the 29th of May be explicitly objected to the title on that ground, insisted on the conditions of the...
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