Symons v James
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1843 |
| Date | 11 May 1843 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 983
HIGH COURT OF CHANCERY
S. C. 6 Jur. 452.
[487] symons v. james. May 3, 1842. [S. C. 6 Jur. 452.] Facts stated in conditions of sale as the ground of the conditions must be proved. By an order made in this cause on further, directions it was ordered that the manor or lordship of East Brent, late the property of the testator, George Symons, and also the East Brent estate, and all other the testator's freehold, copyhold and leasehold estates (except certain specified messuages), should be sold, with the approbation of the Master. The property was accordingly put up to sale in lots; and, with respect to Lot 24, the fifteenth condition of sale was as follows :- " 15. That as Lot 24 consists of a variety of, allotments which were awarded in the year 1784 to Robert Macreath, Esquire, or his tenants, in respect of the manor, or some part or parts of the manor of East Brent, or of the lands held therewith, of which he was then the owner, which manor, together with such allotments and all lands held therewith, was subsequently purchased by the said George Symons; the title of the vendors to the said manor shall be conclusive evidence of their title to the said Lot 24, and the vendors shall not be required to identify such lot with any part of the lands held with the manor, and conveyed to the said George Symons with the manor." The lot was sold, and an abstract of title was delivered by the vendors to the purchaser, which was headed thus: "An abstract of the title of the devisees of George Symons, Esq., to four closes of freehold land situate in Mark Moor, in the parish of Mark, in the county of Somerset, consisting of allotments No. 587 to 609 (both inclusive), on the Mark Moor Inclosure Award Plan, and being Lot 24 in the particulars of sale." The abstract set forth statements of the following documents:--An award of Commissipners under the Mark Moor 488] Inclosure Act, dated 2d September 1784, whereby 23 allotments of land in Mark Moor were awarded to Robert Macreath, in respect of the manor of East Brent; indentures of lease and release of the 23d and 24th December 1791, by which Macreath conveyed to Dawes, in fee, the manor of East Brent, with its rights, members and appurtenances; the particulars of the manor with its appurtenances, including the 23 allotments, being mentioned in a schedule annexed to the release; and then indentures of lease and release, dated the 28th and 29th September 1792, by which, after reciting that, by the before-mentioned indentures of December 1791, all and singular the manor of East Brent, and the other lands and hereditaments therein mentioned and intended to be thereby conveyed, had been, amongst other lands and hereditaments, conveyed to Dawes and his heirs; it was witnessed that the said Dawes granted, bargained, sold, released, &c., to Symons and his heirs all that the manor of East Brent, with its rights, incum-brarices and appurtenances, and all and every messuages, cottages, lands, tenements and hereditaments, situate in East Brent, &c., and which were particularly mentioned in the schedule thereunto annexed, and all commons, common of pasture, &c. (the general words of the deed being very extensive); and then followed a schedule, which varied in several particulars from the schedule to the deeds of 1791, containing in express terms only 18 of the allotments made to Macreath. 984: SYMONS V. JAMES 1Y. & C. C. C. 489. Upon this evidence the purchaser insisted that a' good title had been shewn to 18 only of the 23 allotments which constituted Lot 24 ; and the Master having reported in favour of the title to the whole lot, subject to a question as to an alleged deficiency of quantity in one of the closes, the purchaser took an exception to his report, which exception now came on for argument.(l) [489] It was admitted that a good title had been made to the manor. Mr. Keene, for the exception. Mr. Malins, for the report. The circumstance that all the 23 allotments are not mentioned in the conveyance to Symons is not a ground of objection to the title, when the terms of the 15th condition of sale are .considered. Dawes may have changed the boundaries of the land, and the probability is that, in the conveyance to Symons, those only of the allotments which remained as they were allotted are described. [the vice-chancellor. It is highly probable that all this property was enjoyed by Symons and those claiming under him. That would be very much in your favour, if you could shew it.] As the case stands, it is not conclusive against us that the remaining four allotments may not have been included in the other allotments. If so, the 15th condition of sale applies. The [490] only matter in dispute between the parties is whether these lands were purchased with the manor. But by the 15th condition of sale we are not required to identify any of these lands with the lands held with the manor, and conveyed to Symons. The condition states, as matter of fact, that the lands are held with the manor, but stipulates that the vendors shall not identify them with the lands so held; that is to say, the vendors are not to be called upon to prove their assertion of identity. The purchaser, however, says 18 only of your allotments are mentioned in the conveyance, therefore you do not shew the identity of the lands as held of the manor, and conveyed to Symons. But it is against that argument that the vendors have guarded themselves by the 15th condition of sale. the vice-chancellor [Sir J. L. Knight Bruce]. If a vendor means to exclude a purchaser from that which is matter of common right, he is bound to express himself in terms the most clear and unambiguous. And if there be any chance of reasonable doubt, or reasonable misapprehension of his meaning, I think that the construction must be that which is rather favourable to the purchaser than to the vendor. Now I agree that there is considerable plausibility in the argument which Mr. Malins has used, but it is not entirely convincing to my mind that he has discharged himself from that obligation, which, in my view of the case, is incumbent upon a vendor, in circumstances of this description. The 15th condition of sale, as a reason (1) This case was twice argued. On the first argument (which took place, on the 19th April), the Vice-Chancellor having noticed the words "amongst other lands and hereditaments," contained in the recital in the conveyance to Symons, inquired whether the schedule in that conveyance and the schedule in the previous conveyance to Dawes were identical. Upon being answered in the affirmative...
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