Thomas v Dering
| Jurisdiction | England & Wales |
| Judgment Date | 07 April 1837 |
| Date | 07 April 1837 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 488
ROLLS COURT.
S. C. 6 L. J. Ch. (N. S.), 267; 1 Jur. (O. S.), 211, 427. See Barnes v. Wood, 1869, L. R. 8 Eq. 429; Rossiter v. Miller, 1877-78, 5 Ch. D. 658; 3 App. Cas. 1138; Stewart v. Kennedy, 1890, 15 App. Cas. 102. Cf. Barker v. Cox, 1876, 4 Ch. D. 464.
[729] Between richard thomas, Plaintiff; and sir edward cholmeley derino, Bart., sir william richard powlett geary, Bart., and cholmeley derinu, Defendants. April 6, 7, 1837. [S. C. 6 L. J. Ch. (N. S.), 267; 1 Jur. (O. S.), 211, 427. See Barnes v. Wood, 1869, L. R. 8 Eq. 429; Rossiter v. Miller, 1877-78, 5 Ch. D. 658; 3 App. Cas. 1138; Stewart v. Kennedy, 1890, 15 App. Cas. 102. Cf. Barker v. Cox, 1876, 4 Ch. D. 464.] E. D. was beneficially entitled, under his marriage settlement, to an estate for his life, and to the ultimate reversion in fee in default of issue male; and the trustees of the settlement had a power to sell at the request and by the direction of the tenant for life. There was issue of the marriage. E. D., acting as absolute owner, entered into a contract by correspondence to sell the estate to T., and the trustees afterwards refused to concur in the sale. Held, on a bill for specific performance, first, that there was a binding contract between the vendor and purchaser, and that the vendor was bound to perform it, if he was able; secondly, that the vendor ought not to be decreed to request or direct the trustees to execute a conveyance, unless the trustees ought to comply with the request; thirdly, that the trustees had a discretion, under the power of sale, which the Court had no power or jurisdiction to control; and lastly, that the purchaser was not entitled, in such a case, to have the contract performed to the extent of the vendor's interest, by a conveyance of his life-estate and his ultimate reversion. Principles upon which the Court proceeds in determining whether the purchaser is entitled to a partial performance of the contract with compensation for the deficiency, where the vendor has only a limited interest in the estate contracted to be sold, and is, therefore, incapable of performing the whole contract. In the month of June 1834, an advertisement appeared in the Maidstone Journal, stating that an estate, about three miles from Maidstone, consisting of a manor and 682 acres of land, with farm-houses, &c., and affording good pheasant and partridge shooting, was to be sold by private contract, and that further particulars might be obtained by applying to the solicitors therein named. The Plaintiff, having reason to believe that the estate belonged to Sir Edward Cholmeley Dering, authorised his agent, Wise, to treat for the purchase of the estate, and Wise accordingly addressed a letter to Sir Edward C. Dering, requesting to be informed whether the Thornham [730] Court estate was for sale ; and if so, what was to be included in the purchase, and what price was desired for it. To this letter, Sir E. C. Dering returned the following answer:- "Surrendeu Dering, June 4th, 1834.-Sir,-Mr. Bacon has brought me a letter from you, requesting particulars of my estate at Thornham, which I am thinking of felling. There are 682 acres, and the gross rental, including underwood, 716. The IKZEH731. THOMAS V. BERING 489 lowest sum I can take for this is 18,000. With regard to the timber, if any objection was made to taking it by valuation, I should not mind putting a price upon it: from 1500 to 200O would, I apprehend, be about the sum. This estate is certainly a most eligible investment, as there is no outlay required, and it returns nearly 4 per cent. : should the purchaser be unable to pay the whole amount of the purchase-money, I should not object to 8000 or 10,000 remaining on interest, at 4 per cent. If you should have any occasion to write to me, I shall be at Oxon Hoath, Ton-bridge ; and I think it right to apprise you, that I have two parties in treaty for this estate, so that, although it is now in my power to make you the offer, you must not be surprised if in a few days this estate is withdrawn from the market." To this letter Wise sent an answer, dated the 18th of July 1834, stating, that his friend thought the timber small, and not worth the expense of marking and measuring; and that he therefore made the offer of 17,500 for the estate, timber included. On the 19th of July 1834, Sir E. C. Bering replied, as follows :- [731] " Sir,-In reply to your letter of this morning, I am rather surprised at your offer for the Thornham estate. I told you that the lowest price I could take for the farm was 18,000, the timber not included; and when you consider that a purchaser would make nearly 4 per cent., I appeal to you, as a man of business, whether he can fairly expect more in these times. With regard to your friend's opinion of the timber being small and not worth measuring, I do not think he has come to a very logical conclusion. The timber I know is not large; he will therefore have less to pay. I shall be glad to hear shortly, as I had another applicant on Thursday, besides the gentleman who went over it on Wednesday. In the present state of the funds I shall be a considerable loser by taking 18,000 for the farm." On the 21st of July, Wise wrote an answer to this letter declining further treaty, if Sir E. C. Dering could not make any alteration in his offer. On the 23d of July Sir E. C. Dering wrote a letter, acceding to the proposal of 17,500 for the estate, exclusive of timber. To that letter Wise wrote an answer, making another offer, on the part of the Plaintiff, of 18,000 for the estate, timber and all included ; to which Sir E. C. Dering sent the following letter in reply :- "Oxon Hoath, Sunday 27th of July 1834.-Sir,-In answer to your letter of yesterday, you may inform your friend that, although I am aware the sum he has offered is below the value of the property, I have nevertheless made up my mind to accept his offer. I have this day written to my solicitor to say I have agreed to accept 18,000 for the whole, and he will draw up an agreement immediately. I told him Mr. Thomas would probably call on him early this week; I go up to-morrow, and shall return on Thursday. Al-[732]-though I have sold this property for considerably less than I intended, I have to thank you for having mentioned it to Mr. Thomas." In consequence of this letter a negotiation took place between the solicitor of the Plaintiff and the solicitors of Sir E. C. Dering for the preparation of a formal contract. On the 31st of July Sir E. C. Dering wrote a letter to his uncle, the Defendant Cholmeley Dering, to the following effect:-" I have sold some outlying farms, in order to enable me to purchase nearer home. The price is 18,000; the net income 680, which, at twenty-five years' purchase, is 17,000, and leaves 1000 for the timber. Considering the present rate of interest for money, I think it fairly sold." On the 4th of August the Plaintiff applied to Sir E. C. Dering for permission to shoot over the land, which was immediately granted. On the 5th of September 1834, the solicitors of Sir E. C. Dering delivered to the solicitor of the Plaintiff the draft of an agreement, commencing as follows :-" Sir E. C. Dering, so far as he can under the settlement made upon his marriage, but not further, or otherwise, agrees to sell to Mr. Thomas all the manor," &c.; and...
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