Webb v Austin

webb v. austin. June 29, 1844. [S. C. 8 Scott, N. K. 419; 13 L. J. C. P. 203.] Particulars of sale described the property as " a shop and a dwelling-house, with rooms and offices over, for many years occupied by a tenant under a twenty-one years' lease, nine of which will be unexpired at Lady-day, 1843, at a rent of 481., and held by lease for a term of sixty-four years, at a ground rent of 81. 8s."-By the abstract delivered, it appeared that A., by indenture of the 30th of September 1817, demised the premises to B. for eighty-nine years less twenty-one days from Michaelmas 1817, with various covenants to be performed by B. his heirs, &c.; that B., on the 25th of March 1820, mortgaged the premises for the residue of the term, to secure 4871., and interest to C.; and that, by indenture of the 2d of April 1831, B. demised the premises to D. for twenty-one years less eight days, at the rent of 481., with covenants on the part of D., similar to those of B. in the indenture of September 1817.-The mortgagees were willing to execute any conveyance that might be requisite for the purpose of making a good title to the purchaser.-Held, that B. was in a situation to make a good title to the premises sold-the lease to D., though originally a lease by estoppel, being convertible into a lease in interest, by the concurrence of the mortgagees. Assumpsit, for money had and received. Plea, non assumpsit; upon which issue was joined. At the trial before Tindal C. J., at the sittings in London after last Trinity Term, a verdict was, by consent, entered for the plaintiff, damages 791., with interest thereon from the 21st of March last, subject to the opinion of the court upon the following case:- This action was originally brought against Warlters, Lovejoy, & Co., the defendant's auctioneers on the sale [702] of the estate hereinafter mentioned, to recover (b) But after an indorsement in blank, the property in a bill of exchange passes by delivery. 7 MAN. &G. 703. WEBB V. AUSTIN 283 back a sum of 791. which had been paid to them on the defendant's account by way of deposit on the said sale; but by an order of Erskine J., dated the 23d of May, 1843, and made in the cause, on the application of Warlters, Lovejoy, & Co., it was ordered that, upon payment of the sum of 791. into court to abide the further order of the court, or of a judge thereof, the vendor Austin be made defendant instead of Warlters, Lovejoy, & Co. On the 21st of March, 1843, the defendant caused to be put up for sale by public auction by "Warlters, Lovejoy, & Co., at Garra way's, a certain leasehold estate, consisting of a dwelling-house, farrier's shop, and other premises, situate in Crescent Mews, North, Saint Pancras, Middlesex, under the following particulars and conditions of sale :- "The property comprises a long-established farrier's shop, with forges, &c., and a dwelling with various rooms and offices over, for many years occupied by the present respectable tenant, under a twenty-one years' lease, nine of which will be unexpired at Lady-day, 1843, at a rent of 481.; the tenant paying^the sewer, and all other, rates and taxes; and is held by lease for a term of sixty-four years from Michaelmas last (less twenty-one days), .at a ground-rent of 81. 8s. : improved rent 391. 12s. "The lease is dated 30th September, 1817, granted by James Burton, Esq.; contains covenants that the lessee shall repair and insure premises and keep front thereof in a line, except ornamental breaks not projecting above nine inches, and shall not, without consent, hold any auction on the premises, or place any buildings thereon exceeding ten feet in height above the ground story floor of the farrier's shop, or carry on certain offensive trades, or permit any improper window or light to be made or struck out; also other covenants usual [703] under this estate. The premises may be viewed by permission of the tenant, particulars had on the premises, at G-arraway's, of Mr. Armstrong, Solicitor, No. 33 Old Jewry (where the lease and counterpart of underlease may be inspected at any time prior to the sale), and of the auctioneers, 55 Chancery Lane. " Conditions of sale :--First. The highest bidder to be declared the purchaser; but if any dispute arise between two or more bidders, the property to be put up again and resold. " Second. No one to advance less than 51. at each bidding. " Third. The auction duty to be paid in equal moieties by the vendor and purchaser. "-Fourth. The purchaser to pay down immediately into the hands of the auctioneer, a moiety of the auction duty, and a deposit of 201. per cent, in part of the purchase-money, and sign an agreement for payment of the remainder of the purchase-money on or before the 20th of April next. All outgoings will be cleared to that day; from which time the purchaser shall be entitled to the rents and profits : and should the completion of the purchase be delayed, from any cause whatever, beyond the time specified, the purchaser shall pay interest at the rate of 51. per cent, per annum on the balance of his purchase money, until the same be wholly paid. "Fifth. The vendor will, at his own expense, deliver an abstract of title to the purchaser, within five days after the sale; and the title shall be deemed satisfactory unless objections be specified within seven days after such delivery : and, on payment of the remainder of the purchase-money according to the fourth condition, the purchaser shall, at his own expense, have a proper assignment; but the purchaser shall not be at liberty to call for the production of the lessor's title, or to object thereto, or require any proof of title beyond the pro-[704]-duetion of the original lease and counterpart of underlease : and the last receipt for rent payable under such lease, shall be deemed and accepted as sufficient evidence that the covenants therein contained have been respectively duly performed to the time of the completion of the purchase : and, should the purchaser raise any objection which the vendor cannot remove, he is to be at liberty to annul the sale on returning the deposit money without interest or expenses. All certificates, attested or official copies of deeds, wills, or other documents, required to verify the abstract, or otherwise, or the production of any deed other than those in the possession of the vendor, and which may be required by the purchaser, shall be obtained or produced at his own expense. " Sixth. If through misstatement any error shall be made in this particular, such error shall not vitiate the sale, but the purchaser shall either take, or make, an adequate allowance in proportion to the purchase-money, as the case may happen; such allowance to be ascertained in the usual manner. 284 WEBB V. AUSTIN 7 MAN. & G. 705. "Lastly. If the purchaser neglect or fail to comply with the above conditions, the deposit-money shall be forfeited, and the vendor shall be at full liberty to re-ssll the said property by public or private sale, without further notice; and the deficiency (if any) occasioned by such re-sale, together with all expenses attending the same, shall be made good by the defaulter at the present sale, and be recoverable in any of Her Majesty's courts of law, as and for liquidated damages; and, in case of such failure, it shall not be necessary for the vendor to tender to the purchaser an assignment of the property previously to taking the benefit of this condition." At this sale the plaintiff was, and was declared to be, the highest bidder for, and the purchaser of, the said [705] premises, at the price of 3951.; and he thereupon paid to Warlters, Lovejoy, & Co. the sum of 791. sought to be recovered back in this action, as a deposit at the rate of 201. per cent, on the purchase-money, according to the particulars and conditions of sale; and an agreement was thereupon entered into between the plaintiff and Thomas Warlters, one of the said firm of Warlters, Lovejoy ^ & Co., as agent for the defendant; of which agreement the following is a copy :- " Memorandum : I do hereby acknowledge to have this day bought of Mr. Thomas Warlters, the agent of William Austin, the leasehold estate herein described, at the sum of 3951.; and I have paid the sum of 791. as a deposit in part thereof; and I agree to abide by, and conform to, all the conditions of this sale and particulars. Dated, 21st March, 1843. "(Signed) wm. webb. "Witness, Wm. Lovejoy. " As agent of the vendor, I agree to, and confirm, this contract. "(Signed) thomas warlters. "N.B. I have paid the sum of 61. Is. to the said vendor, being half the auction duty; which I request he will pay to the excise, as my share, according to the conditions. "(Signed) wm. webb." An abstract of the vendor's title to the premises (a copy of which accompanies, and is to be considered part of, the case) was, within the five days after the sale, delivered to the plaintiff; and within seven day after such delivery, objections to such title were duly specified and delivered to the defendant pursuant to the conditions of sale; and, among them, one in the following words, viz.:-" The underlease of the 2d April, 1831, being [706] granted without the concurrence of the mortgagees, is only an equitable one; which is a fatal objection to the title." The property was put up to sale with the consent of the personal representative of the mortgagee, who would have executed any deed, and done any matter, necessary to assign, convey and grant it to the purchaser, for the residue of the term originally granted by Burton : and, in answer to the above objection, an offer was made on the part of the defendant to procure an assignment of the premises in question to the plaintiff from Sophia Austin, the widow and administratrix, with the will annexed, and sole representative of G. Austin, the surviving...