diately after the sale, and the remainder on the day of A. D. 99 [if the sale be by private contract, (ƒ) set out the material parts of the agreement thus: "For that it was agreed by and between the plaintiff and defendant, that the plaintiff should sell to the defendant, and the defendant should purchase from the plaintiff, a certain messuage and lands for the sum of £subject to the following conditions," state the material conditions]; and the defendant, at such sale by auction as aforesaid, was declared to be the highest bidder, and became the purchaser of the said messuage [&c.], subject to the said conditions; and the defendant then paid the said deposit, and signed an agreement for payment of the remainder of the purchase-money upon the terms aforesaid [of course this must correspond with the conditions and the facts]; [aver performance of conditions precedent, as ante, 39 ]; (g) yet the defendant has not paid the remainder of the said purchase-money, whereby the plaintiff has been deprived of the profits and advantages which might and would have accrued to him from the completion of the said purchase, and has incurred great expense in preparing to complete the said conditions on his part, and in endeavoring to procure the completion of the said purchase on (f) See form, &c. Williams v. Protheroe, 3 Y. & J. 129. It is material to attend to the distinction, whether, by the agreement, or by the conditions of sale, the conveyance of the land and the payment of the money are to be contemporaneous acts, so that a performance or readiness to perform the one, must be averred before the plaintiff can call upon the defendant to perform the other. This is generally the case when the same day is fixed for the execution of both acts. Nash v. Breeze, 11 M. & W. 356. But where a time is fixed for the payment of the money, but none for the conveyance of the land, the promise of each is the consideration for the promise of the other; and in such case neither title, nor a readiness to convey on the part of the plaintiff, need be averred. Wilkes v. Smith, 10 M. & W. 355, where see form of declaration applicable. So if the conveyance be not a condition precedent or concurrent with the payment, a tender of the conveyance need not be averred. Matlock v. Kinglake, 10 Ad. & E. 51. If the time for payment of the money may arrive before the time for delivering the abstract of title, plaintiff need not aver performance or readiness. Dicker v. Jackson, 6 C. B. 103, where see form of declaration; Sibthorp v. Brunel, 3 Ex. 826; Baggallay v. Pettit, 28 L. J. C. P. 269; [5 C. B. N. S. 637.] If the payment of the price and the execution of the Conveyance are to be concurrent acts, deducing a title is necessarily a condition precedent. Thames Steam Dock Co. v. Brymer, 5 Ex. 696. (g) The delivery of the deeds themselves will not dispense with the delivery of an abstract. Horne v. Wingfield, 3 M. & G. 34. If the defendant prevented a delivery in due time, aver that plaintiff was ready to deliver, but defendant discharged and prevented him from so doing. See infra. "If either a vendor or vendee wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent, for he cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal." Sugd. See infra, notes; Horne v. Wingfield, supra, per Maule B. In general, the execution of the title-deeds shown in the abstract, and constituting the title, need not be proved at the trial. See Laythoarp v. Bryant, 1 Bing. N. C. 421, 427. As to readiness and willingness and ability to complete, see Philips v. Fielding, 2 H. Bl. 123; Luxton v. Robinson, 2 Dougl. 620; Martin v. Smith, 6 East, 555. Where by the conditions or agreement the vendor is not to make out his title, of course he need not prove he has done so, or offered to make it out. Ferry v. Williams, 8 Taunt. 62; Wilkes v. Smith, 10 M. & W. 355; ante, note (f). Many of the precedents contain an averment of an offer on the part of the plaintiff to convey; but this is not in general necessary, because on a contract for the sale of lands, unless it be otherwise stipulated, the conveyance is to be at the expense of the purchaser; he therefore must tender a conveyance before he can sue for the noncompletion of the contract. Poole v. Hill, 6 M. & W. 840; Thornton v. Jenyns, 1 M. & G. 193, note (a); Laird v. Pim, 7 M. & W. 482. [The rule is otherwise, in most of the American states. Post, 255, note (u); 1 Chitty Contr. (11th Am. ed.) 424, and note (t), 425; 1 Sugden V. & P. (8th Am. ed.) 241, note (m); Tinney v. Ashley, 15 Pick. 546; Hill v. Hobart, 16 Maine, 164; Connelly v. Pierce, 7 Wend. 129; Sweitzer v. Hummel, 6 Serg. & R. 228; Headley v. Shaw, 39 Ill. 354; Standifer v. Davis, 13 Sm. & M. 48; Walling v. Kinnard, 10 Texas, 508; Winton v. Sherman, 20 Iowa, 295; Paul &c. v. Brown, 9 Minn. 157; Seeley v. Howard, 13 Wisc. 336; Guthrie v. Thompson, 1 Oregon, 353; Arledge v. Rooks, 22 Ark. 427; Taylor v. Longworth, 14 Peters, 175.] the defendant's part, and thereby also the plaintiff afterwards was forced to resell (h) the said tenements at a loss, and also incurred expenses, and is otherwise injured [add account stated]. 4. For not accepting a Lease according to Agreement. Forster v. Rowland, 30 L. J. Ex. 396; [7 H. & N. 103; Bond v. Rosling, 1 B. & S. 371; De Medina v. Norman, 9 M. & W. 820.] 5. Vendor against Vendee, on a Public-house Agreement, for not accepting an Assignment of the Term, and paying the Amount of the Valuation of Stock, &c. (i) For that the plaintiff was possessed, (k) for the residue of a term of years, of a tenement and premises, with the appurtenances, and of certain beer and other licenses, and household goods, fixtures, stock in trade, and effects then being on the said premises; and thereupon, by an agreement made between the plaintiff and the defendant, it was agreed that [here copy the material parts of the agreement in the past tense and aver performance of conditions precedent as ante, 39;] yet the defendant [state the breaches according to fact], whereby the plaintiff has been deprived of the benefits which would have accrued to him from the completion of the said agreement by the defendant, and has been put to great expense in preparing papers and writings, and paying brokers' and appraisers' (1) charges, and other things relative to the sale and assignment and valuation of the premises, and was compelled to sell and assign the premises, together with the fixtures, goods, and effects, at a loss, and is otherwise injured [add account for fixtures bargained and sold and delivered, and account stated]. 6. Vendor against Vendee of a Term of Years, for the Premium agreed to be paid for the Assignment of the Lease. For that the plaintiff was possessed of a certain messuage, lands, and premises, with the appurtenances, for the residue of a term of years then unexpired (m) [or, if the plaintiff, although he was the seller, had not the legal (h) See this special damage more fully stated, Horne v. Wingfield, 3 M. & G. 35. The proper measure of the damage is that actually sustained by the vendor in consequence of the vendee not accepting the conveyance, such as the costs he has been put to by reason of the non-completion of the contract, and the decrease of the value of the lands, if any. Where default was made by the purchaser, and the property resold at a reduced price, the vendor can recover from the defaulter, in addition to the deposit, which was forfeited by the conditions, only so much of the difference between the two prices, and of the expenses of resale as the deposit did not cover; Ockenden v. Henley, El., Bl. & El. 485; not the whole amount of the purchase-money. Laird v. Pim, 7 M. & W. 482. See Worthington v. Warrington, 8 C. B. 134. (i) Observe the notes to form 3. See form against the vendee of a lease by auc tion, for not completing, Laythoarp v. Bry ant, 1 Bing. N. C. 421; and another form, Maylam v. Norris, 2 D. & L. 829; Wilson E. Wilson, 14 C. B. 616. (k) As to proof of this, if traversed, Laythoarp v. Bryant, supra. Lessor's title to be proved. Souter v. Drake, 5 B. & Ad. 992; Hall v. Betty, 4 M. & G. 410; and see Brashier v. Jackson, 6 M. & W. 549; Coer. Clay, 5 Bing. 440. It is sufficient if the plaintiff can procure a title at the time when he calls upon the defendant to complete. De Medina v. Norman, 9 M. & W. 820; Salis bury v. Hatcher, 2 Y. & C. N. C. 54. As to an agreement by parol for an assignment of a leasehold interest not exceeding three years, see Barrett v. Rolph, 14 M. & W. 348; see, also, Pollock v. Stacy, 9 C. B. 10, 33, and notes to Spencer's case, S. L. C. (7) See Thurnell v. Balbirnie, 2 M. & W. 186; Carpenter v. Blandford, 8 B. & C. 576. (m) The averment of the kind of interest title, and was only beneficially interested, state that "before and at [&c.], the plaintiff was well able and entitled to sell and cause to be assigned a certain messuage [&c.], for the residue" [&c.]]; and thereupon, in consideration that the plaintiff would sell and assign [or "sell and cause to be assigned"] to the defendant the said tenements for the remainder of the said term, the defendant agreed to pay to the plaintiff £ for the same; and the plaintiff did sell and assign [or "sell and cause to be assigned"] to the defendant the said tenements for the remainder of the said term; yet the defendant hath not paid for the same [add account stated]. 7. For a Sum of Money agreed to be paid if Plaintiff would relinquish in Defendant's Favor a Contract between Plaintiff and a Third Person for the Sale of a House. (n) For that the plaintiff had bargained and agreed in writing with J. E. to purchase from him three freehold houses for £600; and thereupon, in consideration that the plaintiff, at the defendant's request, would sell and give up to the defendant the said bargain, and the benefit thereof, and would suffer and permit the defendant to become the purchaser of the said houses from the said J. E., the defendant promised the plaintiff to pay him for the relinquishment of the said bargain £- -, on the said houses being conveyed to him instead of the plaintiff; and the plaintiff sold and gave up the bargain to the defendant, who then became the purchaser, and obtained a conveyance to him of the said houses on the terms aforesaid; and [here aver performance of conditions precedent, as ante, 39], yet the defendant hath not paid the same [add account stated]. 8. Vendor against Vendee, on an Agreement for the Sale of an Agreement for a Lease. (0) Kintrea v. Preston, 1 H. & N. 357. 9. Vendee against Vendor of a Freehold Estate, for not conveying, &c. (p) -- For that [proceed upon the principle of the Form 3, ante, 250, showing the putting up to sale and conditions, or the agreement, if the sale were by private contract, that plaintiff was the purchaser, that plaintiff paid deposit and signed agreement, &c. according to the conditions]; and although the plaintiff [here aver performance of conditions precedent, as ante, 39]; yet the defendant did not convey or cause to be conveyed to the plaintiff the said sold is material, and unless restricted, general terins will import a title in fee simple. Hughes v. Parker, 8 M. & W. 244; Halliwell v. Morrell, 1 M. & G. 367. (n) See Price v. Seaman, 4 B. & C. 525; 2 Bing. 437. (0) In an agreement to sell a lease granted by a third person, the vendor is bound at law to show the lessor's title, unless there be an express stipulation to the contrary. Hall v. Betty, 4 M. & G. 410; Souter v. Drake, 5 B. & Ad. 992. See Ogilvie v. Foljambe, 3 Mer. 53. But a contract for the sale of an agreement for a lease does not imply an undertaking that the proposed lessor has title to grant the lease, and in the absence of any express stipulation, it is no defence to an action upon such contract that the lessor has no title. Kintrea v. Preston, 1 H. & N. 357; 25 L. J. Ex. 287. (p) See forms, Wilde . Fort, 4 Taunt. 334; Hodges v. Earl of Litchfield, 1 Bing. N. C. 492. For not deducing a good title, or conveying. Rippinghall v. Lloyd, 5 B. & Ad. 742; Simmons v. Heseltine, 5 C. B. N. S. 554. tenements according to the said conditions aforesaid [if the action be for not making a good title: "yet the defendant did not on the day of A. D. (q) deduce or make, or cause to be made to the plaintiff a good title (7) to the said tenements"], whereby (s) the plaintiff has lost the benefits and advantages which would have accrued to him from the completion of the said purchase by the defendant, and has been put to charges and expenses in negotiating and agreeing for the purchase of the said tenements, and having the same conveyed, and in investigating the title thereto, and in endeavoring to procure the completion of the said agreement on the defendant's part, and has lost the use of the said money paid as a deposit, (t) and of money provided for the completion of the said purchase [add money had and received, if applicable, and account stated]. (q) If no time be fixed by the agreement for making a title, the declaration must aver that a reasonable time for doing so has elapsed. Sansom v. Rhodes, 6 Bing. N. C. 261. (r) The vendee has a right to have the title for which he contracted, and not any good title the vendor may offer to make instead. Foster v. Hoggart, 15 Q. B. 155. See Stevens v. Austen, 30 L. J. Q. B. 212. The court will not consider whether the title is of a doubtful description, such as a court of equity would not compel an unwilling purchaser to take, but simply whether the defendant has or has not a legal title to convey. Boyman v. Gutch, 7 Bing. 379. But in a subsequent case, it has been held that "a good title" meant such a title as the court of chancery would adopt as a ground for compelling specific performance, and such a title as would be a good answer to an action of ejectment. Jeakes v. White, 6 Ex. 881. But a title to an estate which is dependent on a question of fact which it is impossible to regard as reasonably certain, cannot be deemed a good and sufficient title as between vendor and purchaser; and the latter, when such is the case, is entitled to treat the title as insufficient, and recover back his deposit. Simmons. Heseltine, 5 C. B. N. S. 554. (s) Form, &c. Hodges v. Lord Litchfield, 9 Bing. 713. In that case (see 1 Bing. N. C. 492), it was held, that in an action for damages brought by the vendee against the vendor for not making a good title to an estate, the vendee cannot recover for expenses incurred in negotiating the purchase, or for having the estate surveyed. 2d. That he is entitled to recover changes incurred in investigating the title, including the searching for judgments, but not the costs of drawing and engrossing a conveyance of the estate, the same having been prematurely pre pared. 3d. That the vendor, having filed a bill in equity against the vendee, for a specific performance of the contract, which was dismissed with costs, and which were paid by the vendor, the vendee could not recover his extra costs beyond the taxed costs. 4th. That the vendee could not recover costs incurred in investigating the title to the estate after the filing the bill in equity. 5th. That the vendee is entitled to be paid at the rate of £5 per cent. for interest on his deposit money, although the court of chancery had ordered payment at the rate of £4 per cent. Hanslip v. Padwich, 5 Ex. 615. In Sherry v. Oke, 3 Dowl. 349, it was held that interest, paid by a purchaser upon money borrowed by him to complete the purchase, and kept idle pending an endeavor by the vendor to clear up the title, may be recovered as damages against the latter in an action for breach of his contract. See Hanslip v. Padwich, supra. If the vendor without fraud is unable to make a title, the vendee can only recover the money he has paid, with interest and expenses. Pounsett v. Fuller, 17 C. B. 660: Walker v. Moore, 10 B. & C. 416; and not for the loss of his bargain; Sikes . Wild, 1 B. & S. 587; Pounsett v. Fuller, [17 C. B. 660;] 25 L. J. C. P. 145; otherwise if he knew at the time he made the contract that he had no title. Robinson v. Harman, 1 Ex. 850; Hopkins v. Grazebrook, 6 B. & C. 31 ; [Engell v. Fitch, L. R. 3 Q. B. 314; Lock ɛ. Furze, 19 C. B. N. S. 96; S. C. L. R. 1 C.P. 441; 1 Chitty Contr. (11th Am. ed.) 485, and note (n), 437, and note (p); 1 Sugden V. & P. (8th Am. ed.) 358, and notes (c) and (d), 361, note (1).] See, further, Chit. jr. Contr. Index, "Vendors." The auctioneer is liable only for the deposit paid on a sale by anction, and not for interest or expenses, and should be sued for money had and received. Chit jr. Contr. tit. "Vendors; " Harrington 5. Hoggart, 1 B. & Ad. 577. (t) If the contract is rescinded, the deposit may be recovered as money had and received. Simmons v. Heseltine, 5 C. B. N. S. 554. See Evans v. Robins, 31 L. J. Ex. 465. Contra, if vendee makes default, and the deposit is forfeited by the conditions. Beavan v. M'Donnell, 9 Ex. 309. [9a. On an Agreement to convey Land on a Certain Day, Plaintiff to pay One Hundred Dollars Cash and give a Note for Four Hundred Dollars, secured by a Mortgage of the Land. And the plaintiff says the defendant made an agreement with the plaintiff, in writing, a copy whereof is hereto annexed; and on the day of the plaintiff tendered to the defendant one hundred dollars, and also a note for four hundred dollars [describing it], and a mortgage of said land, to secure the payment of said note, and demanded of the defendant a conveyance of said land [following the terms of the agreement]. (u) OTHER FORMS BY VENDEE AGAINST VENDOR. 10. For not delivering Abstract according to Conditions of Sale. Smith v. Panner, 1 M. & G. 802. 11. For Violation of a Contract to sell free from all Incumbrances. Ballard v. Way, 1 M. & W. 526. 12. On an Agreement stating that Defendant had waived the Conditions of Plaintiff's delivering an Abstract. Seaton v. Booth, 4 Ad. & E. 528. 13. For not making a Good Title, averring Plaintiff's Readiness to complete and pay the Purchase-money on having one. Metcalf v. Fowler, 6 M. & W. 830; Sansum v. Rhodes, 6 Bing. N. C. 261. 14. By an Administratrix against the Vendor of a Freehold Estate, for not delivering an Abstract of Title to the Intestate, whereby he incurred Expense, &c. See form held good on demurrer, Orme v. Broughton, 10 Bing. 533; see 1 Williams on Executors, 5th ed. 717. 15. Vendee against Vendor of a Life Interest in Stock, sold by Auction, to recover Expenses, &c. the Title being defective, &c. Boyman v. Gutch, 7 Bing. 379. WAGER. Post, Pleas in Contract, "Gaming." (u) [In England, it is incumbent on the vendee to prepare the conveyance, even where the agreement is silent on the subject. Poole v. Hill, 6 M. & W. 835, 841; 1 Sugden V. & P. (8th Am. ed.) 241. But the rule is otherwise in most of the American states, where it is held that under a contract to convey real estate, the vendor is bound to prepare the deed of conveyance at his own expense, unless there is a stipulation to the contrary. Such is the rule in Massachusetts, Maine, Pennsylvania, Illinois, Mississippi, Ohio, Texas, Iowa, Minnesota, Wisconsin, and Oregon, Arkansas, and other states. See the authorities cited in 1 Chitty Contr. (11th Am. ed.) 424, and note (t), 425; 1 Sugden V. & P. (8th Am. ed.) 241, note (m); ante, 251, note (g).] |