month, to deliver to defendants or their solicitors, an abstract of title to the property sold, and to deduce a good title thereto, with such exceptions, nevertheless, as were stated in the schedule to the said agreement, and except that plaintiff should not be required to shew the lessors' title to the leasehold property, or their leasing powers. And defendants agreed to pay to plaintiff the residue of said purchase money, by the following instalments, viz., 100,0007. on or before 15th April, 1826; 100,0007. on or before 15th October, 1826; 100,0007. on or before 15th April, 1827; and 75,000l. on or before 15th October, 1827; with interest for the same sums, at the rate of 51. per cent. per annum, to be reckoned from the 1st day of October, then next, until the day of payment thereof, such interest to be paid by equal half yearly payments, and to be secured by the joint and several bond of defendants; and the said defendants agreed to purchase and pay for, at the time of taking possession, by a good bill at two months' date, the following property. (Then follows an enumeration of machinery, stock, &c.). And it was further agreed, that plaintiff should clear up and pay all taxes, &c., up to the time of giving possession, from which period defendants should be entitled to the rents and profits, and that plaintiff should, with all proper dispatch, complete the main railway, &c.; and that defendants should take to, and assume all contracts with the workmen, &c. Averment that the schedule, in said agreement mentioned, and thereunder written, was to the tenor and effect following, that is to say, that the property contracted to be sold by plaintiff to said defendant, was as follows, Corngreave's estate, consisting of, &c. As by the said agreement and schedule, reference being thereunto had, will amongst other things more fully and at large appear. And that afterwards, to wit, on the 1st October, 1825, at, &c., by a certain other agreement, then and there made, by and between plaintiff of the one part, and defendants of the other part, after reciting said first mentioned agreement, 1827. ATTWOOD บ. SMALL. 1827. ATTWOOD. บ. SMALL. and also reciting that said sum of 25,000l. in Exchequer bills, had been accordingly paid by defendants, and that several abstracts of title purporting to be the abstracts of title of plaintiff to the whole of the several freehold, leasehold, and other estates and property so contracted to be sold by him as aforesaid, had been delivered by him, or on his behalf, to the solicitors of defendants, and the several titles, as there respectively deduced, had undergone and were then still in a course of investigation; several points having been made thereon, and certain objections taken thereto, some whereof still remained to be satisfactorily explained or removed. And also reciting, that the time having arrived for the payment of the said sum of 200,0001., and for the delivery of the said Exchequer bills to plaintiff; and had the title of plaintiff to the said premises, been then, as plaintiff at the time of entering into the said first mentioned agreement apprehended it would be, in a state fit for acceptance on the part of the said purchasers, the time would also have arrived for giving possession, if required, of the said several estates and property to the said purchasers; it had been agreed in consequence of the then present state of the title, that said first mentioned agreement should be varied, and otherwise added to in manner therein mentioned: and it was by the said agreement, bearing date 1st October, 1825, witnessed, that upon the delivery of the said Exchequer bills, and payment of the said sum of 200,000l. to plaintiff, in addition to any other payments required to be made by said first mentioned agreement, on delivery of possession, defendants should be let into, or might take the immediate possession for their own benefit, of so much of the said several estates, &c., as were then in the actual possession of plaintiff, and into the receipt of the rents and profits of the residue thereof, without such possession, nevertheless, when taken, being, or being deemed, or considered by plaintiff as an açceptance of the title, or as an abandonment, on the part of defendants, of their right to have all valid objections to said title removed, and all defective evidence supplied by, or at the expense of plaintiff: and plaintiff did thereby further agree, that he, or his heirs, &c., should and would forthwith proceed, and within a reasonable time after the date thereof, remove all valid objections, made, or to be made to the said title, and complete any evidence which might be defective therein, and in all respects make the title as perfect as it should be within the power of plaintiff or his heirs, &c., to do. (Agreement by plaintiff to convey on or before 15th April, 1826, on the trusts mentioned in first agreement (a).) Provided, nevertheless, and it was thereby further agreed, by and between the said parties, that nothing contained therein was intended to disturb or alter the payment of the said three several instalments of 100,000l. each or of the interest thereof, on or before the days or times appointed, or mentioned in that behalf in the said first mentioned agreement, or the right of plaintiff to have the same respectively paid to him accordingly, and also the interest of the said sum of 75,000l., down to the 15th day of October, 1827, inclusively; but it was thereby further agreed, that instead of the said instalment of 75,000l. being paid on the said 15th day of October, 1827, the said instalment of 75,000l. should be left upon the security of the said estates and property, at interest payable half yearly, at the rate of 4 per cent. per annum, and to be then made by way of mortgage to plaintiff; and with a covenant to pay the same, as well principal as interest, and to continue for a period of fourteen years from the said 15th day of October, 1827. And also that if it should happen when the time would have arrived for payment of the said instalment of 75,000l., according to the terms of the said first mentioned agreement, namely, the said 15th day of October, 1827, that there should be any valid objection or objections then existing to said title, either as to the whole, or as to any part of the premises (a) Ante, 246 (a). 1827. ATTWOOD บ. SMALL. 1827. ATTWOOD บ. SMALL. therein comprised, or there should be then any defect of evidence in the said title unsupplied, or if any legal estate should be then outstanding, in trust for plaintiff, or his heirs, either by express declaration, or by construction of law, in all, or any of the premises so contracted to be sold, and not then gotten in, but which ought to have been gotten in by him or them for the benefit of the said contract; save and except, nevertheless, as to any defects in the title which were otherwise provided for by the said first mentioned agreement, or in the schedule thereto, then it was thereby further agreed, that so far as related to any and every such objection, evidence, or outstanding legal estate, except as last aforesaid, and which could or might, by or on the part of plaintiff, or his heirs, be, or which ought to have been by him or them previously removed, supplied, or gotten in by defendants, their heirs, executors, administrators, or assigns, or by their solicitors, and under their directions, at the costs, nevertheless, and charges of plaintiff, his heirs, executors, or administrators; and that so far as related to any and every such objection, evidence, or outstanding legal estate, which it should not be in the power of plaintiff, or his heirs, executors, &c., either by suit or otherwise, to remove, supply, or get in as aforesaid; the same should be waived by or on the part of the defendants, their heirs, &c. (Then follows a clause requiring the plaintiff, in every such case of objection, evidence, or legal estate, to execute a bond of indemnity against the consequence of such defect, &c., with a proviso that the instalment of 75,000l., and the interest thereof, during the fourteen years, and the security agreed to be given for the same, should be held upon certain trusts by way of indemnity, by four trustees, to be appointed as therein mentioned). And it was thereby further agreed, that in case there should at any time thereafter, be any difference, controversy, question, or disagreement between the said parties, or their respective heirs, &c., touching or concerning said title, or the validity, or propriety of the objections, or requisitions made, or to be made, concerning the same title, or any of them, or touching, or concerning what ought to be the amount of the sum or sums so to be appropriated or set apart and invested as a collateral security, and by way of indemnity, as aforesaid, not exceeding, nevertheless, said last mentioned sum of 75,000l.; or touching, or concerning the time, or respective times, if any, for which the same was, or were, or ought to be, or continue invested for the purposes of such indemnity, after said period of fourteen years; or touching the nomination of any or either of the said trustees; or touching the amount of penalty of each and every of such bond or bonds, or the wording of the same, or of the condition or conditions thereof; and whether the same should be confined to the defect or defects then ascertained, or should be made to extend further with respect to the same portion of title; or touching or concerning what should or should not be, or amount to, a breach or breaches of said bond or bonds, or of the condition or conditions thereof, or any of them, or touching, or concerning the nature and amount of the satisfaction which, from time to time, ought to be made upon each, and every, or any breach or breaches of said bond or bonds, or of the condition or conditions thereof, whether in the shape of damages or otherwise, or touching, or concerning the said agreement, bearing date, the 1st day of October, 1825; or the construction of any clause, matter, or thing therein contained, or any supposed rights arising thereout, or any thing to be done in pursuance thereof, then, and in every such case, the subject matter, or subject matters, for the time being, of each, and every such difference, controversy, question, or disagreement between said parties thereto, or their respective heirs, &c.; and particularly as to the amount of each such investment and the time of its continuance after said period of fourteen years, for the purpose of such indemnity, should be submitted, and the same was and were respectively referred, so far as the same would admit 1827. ATTWOOD v. SMALL. |