Armstrong v. Nason

THE CHIEF JUSTICE.-This is an action by a purchaser of land asking for specific performance of the contract, and that the vendor may be compelled to make out a good title, and in default of his so doing that the contract may be rescinded and part of the purchase money already paid may be ordered to be repaid.

The agreement for the sale and purchase contained the following provision:

to Upon the investigation of the title by the purchaser it appeared that the ven*dors derived title through Henry Callender who was a purchaser from Bridget Sherwood a devisee under the will of Ann Paterson, and it is upon the construction of this will that the objection to the title now made by the respondent is founded. This question of construction was argued in both the courts below.

The testatrix, Ann Paterson, oNG devised the land in question to her daughter Bridget Sherwood and also devised other land to another daughter Ann Wallbridge. The will contained the Ans.n following direction:

Then followed a gift over in case both daughters should die without issue.

It was held by Mr. Justice Street first, and then by the Court of Appeal, that the proper construction of this devise vas that Bridget Sherwood took an estate in fee simple, subject to an executory devise over in case she should die without issue living at her death. This construction, in which I entirely agree, has not been called in question by the appellant in this appeal. The fact appeared to be that Bridget Sherwood was alive and had children.

The vendors at the time of the sale had therefore an estate in fee simple, defeasible in the event of Bridget Sherwood dying without leavinig issue living at her death; they had also the possession of the land.

It was sufficiently established in evidence that no objection to the title was taken within ten days, the time limited by the clause of the contract already stated. The learned Chief Justice of Ontario and Mr. Justice Osler were of opinion, in accordance with the judgment of Mr. Justice Street, the trial.judge, that the objection based on the defeasible nature of the vendor's title was still open to the purchasers, and that they were entitled to a rescission of the contract, whilst Mr. Justice Burton and Mr. Justice Maclennan were of the contrary opinion.

is an elementary principle that if a vendor conto sell land without any saving condition as to the nature of the title he is to confer upon the purchaser, the law implies that it is incumbent on him to make out a good title in fee simple. It is, however, of course, open to the parties to such a contract to agree that the vendor shall be relieved from this obligation. The question before us is whether they have done so by the agreement under consideration.

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In carrying out a sale of land the vendor is in all Justice. cases bound to deliver an abstract showing a good title unless this duty is dispensed with by the contract. Here this obligation is expressly waived by the vendees. It is therefore not open to us in the present case, as has been done in some English cases, to confine the provision of the contract requiring objections to be taken in the limited time, to objections appearing on the abstract leaving other objections not disclosed by the abstract, but discovered by the vendee, at large, to be taken at any time. In the face of the positive stipulation of the parties this could not be done here without altering the contract.

We are therefore brought face to face with the question whether we can altogether disregard the condition before referred to, for if it does not apply to an objection like that which has been taken it can have no operation whatever.- Where the terms of the contract require the vendor to make out a title in fee simple and there is a condition like the present, and it is made to appear that the vendor has nothing at all to sell, not even the possession, it has been held that such an objection going to the "root of the title," as it has been termed, is not precluded by a condition expressed in like terms with that under consideration.

In the case of Re Tanqueray-Willaume 4 Landau (1), the question arose on a contract of sale entered into by executors, who claimed to have an implied power ofARMSONG sale.

Mr. Justice Kay held that the purchaser who did not take the objection within the time required by the condition of sale was nevertheless not concluded by it,

This case was carried to appeal, but the Court of Appeal holding that the vendors had the power of sale

Justice. which they had claimed to exercise the point in question did not there arise.

Want v. Stallibrass was an action by a purchaser to recover his deposit.

The vendors were trustees under a will which conferred upon them a power of sale to arise on the death of a tenant for life. It appeared on the face of the abstract that this tenant for life was still alive. The power of sale had therefore not become exercisable, and the court held that the vendors, having nothing to convey, notwithstanding the objection had not been taken within the time required by the conditions of sale, the purchaser was entitled to recover his deposit.

Pollock B. there says:

In both the cases just referred to it is apparent that there was a total failure of consideration and that the vendee, if he had been compelled to pay his purchase money, would have got nothing whatever for it.

In the present case the purchaser will get a present holding title accompanied with possession, a title in fee, defeasible it is true upon the happening of a contingency, and therefore not a marketable title, but still An.o a title, though a precarious one.

The objection here taken is therefore one which does not go to the root of the title.

Rosenberg v. Cook (3), where the purchaser got nothing but possession, it was held by the Court of The Appeal that he was bound by a condition requiring him Justice.

to take objections in a limited time.

It is true that in that case the particulars of sale did disclose that the vendor was not selling an absolutely good title. The judgment of Jessel M. R., however, shews that he was not inclined to treat such conditions as the present as merely illusory stipulations.

In the present case if we do not give effect to the terms of the contract we defeat the intention of the parties and, as Mr. Justice Burton observes, make a new contract for them, for if it was open to the purchaser to take the objection relied on all objections shewing that the vendors could not make a good title would also have been open indefinitely in point time, and the clause in question would have been altogether reduced to silence. This, I think, cannot be done.

I am therefore of opinion that we must allow the appeal with costs and judgment must be entered in the court below for a specific performance of the contract as claimed by the plaintiff, but without any inquiry as to title which he must, for the reasons before stated, be deemed to have waived.

Had this been a vendor's action for specific peiformance different considerations might have been open, since the remedy of specific performance is one subject to the judicial discretion of the court.

The appellants are entitled to costs in the Court of is9s Appeal, but not in the Divisional Court.

Armstrong v. McClelland was argued at the same time as Armstrong v. Cook and the pleadings and evi- dence are the same; the same judgment must there- A fore be entered in that case.

Armstrong v. Wright.

I agree with the Court of Appeal, that the objection to the title was sufficiently taken within the ten days. That appeal must therefore be dismissed with costs.

Appeals against Nason and Clelland allowed with costs. Appeal against

Wright dismissed with costs.

Briggs.