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1806. Tore

versus WHITE.

chaser of:
chaser of one of several lots of an estate described in
the conditions of sale as follows,viz. lol 23“ a leasehold
estate situate in Angel court, Princes street, Westmine
ster,comprising 11 houses, numbered 2, 3, 4, 5, 21, 22,
23, 24, 25, 262. Two house's No. %, and No. 5, are
let on lease, No. 22, and 29 are let in tenements, and
the remaining houses are let to tenants at will at rents
amounting in the whole to about 1771. The estate is
held under the Dean and Chapter of Westminster, for
an unexpired term of 10 years at Lady day 1805. It
may be renewed to the original term of 40 years ac-
cording to the custom of the said Dean and Chapter.

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And the following was among the conditions of sale, viz, article 4. That, upon payınent of the remainder of the purchase money, on or before the time above limited, the purchasers shall have proper conveyances and assignments of the respective lots, at the expense of the purchasers The original lease, under the Dean and Chapter of Westminster, being produced, it appeared to contain a demise of g houses comprehending the whole of the above lot. But a part of the house No. %, being about 12 fcet by of the ground belonging to it, had been, previous to that lease, given up by Cheare the former possessor to a person of the name of Gilbert. The original lease from the Dean and Chapter, however, still contained the same description of the premises, and it was admitted that this small

1806. TOMEINS

versus WHITE.

plot of ground which was not contained in the parti. culars, was comprised in the lease, and that being a repairing lease, if the plaintiff took an assignment he would be bound by the covenant to repair, as far as concerned that same plot of ground, but it was said on, the part of the defendant that the surrender of it was with the knowledge of the Dean and Chapter, and that they would not call upon the defendant or his assignee to comply with the covenants as to so much. The plaintiff, upon applying at the Dean and Chapter's office to see the plaintiff's counterpart of the lease and the plans, refused to complete his purchase, and the defendant's attorney threatened to compel him, notwithstanding, to take an assignment absolutely. The plaintiff, as the conveyances were to be at his expence, tendered an assignment and required an indemnity against the Dean and Chapter or a new lease from the Dean and Chapter of Westminster, for the time ; which being refused, the plaintiff brought his action for not completing the purchase and for the deposit money. At the trial the facts of the plaintiff's case were clearly proved, and that about 17 feet by 10 had been given up by Gilbert. The counsel for the defendant offered to prove by Mr. Horsefall the clerk to the Dean and Chapter of Westminster, that the giving up of this plot of ground was with their knowledge, and that the plaintiff would not be called upon to deliver it up at the expiration of the lease. *

* It appears by my note to have been stated upon the motion that they offered to prove by Horsefall, that the defendunt offered to procure a new lease from ihe Dean and Chapter of Westminster, or to give an under lease wanting one day of the term ; and that this offer was made before the trial. As well as I recollect, at the trial, having taken no note of it, it was stated that Ilossefall would prove that the Dean and

1806.

TONKINS

versus WRITE.

Lord ELLENBOROUGH, C. J. Holding that the plaistiff was entitled to have a good conveyance of all comprised in the lease, rejected this evidence and stopped the counsel for the defendant in his address to the jury, and a verdict was given for the plaintif.

Jervis for the defendant, in Easter term, obtained a rule to shew cause why there should not be a new

trial, on the ground of the rejection of this evidence, ? and stated that by means of this surrender of the small !: plot the original rent was reduced, and that whereas

the particulars stated the net produce of the estate to be 1701. the plaintiff would have got more than 1701. per annum; but this point was afterwards but Title noticed or relied upon, and it did not appear to have been particularly urged at the trial; and upon examin'ng the particulars, it appeared that the rental was slated to be about 1701.

GARROW and Gurney, now shewed cause, and insisted that the plaintiff was bound to complete the purchase according to the particulars, which referred to the lease from the Dean and Chapter, and that the plaintiff ought to have a good and valid assignment and conveyance of all that was contained in that lease, and that he could not have it, he was entitled to refuse a conveyance short of that, and to bring this action.

Jervis and WIGLEY, contrà, shortly endeavoured to shew from the particulars that the defendant did not sell by the lease of the Dean and Chapter of Westminster, for it would be true, as stated, that the preniises were held under lease from them, although the

Chapter were willing to grant a new lease, omitting this plot of ground; but that this was after the action brought : and the plaintiff's counsel offering to accept it then, there was a difference as to the costs,

versus

Jease a'mprised 9 houses, and the plaintiff sold one 1806. only.

: : TOMKINO · Lörd ELLENBOROUGA, C. J. * One short fact dis-> WHITE. poses of this case. You did not give the sort of con veyance which you ought to have given, of the part in ; your possession, which the deduction of your title would have enabled you to do. A little more fairness on the part of auctioneers in the forming of their particulars would avoid all these inconveniences. There is always a either'a suppression of the fair description of the premises or there is something stated' which does not belong to them; and, in favour of justice, considering how little knowledge the parties have of the thing sold, much more particularity and fairness might be expected of them. The particulars are in truth like the description in a policy of insurance, and the buyer kooms nothing but what the party communicates. If these particulars are read, there being no exception, I suppose, that the whole are held of the Dean and Chapter, and are to be conveyed to me as such; and there is nothing in them to make the lease any thing less than a full exhibit of what is to be conveyed to me. Even if I should go to the houses to see them; there is nothing to lend me to inquire into the fact, whether a part of the angle of 4 feet 10 or 17 feet is subtracted from the original ground plot. It appears, indeed, that there had been a separation of part, prior to the lease ; but still I should be liable under the covenants. And although,perhaps I might have relief in equity against those covenants, if the lessors are cognisant of it, yet I am not to be satisfied with that in a court of law; and the vendor is not to give me a lease of one thing and to make me pay at the auction price for another." Grose,J." It is plain that these houses were interid. led to be sold as they were leased by ibe Dean and Chape

1806.

TOMKINS

versus WHITE.

ter; if not, why did they not state that No. 2 was not
sold as leased by them.”
· LAWRENCE, J. “ Considering the great sums of mo-
ney which auctioneers are paid for preparing particu-
lars and selling estates, they ought to be more correct.
They contended some time ago, that they were enti-
tled to have the full sum of 5l. per cent, commission;
even if a man advertised an estate to be sold by auc-
tion, and it was afterwards sold by private contract: and
now they contend for half the full commission. If
they have such high charges,they should give the poblic
full information of what they are to sell. On reading
these particulars, if I bad gone to see what Radford the
tenant of No. 2, occupied, I should have thought that
it was the whole that he held of the Dean and Chapter.
The particulars ought to be the same as if the lease,
under-lease and all were under the inspection of the
purchaser ; but, here not even an ocular. inspection
of the premises could ascertain this facl, without
admeasurement and comparison with the plan, and it
is not very much the custom to examine deeds at auc-
tions, nor till after, when the abstract is delivered. The
defendant in this case,after the objection is made,writes
a letter by his attorney that there is a want of com-
mon sense in it; but instead of talking in that high
stile, he should have enquired what would have salis-
fied the plaintif, and given him the best conveyance
in his power.”

LE BLANC, J. “There has been a great deal of obstinacy in the defendant. Taking all to be correctie stated by him and that the plaintif bought only the houses as they now stand ; yet he was bound to state in the abstract, that there was such a mistake in the plan in the margin of the lease, and that it would be rectified either by a new lease from the Dean and Chapter or by an under lease of the other part. If the

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