Vendee v. equitable objections to a title, and will permit a purchaser to rescind a contract and recover his deposit on that ground. (a) Where the contract has been rescinded on account of the default of the vendor, the purchaser may recover the deposit with interest, and the expenses of investigating the title as special damage. (b) If the residue of the purchase money has been lying ready without any interest being made of it, the plaintiff is also entitled to interest on that sum. (c) However, if the original contract be void, as if it be a parol agreement for the sale of lands, the purchaser, as it seems, can only recover his deposit in an action for money had and received, and will not be allowed interest. (d) In order to recover interest, it is necessary to declare on the special contract, or to add a specific count for interest, since interest cannot be recovered under a 'count for money had and received. (e) Nor can the expenses of investigating the title be recovered under a count for money paid, but the plaintiff must declare specially. (f) A purchaser is not entitled to recover a compensation for the fancied goodness of his bargain, where the vendor is, without fraud, incapable of making a title. (g) The plaintiff will be compelled to give the defendant a particular of every matter of fact, which he intends to rely upon at the trial, as having been a cause of his not being able to complete the purchase, but he is not bound to state in his particular, any objections in point of law, arising upon the abstract (h), but if a particular has not been given, the plaintiff will be at liberty to prove any ground for rescinding the contract. (i) A payment of the deposit to the agent of the vendor is in law (a) Maberley v. Robins, 5 Taunt. 625. Elliott v. Edwards, 3 Bos. and Pul. 181. Sugd. V. and P. 219, 6th edit. But see Alpass v. Watkins, 8 T. R. 516. Romilly v. James, 1 Marsb. 600, 2 Phill. Evid. 101, 6th edit. See also R. v. Inhab. of Toddington, 1 B. and A. 560. (b) Richards v. Barton, 1 Esp. N. P. C. 268. Turner v. Beaurain, MS. Sugd. V. and P. 214 Farquhar v. Farley, 7 Taunt. 592; but see Wild v. Forte, 4 Taunt. 341. Sugd. Vend. and Purch. 488, 6th edit. (c) Sugd. Vend, and Purch. 488, 6th edit. (d) Walker v. Constable, 1 Bos. and Pul. 306. Sugd. Vend. and Purch. 214, 6th edit. (e) Walker v. Constable, ubi sup. Tappenden v. Randall, 2 Bos. and Pul. 472. Marshall v. Poole, 13 East, 100. And see Slack v. Lowell, 3 Taunt. 157. (ƒ) Camfield v. Gilbert, 4 Esp. N. P. C. 221. (g) Bratt v. Ellis, MS. Sagd. V. and P. 213, 6th edit. Flureau v. Thornhill, 2 Wm. Bl. 1078. (h) Collett v. Thompson, 3 Bos. and Pul. 246. (i) Squire v. Tod, 1 Campb. N. P. C. 293. a payment to the principal; and in an action against the latter for the recovery of the money, it is immaterial, whether it has actually been paid over to him or not. (a) If the deposit has been paid to the auctioneer, who has not paid it over to his principal, if a good title cannot be made out, an action to recover the deposit may be maintained against the auctioneer (b); but it seems that interest on the deposit cannot be recovered against him unless under particular circumstances, and at all events, not before a demand for the repayment of the deposit has been made upon him. (c) But where an auctioneer does not disclose the name of his principal, an action will lie against him for damages on breach of contract. (d) Where the purchaser recovers the deposit only from the auctioneer, he may, in an action against the vendor, recover interest on it, and the expenses of investigating the title under a special declaration. (e) (a) Duke of Norfolk v. Worthy, 1 Campb. N. P. C. 337. (b) Burrough v. Skinner, 5 Burr. 2639, and see Edwards v. Hodding, 5 Taunt. 815. 1 Marsh. 377, S. C. (c) Lee v. Munn, 1 B. Moore, 481. 8 Taunt. 45. Holt's N. P. C. 569. S. C. Sugd. V. and P. 487, 6th edit. Far- N.P.C. 567. (e) Farquhar v. Farley, 7 Taunt. 592. Vendee v. Vendor. Plaintiff's title. Assumpsit for Use and Occupation. Ir was formerly held that an action of assumpsit could not be maintained for rent arrear either before or after the determination of the term, it being a real contract, and debt, or a distress, being considered the proper remedy. (a) But on an express promise to pay a sum of money in consideration of the occupation of the premises an action of assumpsit lay at common law. (b) At length by statute 11 Geo. 2, c. 19, s. 14, it was enacted, that it shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant or defendants, in an action on the case for the use or occupation of what was so held or enjoyed; and if in evidence on the trial of such action, any parol demise, or any agreement, (not being by deed) whereon a certain rent was reserved, shall appear, the plaintiff in such action, shall not, therefore, be nonsuited, but may make use thereof as an evidence of the quantum of the damages (c) to be recovered. In this action, the landlord who has rent owing to him recovers not the rent, but an equivalent for the rent for the premises which have been held and enjoyed under the demise. The statute meant to provide an easy remedy in the simple case of actual occupation, leaving other more complicated cases to their ordinary remedy. (d) It is not necessary that the plaintiff should have the legal estate in order to enable him to recover for use and occupation (e), since the defendant will not be allowed to controvert the title of him, by whose permission he occupied the premises.(ƒ) But unless the defendant came in under the plaintiff, or has recognised his title, the latter can only recover rent from the time of (a) Brett v. Read, Sir W. Jones, 329, Cro. Car. 343, S. C. 1 Rol. Ab. 7. 1. 23. (b) Johnson v. May, 3 Lev. 150. Acton v. Symonds, Sir W. Jones, 364. Naish v. Tatlock, 2 H. Bl. 323. (c) See Tomlinson v. Day, 2 Brod. and Bing. 680. (d) Per Eyre, C. J. Naish v. Tatlock, 2 H. Bl. 323. (e) Hull v. Vaughan, 6 Price, 157. Cooke v. Loxley, 5 T. R. 4, and see post. the legal estate being vested in him, although he may have had Plaintiff 's title. the equitable estate long before. (a) The grantee of the reversion may maintain an action for use and occupation, unless before notice of the plaintiff's title, the rent has been paid to the grantor (b); and where the reversion was granted to trustees in trust for A., and the tenant had notice of A.'s title, but not of the legal title of the trustees; it was held that the latter might recover, in assumpsit for use and occupation, the rent accruing after such notice, although the tenant had paid such rent to the original landlord. (c) Where two tenants in common join in a lease, reserving an entire rent, they may join in an action for use and occupation to recover the same (d), and where premises had been demised by two tenants in common, and the rent for a time paid to the agent of both, but afterwards the tenant had notice to pay a moiety of the rent to each of the two, and the rent was so paid accordingly, and separate receipts given; it was held that it was a question of fact for the jury to say, whether it was the intention of the parties to enter into a new contract of demise with a separate reservation of rent to each. (e) Where several persons rented premises to be used as a Jewish synagogue, the seats of which were let out by a person appointed annually, who received the rents, and applied them partly in the payment of the rent for the premises, and partly for general purposes connected with the Jewish religion; it was held that the action for the rent due from the occupier of a seat was rightly brought in the names of the lessees. (ƒ) The defendant who has obtained possession, or holds under the plaintiff, will not be permitted to impeach his title, or to give any matter in evidence which would be sufficient to support a plea of nil habuit in tenementis. (g) Thus, in an action for use and occupation by an incumbent against a tenant of the glebe lands, who had paid rent, it was held that the defendant could not give evidence of a simoniacal presentation of the plaintiff in (a) Cobb v. Carpenter, 2 Campb. N. P. C. 13, n. (b) Birch v. Wright, 1 T. R. 378, Watts v. Ognell, Cro. Jac. 392. (c) Lumley v. Hodgson, 16 East, 99. (d) Per Abbot, C. J. Powis v. Smith, 5 B. and A. 850. (f) Israel v. Simmons, 2 Stark. N. P. C. 356. (g) Syllivan v. Stradling, 2 Wils. 215. Plaintiff's title. order to avoid his title (a); but the defendant may shew that the plaintiff's title has expired (b), though where the defendant had come in under the plaintiff, Lord Ellenborough held that it was not competent for him to shew that the plaintiff's title had expired, unless he had, at the time, solemnly renounced the plaintiff's title, and commenced a fresh holding under another person. (c) Where A. hired apartments by the year from B.; and B. afterwards let the entire house to C., who sued A. for use and occupation; it was held that A. could not impeach C.'s title. (d) A submission to a distress is such an acknowledgment of the landlord's title, as to preclude the tenant from afterwards denying it. (e) What occupa tion by the defendant is suf ficient. A judgment by default in an action for the use and occupation of a house amounts to an admission that the defendant held a house of the plaintiff, who need not shew that it was his house, and it lies upon the defendant to prove that he did not occupy the particular house to which the attention of the jury has been directed. (f) The action for use and occupation depends either upon actual occupation, or upon an occupation which the defendant might have had, if he had not voluntarily abstained from it. (g) It is not therefore necessary that there should have been a personal occupation of the premises by the defendant; thus if A. agree to let lands to B., who permits C. to occupy them, B. may be sued in assumpsit for use and occupation (h); and where the plaintiff declared in assumpsit, that in consideration that he would permit the defendant to occupy a house for four weeks, at ten guineas per week, the defendant undertook to pay the said rent, the court of King's Bench held that the plaintiff was entitled to recover, though the defendant never took possession, (a) Cooke v. Loxley, 5 T. R. 4. Brooksby v. Watts, 6 Taunt. 333. Phipps v. Sculthorpe, 1 Barn. and Ald. 50. (b) Holmes v. Pontin, Peake, 99. Morgan v. Ambrose, Peake's Evid. 242. 4 T. R. 682. Doe d. Jackson v. Ramsbottom, S M. and S. 516. Gravenor v. Woodhouse, 1 Bingh. 43. Doe d. Prichitt v. Mitchell, 1 B. and B. 11. (c) Balls v. Westwood, 2 Camp. N. P. C. 11. See Neave v. Moss, 1 Bing. 360. (d) Rennie v. Robinson, 1 Bing. 147. (e) Panton v. Jones, 3 Campb. N.P. C. 372. (ƒ) Davis v. Holdship, 1 Chitty's Rep. 644, n. (g) Per Gibbs, C. J. Whitehead v. Clifford, 5 Taunt. 519, as to the commencement of the occupation, see DeMedina v. Polson, Holt's N. P. C. 47. (h) Bull v. Sibbs, 8 T. R. 327. |