And now, by Judicature Act, 1873, s. 25, subs. 7, stipulations CH. XI. s. 7. in contracts as to time or otherwise, which would not before the Sale of Land (Action by passing of that Act, have been deemed to be, or to have become Vendee against of the essence of such contracts in a Court of Equity, are to receive in all Courts the same construction and effect as they would there- Judicature tofore have received in equity.

Act.

Vendor).

Where no time is fixed for completing the contract, the vendor Rule where no time fixed. must be ready to do so within a reasonable time (u). But time may be made of the essence of the contract by special notice subsequent to the conclusion of the contract, and where a contract on the 25th August had stipulated for possession at or soon after Michaelmas, and a notice was given on the 13th October that unless a proper abstract was sent within 14 days the purchaser would treat the contract as at an end, and require a return of the deposit and damages, it was held that the period of 14 days was reasonable, and that no proper abstract having been delivered within it, the purchaser might rescind the contract and recover both the deposit and the expenses of investigating the title (x).

(d) Damages Recoverable against Vendor.

recoverable

The vendor is, in general, responsible not only for the deposit, Damages but for interest thereon (y); and for interest on moneys purposely against kept in hand, and unproductive, in order to pay the remainder of vendor. the purchase-money (z); and also for the expenses incurred by the purchaser in investigating the title (a).

borrowed

money.

So it has been held, that the purchaser is entitled to recover Interest on interest on money borrowed by him, and kept idle to answer the purchase (b). But if such money were borrowed, before the purchaser had ascertained whether the seller could or could not complete his contract, the former would not be entitled to recover either the expenses of raising the same, or the loss of interest thereon (c).

So, it is now well decided, that where the vendor of an estate Purchaser is, without fraud on his part, unable to make out a title, the not, in general, entitled purchaser cannot, in an action for breach of the contract, recover to damages damages for the loss of his bargain; but only the money he has bargain.

for loss of

CH. XI. s. 7. paid, with interest, and expenses (d). And this rule must now be Sale of Land taken to be without exception: Bain v. Fothergill having overruled (Action by Vendee against Hopkins v. Grazebrook (e), and other cases decided on the authority of that case (f), in so far as they engraft exceptions on such rule (g).

Vendor).

When auctioneer liable for interest

And, although the auctioneer is, in general, liable only for the amount of the deposit, without interest (h); still, if he sell an and expenses. estate without sufficient authority, this rule does not apply; and in such a case he is liable as principal, to pay to the purchaser his deposit, interest and expenses (i).

(e) Action for Specific Performance.

If the purchaser wishes to obtain from the vendor specific performance of his contract, he must proceed by action for that purpose in the Chancery Division of the High Court of Justice (k); or if the purchase money do not exceed 500l. he has an option of suing in the County Court (1). The deposit may be recovered in an action for money had and received (m), or by a summons under the Vendor and Purchaser Act, 1874 (n).

Where the contract has been executed, and the purchaser was induced by the seller to enter into it by means of fraudulent representations, the purchaser may either bring an action for deceit, or take proceedings in the Chancery Division of the High Court, for relief (0), although the representations complained of were not embodied in the written memorandum of the bargain, or in the assignment executed by the parties (p).

And in an action for deceit, the purchaser can recover damages against the seller, which he could not recover against him in an action for breach of the contract of sale (q).

(d) Flureau v. Thornhill (1766), 2 W. Bl. 1078; Bain v. Fothergill (1874), L. R., 7 H. L. 158; and see Royal Bristol Building Society v. Bomash (1887), 35 Ch. D. 390, where vendor having delayed, purchaser was held entitled to damages for loss of a tenant and deterioration of the property.

(e) Hopkins v. Grazebrook (1826), 6 B. & C. 31.

(f) See Godwin v. Francis (1870), L. R., 5 C. P. 295.

(g) Bain v. Fothergill (1874), L. R., 7 H. L. 158; and see Gaslight & Coke Co. v. Towse (1887), 35 Ch. D. 519; Rowe v. School Board of London (1887), 36 Ch. D. 619.

(h) Ante, p. 332.

(i) Bratt v. Ellis (1805), and Jones v. Dyke, reported Sugd. V. & P., 14th ed.,

(n) In re Hargreaves v. Thompson (1886), 32 Ch. D. 454, C. A.

(0) See Bree v. Holbech (1781), Dougl. 654 a; 36 & 37 Vict. c. 66, s. 34, sub-s. 3.

(p) Dobell v. Stevens (1825), 3 B. & C. 623; and as to action of deceit, see Wilson v. Fuller (1843), 3 Q. B. 68, Ex. Ch.

(q) See per Lord Chelmsford, Bain v. Fothergill (1874), L. R., 7 H. L. 158, 207, and see n. (d), supra.

CHAPTER XII.

CONTRACTS BETWEEN LANDLORD AND TENANT.

[See Fawcett on Landlord and Tenant. A.D. 1871; Smith's Lectures, 3rd ed., A.D. 1882; Smith and Soden on Landlord and Tenant, 2nd ed., A.D. 1878; Redman and Lyon on Landlord and Tenant, 3rd ed., A.D. 1886; Foà's Law of Landlord and Tenant, 2nd ed., A.D. 1895; and Woodfall's Law of Landlord and Tenant, 15th ed., A.D. 1893.]

strument amounts to

demise.

In order to ascertain whether an instrument amounts to a When an inpresent demise, or operates merely as an agreement for a future letting of the premises, the intention of the parties, to be collected an immediate from the whole of the words used by them in such instrument, is to be considered (a). And it is said, that if the words of the instrument be ambiguous, the acts done under it may be called in aid as a clue to the intention of the parties (b).

And the words "A. agrees to let, and B. agrees to take" (which words indeed are very frequently used in contracts of tenancy obviously intended to operate as present demises), may of themselves operate as words of present demise, and so will any instrument by which it appears that one party is to give possession and the other to take it (c).

lease must be

Although, as we shall see presently, a lease for less than three Contract for years may be oral, a contract for a lease for however short a time in writing, must, by virtue of the 4th section of the Statute of Frauds and signed. (ante, p. 102), be in writing signed by the party to be charged thereby; and this rule applies to an executory contract to take lodgings () but not to a contract for board and lodging (e).

CH. XII. s. 1.
Landlord and
Tenant

Where a person contracts to grant a lease, there is an implied agreement that he has a good title or right to grant such lease (f). (Contract for Thus, where A. agreed to grant a lease to B., in consideration of a Lease). sum of money, part of which was paid by B. at the time of making Implied con- the agreement; and it afterwards appeared that A. had not power

tract for

title.

Lessee taking possession

not waiver of

objection to title.

Rule under

"V. and P. Act, 1874."

Notice to under-lessee

to grant the lease in question; it was held that B. might rescind the contract, and recover back the money so paid (g).

Nor does the fact of the intended lessee taking possession of the premises, with the knowledge and consent of the lessor, operate per se as a waiver by the former, of an objection to the lessor's title, although it is primâ facie evidence of his acceptance thereof (h).

But the intended lessee is not entitled, unless there be a stipulation in the contract to that effect, to call for the title to the freehold (i), or if the intended lessor be himself a leaseholder, to the leasehold reversion (k).

And upon an agreement to grant an underlease, the intended lessee, if he has had a fair opportunity of ascertaining the prooriginal lease. visions of the original lease, is held to have constructive notice of

of terms of

Stamp.

When lease must

be by deed under Real Property Act, 1845.

those provisions ().

The stamp is the same as on a lease at the same rent (ante, pp. 145, 146).

SECT. 2.-The Lease.

The first section of the Statute of Frauds provides that all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only; and shall not, at law or in equity, have any greater effect, notwithstanding any consideration for making such parol leases or estates. The second section excepts all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised. And, by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, every lease required by law to be in writing, of any tenements or hereditaments, "shall be void at law, unless made by deed."

(f) Stranks v. St. John (1867), L. R., 2 C. P. 376.

(g) Roper v. Coombes (1827), 6 B. & C. 534.

(h) Hyde v. Warden (1877), 3 Ex. D. 72, C. A.

(i) V. & P. Act, 1874, 37 & 38 Vict. c. 78, s. 2, sub-s. 1.

(k) Conv. Act, 1881, 44 & 45 Vict. c. 41, s. 13.

(1) Hyde v. Warden (1877), 3 Ex. D. 72, C. A.

Landlord and

The effect of these enactments appears to be, that a tenancy CH. XII. s. 2. which is to endure for more than three years from the making of Tenant the agreement; or a lease for less than three years, the rent (The Lease). reserved on which does not amount to two-thirds of the improved Effect of value of the thing demised, cannot be created by parol; and, enactments requiring accordingly, a lease for three years, to commence in futuro, will lease to be be inoperative unless made by deed (m). But a lease by parol for by deed. a year and a half, to commence after the expiration of a lease which wanted a year of expiring, would be good; for it would not exceed three years from the making thereof (n). And so, a parol agreement in the following terms:-" Jan. 26. and B. agrees to take, the large room, &c. from 14th February next, until the following Midsummer twelvemonths, and with the right, at the end of that term, for the tenant, by a month's previous notice, to remain on for three years and a half more,❞— was held to be good: because it operated as an actual demise, only for a term of less than three years (o).

A. agrees to let,

Again: although a parol lease for more than three years was void within the statute, as to the duration of the term, yet the contract was held to regulate the terms of the holding in other respects (p). And this is still good law, notwithstanding s. 3 of the Real Property Act, 1845. For although that statute enacts, that a lease which is required by law to be in writing will be void if not made by deed, still it is held, that it may be good as an agreement; and that the provisions of the statute are satisfied by restricting its effect to the avoidance of the lease, as a lease simply (q). Accordingly it has been held, that a Court of Equity will decree specific performance of such an

agreement (r).

Again although the second section of the Statute of Frauds, No action lies against a renders valid a parol lease for less than three years from the lessee under a making thereof, yet, until entry by the lessee, there is a mere parol demise interesse termini (s); and if he refuses to take possession, no entering. action lies to recover damages against him, for not occupying or becoming tenant (t).

(m) See Rawlins v. Turner (t. Will. III.), 1 Ld. Raym. 736.

(n) Ryley v. Hicks (1726), 1 Str. 651. (0) Hand v. Hall (1877), 2 Ex. D. 355, C. A.

(p) Richardson v. Gifford (1834), 1 A. & E. 52; Beale v. Sanders (1837), 5 Scott, 58; Doe d. Rigge v. Bell (1793), 5 T. R. 471; 2 R. R. 642.

(q) Tidey v. Mollett (1864), 16 C. B., N. S. 298; Tress v. Savage (1854), 4 E. & B. 36; Bond v. Rosling (1861), 1 B. &

S. 371; per Martin, B., Lee v. Smith
(1854), 9 Exch. 662.

(r) Parker v. Taswell (1858), 27 L. J.,
Ch. 812.

(s) But a lease to two, one of whom is already in possession as tenant from year to year, is perfect without any further entry; Keyse v. Powell (1853), 2 E. & B.

132.

(t) Inman v. Stamp (1815), 1 Stark. 12; 18 R. R. 740; Edge v. Strafford (1831), 1 C. & J. 391.

for not