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The law of vendors and purchasers of real property online

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expenses was confined to the expense of the conveyance,
but the evidence of the attorney was admitted for the de-
fendant, to prove the intention of both parties, according to
verbal instructions, that the plaintiff, the purchaser, should
also pay the expense of making out the defendant's title.*

48. Where title-deeds are in the hands of persons residing

1 Spurrier v, Elderton, 5 Esp. Ca. 1. "* Ramsbottom v. Gosdon, 1 Ves. &

'^ Jones V. Lewis, 1 Cox, 199. Beam. 165.

3 Addies Charity, 3 Hare, 22.



(a) So, where the company are made liable to the expenses of " all pur-
chases " to be made by virtue of the act, this will include the expenses of
investing the money in the funds, previously to its being laid out in lands,
to be settled to the like uses as the land purchased. Bishop of Durham, 3
You. & Coll. 690.



CH. XXXVII.] COSTS. 179

in different parts of the country, the vendor must bear the
expense of the purchaser's sending a clerk to compare the
abstract with the deeds.^

49. A purchaser at auction cannot recover from the ven-
dor the expenses of preparing the deeds, after he has refused
to complete the purchase, on account of the non-production
of certain title-deeds ; though his attorney prepared the con-
veyances, on the faith of a note written in the margin of the
abstract by the vendor's solicitors, stating that all the title-
deeds were examined by them on the original purchase, and
that, if it should be required, they would apply to the solici-
tor for the original seller in whose custody they were.^

' Hughes V. "Wynne, 8 Sim. 85. • Jarmain v. Egelstone, 5 Carr. &

Pay. 172.



180 LAW OF VENDORS AND PURCHASERS, [cil. XXXVIII.



CHAPTER XXXVIII.



PARTIES TO ACTIONS.



1. We have already (Chap. 5,) considered the necessity,
and the respective rights and liabilities, of parties to the
contract of sale and purchase. Having now completed our
view of the remedies in equity and law for breach of such
contract, and the measure and amount of compensation to
be recovered ; we proceed to some further inquiries con-
nected with the same general subject, but more particularly
relating to the forms of proceeding. Among the most im-
portant points of this nature, is that of the proper parties to
a suit, brought in law or equity by either the vendor or the
vendee upon the contract of sale, {a)

2. To a common bill for specific performance of a sale,
the parties to the contract are the only proper parties. Upon



(a) Upon the point, who may be considered a party to the suit, it has
been held, with reference to a claim concerning a deposit, that a defendant
is not a party seeking the aid oftlie Court, and therefore is not entitled to an
interlocutory order for his own relief or security, as to the subject-matter of
a suit, unless as a condition of an or^er applied for by the plaintiff. The
Vice- Chancellor says: "Though a defendant cannot primarily move for
any order for his security, because he is not a party seeking the aid of the
Court ; yet if, at the time of continuing the injunction, he had brought
forward this claim as to the deposit, and it ajipeared to have been just, the
Court would have enforced it ; not in the nature of relief to him, but as a
condition annexed to the relief given to the plaintiff". And although the
defendant has neglected the convenient opportunity for the application, yet
I think it still open to him, and that I may consider it in principle as a
motion to dissolve the injunction, unless the plaintiff pay the money into
Court." Wynne v. Griffith, 1 Sim. & Stu. 147, 149.



en. xxxvrii.] parties to actions. 181

this subject Lord Cottenham remarked : " The contract is,
in the usual form, between John Wood, the vendor, and
Thomas White, the purchaser ; and they alone ought to
have been parties to the suit ; instead of which, the trustees
of Mr. Lucas's settlement, and she and her husband, are
made parties co-plaintiffs with the vendor, John Wood. If
their concurrence had been necessary to give security to the
purchaser, it was for John Wood to bring them forward to
assist in giving effect to his contract; but as plaintiffs they
have no title to sue. If the infant children of William had
been made co-plaintiffs, or if there had been children of Mr.
and Mrs. Lucas, and they had been made co-plaintiffs, I
should have refused to make any decree in a cause so con-
stituted, because I should have supposed that the object was
to attempt to bind the infants in a suit by the proceedings
of which they ought not to be bound ; but as all the plain-
tiffs are adults, and the objection has not been taken by the
defendant, I do not think it necessary to do more than to
observe upon the frame of the suit, that it may not be sup-
posed, by my making a decree in it, to have received any
sanction from me.'"

3. But though, in general, none but the signers of the
contract ought to be parties to a bill for specific perform-
ance ; yet a purchaser may, under special circumstances,
make other persons interested in the estate defendants.^

4. Separate purchasers of different parcels of the same lot
cannot join in a bill against the former owner, to compel the
performance of a prior contract for the sale and purchase of
such lot, between the former owner and another person, upon
the ground that such prior contract has been assigned to one
of the complainants, as well in his own behalf as to protect
the interests of his co-complainants ; where there is nothing
beyond the averment in the bill, to show that the purchase
or transfer of such contract was for the benefit of all the
complainants, or was made at their request, or with their

1 Wood V. White, 4 Myl. & Cra. 460. 2 Tasker v. Small, 6 Sim. 633.
VOL. II. 16



182 LAW OF VENDORS AND PURCHASERS. [CH. XXXVIII.

assent. The Court remark, in substance, that persons having
distinct claims against another, arising upon separate and
indepondent contracts, cannot join in a bill to enforce such
claims ; where there is no proof of a common interest in the
subject-matter. To allow persons having distinct claims
against the same individual to maintain a joint suit against
him, merely because the act of one may, if valid, incidentally
prove beneficial to the others, might be productive of great
oppression and injustice.^

5. Upon the same ground, a demurrer by a defendant for
midtifarioKsness, the bill being against several purchasers
and others, was allowed. The Vice-Chancellor says : " The
estate was vested in the plaintiffs, for the purpose of selling
the same ; and that part of the estate was accordingly sold
in six different lots to six different purchasers, who, with
several other persons, are made defendants to this bill. A
separate agreement had been entered into with each pur-
chaser. Some of the purchasers have not demurred. The
Court is always averse to a multiplicity of suits ; but, cer-
tainly, a defendant has a right to insist that he is not bound
to answer a bill containing several distinct and separate
matters relating to individuals with whom he has no con-
cern. A decisive objection to this bill is, that the purchases
of the different lots are made by distinct persons, each agree-
ment being separate and distinct. The circumstances at-
tending the sale of one lot may be very different from those
relating to other lots ; one may have objections, another has
not." 2

6. Two houses held under one lease were sold in separate
lots, and it was stipulated that the purchasers should be
parties to each other's assignment. Held, the purchaser of
one lot was not a necessary party to a suit for specific per-
formance against the purchaser of the other. The Master
of the Rolls says : " If there is to be a specific performance



1 Wood V. Perry, 1 Barb. 114. 88. See Reynerz;. Julian, 2 Dick. 677 ;

2 Brookes v. Wliitwortli, 1 Madd. 86, Wall v. Northumberland, 2 Anstr. 469.



CH. XXXVIII.] PARTIES TO ACTIONS. 183

of the contract, the purchaser of lot 2 will be bound to con-
cur in the assignment ; but is it necessary that he should be
a party to all the litigation between the vendor and the
purchaser of lot 1 ? I think not ; besides this, the bill alleges
that he is ready to concur. Athough it might by possibility
become necessary hereafter to compel him to join in the
assignment, still I see no reason for making him a party to
a suit until that necessity arises." ^ (a)

7. C. contracted, as agent of A. and B., to sell an estate
to D., and received a deposit in part-payment of the intended
purchase-money. C.'s agency was afterwards denied by A.
and B., and D. then filed a bill against A., B., and C, pray-
ing a specific performance, or, in the alternative, that C.
might be decreed to return the deposit, and to reimburse the
plaintiff all the expenses of endeavoring to enforce the con-
tract. Bill dismissed with costs. In this case, upon the
general subject of compensation in equity. Lord Cottenham
said : " I certainly recollect the time at which there was a
floating idea in the profession that this Court might aw^ard
compensation for the injury sustained by the non-perform-
ance of a contract, in the event of the primary relief for a
specific performance failing." ^

1 Paterson v. Long, 5 Beav. 186, 187. ^ Sainsbury v, Jones, 5 Myl. & Cra.

1, 3.

(a) It has been held, that a demurrer will not lie to a bill for being mul-
tifarious. But upon the general subject the Court remark : " Each party's
case would be distinct, and would depend upon its own peculiar circum-
stances ; and there must have been a distinct bill upon each contract."
Rayner v. Julian, 2 Dick. 677.

The case of Bull v. Allen, (Bunb. 69,) was a "bill to be relieved against
several contracts entered into by the plaintiff with the defendants, relating
to shares in a bubble called the Pennsylvania Bubble, and to have his money
repaid, which he had paid to the defendants for shares sold by them respec-
tively ; and charges that the defendants had formed themselves into a society
to carry on the fraud. The defendants demurred, because the bill con-
tained several and distinct charges against several and distinct defendants ;
and the demurrer was allowed. Nota, they denied combination, as is neces-
sary upon such a demurrer as this."



184 LAW OF VENDORS AND PURCnASERS. [CH. XXXVIII.

8. In case of fraud on the part of a vendee, a subsequent
conveyance, while the fraudulent vendee is in actual posses-
sion, claiming the land, is inoperative ; and a suit to set aside
the first sale must be brought in the name of the vendor, or
of his legal representatives, if he is dead.^ And, where the
vendor is dead, all his heirs should be parties to a bill, to set
aside the sale for fraud of the vendee.^ So, in a suit de-
manding the specific performance of a- contract, by convey-
ing lands in Ohio, stipulated to be conveyed as the consid-
eration for other lands sold in Kentucky, or, in lieu thereof,
requiring indemnification by the payment of money ; held,
all the co-heirs of the vendor, deceased, ought to be made
parties to the bill, or the death of one omitted, to be proved.^

9. To a suit by the personal representative of a vendor
for specific performance, his real representative is a necessary
party. The Lord Chancellor said : " This was a suit by the
administrator of the vendor against the purchaser of an
estate for a specific performance of the agreement of sale.
The defendant by his answer objected that the heir at law
of the vendor ought to have been a party to the suit. It
was argued that by the contract the estate was converted
into personalty, and that the heir at law had no interest in
the matter. But that is to assume the very point in contro-
versy, for the heir at law may dispute the contract and con-
trovert its validity. It was further argued, that, as a general
rule, it is not necessary to make parties to the bill those who
are not parties to the contract, but that rule does not extend
to representatives ; and the heir at law is the representative
of the vendor as to the realty. The cases which were cited
do not apply. The mortgagee, it is said, need not be a party
in a suit by the mortgagor. But his interest is not affected
by the sale, and on payment of the mortgage-money by the
purchaser it entirely ceases. So, as to the cases where the
sale is by a person holding the estate under a conveyance or

1 Livingston v. Peru. &e. 2 Paige, 390. ^ Morgan v. Morgan, 2 Wheat. 290.

2 Ibid.



CH. XXXVIII.] , PARTIES TO ACTIONS. 185

a demise ; the heir at law of the grantor or devisor need not
be made a party ; he does not claim through, or in any way
represent, the vendor. The purchaser is not to be prejudiced
by the death of the vendor, but is entitled to the same benefit
from a decree as if it had passed against the vendor him-
self." '

10. Bill by devisees in trust to sell, for specific perform-
ance, of an agreement to purchase. Exception to the re-
port in favor of the title, that the persons entitled to the
purchase-money, subject to debts, legacies, and other charges,
were not parties to the suit. The Lord Chancellor was of
opinion that they ought not to be parties to the conveyance ;
and, if they were, their covenant ought to extend only to
their own acts and those of the devisor ; not to a general
warranty, without a special contract for it ; but, as the point
must come properly upon objections to the conveyance, the
exception was overruled upon the form. He also held, that
it was not matter of exception to the report in favor of the
title, that the heir of the devisor was not a party to the suit.
Lord Loughborough says : " The scope of the exception is,
that these persons are not made parties to the suit. That
comes a great deal too late in the cause ; and was an objec-
tion to be made at the hearing. It then supports itself by
certain hints of objections, which are not made a substantive
ground of exception. I cannot allow this without laying
down as a general proposition, that all persons interested in
the money to arise from the sale ought to be parties to the
contract." ^

11. To a bill against a vendor for specific performance, his
stewards and receivers ought not to be made parties. And,
specific performance being decreed, the bill as against them
was dismissed with costs.^

12. The plaintiff agreed to sell to the defendant a piece of
land in the occupation of his tenant, and to buy up the

1 Roberts v. Marchant, 1 Phill. 370, '^ Wakeman v. Rutland, 3 Ves. 233,
373. 234; 8 Bro. P. C. 145.

3 McNamara u. Williams, 6 Ves. 148.
16*



180 LAW OF VENDORS AND PURCHASERS, [cn. XXXVIII.

tenant's interest. The defendant having entered before pay-
ment of his purchase-money, the plaintiff and his tenant
served him with notices not to trespass ; and afterwards the
plaintiff filed a bill against the defendant for specific per-
formance and to restrain the trespass. Held, the tenant was
not a necessary party to the suit.^

13. When a bill for specific performance is filed, by a per-
son who has contracted to purchase the absolute legal and
equitable interest in a mortgaged estate, from the supposed
owner of the equity of redemption, neither the mortgagee,
nor a person who claims an interest in the equity of redemp-
tion, but has not joined in the contract, can be made a de-
fendant ; although the mortgagee does not object to being
made a party, but requires the sanction of such claimant
before joining in the convey ance.^

14. The general rule, that an action lies only against a
party to the contract, is sometimes held inapplicable to one
having notice of such contract.

15. Bill for specific performance of a contract to sell.
Two persons held land in common. One, professing to act
for both, contracted by deed, signed by himself alone, to sell
a small part of it to the plaintiff, but the other owner refused
to sell. Afterwards, the two conveyed the whole to the de-
fendant, who knew of the contract. Decree for the plaintiff.
The Court say : " The appellee took possession of the lot of
land purchased by him, and made use of it in the mode con-
templated when he purchased by opening a race through it.
It was said in Robinett v. Preston,-^ that although a convey-
ance by one joint tenant of a part of the land might have
no legal effect to the prejudice of the co-tenant, yet it would
be effectual to pass the interest of the grantor in the tract.
And if, upon partition, the share assigned to the co-tenant
did not include the part conveyed, the co-tenant would get
all he was entitled to, and the grantor could not deny his
deed. If, upon a partition, that part of the land described

1 Kobertson v. Great Western, &c. 10 ^ Tasker v. Small, 3 Myl. & Cra. 63.
Sim. 314. 3 2Kob. R. 277.



CH. XXXVIII.] PARTIES TO ACTIONS. 187

by this deed or affected by the water privileges, had been
assigned to John T. McKee, he would have been in a con-
dition to have executed his contract, if he would not, in that
event, have been estopped by his deed from disturbing his
vendee ; and his son claiming under his subsequent convey-
ance with full notice, can occupy no higher ground." ^

16. Where a contract is entered into for the purchase of
an estate by certain persons in their own names, but in fact
on their own account, and also as agents for other parties, a
bill to rescind the contract may be filed in the names of the
agents and the other parties. And, where the partners in a
company or partnership are numerous, such bill may be filed
by some of the partners, on behalf of themselves and the
others, if it is manifestly for the benefit of all that the con-
tract should be rescinded.^

17. The plaintiffs, being interested in certain lands, but hav-
ing no common legal interest in any portion of them, agreed
together to put them up for sale, according to their respective
interests, and the lands were so put up, under the direction
of their agent, in lots. Each lot was described in a separate
paper, containing the conditions of sale, in which it was
stipulated that " the vendors " should deliver an abstract of
title ; that the conveyances should be executed, and the
whole purchase-money paid, on a certain day, from which
time the purchaser should have possession; and that, if the
purchaser should be let into possession before payment of
the purchase-money, he should be considered tenant at will
to the vendors, and pay interest at the rate of 4 per cent, on
the amount of purchase-money, as and for rent. The de-
fendant bought four of the lots under the above conditions,
two by auction, and two by private contract. No abstract
of title was delivered ; but the defendant was let into pos-
session, and held for several years, not paying the purchase-
money, and having notice of the arrangement entered into
by the plaintiffs for the sale. Held, the plaintiffs could not
jointly sue, upon an implied contract by the defendant, to

1 McKee v. Barley, 11 Gratt. 340, 346. ^ Small v. Atwood, Yonnge, 407.



188 LAW OP VENDORS AND PURCUASEIIS. [CU. XXXVIII.

waive the delivery of an abstract, and perform the condition
for payment of 4 per cent, interest as rent. Also, that the
plaintiffs could not recover the 4 per cent, in a joint action
for use and occupation. Lord Denman, C. J., says : " The
undertaking relied upon must result either from the original
contract of sale, or from a joint ownership in the plaintiffs and
occupation under them. But the contract proved does not
support the action, and there is no joint ownership proved."
Littledale, J., says : " The remedy was to be sought in equity"
(for payment of the 4 per cent, interest). " As to the count
for use and occupation, the eighth condition, under which the
defendant is said to have occupied, supposes that the vendors
shall have performed their part of the previous contract, and
provides for the case of default made by the purchaser, after
such performance. The law would not imply that the ven-
dee had subjected himself to such a condition by being let
into possession while the title remained uncertain. And
supposing that the defendant under the circumstances had
agreed to be bound by the eighth condition, the action ought
not to have been for use and occupation ; the declaration
should have been special on the contract to pay 4 per cent." ^
18. A husband may recover back money laid out by his
wife in the purchase of lands, unless he was privy to her
bargain or consented to it. Holt, C. J., says : " If articles
of agreement are made by a feme covert by the order and
appointment of her husband, and the money is paid by the
wife in pursuance of such agreement ; or if the husband
(though not privy at the time of the purchase) afterwards
consents to it, the property of the money is altered, and the
husband cannot maintain trover. But if he is not privy to
such purchase, nor agrees to it, trover will not lie for him
against the vendor, who receives his money of his wife." ^ (a)

1 Seaton v. Booth, 4 Ad. & Ell. 528, ^ Qarbrand v. Allen, 1 Ld. Raym.
534, 551. 224.

(a) Upon the general subject of parties, including parties to contracts
and parties to actions, a few miscellaneous points remain to be noticed.



CH. XXXVIII.] PARTIES TO ACTIONS. 189

It Las been held, that an infant cannot sustain a suit for specific perform-
ance, because the remedy is not mutual. Flight v. BoUand, 4 Russ. 298 ;
2 Story, Eq. s. 751, n. Inasmuch as both the rule and the reason of it are
a departure from the general principle, which holds infancy to be a strictly
personal privilege, and from other analogies of the law, it is desirable to
state at length the case upon which the doctrine chiefly rests. In this case,
the bill was filed by the plaintiff, as an adult. Upon discovering that he
was an infant, the defendant moved that the bill be dismissed Avith costs
against the plaintiff's solicitor ; and the plaintiff was then allowed to amend
by inserting a next friend. Upon the opening of the case, a preliminary
objection was taken, that a bill by an infant could not be sustained. It was
argued, in support of the objection, that specific performance cannot be
decreed against an infant, and if a decree were made as prayed for, the
Court could not compel the plaintiff to execute it ; that he could not be
forced to pay the purchase-money, and, on attaining full age, might repudiate
the contract and the suit. On the other side it was argued, that the want of
mutuality is not in all cases an objection to specific performance ; as in case
of a contract by a husband for sale of the wife's land, which the husband
and wife may enforce, but which cannot be enforced against either of them.
So also a party who has signed an agreement, though himself bound, cannot
enforce it against one who has not signed it. Sir John Leach, Master of
the Rolls, says : " No case of a bill filed by an infant for the specific per-
formance of a contract made by him has been found in the books. It is not
disputed, that it is a general principle of Courts of Equity to interpose only
where the remedy is mutual. The plaintiff's counsel principally rely upon
a supposed analogy afforded by cases under the Statute of Frauds, where
the plaintiff may obtain a decree for specific performance of a contract
signed by the defendant, although not signed by the plaintiff". It must be
admitted that such now is the settled rule of the Court, although seriously
questioned by Lord Redesdale upon the ground of want of mutuality. But
these cases are supported, first, because the Statute of Frauds only requires
the agreement to be signed by the party to be charged ; and next, it is said
that the plaintiff, by the act of filing the bill, has made the remedy mutual.
Neither of these reasons apply to the case of an infant. The act of filing the
bill by his next friend cannot bind him ; and my opinion therefore is, that
the bill must be dismissed with costs, to be paid by the next friend." But
see Clayton v. Ashdown, 9 Vin. 393, pi. 1 ; Shannon v. Bradstreet, 1 Sch. &
L. 52, 58 ; 1 Sugd. 282.

Though an infant who has entered into a contract cannot be compelled to
complete it, yet he cannot maintain an action to recover back a deposit.
Wilson V. Kearse, Peake's Add. Cas. 196.

English statutes, not generally in force in this country, have provided for
the conveyance of estates purchased, by infant trustees.



190 LAW OF VENDORS AND PURCHASERS. [ClI. XXXVIII.

A vendor dying before tlie sale was conipleted, Iiis licir at law, an infant,
■was declared to be a trustee, within the Statute of the 7th of Queen Anne,



Online LibraryFrancis HilliardThe law of vendors and purchasers of real property → online text (page 61 of 77)