CHAP. X. BILLS FOR occasioned by the vendor. (s) Where the conditions of sale provide that interest shall be paid from a certain day, if the PERFORMANCE. purchase be not then completed, the purchaser cannot then relieve himself from payment of interest by alleging that the delay in completing the contract was caused by the vendor; although it is otherwise where there is no such express stipulation; () but where the purchaser, upon entering into possession, paid the amount of his purchase money to his banker, and gave no- ́ tice that he was ready to invest it in such manner as the vendor should require, and no answer was returned to that notice, and the purchaser, during the investigation of the title, kept in the hands of his banker a balance equal to the amount of the purchase money, except for four days, when it was a little less; the court held the purchaser not to be liable for interest on the difference between his average balance during the period in question, and during the three preceding years. (u) But a purchaser who has not been in possession is bound to pay interest on the purchase money, and take the rents and profits only from the time when a good title was first shown, and not from the time fixed by the agreement for the completion of the purchase. (x) And where a contract of purchase contained a stipulation, that if by reason of any unforeseen or unavoidable obstacles the conveyance could not be perfected for execution before the day fixed for the completion of the purchase, the purchaser should from that day pay interest at 5l. per cent. on his purchase money, and be entitled to the rents and profits of the premises, and the vendor did not show a good title till long after the specified day, he was held not to be entitled to interest except from the time when a good title was first shown.(y) So where a purchaser takes possession, and agrees to pay interest, he may rescind the agreement if it appear that a long time must elapse before a title can be made, unless he acquiesce in the delay. (*) Nor is a purchaser bound to pay interest after the conveyance is delivered to the vendor's attor ney for execution. (a) Interest on timber runs only from the valuation, because surveyors always value timber according to its present state; and the augmented value in the timber by growth is an equivalent for the interest from the time of the (s) Howland v. Morris, 1 Cox, 59; Calcraft v. Roebuck, 1 Ves. J. 221; Powell v. Martyr, 8 Ves. 166. (t) Esdaile v. Stephenson, 1 Sim, & Stu. 122. (u) Winter v. Blades, 2 Sim. & Stu. 393. (x) Jones v. Mudd, 4 Russ. Rep. 118. (y) Monk v. Huskisson, 4 Russ. Rep. 121, in note. (z) Fludyer v. Cocker, 12 Ves. J. 25; Sugd. V. & P. 505, 506. (a) Id. ibid.; Sugd. V. & P. 507. CHAP. X. BILLS FOR SPECIFIC contract to the making the valuation. (b) And where a leasehold estate is sold, and possession is not delivered to the purchaser, if any delay occurs, as it would not be just to make the PERFORMANCE purchaser pay the whole purchase money after part of the term has elapsed, without his having derived any benefit from the estate, the court will compel the vendor to pay a rent in respect of his occupation of the estate, and the purchaser to pay interest on the purchase money during the delay. (e) And it has been held that interest must be paid in respect of a sum deposited in the hands of a purchaser to pay off incumbrances. (d) And it should seem that an agreement to pay interest on the purchase money, although signed by the vendor only, will be binding on the purchaser, if the contract of sale have been in part performed. (e) A purchaser never pays interest on the deposit; (f) and though he may under circumstances recover interest on a deposit paid either to a principal or to an auctioneer, (g) yet he cannot recover interest against the latter unless under peculiar circumstances; (g) and where an auctioneer employed to sell an estate received a deposit from the purchaser, he was considered to be a mere stakeholder, liable to be called upon to pay the money at any time; and that therefore, although he placed the money in the funds and made interest of it, yet he was not liable to pay such interest to the vendor when the purchase was completed, though the vendor, without the concurrence of the vendee, gave notice to invest in government securities. () When interest has been recovered against an auctioneer, he may recover it from the vendor if he be not himself in fault. () And it has been laid down as a general rule, that where the original contract is void, the purchaser can only recover his deposit in an action for money had and received, and will not be allowed interest. (k) Interest must be paid by a vendor where he cannot make a title, if the purchase money has lain dead, and he has had notice of that fact. (1) Where interest is recovered at Law, it is always at the rate Rate of interest. (b) Waldron v. Forester, Exchequer, June 30, 1807; Sugd. V. & P. 507, 508. (c) Dyer v. Hargrave, 10 Ves. J. 505; Sugd. V. & P. 509. (d) Sugd. V. & P. 511. (e) Owen v. Davies, 1 Ves. 82. VOL. I. (h) Harrington v. Hoggart, 1 B. & Adolp. 577; and see other cases, Sugd. V. & P. 512. (i) Spurrier v. Elderton, 5 Esp. Ca. 1. (1) Sugd. V. & P. 513, 514. CHAP. X. of 51. per cent., but in Equity the rate of interest is 47. per cent. (m) And the same rate of interest seems payable whether PERFORMANCE. the estate be sold by private agreement or by a Master under a decree of a Court of Equity. But it has been held that an agreement by a purchaser to pay a rent exceeding legal interest is not usurious. (n) When Compensation to Pur chaser. Costs when and how recover able. Compensation, we have just seen, will not be granted in equity to a purchaser for any loss sustained by the bargain, in consequence of the vendor not being able to perfect a title, the remedy, if any, being at law; (0) and at law, in the absence of fraud, the general rule is, that only nominal damages shall be recoverable by a disappointed purchaser, together with his deposit and interest and expenses of investigating the title, and not actual considerable damages for not making out a perfect title. (p) But that doctrine has recently received qualification, and if a party expose to sale, knowing that he has no title, or that he has only an equitable or imperfect title, he may then at law have a verdict against him for considerable damages, at least to make remuneration for trouble and vexation, besides interest and expenses, if not for the loss of the bargain. (q) The costs incident to a bill for specific performance of a contract vary as well according to the result of the suit as the degree of readiness to clear up the title or perform the contract on each side, but these will be considered in the next volume. (r) Bill to compel Whenever an agent or other party has expressly or impliedly an Account. (s) agreed to account for monies received for the use of another, after his refusal to do so, we have seen that he may by bill filed be compelled, this is in the nature of a bill for specific performance; (†) and if an agent do not render his account within a reasonable time, he must bear the costs of a suit instituted to have the account taken; and it will not be any excuse for him that he offered to pay on account a gross sum, which turns out would have covered all that was due from him, for the principal has a right to have all the particulars of the account with vouchers (m) Sugd. V. & P. 516, note 7. (q) Hopkins v. Graysbrook, 6 Ear. and Cres. 31; 9 Dowl. & R. 22 S. C.; Sug. V. & P. 8 ed. 222, 223. (r) 2 Madd. Ch. Pr. 560, 561, 562, 208. (s) See several cases 3 Bla. Com. 426, c.; Chit. Eq. Dig. Account; and 1 Madd. Ch. Pr. 85. (t) Ante, 439, note (g), 509. CHAP. X. BILLS FOR SPECIFIC for alleged payments. (u) It lies generally where there have been mutual demands, and principally against factors and agents, (x) and who must account, although the so doing might PERFORMANCE. subject them to penalties. (y) So this bill is sustainable upon dealings between tradesmen and their customers, or landlords and tenants, and by an heir, who has not possession of title deeds, in relation to the produce of mines; or where timber has been cut; and the delivery of an account, even of legal waste, within six years, takes all prior items out of the statute of limitations. () It lies to account for the rents and profits of lands when under an elegit, or for arrears of a rent charge, or mesne profits, or shares in waterworks, and between partners, (a) but then in general a dissolution should also be prayed; (b) or in relation to tithes, waiving penalties; (c) and between mortgagor and mortgagee; (d) and in relation to a wife's separate estate or pin-money. (e) And although at law, on account of the rule actio personalis moritur cum persona, no action can be sustained against the executor of a tenant for life, for waste, unless perhaps when the latter or the executors have received the price of the trees cut down and sold, (f) yet a bill for an account of waste and trees cut by a tenant for life may be sustained by the remainder-man against such executors. (g) We have seen that the adjustment of an account at law is frequently attended with difficulties, (h) and between partners it can only be effected in equity, unless a balance has been admitted, or there has been an express covenant; (i) and although between joint-tenants and tenants in common an action of account at law is sustainable, yet a Court of Equity has a more perfect jurisdiction, by compelling discovery on oath, and avoiding the difficulty and delay where the account. comes before auditors in an action of account; (k) but after (u) Collyer v. Dudley, 1 Turn. & R. 421. (x) Ante, 439; Green v. Weaver, 1 Simon's R. 404, 424; 1 Madd. Ch. Pr. 88. (y) Green v. Weaver, 1 Simon's R. 404, 424. (z) Hony v. Hony, 1 Sim. & Stu. 568. (a) 1 Mad. Ch. Pr. 87 to 93. (b) Semble, Loscombe v. Russell, 1 Clark & Fin. 8; but when otherwise, Harrison v. Armitage, 4 Madd. 143; Knowles v. Haughton, 11 Ves. 168; Const v. Harris, 1 Turn. & R. 496 to 529; ante, 851. (c) 1 Madd. Ch. Pr. 103. (d) Id. ibid. 586. (e) Id. ibid. 489, 490, 586. Hambly v. Trott, Cowp. 373, 374; Bur- (g) Lansdown v. Lansdown, 1 Madd. (h) Ante, 21, 22. (i) Smith v. Barrow, 2 T. R. 478; Fromont v. Coupland, 2 Bing. 176; Coffee v. Brian, 3 Bing. 55; Boville v. Hammond, 6 Bar. & Cres. 149; Rackstraw v. Imber, Holt's C. N. P. $68. (k) 1 Madd. Ch. Pr. 85; Smith v. Smith, 2 Chitty, R. 10; 3 Dowl. & R. 595, S. C. CHAP. X. a decree to account, a party is not allowed to bring an action at law on the same subject. (1) On such a bill the defendant PERFORMANCE. is to be allowed on his own oath all payments under 40s., but then he must mention in his affidavit to whom, when, and for what he paid, (m) and the whole so allowed must not exceed 1007, (n) and the plaintiff will not be allowed any thing upon his oath. (0) If an account be sought by bill, and a balance should be reported due to the defendant, he may enforce payment under the decree, (p) and both parties are so far considered actors, that either may revive. (q) If the right at law be doubtful, an issue is directed, and if the right be established the account follows; (r) and in general, where the party cannot recover at law, a bill for an account is not sustainable. (s) But the issue directed to be tried should be upon a question of right, and not to investigate the items of the account; and in one instance, where there had been several deaths and changes in the representatives of deceased parties, and an intricate account of several years' standing, an issue having been directed from the Rolls to the Court of Common Pleas to try how much had been paid and received, and how much remained due, the Chief Justice refused to try the cause, and the amount was afterwards taken in a Master's office. Other Specific ments, sales, &c. In aid of proceedings at law, a Court of Equity can also Reliefs, as pay afford specific remedy, as payment of a judgment. Thus a judgment creditor may file a bill against the owner and receiver of an estate, and without making other incumbrancers parties, to have his debt satisfied out of the surplus rents. (t) So that a judgment creditor, although he may not be able by elegit to obtain direct and legal possession or receipt of a moiety of the rents of an estate, may by this means secure the due application of the surplus rents after satisfying prior incumbrancers, and to prevent the owner of the estate from receiving such surplus, and this without paying off the incumbrances, which was necessary according to the previous practice. (u) Where perishable commodities, such as rents in poultry or produce of a farm, have been taken under a sequestration, the court will, on motion, of which notice must be given, order the (1) Bell v. O'Reilly, 2 Schò. & Lef. head's case, Id. 743 ; Pr. Ch. 197. (r) Milbourn v. Fisher, 5 Ves, 683. (s) The Corporation of Carlisle v. Wilson, 13 Ves. 278; 1 Madd. Ch. Pr. 86. (1) Lewis v. Lord Zouch, 2 Siruons, 388. (u) Id. ibid.; see the proceedings before this decision, Tidd, 9th edit. 1036. |