CONVEYING. 31. FOR NOT &c. in endeavouring to procure the said title, as last aforesaid, and hath lost, &c. (same damage as in last count). Add counts for money paid, had, and received-account stated—and breach. 32. Against a publican on an agreement to assign his lease, and on his implied contract, that he had lawful title so to do (1). [167] For that whereas the said C. D. before and at the time of the making of the agreement and his promise and undertaking hereinafter next mentioned, represented to the said A. B. that he the said C. D. was lawfully possessed for the residue and remainder of a certain term of years then to come and unexpired therein; of a certain messuage or dwelling-house and premises, situate, &c. wherein he the said C. D. then exercised and carried on the business of a victuall r, to wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. aforesaid, by a certain agreement then and there made, by and between the. said C. D. and the said A. B. it was agreed in manner and form following, (that is to say,) &c.-[Here set out the agreement verbatim, and state mutual promises, ut ante, 115, and that defendant also *undertook as follows:] and that he the said C. D. then and there had lawful right to sell and assign over the said lease of the said messuage or dwelling-house to the said A. B. and that he would perform and fulfil the said agreement in all things therein contained on his part and behalf, to be performed and fulfilled. And although the said A. B. hath always, &c. [General performance by plaintiff.] Yet the said C. D. contriving, &c. did not perform or regard the said agreement, or his said promise and undertaking, but thereby craftily and subtly deceived the said A. B. in this, to wit, that he the said C: D. at the time of making the said agreement, and his said promise and undertaking as aforesaid, had not lawful right to sell or assign over the lease of the said messuage or dwelling-house and premises to the said A. B. whereby the said C. D. was hindered and prevented from selling or assigning over the same, or performing the said agreement, on the part and behalf of him the said C. D. and by means of the said several premises, he the said A. B. not only lost and was deprived of all the profits, benefits, and adɣantages, which might and would otherwise have arisen and accrued to him from the performance of the said agreement, on the part and behalf of the said A. B. but was forced and obliged to and did necessarily lay out and expend a large sum of money, to wit, the sum of L.-, of lawful, &c. in and about the appraisement and valuation of the said household-furniture, and hath been and is by means of the premises otherwise greatly injured and damnified, to wit, at, &c. aforesaid. (t) See a useful precedent, 1 Wentw. (u) See 6 East. 553. 2 Wentw. 105. 71. [There are but few precedents in print by a vendor against a vendee for not completing his purchase. See a declaration by a vendor scised in fee against a purchaser at a public auction for non-payment of the purchase-money, and the law relative to these declarations, in 6 East. 555. 3 East. 410. 2 H. B. 123; and *against a purchaser of an estate in fee, by private agreement, 2 Wentw. 91. 105. 1 H. B. 270.; and against a purchaser of a chattel interest, Jones v. Barkley, Dougl. 684.; and Luxton v. Robinson, Dougl. 620.; at suit of vendor of an equitable interest, in Dougl. 684. From these it should seem that the plaintiff must in general shew that he had good title to convey (12).-The following firecedent is given, as it often occurs in prac tice :] day of VENDOR AGAINST PURCHASER. [⚫ 168] For that whereas the said A. B. heretofore, to wit, on, &c. at, &c. 33. By vendor of an estate by by one E. F. his auctioneer and agent in that behalf, caused to be put public auction, up and exposed to sale by public auction a certain messuage, orchard, of an estate in and garden and premises, with appurtenances, situate, &c. (w) upon fee, against purchaser, for and subject to the following, amongst other conditions of sale; (x) that not completis to say, that the highest bidder should be the purchaser; that the pur- ing purchase, chaser should immediately pay down into the hands of the auctioneer, loss on a reand paying the that is to say, the said E F. L. per cent. in part of his purchase- sale. money, and enter into an agreement for payment of the residue of the said purchase-money, on the then next ensuing, at which time he should have possession of the premises, on having a good title, and that the auction-duty payable to government should be paid and borne by the vendor and purchaser in equal shares, and the purchaser should pay down his share thereof to the auctioneer at the time of sale; and that in case the purchaser should fail to comply with the said conditions, the deposit money should be forfeited, and the vendor be at liberty to resell the said tenements, with the appurtenances, and the deficiency, if any, together with all charges, should be made good by the defaulter; as by the said conditions of sale, (reference being thereunto had,) will amongst other things more fully and at large appear (y). And the said A. B. in fact saith, that on the Defendant the said exposure to sale, to wit, on the same day and year first afore- purchaser. [⚫ 169] (w) It seems not absolutely necessa- the breach of which is complained of. ry to state the local situation. See 6 East. 348. [1 Taunt. 570.] (x) It is not necessary to set forth more of the conditions of sale than those which are essential to a clear statement of the cause of action, and (y) Some of the precedents here state the mutual promises; but it appears better to insert them after the allegation that the defendant became the purchaser. (12) As to a sale of land in lots, where there is a defect of title as to some of the lots, vide Van Eps v. Corporation of Schenectady, 12 Johns. Rep. 436. VENDOR PURCHASER. Mutual promises. said, at, &c. aforesaid, the said C, D. was the highest bidder for, and then and there became, and was in due manner declared to be, the purchaser of the said messuage, orchard, garden and premises with the appurtenances as aforesaid, at and for a certain large sum of money, to wit, the sum of L. And thereupon afterwards, to wit, on the day and year first aforesaid, at, &c. aforesaid, in consideration thereof, and that the said A. B. at the special instance and request of the said C. D. had then and there undertaken and faithfully promised the said C. D. to perform and fulfil all things in the said conditions of sale contained, on the part of the vendor to be performed and fulfilled, he the said C. D. undertook, and then and there faithfully promised the said A. B. to perform and fulfil every thing in the said conditions of sale on his part and behalf, as such purchaser as aforesaid, to be Defendant's performed and fulfilled (z). And although the said C. D. in part perpart perform-formance of the said terms and conditions of sale, and of his said promise and undertaking, did then and there pay down a certain sum of money, to wit, the sum of L., being at and after the rate of L.per cent., as a deposit, upon and in part payment of the said purchasemoney; and did then and there sign an agreement for the payment of the remainder of the said purchase-money, on or before the said day of ance. Plaintiff's title in the year of our Lord aforesaid, on having a good title, to wit, at, &c. aforesaid (a). And although the said A. B. for a to complete long time before and upon and after the said sale. and readiness [170] day of in the year last aforesaid, was ready and willing to make, and did make appear to the said C. D. a good and sufficient title in fee-simple of, in, and to the said tenements, with the appurtenances (b), so as to enable him the said A. B. to convey the same to the said C. D. in fee-simple (2) Though it is necessary that the purchaser should in person or by his agent sign an agreement to purchase, see 2 Taunton. 38. yet it is not necessary to aver that such written contract was entered into. [1 Caine's Rep. 45. 4 Johns. Rep. 237.] The purchaser cannot object that the vendor did not sign. See 5 East. 16. [Vide Ballard v. Walker, 3 Johns. Cas. 60. Roget v. Merritt & Clapp, 2 Caine's Rep. 117. 6 East's Rep. 108. Phillip's Ev. 440.] (a) This averment is not necessary, See note z, supra. the terms of sale, and the particulars of such estate; but see 6 East. 555. Sugden's Law of V. & P. 178. 3d edit. In Luxton v. Robinson, Dougl 620. it was also held that the plaintiff ought to state his title; and where it is quite certain that the vendor was seised of the legal estate, it may be prudent, at least in one count, 'to make an averment accordingly, instead of risking the declaration in the above form. Where a title has been made out to the satisfaction of the defendant, an averment to thet effect may suffice. See Martin v. Smith, 6 East. 555. 2 Wentw. 105. The precedents usually by way of inducement aver, that the plaintiff was seised in fee at the time of the sale. See 3 East. 410. 6 East. 555. VENDOR AGAINST PURCHASER. refusal. loss. as aforesaid, and to execute and cause to be executed proper conveyances thereof to the said C. D., and afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, offered to the said C. D. to make and convey to him such good and sufficient title in fee-simple to the said tenements, with the appurtenants, upon payment of the remainder of the said purchase-money, according to the said terms and conditions of sale, to wit, at, &c. aforesaid; yet the said C, D. not re- Defendant's garding the said terms and conditions of sale, nor his said promise and undertaking, but contriving, &c. did not nor would, on or before the said day of in the year aforesaid, on having such good title as aforesaid, or at any other time, pay or cause to be paid to the said A. B. the remainder of the said purchase-money, or any part thereof, but then and there wholly neglected and refused so to do, and there wholly refused then or at any other time to complete the said purchase, or to accept a conveyance of the said tegements, with the appurtenants, to him the said C. D. And thereupon the said A. B. af- Resale and terwards, and after the said day of, in the year last aforesaid, to wit, on, &c. at, &c. aforesaid, according to and by virtue of the said conditions of sale, again exposed the said tenements, with the appurtenants, to sale by public auction, under and subject to certain terms and conditions of sale, and the same were then and there, at such last-mentioned *exposure to sale as aforesaid, resold for a much less price or sum of money than the said price or sum for which the same had been so sold to the said C. D. as aforesaid, to wit, for the sum of L., whereby there then and there was a deficiency between the said price for which the said tenements, with the appurtenants, were so sold to the said C. D. as aforesaid, and the said price for which the same were so sold on such resale to a large amount, to wit, to the amount of L―; and the charges attending such resale then and there amounted to a certain other large sum of money, to wit, the sum of L. Of all which said premises, the said C. D. afterwards, to wit, on the, &c. last aforesaid, at, &c. aforesaid, had notice, and by reason of the premises, and according to the said term and conditions of sale, he the said C. D. then and there became liable to pay, and ought to have paid to the said A. B. the said several sums of L.- and L-, to wit, at, . aforesaid. Yet the said C. D. farther disre- Defendant's garding the said conditions of sale, and his said promise of undertaking, non-payment hath not (although he was afterwards, to wit, on the day and year last gence. aforesaid, at, c. aforesaid, requested by the said A. B. so to do) as yet paid the said sums of L. and L. or either of them, or any part [171] of the diffe 2 Wentw. 91. But this seems unnecessary, as it is not absolutely requisite that the vendor should have the legal. title in him at that time, and it is sufficient if he obtain it a reasonable time VOL. II. before the day, appointed for the com. R VENDOR PURCHASER.. [ ⚫ 172 ] thereof, but so to do hath hitherto wholly refused, and still doth refuse, AGAINST to wit, at, &c. aforesaid And whereas also heretofore to wit, on the Second count day and year first aforesaid, at, &c. aforesaid, the said A. B. at the more general special instance and request of the said C. D. bargained and agreed to (c), sell to the said C. D. and the said C. D. then and there bought of the said A B. certain other tenements, with the appurtenants, to wit, one other messuage, and divers other buildings, and a certain other large quantity, to wit, other acres of land, with the appurtenants, at and for a certain price or sum of money, to wit, the sum of L., upon the terms and conditions following, that is to say, that the said C. D. should pay down immediately a deposit of L. per cent. in part of the purchase-money, and should pay the remainder on or before the day of on having a good title; and that the said C. D. should have proper *conveyances, together with such attested copies as might be thought necessary, at his own expense, on payment of the remainder of the purchase-money, And thereupon heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration of the premises, and that the said A. B. at the special instance and request of the said C. D. had, &c. (state mutual" promises ås in first count) And although the said C. D. in part performance of the said last-mentioned terms and conditions, and his said last-mentioned promise and undertaking, did then and there pay down a deposit of L. per cent. in part of the said last-mentioned purchase-money; and although the said A. B. before, and on the said day of 9 was ready and willing to make and convey to the said C. D. a good and sufficient title to the said last-mentioned tenements, with the appurtenants, and to procure to be executed to him the said C. D. at the expense of the said C. D. proper conveyances thereof, with such attested copies as should be thought necessary, according to the said terms and conditions, of payment of the remainder of the said purchase-money, and to perform and fulfil the said last-mentioned terms and conditions, and his said last-mentioned promise and undertaking in every thing on his part and behalf, to be performed and fulfilled, to wit, at, &c. aforesaid; whereof the said C. D. afterwards, to wit, on, &c. last aforesaid, there had notice; yet the said. C. D. not regarding the said last-mentioned conditions, nor his said last-mentioned promise and undertaking, but contriving and craftily and subtly intending to deceive and defraud the *said. A. B. in this, behalf, did not nor would, on or before the said day of or at any other time, pay the remainder of the said purchase-money, or any part thereof to the said A. B., but then and there wholly neglected and refused so to do, and afterwards, to wit, on the said day of, in the year aforesaid, wholly refused to complete the said fast-mentioned purchase, and wholly discharged the said A. B. (d) from all further performance on his part of his said (c) See a count 2 Wentw. 105. ཟ (dy See Jones v. Barkley, Dougl. 684. |