minerals in or under the land conveyed by the deed of 1776, or in or under any of the freehold portion of Lot 12, and one of his witnesses stated his belief that valuable seams of coal underlay the property; but a witness on the part of the Defendants, who was a coalowner residing in the neighbourhood, deposed that coal had never been found in the district under the strata indicated by the outcrops of limestone and freestone on the land in question.. There was no evidence that the freehold portion of Lot 12 had ever been of customary tenure. Mr. Southgate, Q.C., and Mr. Dryden, for the Plaintiff : The Defendants' title-deeds prove that part of this land, which they have agreed to sell without any reservation, is subject to the right of the lord to the mines and minerals; the Plaintiff, therefore, even without reference to the 14th condition of sale, would be entitled to specific performance with compensation; though, but for that condition, he would have been entitled to repudiate the contract: Seaman v. Vawdrey (1); White and Tudor's Leading Cases (2). [The MASTER OF THE ROLLS referred to Earl of Durham v. Legard (3).] In that case there was a mistake as to the quantity of the land sold, and the compensation would have amounted to half the purchase-money; but here the reservation in respect of which the Plaintiff seeks compensation, is only of the mines and minerals under about one-eighth of the property sold, and the vendors must have known its existence from their own title-deeds. The Defendants at first relied on the 5th special condition, but that does not apply, as there is no evidence that the land in question has ever been enfranchised. As to the case set up by the answer, that the reservation of mines and minerals does not include limestone and freestone quarries, there is no evidence in support of it but the statement of the belief of the Defendants, that by the custom of the manor quarries do not belong to the lord. Mines and minerals include limestone and freestone quarries: Bell v. (1) 16 Ves. 390. (2) 3rd Ed. vol. ii. p. 499. (3) 34 L. J. (Ch.) 589. M. R. 1870 MAWSON v. FLETCHER. M. R. 1870 MAWSON v. FLETCHER. Wilson (1); Midland Railway Company v. Checkley (2). The Defendants insist that they are entitled to rescind under the 6th condition; but reading the whole of that condition, it is clear that the objections and requisitions there mentioned are objections and requisitions as to title, which this objection is not. The 6th and 14th conditions must be so construed as to be consistent with each other, and the 14th must be held to apply to all objections other than objections to title, which, but for that condition, would be ground for annulling the sale. In Painter v. Newby (3), where there were two conditions of sale similar to the 6th and 14th conditions in this case, it was held that the vendor failing to prove a right to renew a lease, which he had agreed to sell as renewable, could not rescind the contract, but must complete the sale, with compensation. In Nelthorpe v. Holgate (4), where a vendor agreed to sell an interest in fee simple, knowing that another person had a life interest in the property, the Court decreed specific performance, with compensation. In Hoy v. Smythies (5), where the vendor of a manor represented the fines to be two years' value, and there was a dispute whether the fines were one or two years' value, the Court would have decreed specific performance, with compensation, if the purchaser had not, by taking an objection to the title, enabled the vendor to rescind the contract. Restrictive conditions of sale will be construed strictly against the vendor: Greaves v. Wilson (6). A vendor is bound to give the fullest information, and cannot protect himself against objections known to himself by general conditions: Edwards v. Wickwar (7); Beioley v. Carter (8). Mr. Jessel, Q.C., and Mr. Jackson, for the Defendants: The Defendants were entitled to rescind the contract. The words of the 6th condition, "any objection or requisition," are not to be confined to objections or requisitions as to title. But even if this narrow construction be adopted, this is an objection to title. The Plaintiff says that the Defendants have no title to the quarries. The Defendants say that they have a title, inasmuch as (1) Law Rep. 1 Ch. 303. (3) 11 Hare, 26. (4) 1 Coll. 203. (5) 22 Beav. 510. (8) Ibid. 4 Ch. 230. M. R.. 1870 MAWSON v. the lord's right (if any) is confined to underground mines. The Court cannot decide the question without going into the question of title between the Defendants and the lord of the manor, and cannot make a decree for specific performance without directing FLETCHER, an inquiry as to the title to the quarries. The Defendants did not wish to be involved in the expense and trouble of such an inquiry, and they therefore reserved to themselves the power, which they have exercised, of rescinding the contract. The statements in the answer, that by the custom of the manor the lord is not entitled to open quarries, and that the predecessors in title of the Defendants have worked quarries on part of Lot 12 for sixty years without interruption, are not displaced. Bell v. Wilson (1) decided that in a particular instrument minerals included freestone; but how can that decision affect the custom of this manor? The reservation in the deed of 1776, being made to the lord of the manor, who was not a party to the deed, was null and void, and is nothing more than an indication of some ancient reservation. It is not a case for compensation. The quarries are the most valuable part of the estate, and the Defendants will not be compelled to sell the land without them. As to the authorities: Painter v. Newby (2) turned upon the construction of the conditions of sale, which were different from these conditions; neither in that case, nor in Nelthorpe v. Holgate (3), was there any dispute about the title, it being admitted in both cases that the vendor had not that which he had agreed to sell. Hoy v. Smythies (4) is a clear authority in favour of the vendor's right to rescind, and so is Duddell v. Simpson (5). Mr. Southgate, in reply :— The Plaintiff denies that the quarries on the piece of land in question have been worked, and this is not contradicted. There is no real dispute about the title. The mines and minerals, whether or not they belong to the lord, are excepted out of the conveyance under which the Defendants derive their title to the land. (1) Law Rep. 1 Ch. 303. (2) 11 Hare, 26. (3) 1 Coll. 203. (5) Law Rep. 2 Ch. 102. M. R. LORD ROMILLY, M.R.:— 1870 MAWSON v. In my opinion this is a very simple case, and when the matter is understood, I think it plain that the Plaintiff has no right to FLETCHER. maintain this suit. The sole question to be determined is this. The Defendant sells a plot of land to the Plaintiff. In the conditions of sale he puts one which is to this effect:-"If any objection or requisition be delivered and persisted in, the vendor will be at liberty to rescind the contract, on returning to the purchaser his deposit, without interest or expenses." The question is, whether, upon the facts of this case, the vendor is entitled to the benefit of that condition, he having sent a notice to rescind, and having returned the deposit. In the same conditions of sale there is this further condition: "That if any error or mistake shall appear to have been made in the description of the property, or of the vendor's interest therein, such error or mistake shall not vacate the sale; but if the same shall be pointed out, either by the vendor or purchaser, prior to the time appointed for the completion of the purchase, a compensation or equivalent shall be given or taken by the vendor or purchaser, as the case may require, but the quantity above stated shall be conclusive on the vendor and purchaser." In this Lot 12 what is sold is limestone and freestone quarries. It appears by the abstract delivered that, in a conveyance taken in the year 1776, all the minerals under six acres of this property, which consists of about forty acres, were excepted as belonging to the lord of the manor, and upon that the Plaintiff asks for compensation. I am not now going to discuss or express any opinion upon the question, which of these two conditions of sale is to have predominance over the other, and whether, where they both occur in the conditions of sale, the fact of the purchaser asking for compensation, where there is a manifest error in the description of the parcels or of the interest of the vendor, will preclude the vendor from insisting on the right, which he retained under the condition which I have read, of putting an end to the contract. I am not going to say anything on that question. The condition as to rescinding is certainly expressed in the very broadest terms possible, nor have I met with any condition in any of the cases cited as general as this, that if there is any objection or requisition insisted on the vendor shall be at liberty to rescind the contract. But this is quite certain, that in all the cases, wherever this question has arisen, the fact of there being an error or misdescription of the interest of the vendor has never been a question of contest. It has been admitted in all the cases that have been cited to me, and I believe in all the cases that can be cited. It certainly was so in Painter v. Newby (1), Nelthorpe v. Hilgate (2), and Hoy v. Smythies (3). In this case the Court cannot decide the question without determining whether there is such an error in the description of the parcels as the Plaintiff alleges. The Defendants deny it, and I must determine that point before I determine whether the Plaintiff is entitled to any compensation. Now, what is the species of misdescription which is alleged here? It is, that there is a reservation in an old deed to the lord of the manor of the mines and minerals. The vendor says, in answer to that, "That may be so, but the mines and minerals do not include limestone and freestone, for by the custom of the manor the copyhold or enfranchised tenants of the manor have always had the right of taking the limestone and freestone-they have done so for sixty years;" and I should have to try that question in the first instance, which it is said, and, I think, truly said, would probably be a very expensive and troublesome inquiry. The vendor, foreseeing this, says: "If you persist in any requisition or objection, I am to be at liberty to rescind the contract." (That condition was put in for the purpose of meeting a case of this description.) "I can prove that I have the right to the freestone and limestone quarries, but I am not going into the great expense and trouble of proving it; I would rather have a new sale." It is clearly an objection to title, if it is not admitted that the error exists. It is not admitted-it is contested-and the sole argument that Mr. Southgate suggests to me is, that after the answer has expressly stated that such a custom exists, and has been acted upon for a long period of time, that the lord of the manor has never resisted it, and that there is evidence that there is no coal to be found under this species of stratum, the Plaintiff says, "You have not worked in that particular part." It may be so. If it is so, it does not appear to me to be conclusive, but it would be very strong for me to make a decree, if I had to determine that point merely upon that statement, without the Plaintiff stating his means (1) 11 Hare, 26. (2) 1 Coll. 203. (3) 22 Beav. 510. M. R. 1870 MAWSON V. FLETCHER. |