Corless v Sparling

• Jurisdiction: Ireland
• Judgment Date: 19 July 1875
• Date: 19 July 1875
• Court: Court of Chancery (Ireland)

Ch. App.

Before LORD O'HAGAN, L. C., CHRISTIAN, L. J., and BARRY, J.

CORLESS

and

SPARLING.

Alexander v. CrosbyENR 1 Jo. & Lat. 674.

Sweet v. Meredith 8 Jur. N. S. 637.

Fordyce v. FordENR 4 Bro. C. C. 494; S. C. 6 Ves. 679.

Brroughs v. Oakley 3 Swanst. 159.

Fleetwood v. Green 15 Ves. 594.

Pegg v. WisdenENR 16 Beav. 244.

Hall v. Laver 3 Y. & Coll. Exch. 196.

Bown v. StensonENR 24 Beav. 631.

Margravine of Anspach v. NoelENR 1 Madd. 310.

Wright v. Griffith 1 Ir. Ch. R. 695.

Upperton v. NickolsonELR L. R. 6 Ch. App. 444.

Higgins v. SeniorENR 8 M. & W. 844.

Saxon v. BlakeENR 29 Beav. 438.

Portman v. MillENR 2 Russ. 570.

Thomson v. Davenport 2 Smith's L. C. (6th ed.) 327.

Fildes v. HookerENR 2 Mer. 424.

Leathem v. Allen 1 Ir. Ch. R. 683.

Fennelly v. Anderson Ibid. 706.

In re Egan's Estate 6 Ir. Jur. N. S. 90.

In re Browne's Estate Ibid. 185.

Clive v. BeaumontENR 1 De G. & Sm. 397.

Meara v. Rogers 3 Ir. Jur. N. S. 108.

Jenkins v. Hiles 6 Ves. 646.

Southby v. Hutt 2 Myl. & Cr. 216.

Hobson v. BellENR 2 Beav. 17.

Martin v. CotterENR 3 Jo. & Lat. 497.

Knatchbull v. GrueberENR 1 Madd. 170.

The Attorney-General v. Sitwell 1 Y. & Coll. Exch. 570.

Agreement for purchase of lands — Partial waiver of title — Decree for specific performance — Limited inquiry in Chambers.

VOL. VIII.] EQUITY SERIES. to release the assets then contemplated as being the whole amount available ; and that the pecuniary legatees did not relinquish their rights to be paid the amounts remaining unpaid out of the surplus that has unexpectedly remained after repaying the Plaintiff the £1500 advanced by her. I shall therefore declare that, on the true construction of the deed, the Defendants Sarah C. Lawe and Frances S. Blane did not thereby release their rights to be paid out of the residuary estate of the testator, after repayment to the Plaintiff of the sum of £1500 therein mentioned, the sums remaining unpaid on foot of the legacies bequeathed to them respecÂÂtively by said will, and that, notwithstanding the execution of said release, they are entitled to have any balance which shall remain of said. residuary estate after payment of said sum of £1500 applied, so far as the same will extend, in discharge of the sums so remaining due to them respectively. I do not include Mrs. Watson in this declaration, as the counsel for her and her husband withdrew any claim on their part to receive any further payment. Solicitor for the Plaintiff : Mr. Francis Hodder. Solicitor for Robert Lawe, and Alexander Lawe, by his next friend : Mr. Jer. C. Blake. Solicitors for the Defendants Henry Watson and Helena Watson, Sarah C. Lawe, and Robert Arthur Blane and Frances Smith Blane : Messrs. H. 8f J. Watson. CORLESS v. SPARLING (1). Agreement for purchase of lands-Partial waiver of title-Decree for specific performance-Limited inquiry in Chambers. In granting a decree for the specific performance of an agreement to purÂÂchase the Plaintiff's lands, where the Defendant has been guilty of delay and other acts amounting to a partial waiver of his originally unrestricted right to investigate the vendor's title, the Court will refuse an inquiry in the case of (1) Before LORD O'HA.GAN, L. c CHRISTIAN, L. J,, and BARRY, J. THE IRISH REPORTS. [I. R. the items as to which there has been such acceptance, allowing it to proceed as to the rest. In July, 1871, S. agreed to purchase " all C.'s interest" in a portion of lands which were held under a lease of 1848 for a long term of years at a substantial rent, and which portion had been conveyed to a trustee for C. in December, 1857, indemnified against any part of the rent. S. did not go into possession, although the agreement, which was silent as to C.'s making title, provided that possession should be given in November. C.'s solicitor, M., furnished his abstract of title in March, 1872, and, on request, a further one in May. In June, S.'s solicitor, K., made various requisitions thereon, one of which required proof of the title of the lessor, whose estate had been sold in the Incumbered Estates Court early in 1857, subject to the lease. M., in reply, offered a copy of the Incumbered Estates Court conveyance, and by the 17th of July had complied with all the requisitions. No further communication was received from K. till the 24th of October, when, in answer to M.'s letters urging the completion of the transaction, he wrote requiring the appointment of a new trustee of the deed of December, 1857, the original one having died in 1864. A new trustee was immediately appointed, and C. having shortly after filed a bill for specific performance and for a declaration that S. had accepted the title (varying the decree of LORD O'HAGAN, L. C., who decided there had been no waiver of title and granted an unrestricted inquiry in Chambers), that S. might rely upon any new objection to the title, but not upon the liaÂÂbility of the indemnified premises to the rent reserved in 1848, nor upon any other objection appearing on the abstracts theretofore furnished, and that he might call for any of the documents promised him by M. except the InournÂÂbered Estates Court conveyance, the production of which might be dispensed with in chambers if it should prove to be no longer within C.'s procurement. APPEAL by the Plaintiff below, praying that the order of LORD' O'HAGAN, L. C., of the 19th of June, 1873, " may be reversed so far as it directs an inquiry into the Appellant's title, and that it may be declared that the Respondent has accepted the title of the Appellant" to premises which formed the subject matter of the suit, " and that a proper conveyance may be directed to be settled." The bill was filed on the 12th of December, 1872, to compel the Defendant specifically to perform an agreement dated the 25th of July, 1871, for the sale to him of premises in the county of Galway, and it prayed that the Defendant should be declared to have accepted the Plaintiff's title thereto. The terms of that agreement, and the ground upon which the Defendant sought, unsuccessfully, to resist its enforcement, are stated in his Lord Voa. VIII.] EQUITY SERIES. 337 ship's judgment (1). The material question, however, so far as Ch. App. this report is concerned, and the only one on which an appeal was 1874. CORLESS (1) The following is the judgment Plaintiff's solicitor, and Mr. John V. delivered by LORD O'HAGAN, L. C.:- Kendall, of Lincoln's Inn, who is SPARLING. The bill in this case was filed for alleged to have been the real principal 1873. specific performance. The facts are on the Defendant's side in the trans- June 19. few, and the agreement which is sought action. It is not very clear what view to be enforced is short and plain in its of their relation was originally taken terms. It appears that Mr. Corless by these persons in connexion with the is the present owner of the Recess purchase. However, when Mr. Mecredy Hotel, in the county of Galway, and requested that the agreement should as such, he, on the 25th of July, 1871, be carried into effect, Mr. Kendall in-entered into the agreement in ques- sisted that title to the premises should tion with the Defendant Sparling for be made out. That was a reasonable the sale of the hotel, with other adja- requirement, but the parties were not cent premises. That agreement was very harmonious with respect to it. in these terms :- An abstract of title was furnished, and " 25th .Tuly, 1871. various requisitions-sixteen, I believe, in number-were presented on behalf "Thomas Corless agrees to sell, and of the purchaser, and answered in cer Henry John Sparling to purchase, all lain ways by Mr. Mecredy. With some of Thomas Corless' interest in the Town the answers Mr.Kendall expressed satis land of Lisoughter, viz.:-the house faction, and dissatisfaction with others known as the Recess Hotel, with all of them, and there were various expla outhouses, gardens, &c., and about nations, additions, and amendments. 200 acres, more or less, of mountain And so the matter went on until De land, as marked on the lease, for the cember, 1872, when the bill was filed. sum of £500, the settlement to take In that state of facts-and I need ad place on 1st of November next, when vert to no others for the purpose of possession is to be given. indicating the points at issue-two THOMAS CoRLEss. questions have arisen ; the first of them being whether the Defendant is L6H. J. SPARLING. or is not bound by this contract ? He " Witness, WILLIAM JOYCE." says he did not act for himself in the That agreement was, admittedly, transaction, but for other people, and signed by both parties, and Sparling contends that the Plaintiff should have wrote it with his own hand. Since its proceeded against the principal, and execution some small sums have been not against the agent. The second paid on account of the purchase money, question, and it seems to me the really but nothing turns upon that. A cor- material one in the case, is whether or respondence is set out in the bill not, Corless obtaining his decree for between Mr. Robert Mecredy, the specific performance, Sparling can in Vox,. VIIL sist on having a good title made out to the premises ? On the first quesÂÂtion, I entertain no doubt. I think, looking at the circumstances under which the agreement was executed, that there was no disclosure of the alÂÂleged principal, and no agreement that the agent should not be held personÂÂally responsible ; he signed the agreeÂÂment as a principal, and at the time of signing it did not pretend that he acted as an agent. He clearly held himself out as principal, and dealt with the vendor in that capacity. The law on this subject is settled by a number of authorities, and clearly stated by Lord Denman in Jones v. Littledale (6 Ad. & E. 490). And it is quite plain to me, upon all the facts of the case, that Mr. Corless has done nothing to relieve the Defendant from his ordinary...