Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: ‘And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be considered as a conveyance in equity, or an ‘equitable conveyance.’ If that were true, it would be an equitable conveyance of a legal property or a legal right. But let us consider what the doctrine of specific performance is. If the instrument is a ‘conveyance’ in itself, why do you want a decree for specific performance? If the instrument has conveyed the property to the purchaser, he does not require specific performance of an agreement with reference to his own property which has been already conveyed to him. The fact that the instrument is one of which equity will decree specific performance, fixes it at once as an ‘agreement,’ and not as a ‘conveyance.’ It would be a contradiction of terms to say that that which requires a decree for specific performance is in itself a ‘conveyance’ which has conveyed the property to the purchaser. If there has been a ‘conveyance’ of the property, you do not require specific performance. If property sold is conveyed by an instrument to the purchaser, and after that conveyance the vendor keeps it, the purchaser’s remedy would not be by way of specific performance, but, if the property be personal property, by an action of trover; or, if it be real property, by an action of ejectment. In my opinion, therefore, however clear it may be that an instrument is an agreement of which a Court of Equity would instantly decree specific performance, if it were not performed by the vendor, such an instrument is not a ‘conveyance on sale’ within the meaning of the Act, but is only an ‘agreement’.’
Lindley LJ, Lord Esher MR
(1889) 23 QBD 579
Cited – Tasker v Small 3-Jun-1836
The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.
Land, Contract, Stamp Duty
Updated: 16 May 2022; Ref: scu.553538