The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, it would not be consistent with the orderly development of the common law if the court could, as a matter of construction, produce the result that it believed the parties to the contract wanted by rewriting the contract.
Wilberforce J said that a purchaser of land is entitled to be satisfied ‘that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser.’ and
‘Section 63 states that every conveyance is effectual to pass all the estate which the conveying party has or which is intended to be so passed; and if that is read in conjunction with the definition section, Section 205 (1) (ii), by which the expression ‘conveyance’ includes an assent, that produces the result that an assent, provided that it is under seal, is effective to pass whatever estate the conveying party has.
I would be reluctant to decide this case on the basis of a mechanical argument of that kind alone, but I think on the broad framework of the Act, provided that the sole form of requirement of being under seal is complied with, any document, since 1925, at any rate, is effective to pass a legal estate, provided that the intention so to pass it can be ascertained.
I therefore feel on both those branches of the argument that the vendor here is correct in saying that, although the document is described as an assent, and although admittedly the case was not one for which an assent should be used, yet, nevertheless, on the intention to be ascertained from it and having regard to the statutory provisions, it was perfectly effective to pass the fee simple to the purchaser, and I propose so to declare.’ and
Where the title shown is less than perfect, the question is whether the risk is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an action for specific performance at the instance of the vendors, force a title containing the alleged defect upon a reluctant purchaser ?’
Wilberforce J
[1961] 1 WLR 449
Law of Property Act 1925 63 20(91)
Cited by:
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Cited – Barclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .
Lists of cited by and citing cases may be incomplete.
Contract, Land
Leading Case
Updated: 01 November 2021; Ref: scu.190576