EARL OF ANGLESEY V ANNESLEY

EARL OF ANGLESEY V ANNESLEY

 

 

 House of Lords

  

 

 

 Original Citation: (1741) 1 Bro PC 289

  

 

 

 

 

 

 English Reports Citation: 1 E.R. 573

  

 

 

 10th March 1741

  

 

 

 

 

 Mew’s Dig. vii. 378, xiii. 1766.

  

 

   

 

 

 

 

 If an agreement is in part performed by one of the parties, it is too late for the other to complain of fraud, surprise, etc. or attempt to set the agreement aside on that account; for a Court of Equity will decree a specific performance of the remaining part of it.

  

 

 

 

 

 

 

 

 

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  EASTWOOD V ASHTON

 

 

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EASTWOOD V ASHTON

 

[1915] A.C. 900

 

[HOUSE OF LORDS.] EARL LOREBURN, LORD PARKER OF WADDINGTON, LORD SUMNER, LORD PARMOOR, and LORD WRENBURY. 1915 June 10.

 

Vendor and Purchaser – Conveyance – Parcels – Plan – Falsa demonstratio – Implied Covenants for Title – Breach – Omission to prevent Acquisition of Title under Statute of Limitations – Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 7, sub-s. 1 (A.).

 

 

 

In 1911 the vendor as beneficial owner conveyed to the purchaser a farm called Bank Hey Farm containing 84 a. 3 r. 4 p. or thereabouts and in the occupation as to part thereof of H. as yearly tenant thereof and as to the remainder thereof of C. as half-yearly tenant thereof, all which said premises were more particularly described in the plan indorsed on the conveyance and coloured red. The plan included a small strip of land some 150 ft. long by 36 ft. wide which had formerly formed part of Bank Hey Farm, but as to which at the date of the conveyance an adverse title under the Statute of Limitations had been acquired by the adjoining owners and which was occupied by them or their tenants. At the date of the conveyance only the land occupied by H. was known as Bank Hey Farm, and part of the land described as in the occupation of C. was sub-let by him. The acreage was not an exact measurement:-

 

Held, (1.) that the description by reference to the plan ought to

 

prevail and that the strip of land was included in the conveyance; (2.) that the omission of the vendor to prevent the acquisition of an adverse title to the strip of land under the Statute of Limitations constituted a breach of the implied covenant for the right to convey under s. 7, sub-s. 1 (A.), of the Conveyancing and Law of Property Act, 1881.

 

Decision of the Court of Appeal [1914] 1 Ch. 68 reversed and decision of Sargant J. [1913] 2 Ch. 39 restored.

 

 

 

APPEAL from a decision of the Court of Appeal (1) reversing a judgment of Sargant J. (2)

 

The substantial question raised by this appeal was whether an indenture of conveyance dated June 28, 1911, whereby the respondent as beneficial owner conveyed to the appellant certain lands in the parish of Blackburn in Lancashire, included a small strip of land to which the respondent had lost his title by virtue of the operation of the Statute of Limitations. This strip of land (hereinafter called the disputed strip) was about 36 feet wide and 150 feet long and contained about 605 square yards.

 

On May 4, 1911, the respondent offered for sale by public auction, subject to certain printed particulars and conditions of sale, considerable estates at Blackburn and Clitheroe which he had become possessed of or entitled to under the will of one William Thomas Carr, who died on December 14, 1883. At this sale one Albert Ball became the purchaser of Lot 4 at the price of 4700l.

 

Lot 4 was described in the particulars as “Bank Hey Farm” and as being coloured pink on the plan No. 1 attached to such particulars and as estimated to contain 84 acres 3 roods and 4 poles. The particulars also stated that the said lot was a valuable dairy holding occupying an important position with considerable frontages to Bank Hey Lane and new roads adjacent to Whalley New Road and that from its situation it would give a purchaser an easy opportunity for development, and it was stated that part thereof was in the occupation of Mr. Thomas Haydock and part in the occupation of Mr. Charles William Cartman.

 

The area coloured pink on plan No. 1 attached to the particulars was an area or several areas of land of a highly irregular shape and included the disputed strip, which was shown as

 

 

 

(1) [1914] 1 Ch. 68.

 

(2) [1913] 2 Ch. 39.

 

abutting to the north on Clarendon Road (which was one of the “new roads adjacent to Whalley New Road”), to the west on the embankment of a line of railway of the Lancashire and Yorkshire Railway Company, and to the east on some houses coloured blue on the plan which were described thereon as Lot 12A.

 

By a note printed on the plan it was stated that the plan was reproduced from the Ordnance Survey and was intended only for the purpose of indicating the position of the property and that it was not to be deemed to form part of the contract.

 

By condition 14 of the conditions of sale “any incorrect statement error or omission found in the particulars or conditions is not to annul the sale or entitle any purchaser to be discharged from his purchase nor is the vendor or any purchaser to claim or be allowed any compensation in respect thereof.”

 

Shortly after the sale and before completion of his purchase Ball resold the property comprised in Lot 4 to the appellant at the price of 5000l. and the property was duly conveyed to the appellant by the indenture next hereinafter stated.

 

By the said indenture dated June 28, 1911, and made between the respondent of the first part, Albert Ball of the second part, and the appellant of the third part, after reciting (amongst other things) that the hereditaments intended to be thereby assured (together with other hereditaments) described as Lot 4 were put up for sale by public auction on May 4, 1911, by the direction of the respondent, and that at such sale the said Albert Ball was declared the purchaser of the same, it was witnessed that in consideration of 4700l. to the respondent and the sum of 300l. to the said Albert Ball paid by the appellant the respondent as beneficial owner, at the request of the said Albert Ball, thereby conveyed, and the said Albert Ball as beneficial owner thereby conveyed and confirmed, unto the appellant “all that farm with the messuage tenement or farmhouse barns stables outhouses closes or parcels of land belonging thereto called ‘Bank Hey Farm’ situate in the parish of Blackburn in the county of Lancaster containing 84 acres 3 roods and 4 perches or thereabouts and in the occupation as to part thereof of Thomas Haydock as yearly tenant thereof and as to the remainder thereof of Charles William Cartman as half-yearly tenant thereof all of which said

 

premises are more particularly described in the plan endorsed on these presents and are delineated and coloured red in such plan,” excepting and reserving thereout all mines and minerals, to hold the same unto and to the use of the appellant in fee simple.

 

On March 11, 1912, the appellant agreed to sell to Messrs. Shaw & Ainsworth, millowners, a portion of Lot 4 for the purpose of the erection thereon of a mill. The land so agreed to be sold included the disputed strip, which was intended to be used for the purposes of access to the mill site from Clarendon Road, and which was the natural means of access thereto. When the land came to be surveyed it was discovered that the disputed strip of land was divided longitudinally from north to south by a railway sleeper fence and was in fact as to the western part in the adverse occupation of the Blackburn Corporation as tenants of the Lancashire and Yorkshire Railway Company and as to the eastern part in the adverse occupation of the persons entitled to a lease dated October 13, 1882, whereby W. T. Carr (from whom the respondent derived his title) demised to George Chadwick for 999 years the land lying to the east of the disputed strip, and it was then admitted by the respondent that at the date of the conveyance of June 28, 1911, he had no title to the disputed strip. The facts as to the title of this piece of land are fully stated in the report of the case before Sargant J. The appellant thereupon made further arrangements with the millowners under which he provided them with access to the mill site from Clarendon Road a little further to the east. For this purpose he purchased Lot 12A and resold so much of the lot as was not required for the new access, and these transactions (as the respondent admitted) resulted in a loss to him of 315l. 16s. 8d.

 

On May 8, 1912, the appellant commenced an action for damages against the respondent for breach by him of the covenants for title implied by virtue of his having purported to convey the disputed strip as beneficial owner. The respondent by his amended defence denied the breach of covenant and alleged that the disputed strip had been included in the plan by mistake and that on the true construction of the conveyance it was never conveyed to the appellant. In the alternative he pleaded condition 14 of the conditions of sale as an answer to the action.

 

At the trial of the action the evidence established that at one time the whole of the land conveyed to the appellant, including the disputed strip, had been known as Bank Hey Farm, but that at the date of the conveyance only that part of the land which was in the occupation of Haydock was called by that name; also that part of the land described as in the occupation of Cartman had been sub-let by him to various persons for hen runs. As regards the acreage the respondent’s surveyor stated that the true area of Lot 4 was 85 acres 3 roods and 5 poles, and that he arrived at this result by taking an average of several measurements which differed materially in extent, and he admitted that it was possible for the measurements of Lot 4 taken by two separate surveyors to differ by 500 square yards.

 

Sargant J. held (1.) that in the circumstances the description by plan ought to prevail; (2.) that the 14th condition of sale did not apply; (3.) that an adverse title under the Statute of Limitations had been acquired by the railway company and the owners of the Chadwick lease to the disputed strip, and that the failure of the respondent (or his predecessors in title) to prevent a trespasser from acquiring a title to the land by adverse possession constituted a breach of the covenant for title implied by the Conveyancing and Law of Property Act, 1881. He accordingly gave judgment for the appellant for 315l. 16s. 8d.

 

This judgment was reversed by the Court of Appeal (Cozens-Hardy M.R., Swinfen Eady and Phillimore L.JJ.) on the ground that upon the true construction of the conveyance the disputed strip was not expressed to be conveyed to the appellant. In their opinion the plan ought to be treated as a falsa demonstratio and rejected on the principle of Llewellyn v. Earl of Jersey. (1)

 

 

 

April 20, 22. Romer, K.C., and T. T. Methold, for the appellant. The one certain description is the reference to the plan, and if any part of the description is to be rejected it is the reference to the occupation. The earlier cases give some support to the view, on which the Court of Appeal proceeded, that the

 

 

 

(1) (1843) 11 M. & W. 183.

 

false description must follow the true, but it is now settled that it is immaterial in what part of the description the falsa demonstratio is found: Cowen v. Truefitt, Limited. (1) It is begging the question to say that the plan is a falsa demonstratio. In the very case relied upon by the Court of Appeal, Llewellyn v. Earl of Jersey (2), the description which prevailed was the description by plan and that which was rejected was the description by acreage. In the present case the disputed strip is so small that no reliance can be placed on the reference to the acreage, which is admittedly not precise. To find out what was meant to be conveyed you must look at the whole document and at the surrounding circumstances. Condition 14 of the conditions of sale has no bearing on the question and does not relieve the vendor from his liability under the covenants for title in the conveyance. [They also referred to Sheppard’s Touchstone, 7th ed. vol. ii., p. 247, and to Page v. Midland Ry. Co. (3)]

 

Alexander Grant, K.C., and George B. Rashleigh, for the respondent. 1. The rule as to falsa demonstratio means that where you find a clear and definite description in a document, whether it comes first or last in order, and then you find something which conflicts with the definiteness of that description, that is a nugatory addition. What was conveyed here was all the land in the occupation of Haydock and Cartman as tenants. If occupation in this context is, as in the circumstances it is submitted it ought to be, treated as equivalent to tenancy, that is a perfectly definite description. The identification of the property was in the tenancies. The land is also described by reference to the acreage, and it is proved that, excluding the disputed strip, the land measures the full acreage. There being then an adequate definition of the premises in the deed and no inconsistency in the language of the deed itself, the plan, which described something different, should be rejected as falsa demonstratio: Dublin and Kingstown Ry. Co. v. Bradford. (4)

 

[LORD PARKER OF WADDINGTON referred to Rorke v. Errington. (5)]

 

 

 

(1) [1899] 2 Ch. 309.

 

(2) 11 M. & W. 183.

 

(3) [1894] 1 Ch. 11.

 

(4) (1857) 7 I. C. L. R. 57.

 

(5) (1859) 7 H. L. C. 617.

 

 

 

 

 

The respondent prays in aid the distinction between a conveyance by plan and a conveyance by description where a plan is added to assist the description.

 

2. Assuming that the reference to the plan is to prevail, the failure to eject a trespasser is not an omission within the meaning of the implied covenants for title in s. 7, sub-s. 1 (A.), of the Conveyancing Act, 1881. [Upon this point they referred to Stanley v. Hayes (1); Cohen v. Tannar (2); Davis v. Town Properties Investment Corporation (3); Browning v. Wright. (4)]

 

3. There is here no adequate evidence of damage.

 

 

 

The House took time for consideration.

 

 

 

June 10. EARL LOREBURN. My Lords, this House has to determine whether a small strip of land, about one-twelfth of an acre in size but important as a means of access to other land, passed from vendor to purchaser in a deed conveying some eighty-four acres. We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.

 

The land to be conveyed is described in the deed as follows, omitting what is superfluous:- “All that farm …. called Bank Hey Farm …. containing 84 acres 3 roods and 4 perches or thereabouts and in the occupation as to part thereof of Thomas Haydock as yearly tenant thereof and as to the remainder thereof of Charles William Cartman as half-yearly tenant thereof, all which said premises are more particularly described in the plan endorsed on these presents and are delineated and coloured red in such plan.”

 

That is all to which I need refer in this part of the deed.

 

Here are four guides towards identification of the land conveyed. The first is of no assistance, because there is no farm which is now known as Bank Hey Farm and can be made to fit this sale, though there used to be a farm of that name, now cut up into different parts. The second guide, namely, the acreage of 84 acres odd roods and perches, is of no value for our purpose

 

 

 

(1) (1842) 3 Q. B. 105.

 

(2) [1900] 2 Q. B. 609.

 

(3) [1903] 1 Ch. 797.

 

(4) (1799) 2 Bos. & P. 13, at p. 21.

 

 

 

 

 

because it is, by the contention of both sides, not an absolutely precise measurement, and it therefore cannot help us to a strip of land about one-twelfth of an acre in area. The third guide is very defective, because it is common ground that part of the land included in this sale was not in the occupation of either Haydock or Cartman, though all of it was tenanted by one or the other. A part of it was tenanted by Cartman but occupied by his subtenants. It is, however, the fact that the strip in question here was neither occupied nor tenanted by either of those gentlemen. I turn to the plan “endorsed on these presents,” which is the fourth guide afforded by the conveyance, and I must observe that, though I have alluded separately to each of the four points of identification, all of them may have to be considered together, for each one may help us in understanding the others.

 

This plan, which I call the indorsed plan, shows an area of roughly eighty-four or eighty-five acres, divided into fields or plots, the whole of which is coloured red – pink, I should prefer to say. Beyond doubt the little strip in question is coloured red, and is not separated from, but appears as part of, a somewhat larger strip. The rest of the plan, except the roads, is not coloured at all, unless black and white are treated as colours. I see in this plan a perfectly definite delimitation of the land expressed to be conveyed in the deed.

 

Your Lordships were invited to scrutinize the language of the deed in regard to this indorsed plan and to hold that it did not purport to convey all that is coloured red, but merely to say that all which it purported to convey is coloured red. Upon this construction the plan would be useless for the purpose of ascertaining the area conveyed, and for that matter the whole parish might have appeared upon it in red colour. It would be also misleading, and I shall not assume that those who drew this conveyance intended to draw it so that such an argument should be available. I think they have prevented its being available. For when you say that the lands intended to be conveyed are more particularly “described in the plan,” and that they “are delineated and coloured red in such plan,” the draughtsmen surely meant to speak both of delineation and of colour. The strip is not only coloured red, but is also included

 

 

in the same delineation with other land similarly coloured and admittedly included in the sale. The draughtsmen have nothing with which to reproach themselves. Were it otherwise I should use the particulars of sale and their relevant plan, which make it quite clear, upon the ground that they are referred to in the deed.

 

Sargant J. held that the strip in question was included in the conveyance. The Court of Appeal thought differently, and it has caused me much misgiving to find myself in difference with such very great authority upon such a point. But I feel bound to act on my own view. I cannot think that the description of the land in the letterpress was “certain, definite, satisfactorily ascertained property,” as the Master of the Rolls expresses it. I observe that the Court of Appeal treated all the land as occupied by one of the two tenants, which was admitted not to be the case according to the legal meaning of occupation. And with all respect I do not think that any rule requires us first to examine the letterpress and then to discard the plan if we think the letterpress alone sufficiently clear. The whole should be looked at, and it may be that the plan will show that there is less clearness in the text than might appear at first sight. It is so in this case, certainly as to the part not in the occupation of either tenant, and in my opinion it is so also as to the strip in dispute. The description of the land as Bank Hey Farm does not help. The acreage is admittedly not precise and does not help. The description of the land as being in the occupation is not accurate. I think that the one accurate guide is this indorsed plan.

 

The only other point argued by the respondent’s counsel was that there had been no breach of the implied covenant for title. The strip of land had been occupied by a railway company so long that they could not be disturbed, by virtue of the Statute of Limitations, and the vendor had taken no steps to protect himself against the growth of such a title – in fact, he suffered a sleeper fence to be erected on his land by the railway company. I think it is clear that he “omitted” to defend his own right and lost it by reason of that omission. Accordingly he is liable on the implied covenant.

 

In my opinion this appeal should be allowed.

 

 

 

 

 

LORD PARKER OF WADDINGTON. (1) My Lords, this is an action for damages for breach by the defendant of a covenant for good right to convey implied by virtue of the Conveyancing Act, 1881, in an indenture of conveyance dated June 28, 1911, and made between the respondent, Percy Ashton, of the first part, Albert Ball the second part, and the appellant, Christopher William Eastwood, of the third part. The hereditaments conveyed by this indenture conveyed –

 

(1.) as all that farm with the messuage, tenement or farmhouse, barns, stables, outhouses, closes, or parcels of land belonging thereto called Bank Hey Farm, situate in the parish of Blackburn, in the county of Lancaster;

 

(2.) as containing 84 acres 3 roods and 4 perches or thereabouts;

 

(3.) as in the occupation as to part thereof of Thomas Haydock as yearly tenant thereof, and as to the remainder thereof of Charles William Cartman as half-yearly tenant thereof; and

 

(4.) as more particularly described in the plan indorsed on the said indenture, and therein delineated and coloured red.

 

There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence, and the extrinsic evidence in the present case reveals the following facts.

 

The farm called Bank Hey Farm was at the date of the conveyance wholly in the occupation of Thomas Haydock. It had, however, in times past comprised, besides other parcels of land, (1.) a piece of land which at the date of the conveyance was let to Charles William Cartman as tenant by the half-year, and (2.) a small parcel of land which I will hereinafter refer to as “the disputed strip.” Cartman’s holding was not, however, at the dale of the indenture wholly in his occupation; he occupied part of it consisting of a sandpit, but had sub-let the remainder for the purpose of hen runs, and his sub-tenants were in occupation. With regard to the disputed strip, neither Haydock nor Cartman had any interest therein. On the other

 

 

 

(1) Read by Lord Sumner.

 

hand, both Cartman’s holding and the disputed strip were, together with Bank Hey Farm, described, delineated, and coloured red on the plan indorsed on the conveyance. The question your Lordships have to decide is whether, under these circumstances, the disputed strip is comprised in and expressed to be conveyed by the conveyance in question. If it is not, the action must fail; if it is, your Lordships will have to consider whether there has been a breach of the covenant of good right to convey.

 

My Lords, the conveyance contains a recital to the effect that the hereditaments intended to be thereby assured were described as Lot 4 in the particulars of a sale by public auction on May 4, 1911. Where there is an ambiguity in the operative part of an indenture recourse may be had to the recitals to see whether they throw any light on the matter. Your Lordships are, therefore, at liberty to inquire what hereditaments were described as Lot 4 at the sale in question. Referring to the particulars used at this sale, your Lordships will find that Lot 4 is referred to as being the land coloured pink on plan No. 1, and on reference to this plan it will be found that the land thereon coloured pink is the same as that coloured red in the plan indorsed on the conveyance, and includes the whole of Cartman’s holding and the disputed strip. Plan No. 1, however, contains a note to the effect that it is reproduced from the ordnance map, and is intended only for the purpose of indicating the position of the property, and is not to be deemed part of the contract of sale. If this were a question of specific performance of a contract entered into at the auction, it may well be, therefore, that no reliance could be placed on plan No. 1; but the question is what lands were described as Lot No. 4 at the auction, and in my opinion your Lordships are at liberty in considering this question to look at plan No. 1, at any rate for the purpose of ascertaining the position and situation of the lands so described.

 

Lot 4 in the particulars of sale is further described as Bank Hey Farm, estimated to contain 84 acres 3 roods and 4 perches. Part is said to be in the occupation of Thomas Haydock as yearly tenant, at an annual rent of 150l., and part (not the

 

remainder) in the occupation of Mr. Cartman, at an annual rent of 25l. There is also the statement that the land from its situation would give a purchaser an easy opportunity for development, a statement which emphasizes the importance of the position of the property, as stated to be shown on plan No. 1.

 

These particulars show, therefore, that Lot 4 comprised all the land for which Thomas Haydock paid a rent of 150l., and all the land for which Cartman paid a rent of 25l., and there is nothing in them inconsistent with its comprising the disputed strip, which, though not rented to either Haydock or Cartman, is coloured pink on plan No. 1, and is from its position particularly important for development purposes.

 

My Lords, evidence was produced at the trial with the object of showing that even without the disputed strip the, land conveyed comprised 84 acres 3 roods and 4 perches or thereabouts. This may well be so, but the disputed strip is so small in area that its inclusion in the land conveyed would not make up the total acreage beyond what could fairly be described as 84 acres 3 roods and 4 perches or thereabouts. The description by acreage may therefore be disregarded. There remain, therefore, three descriptions which have to be considered, and I would ask your Lordships to consider them one by one in reference to the recital that the property intended to be assured was the property described as Lot 4 in the particulars of sale. First, there is the description of the property as Bank Hey Farm; this, if taken alone, might very well exclude the whole of Cartman’s holding, although such holding is clearly comprised in Lot 4 at the sale. It follows that this description, if not rejected, should at any rate be read as including some property which, though not forming part of the farm, had once done so. Secondly, there is the description by occupation; this, if taken alone, would exclude that part of Cartman’s holding which, though in his possession as a matter of law, was in the occupation of his subtenants; but again it is clear that all Cartman’s holding is included in Lot 4. It follows that this description, if not rejected, should be read as including not only what Cartman occupied, but all that of which he was tenant though he had

 

parted with the occupation. There remains only the description by reference to the map indorsed. It seems to me that this is the only description consistent with the recital, and therefore ought to be preferred.

 

My Lords, I am inclined to think that I should come to the same conclusion even without reference to the recital in question. It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence. Persons might well disagree as to whether the farm known as Bank Hey Farm comprised or ever had comprised this or that piece of land, and though occupation is a question of fact it might well be that the person named as occupier in fact occupied lands not included and never having been included in Bank Hey Farm. Where there are several descriptions which, when evidence of surrounding facts is admitted, are not consistent one with the other, I do not think that there is any general rule by which the Court can decide which description ought to prevail. But ceteris paribus it would seem that the more detailed and precise the description the more likely it is to accord with the real intention of the parties. It was suggested that help might be derived from the maxim, Falsa demonstratio non nocet. It is clear, however, that this maxim is useless unless and until the Court has made up its mind as to which of two or more conflicting descriptions ought under the circumstances to be considered the true description. When this is done the false description may, of course, be disregarded, and the maxim merely calls attention to this obvious result. There are in some of the authorities expressions from which it might be inferred that as soon as you have a description in a conveyance which, taken in connection with the extrinsic evidence, fairly identifies a particular parcel or particular parcels of land, that description should be adopted and everything subsequently contained in the indenture which in any way conflicts with it be rejected as a false demonstration. There are, however, numerous cases which show that the order in

 

which the conflicting descriptions occur is not at all conclusive. If such a principle as suggested were applied to the present case the result would be to exclude from the conveyance the whole of Cartman’s holding as well as the disputed strip. It seems to me that under these circumstances the Court must in every case do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used and the facts properly admissible in evidence. In the present case I think that even without reference to the recital the description by reference to the map is the description which is meant to prevail, but the recital in my opinion is conclusive.

 

The remaining point which your Lordships have to consider arises in this way. The grantor, under the conveyance in question, had not at the date thereof any title to the disputed strip. His title thereto had been extinguished by virtue of the Statute of Limitations applicable to real estate. The covenant for good right to convey, implied under the Conveyancing Act, 1881, in the indenture of June 28, 1911, is to the effect that, notwithstanding anything by the person who conveys, or any one from whom he derives title otherwise than by purchase for value made, done, executed, or omitted, or knowingly suffered, the person who so conveys has, with the concurrence of every other person (if any) conveying by his direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which, it is expressed to be conveyed. It is argued that a person against whom a statutory title is acquired under the Statute of Limitations cannot be said to have made, done, executed, or omitted, or knowingly suffered anything within the meaning of this covenant. It is quite true that he cannot very well be said to have done, made, executed, or knowingly suffered anything, but how can it be said that he has not omitted anything? The real reason why his title is extinguished is that, having a right of action against another, he has omitted to enforce such right for so long a period that the statute has run against him. It seems to me that this is an omission within the covenant.

 

I think, therefore, that the appeal should be allowed and the judgment of Sargant J. restored.

 

 

 

 

 

LORD SUMNER. My Lords, the principle on which this case was decided in the Court of Appeal was thus stated by Parke B. in Llewellyn v. Earl of Jersey (1): “As soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it; according to the maxim falsa demonstratio non nocet,” to which the words cum de corpore constat should be added to do the maxim full justice. In Morrell v. Fisher (2), where this principle is repeated, it is further said, “The characteristic of cases within the rule is, that the description, so far as it is false, applies to no subject at all; and so far as it is true, applies to one only.” It is thus stated by Romer J. in Cowen v. Truefitt, Limited (3): “In construing a deed purporting to assure a property, if there be a description of the property sufficient to render certain what is intended, the addition of a wrong name or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars, will have no effect.” On the expressions “the addition” and “any subsequent erroneous addition,” it should be observed that all the members of the Court of Appeal in the same case, all the more forcibly because they spoke obiter, protested against the view that it is material in what part of the sentence the falsa demonstratio is found.

 

The rule is undoubtedly ancient: see Dowtie’s Case (4); though the consequences of an erroneous addition had been mitigated before Baron Parke’s time. Later on in Llewellyn v. Earl of Jersey (5) that learned judge says of the clause in question, a very different one be it said from the present clause, “the portion conveyed is perfectly described, and can be precisely ascertained, and no difficulty arises except from the subsequent statement,” namely, a statement as to the number of poles in the close. Finally, he austerely observes, “It is of much more importance that we should adhere strictly to legal maxims, than attempt to evade them to meet the supposed intention of the parties.”

 

 

 

(1) 11 M. & W. 183, at p. 189.

 

(2) (1849) 4 Ex. 591, at p. 604.

 

(3) [1898] 2 Ch. 551, at p. 554; affirmed on other grounds  [1899] 2 Ch. 309.

 

(4) (1584) 3 Rep. (1826 ed.) 9b, note to p. 10b.

 

(5) 11 M. & W. 183.

 

 

 

 

 

Without venturing to question or to qualify so inviolate a rule, I venture to think that it does not apply in the present case for the following reasons.

 

In the Court of Appeal little attention, if any, seems to have been directed to the evidence, scanty and rather vague, which was given as to the occupation of the premises, but, when the matter was gone into at your Lordships’ Bar, it was very frankly admitted that, in the strict legal sense of the word, Cartman was not in “occupation” of the hen runs at all. Had the argument taken the same course in the Court below, no doubt a similar admission would have been volunteered, and then, I think, the decision would have been different.

 

The deed purports to convey parcels described in four different ways: (1.) by the name which the premises bear; (2.) by their acreage; (3.) by the names of those who, respectively, occupy part thereof and the remainder thereof; and (4.) by delineation and tint on a plan to scale indorsed on the deed. I say described in four ways advisedly. I recognize the difference made by saying “all which said premises are more particularly described in the plan,” instead of “and all more particularly described in the plan.” The latter simply continues the series of descriptions by another mode of description. The former is a relative sentence, to which the said premises are the antecedent. It qualifies but does not enlarge them. It furnishes details within the extent of the antecedent; it does not make additions to it. Still the word “described” is there, and when, as I think is the case, the description of the antecedent previously given is inconclusive and contradictory, the relative clause elucidates and completes the description of the antecedent, just because it supplies particulars of the content to a formless and indeterminate outline. Further, if the description is ambiguous, there is a recital which can be resorted to, which, though clumsily expressed, sends the inquirer to the conditions of sale, and to the description therein contained of Lot 4, the lot which is intended to be conveyed.

 

As long as only one species of description is resorted to in describing parcels no harm is done, and often only good, by copious enumeration of particulars all belonging to that species. If the description is by name, certainty is increased by naming

 

 

 

 

 

every close which has a separate name; if by metes and bounds, by setting out every bound; if by admeasurement, by stating not only acres and roods, but also poles. To do this is always troublesome and often impracticable, but at least it is not a cause of uncertainty. If, however, several different species of description are adopted, risk of uncertainty at once arises, for if one is full, accurate, and adequate, any others are otiose if right, and misleading if wrong. Conveyancers, however, have to do the best they can with the facts supplied to them, and it is only now and again that confusion arises. The present is, I think, a case of such confusion, and a pretty tangle it is.

 

On paper the thing looks clear enough. There is no contradiction apparent on the surface. I do not suppose there often is. If the whole of the premises intended to be conveyed and no other premises had borne the name of Bank Hey Farm, the description would have sufficed. Unfortunately at the date of the conveyance the land let to Cartman was no longer part of that farm, which was all let to Haydock. Cartman’s land had once upon a time been part of what was so called, but so had the disputed strip, and the evidence does not clearly show which first ceased to be part of the farm. Everybody agrees that this description by name is vague. It is common ground that more than the present farm was sold; but the area, which in the past was called Bank Hey Farm and is now the subject of the conveyance, is the very point in dispute. The given acreage, “or thereabouts,” is vaguer still, seeing that the disputed strip is but a matter of a few hundred square yards, and the acreage described would be satisfied either with or without it. The description by occupation purports to be precise, and naturally weighed much with the Court of Appeal, as they understood the facts. I will assume that sooner or later, with more or less trouble, the purchaser could find out pretty accurately what the actual occupation was. Unfortunately, if “occupation” means “occupation,” the clause is admittedly wrong, Unfortunately, also, what Cartman holds is not part of Bank Hey Farm now, and is not farmed at all. The two “occupations” between them purport to exhaust the whole of the premises conveyed, but it is common ground that something more is intended to be conveyed than is legally

 

 

 

 

 

in Haydock’s and in Cartman’s “occupation” together, namely, the hen runs. It is said that the true meaning is “what Cartman holds under his half-yearly tenancy.” No one would guess that from the deed. It can only be argued by assuming sufficient doubt about the language of the deed to justify reference to the conditions of sale for explanation, and even those conditions by no means establish the contention; but I think the contention itself is fatal to the proposition that this description by occupation is either adequate or sufficient, certain or convenient or satisfactory. Neither is it a case where the false description applies to no subject and the true description to one only. The falsity, or rather the vagueness, of the first part, when supplemented by the last, is corrected and becomes a whole, which refers with adequate certainty to one subject and defines it fully. No question of rectification has arisen.

 

The result is that whether the descriptions by name, acreage, and occupation are taken together or taken singly, the description so constituted is the very opposite of that to which the rule in Llewellyn v. Earl of Jersey (1) applies. Hence the fourth description, that by the plan, must be taken account of. The plan is made to scale, and is traced from the Ordnance Survey, though it omits some of its features. It is decisive of the point in question. It shows that the disputed strip is part of the parcels conveyed, and that the hen runs, though not in Cartman’s “occupation,” are included also. It is only by resorting to the plan that the vendor conveys the hen runs, which he admittedly wanted to convey and says that he has conveyed. The only issue raised before your Lordships, namely, whether the disputed strip is or is not to be excluded from the area which otherwise is admittedly conveyed, is one which can only be raised by treating the area tinted red on the plan as part, and that the best part, of the description of the parcel.

 

On the second point I have little to say. If the vendor had said some years ago, “The Lancashire and Yorkshire Railway took possession of the part of my land which is now the disputed strip, but somehow I omitted to eject them; now the statute has run and I have lost the land,” I cannot see how any one could

 

 

 

(1) 11 M. & W. 183.

 

 

 

 

 

have cavilled at his use of the word “omit.” I think that is the way in which it is used in the Conveyancing Act. If the vendor could restrict it to leaving undone those things which he ought to have done under some legal duty to others, purchasers would get little or no benefit by this covenant, and words would be read into the statute which it does not contain.

 

I think the judgment of Sargant J. should be restored.

 

 

 

LORD PARMOOR. My Lords, I concur, and I have not thought it necessary to prepare a separate opinion.

 

 

 

LORD WRENBURY. My Lords, the question here is of parcels. By the conveyance of June 28, 1911, did or did not the vendor purport to convey the disputed strip of land – to which he had in fact no title? After informing itself as to the surrounding circumstances to such extent as evidence is admissible in that behalf, the tribunal which has to resolve the question must resort to the language of the deed and to nothing else.

 

The parcels are described by reference to four matters – name, acreage, occupation, and plan. To this may be added, fifthly, a recital, to which within the limits which I will indicate resort may in my opinion be made.

 

In the Court of Appeal the Master of the Rolls decided the case upon the third of these, namely, occupation. Swinfen Eady L.J. referred to name, acreage, and occupation, but looking at the concluding sentences of his judgment he, I think, followed the Master of the Rolls in deciding the case upon the description by occupation. The dominant sentence in the judgment of the Master of the Rolls is as follows: “Is this anything more than a conveyance of that of which at the date of the sale and of the conveyance the vendor was the landlord and of which Haydock and Cartman were tenants? In my opinion it is not.”

 

I am unable to accept this view. Such words as “in the occupation of A. as yearly tenant thereof” do not in my opinion state that he is tenant of the freeholder, the vendor. They are equally satisfied if the freeholder has demised for twenty-one years to X., and X. has demised to A. as yearly tenant, and A.

 

 

 

 

 

is in occupation. Further, I think that the words “in the occupation of A. as tenant” affirm two things, namely, that A. is both tenant and in occupation. If this be right the description by occupation was not in the view of either appellant or respondent accurate, for both sides agree that the whole of Cartman’s holding passed, and the hen runs, which form part of it, were not in his occupation.

 

My Lords, it seems to me that a description by occupation is a description so inconclusive and so liable to error as that it ought to, and will readily, yield to any more accurate and convincing description. It is a description by reference to something which the purchaser may not know and may have no means of ascertaining. As between grantor and grantee I look preferably to something which will indicate plainly to the grantee what are the parcels which the grantor is assuring to him. Let me take the four heads of identification of the parcels in order.

 

First, the name, “Bank Hey Farm.” Without evidence as to what meaning that name bears it conveys nothing. The reader is entitled to say, “This is but a name, it may mean anything. If I read on perhaps I may find what it means.”

 

Secondly, the acreage. This (subject to something to be added presently) is but the superficial measurement of that which is included in the name, and carries me no further.

 

Thirdly, the occupation. I have dealt with this already. If occupation means occupation as distinguished from title, this description was confessedly inaccurate. If it means, not occupation but title as tenant of the vendor, it was true, but the language is not “as tenant of the vendor”; it would be satisfied if there were a tenancy in fact by some derivative title – a circumstance which the purchaser might neither know nor have any means of ascertaining. The purchaser might find the occupier and might from him learn what land he occupied and whose tenant he was, if he were willing to tell him. But he would not be bound to tell him, and the purchaser might be quite unable to reduce this description to certainty.

 

Then follows the description by plan. Here, for the first time, I find something as to which there is no question. Both grantor

 

and grantee know, or by looking at the plan have the means of knowing, exactly what the parcels are.

 

My Lords, I find that the description by plan is couched in the words “all which said premises are more particularly described.” The words “more particularly” exclude, I conceive, that they have already been exhaustively described. These words seem to me to mean that the previous description may be insufficient for exact delimitation, and that the plan is to cover all deficiencies, if any.

 

I will, however, assume, contrary to the opinion which I have already expressed, that the words as to occupation have a larger effect than I have given them; that the purchaser could by the tenancies identify the parcels; and that they differ from the parcels disclosed by the plan. At this point I may resort to the recital if it enables me to resolve the ambiguity of the operative part. I find that the recital tells me that by this deed it is intended to assure Lot 4 of the auction of May 4, 1911. I look at the particulars to see what Lot 4 was. I find by the schedule that it totalled to 84.778 acres, and that it is agreed is the same as the 84 acres 3 roods 4 perches mentioned in the conveyance and also in the earlier part of the particulars. That measurement of 84.778 acres is arrived at by including parts 731, 734, and 777 on the plan, and in these parts is included the disputed strip. Further, the particulars tell me that Lot 4 is coloured pink on the plan. The disputed strip is so coloured. The plan is to form no part of the contract, but it is introduced to show the position of the property. It tells me that part of the property sold is in the position occupied by the disputed strip. This, to my mind, is the same thing as if the vendor had walked over the property with the purchaser and pointed to the disputed strip and said, “That forms part of the Bank Hey Farm which I am selling to you by that name.” The recital therefore tells me that it is intended to assure the disputed strip. If I am in doubt between two constructions, I ought to give the operative part that construction which gives effect to that intention.

 

My Lords, I reject as irrelevant a consideration which was urged at the Bar, that if the disputed strip is excluded the purchaser still gets 84 acres 3 roods 4 perches and more. The

 

question is, not what acreage he gets, but whether he gets the whole of that which the conveyance purports to pass to him, whether its acreage be less or greater than that stated in the deed.

 

My Lords, to my mind the description of the parcels in this conveyance is equivalent to a description of parcels expressed as being “Farm A., containing (    ) acres, in the occupation of B., more particularly described in a plan.” In that description I find no accurate and exhaustive description before reaching the plan. B. may have adjoining lands in his occupation which are not part of farm A. The acreage may be more or less than that stated. The name may convey such and such plots, or may not. The earlier part is but a description (by reference to certain characteristics) of premises whose position and abutments are to be found on the plan.

 

We have heard an argument, interesting, but to myself unconvincing, upon s. 7 of the Conveyancing Act, 1881. The Railway Company and Chadwick, who acquired title to the disputed strip by adverse possession, are not persons through whom the vendor derives title. This being the fact, the purchaser, it is said, could not sue the vendor upon the covenant for quiet enjoyment implied by the section. The argument is that neither can he sue him upon the implied covenant for title, for that the statute cannot have intended that the vendor should be free from liability under the one head and be exposed to it under the other. It seems to me that the covenant for title exactly fits the case. The vendor has omitted to do something. His covenant is that notwithstanding that omission he has full power to convey. He has not such power, and is therefore liable on his covenant. It is contended that the vendor by allowing a title to be acquired by adverse possession has not “omitted or knowingly suffered,” within the words of the Act. It was said that there can be no omission unless there was a duty. I cannot agree. Omission of a precaution, omission of an act which will assert title and exclude a squatter, are omissions just as much as is omission of a duty to another. The vendor owed no duty to the purchaser or any one else to intercept the squatter’s title, but he lost his land because he omitted to do so.

 

 

 

 

 

My Lords, for these reasons I agree that this appeal succeeds.

 

 

 

 

 Order of the Court of Appeal reversed and judgment of Sargant J. restored. The respondent to pay the costs in the Courts below and also the costs of the appeal to this House.

 

 

 

Lords

217; Journals, June 10, 1915.

 

 

 

 

Solicitors for appellant: Rawle, Johnstone & Co., for Read & Eastwood, Blackburn.

 

Solicitors for respondent: Witham, Roskell, Munster & Weld.