And they submitted that the fixed sum in the amended bill mentioned, which, according to the custom of the manor, is paid to the lord by the customary heir, on admittance to a copyhold tenement of which his ancestor died seised, is not in fact a fine, but merely a relief, as stated in the said custom. And they admitted that in the accounts of Marshall, the steward, the fixed money payment by the customary heir, on admittance, was erroneously, by carelessness or mistake, entered by the name of a fine, and not under the denomination of a relief, as the same ought to have been; and that since the year 1780, the payments made by the customary heir on admittance, were also erroneously, by mistake or carelessness, denominated fines, and not reliefs, as they ought to have been: And they believed that in the more ancient of such court books, in which the term "relief" is applied to the payments made by the customary heirs, on admittance, it does not appear that such term is used as synonymous with, or equivalent to the term fine: And the Appellant said that before the issuing of the particulars of sale, he had been informed by Marshall that the fines were, in general, at the lord's will; and not anticipating any litigious proceedings on the part of a purchaser, he did not look into the accounts of the manor with a view to ascertain whether the payments made by the heir claiming to be admitted on descent, or by the relict for her widow's bench, were fixed or arbitrary, or were therein denominated fines or reliefs; but when this suit was first instituted he applied to Marshall, and received from him copies of the said customs of the manor, by the eighth of which it appeared that the heir should be admitted paying only a relief; and by the twelfth, the relict of a tenant to her widow's bench freely, without any fine; 3 F VOL. VIII. 1842. WHITE V. CUDDON. 1842. WHITE V. CUDDON, so that by those customs there were no stinted fines in any case, and consequently all fines were arbitrary, notwithstanding the stewards had fallen into an error in speaking of fines in those two cases. The answers having been replied to, both parties examined witnesses, and adduced documentary evidence. The cause came on to be heard before the Lord Chief Baron on the 29th of January 1840, when his Lordship decreed that the Respondent was entitled to a specific performance of the contract contained in the memorandum of the 10th of August 1838, with an abatement from the residue of the purchase money by way of compensation in respect of the representation contained in the particular of sale, that the fines were arbitrary, being erroneous: And it was referred to the Master to inquire what sum ought to be allowed to the Respondent in respect of abatement by way of compensation. (See 4 Y. & C. 25.) Under that reference the Respondent carried in a state of facts and charges before the Master, and claimed to be allowed the sum of 993 l. 6s. 8d. out of his purchase money, on the ground that the manor was worth so much less, because the payments made on the admissions of heirs and widows were not fines arbitrary. The Appellant then brought his appeal against the whole decree. Mr. Pemberton and Mr. Bethell, for the Appellant: In this case no decree for specific performance ought to have been made. The trustee was ready to discharge the purchaser from the contract. If, in pursuance of the decree, the trustee should convey the property subject to the abatement of 9931., the cestui que trust's interest would be disposed of without any remedy left to him against the trustee, who being obliged to obey the decree, is therefore protected. Besides, there is not in this decree any principle declared, according to which the compensation can be ascertained. A purchaser seeking performance of a contract of sale, is allowed compensation only on the ground that there was a specific misrepresentation of the property; Barraud v. Archer (a). But in this case there was no misrepresentation; there was no mis-description in the advertisement or particulars of sale, and no misstatement was in any manner made to the Respondent as to the fines in the manor being arbitrary. Such fines as are payable are arbitrary, and no statement was professed to be made as to the cases in which fines are not payable. The description contained in the advertisement and title to the particulars of sale was a mere general statement of the nature of the property intended for sale, and calculated to put parties desirous to purchase on further inquiry; Trower v. Newcomb (b), Fenton v. Browne (c). The Respondent was actually referred for information to the steward of the manor, and to the books and documents in his possession, an examination of which was offered to him. He was distinctly informed that no information which could be relied on could be afforded by the Appellant or his partner. If he did not think proper to make use of such means of information as were offered to him, he had no right to complain of misdescription. But the Respondent was not really injured or deceived by the misdescription, if such existed. The statement of the average annual income was considerably below the truth. The error in that statement to the (a) 2 Sim. 433. (b) 3 Meriv. 704. (c) 14 Ves, 144. 1842. WHITE v. CUDDON. 1842. WHITE v. CUDDON. prejudice of the vendors greatly exceeded in amount the error in the description, if there was any, to the prejudice of the purchaser. All the documents which he desired to see were produced to him, and were accurate. The sums appearing by the accounts to have been paid to the lord on admissions showed that they could not all be calculated on the actual value of the lands in modern times. The statement that fines in a manor are arbitrary, without any statement as to the cases in which fines are payable, is too vague to admit of the possibility of ascertaining a compensation; and the Appellant would have gladly released the Respondent from his bargain, if he was dissatisfied with it in the actual circumstances of the property. Another person actually offered to take the purchase from him at the price which he had agreed to give, and the Respondent refused the offer. The Solicitor-general and Mr. Simpkinson, for the Respondent:-The decree declares that an abatement shall be made to the purchaser in consequence of the mistake in the description of the property, and directs the amount to be settled by the Master. It is fully established by the evidence in the cause, that there was a material variance, affecting the value of the manor, between the description given of it in the particulars of sale, and the true and actual description. It is impossible to come to any other conclusion on the particulars of sale, than that they contained a warranty that the fines were arbitrary. The vendors as well as the purchaser made the contract on the faith of the truth of the description in the particulars of sale. What prevents a Court of Equity from ordering an abatement of the purchase money, corresponding with the difference between the two descriptions of the property? The contract of sale provides the remedy for the mistake. By the ninth condition of sale, which is incorporated with the contract, the purchaser is entitled to demand a compensation for the error of description, by way of abatement out of his purchase money. The Master will find no difficulty in estimating the amount of the abatement. It is trifling to contend that there was no misrepresentation of this property by the vendors. The statement contained both in the advertisements and in the particulars and conditions of sale, that the fines in the manor are arbitrary, involves a representation that fines are payable in all cases in which they are ordinarily payable. It turns out that in this manor, the customary heirs of copyhold tenants dying seised of estates of inheritance, only make fixed money payments of trifling amount, on admittance, instead of two years' value. But these small fixed payments are entered in the steward's accounts, in the ancient and modern books, by the name of Finis;" and where the word relief is used in the sense of fine, the terms are synonymous. Relief is a payment properly applicable to freeholds and not to copyholds, but it is used in the receipt accounts of this manor in the sense of fine; and the distinction attempted to be made by the Appellant between a fine and a relief has no existence in fact. The customary heirs of deceased copyholders do pay fines; but they are not arbitrary fines, as the particulars and conditions of sale represented them to be. 66 Suppose it had turned out that the land-tax was not redeemed, or that rectorial tithes are still pay 1842. WHITE V. CUDDON. |