The last and the greatest difficulty which appears to press upon us in endeavouring to support this decree, is presented by the conduct of the trustees; and this objection appears of itself to be quite decisive. They have certainly been grossly negligent in their proceedings, and have put up the trust estate for sale, with descriptions directly tending to prevent its true value from being obtained at the sale. The case made is that the defendants, being trustees, either knew the value of the manor, on an average of eight years, to be very considerably more than 150 l. a year, namely, above 200 l. a year, and advertised it as worth only 150 l. on that average; or that they did not take the pains to inquire what the value was, and described it as of this under-value. However, there seems no such doubt; for the case is that Mr. Marshall had put them in possession of details which showed it to be worth considerably more than they represented; and then the decree supposes them to have misdescribed-from another and a greater act of negligence-the nature of the fines, and to have bound their cestui que trust's estate to make compensation by abatement of the purchase money, for the consequences of this their gross negligence. It seems quite impossible to decree that the purchaser should have an abatement as against the estate on account of this conduct on the part of the trustees, amounting really to a breach of trust. We have to consider what the present proceeding is. There is no question of damages for non-performance of the contract, nor of damages for misrepresentation, leading to a purchase, nor of rescinding the contract. The purchaser may have his action at law, and the vendors may fail in their attempt in a Court of Equity to rescind the contract. With that we have no con 1842. WHITE v. CUDDON. 1842. WHITE v. CUDDON. cern whatever in this case; and supposing the pur- In Mortlock v. Buller (h), a case to the discussion of which the greatest attention was given by Lord Eldon, who himself penned the decree, all the former cases were much considered, and among others that of Twining v. Morris (i), at the Rolls, in which Lord Kenyon refused to decree the performance of a contract of sale, on the ground that the purchaser had asked a person who had once been the vendor's solicitor to bid for him at the auction, which he did. No blame was imputed either to the purchaser or to this person (a Mr. Blake), who was not in the vendor's employment at the time. But Lord Kenyon, in the clear and luminous judgment which he gave, observed that the bidder being known to have once been employed by the vendor, his bidding "chilled the sale ;" and in another place he says, it tended to damp the sale." No disapproval of the course so taken by Lord Kenyon appears in any other case; on the contrary, Lord Eldon seems to have gone along with it, passing over Emery v. Wase (k), at the Rolls, which was affirmed by Lord Eldon (1), and in which the objection taken was that the circumstances warranted 66 a judicial suspicion of the valuation not having been properly made; and also passing over White v. Damon (m), because, although affirmed upon appeal, it was not affirmed on the ground upon which Lord Loughborough had decided, viz., that the auctioneer by his neglect had got a bad bargain for his employer. It is enough, in illustration of the principles which must govern the present case, to mention Mortlock v. Buller, in which all the cases were fully examined. The main ground there of refusing a specific performance, no blame whatever being imputed to the purchaser, was that the trustees had not given due protection to the estates in remainder, which it was their duty to defend, and had suffered an undervalue to be obtained in consequence of an imperfect valuation, to which the tenant for life, from his position, was likely to have no objection. If the Court should decree a specific performance in the present case of a contract by which the trustees had, from one great neglect, obtained a lower price than the property ought to have fetched, and had thrown upon the estate the payment of a compensation for another and a still greater neglect of their own, a stronger thing would be done than that which the Court refused to do in Mortlock v. Buller, and a much stronger than in those other cases to which I have referred. I therefore move your Lordships that this decree be reversed; but as it is understood that the Appellant does not object to complete the conveyance without the compensation, it will be sufficient to make such an order as may give the Respondent his purchase at the price agreed on. Lord Cottenham:-I am also of opinion that this (m) 7 Ves. 35. 1842. WHITE v. CUDDON. 1842. WHITE C. CUDDON. decree cannot stand. It does appear to me, that upon investigating the transaction between the parties, there are several grounds, any one of which would be fatal to the decree. The bill states the ninth condition, and proceeds entirely upon a supposed contract to be found in that condition. The inaccuracy in the description of the property sold being, that the fines of the manor were arbitrary, in the terms in which that is expressed; and, for the present purpose, I will assume that that is the meaning of the Particular, and that the ninth condition applies as well to the description to be found in the title-page of the Particulars as to the enumeration and description of Lot One; in my opinion the result will be precisely the same; and therefore it is not material to discuss that point, which was raised at the bar. The result therefore is, according to the plaintiff's statement, that he has bought a manor which turns out, as to two particulars that he states, to have been inaccurately described; that he was invited to bid at the auction upon a representation that all the fines were arbitrary; but that he finds (this is the statement in the bill) that upon the admission of an heir the fine is not arbitrary, but a small fixed fine, and that upon the admission of a widow to her free-bench the fine is not arbitrary; and those two points he makes the grounds upon which he claims compensation upon this construction of the ninth condition. Now, by the ninth condition, if there is any omission or inaccuracy (I am not now quoting the very words of it in the Particulars), the party suffering by that misdescription, whether the vendor or the purchaser, is to have compensation either by an addition to, or diminution of, the purchase money contracted to be paid; the whole bill proceeds upon a supposed contract arising from the ninth condition, applicable to the circumstances of the case as stated upon the bill. Now, taking that to be the nature of the case made by the bill, it would, I apprehend, result that that was a condition which, as against all parties, it is clear that a Court of Equity could not carry into effect, because, assuming that to be the construction of the transaction between the parties, it would be a sale by trustees of a manor which they misrepresented, and which, by the evidence, it is shown they had the means at least of accurately representing; they entering also, as a part of that contract, into a stipulation that compensation shall be made for the consequences of that misrepresentation. Now, if the plaintiff be right, the trustees have so conducted themselves as to make it a case of something more than mere error, and at the bar it was rather attempted to carry the case beyond mere error, and the evidence bore out the proposition to a certain extent, that they had the means of knowing; they were informed by the steward of the manor, before the Particulars were published or circulated, that the fines were not arbitrary; that there were certain exceptions, particularly in the case of an heir. Now, if with knowledge the trustees have advertised the estate to be sold with a misrepresentation of the estate, which they make part of the contract under which the estate is sold, they have certainly dealt with the property of their cestui que trust in a manner most improper and most injurious to the interests of those whom it was their duty to protect. If that be the construction of the contract, it appears to me that the plaintiff has stated and proved a case which will put himself out of Court, and deprive him of any right, as against the trustees, to claim a specific performance of the contract. But there would be another insuperable difficulty 1842. WHITE v. CUDDON. |