The amount to be paid in respect of the purchase-money may in the several ways hereinafter noticed be increased or diminished.

The most ordinary mode of increase is by the accrual of interest; as respects which, it will be convenient to consider, first those cases where there is no special agreement as to interest; premising that, in such cases, interest, when payable, is payable at Law after such rate, not exceeding 51. per cent., as may be allowed by the Jury (d); and in Equity (as a general rule) after the rate of 41. per cent. (e) per annum.

If, then, a time be fixed for completion of the contract, and there be delay attributable to the purchaser, he must from that time pay interest upon his purchase-money, although it has been lying idle and appropriated to the purchase (f), and although he has not had possession of the estate, which (as in the case of a house bought for a residence) has therefore been unproductive; but any actual profits arising from it he will be entitled to (g).

If, on the other hand, (a time being fixed for completion,) there be delay attributable to the vendor, the purchaser, if he has or might prudently have been in actual possession or in receipt of the rents and profits of the estate, must pay interest, unless and until his money has been appropriated to the purchase and lying idle, and notice of such being the case has been given to the vendor (h); but it appears that, (if out of possession,) he will not be charged with interest until such time as he might prudently have taken possession: i. e., until a good title was shown (i): and although he may, if he please, in the interim, pay interest and take the rents and profits from the time fixed for completion, (making the vendor account, not only for what he actually has, but for what he might, without wilful default, have received), (k) he is not bound to do so where the interest exceeds the rents and profits (l).

Increase or diminution of purchase-money.

Increased by interest; - rate of, if no agreement.

Payable from time fixed for completion if delay rests with purchaser.

From what time payable if delay rests with vendor.

(d) 3 & 4 Will. IV. c. 42, s. 28. (e) Sug. 816. (f) Sug. 793.

(g) Supra, p. 116. (h) Powell v. Martyr, 8 Ves. 146; Sug. 794.

And, on the other hand, it has been held that a purchaser, if out of possession, is not justified in laying aside his purchase-money, and rendering it wholly or in part unproductive, until the time when a good title is shown by the vendor; and that, if he do so, it will be at his own risk and loss (m): this doctrine however seems open to observation (n).

And the cases seem to show, that when a purchaser is in actual possession or receipt of the rents and profits, he must pay interest upon his purchase-money (unless lying idle with notice of the fact to the vendor) from the time fixed for completion, even although the vendor delay to show a good title, and the contract do not in terms make the purchase-money payable until a good title is shown; for instance, where parties already in possession agreed to purchase land, the purchase-money to be paid on the 25th of March next "on a good and valid title being made and executed," and a title was not made until many years afterward, but they continued in possession, and did not appropriate the purchase-money, they were held liable to pay interest from the above date (o).

Whether, until title is shown, purchaser may appropriate his money and claim exemption from interest.

Interest payable by purchaser in possession notwithstanding ambiguity in contract.

(i) Forteblow v. Shirley, 2 Sw. 223, cited; Binks v. Lord Rokeby, 2 Sw. 222; Jones v. Mudd, 4 Russ. 118; Monk v. Huskisson, 4 Russ. 121.

(k) Acland v. Gaisford, 2 Madd. 28; Wilson v. Clapham, 1 Jac. & W. 36.

(l) Esdaile v. Stephenson, 1 Sim. & St. 123; Jones v. Mudd, 4 Russ. 118, 123.

(m) De Visme v. Be Visme, 13 Jur. 1037; 1 Mac. & G. 336, stated infra.

(n) Vide infra, 302.

(o) Att.-Gen. v. Christ Church, 13

If no time be fixed for completion, the purchaser pays interest upon his purchase-money, (unless lying idle with notice of the fact to the vendor,) from, (it is conceived,) the date of the contract, if the purchaser be then in possession, etc. (p); or, if he be not then in possession, from the time of his taking possession (q); or from the time at which he might prudently have taken possession (r); i. e., the time when a good title was shewn.

And a purchaser taking possession subsequently to the contract, cannot, by giving up possession, escape his liability even to subsequent interest (s).

Upon the purchase of a reversion, the mere wasting of the particular estate by lapse of time appears to be, (for the purpose of the above rules,) equivalent to possession by the purchaser (t).

Interest upon the purchase-money of timber taken at a valuation is payable only from the date of the valuation (u); this, however, it is conceived, can only apply to timber which had not attained maturity at the date of the contract: the reason for the rule being, that the augmented value of the timber by growth is included in the valuation, and is an equivalent to interest; upon which Sir E. Sugden remarks, "but this, which was a good reason during the war, will not, in all times, justify the withholding of interest. Many cases have occurred, in which the augmented value by growth, between the time of entering into the contract and the completion of it, has not been equal to the depreciation in the market price of the timber during the same period."

If no time fixed for completion interest is payable from possession taken or title shewn.

Payment cannot be evaded by giving up possession.

Wasting of particular estate on sale of reversion equivalent to possession.

Interest upon valuation of timber from what date payable.

Growing timber.