1. Time when essential at Law and in Equity.

2. Objections to title - negotiations upon and waiver of - when possession taken amounts to waiver.

3. General rights and liabilities of purchaser in possession.

4. Vendor in possession - alteration of property by - may avoid contract.

5. As to entry and possession by Railway Companies before completion.

(1.) At Law, the time fixed for completion is of the essence of the contract; and the purchaser may recover his deposit unless the vendor can deduce and verify a marketable title and give a conveyance at the time agreed on (a); if no time be fixed, a reasonable time must be allowed (b); and it has been held that a condition that the purchase-money shall be paid on a certain day, does not amount to a stipulation that the title shall be made out on or before that day (c).

In Equity, however, although unreasonable delay will of itself conclude either party, the mere fact of the time fixed for completion having expired is no defence to a suit for specific performance; except where time has been made of the essence of the contract by express agreement; or where, from the circumstances of the case, such must clearly have been the intention of the parties (d).

Time essential at Law, but not in Equity, unless by express agreement or under special circumstances.

(a) Sug. 284. (b) Sansom v. Rhodes, 8 Sco. 544.

(c) S. C.; sed qucere?

For instance, on an agreement, by a tenant at will of a public house, for the sale of the possession, trade, and goodwill, at a fixed sum, and of the stock and furniture at a valuation, possession to be taken and the money paid on a given day, the delay of a single day on the part of the purchaser in having the valuation completed, and in taking possession and paying the purchase-money was held to relieve the vendor from the contract; inasmuch as he incurred fresh liabilities by retaining the premises, and the stock in the mean time varied (e).

So, the fluctuating value of the property may alone show that time was to be of the essence of the contract; as upon an agreement for the sale of foreign stock (f), or of a reversion, (which may become an estate in possession during the delay, and the sale of which generally evidences immediate want of money (g),) or of a life annuity, or life estate, which may determine by the death of the cestui que vie (h).

So, where the purchaser evidently requires the property for some immediate purpose (i).

So, where the vendors, (although beneficially interested,) are a fluctuating body, (as in the case of a Dean and Chapter,) where delay may give the purchase-money to persons other than those who signed the contract (j).

And the tendency of modern decisions has been to hold persons concerned in contracts relating to land, bound, as in other contracts, to regard time as material; and this principle has been applied with the greater strictness where the property was connected with trade (k).

As where vendor incurs liability by keeping property; or property is of fluctuating value; or of a determinable character; or is evidently required at once; or where the vendors are a fluctuating body.

Modern decisions tend to render time material.

(d) See Sug. 305.

(e) Coslake v. Till, 1 Russ. 376. (f) Doloret v. Rothschild, 1 Sim.

& St. 590.

(g) See Newman v. Rogers, 4 Bro. C. C. 391.

(h) See Withy v. Cottle, Turn. & R. 78.

(i) Wright v. Howard, 1 Sim. & St. 190; Parker v. Frith, ib. 199.

(j) Carter v. Dean of Ely, 7 Sim. 211.

So, the circumstance of the purchase-money being evidently required for payment of incumbrances, is material; especially if the rate of interest which they bear exceed that which the purchaser is to pay during delay (l). But the private motives which may have induced a party to enter into a contract, unless expressed in the agreement, or such as might be anticipated from the general apparent circumstances of the case, do not make time essential; e. g., the unexpressed intention to reside immediately upon the estate (m); where, however, the motive is of material importance - as in the case of the intention to reside - although not disclosed in the contract, it would, it appears, be sufficient to bind the vendor to the time named in the contract, if communicated at or within a reasonable period after its execution (n).

Nor is a mere undertaking that possession shall be delivered on a certain day, of itself binding in Equity (o).

In all the above cases the delay may be supposed to have arisen from the state of the title, or otherwise without any wilful or gross neglect by the party in default: gross or wilful neglect, however, by either party, will, in any case, entitle the other party to avoid the contract in Equity; e. g., where the vendor, although urged by the purchaser to make out his title, takes no steps to do so, the purchaser immediately upon the expiration of the time fixed for completion may rescind the agreement (p)r or purchaser.

Purchase-money being required to discharge incumbrances, a material fact.

But private unexpressed motives for purchase immaterial.

Effect of, if subsequently communicated.

Undertaking to deliver possession, not binding in equity.

But wilful delay concludes in Equity, either vendor,

(k) Per Wigram, V. C, in Walker v. Jeffreys, 1 Ha. 348; and see Seaton v. Mapp, 2 Coll. 556.

(l) Popham v. Eyre, Lofft, 786; Sug. 292.

(m) See Boehm v. Wood, 1 Jac. & W. 422.

(n) See 7 Ves. 279; and Nokes v. Lord Kilmory, 1 De G. & S. 444.

(o) See Boehm v Wood, 1 Jac. &' W. 419.

So, a purchaser who takes no steps to enforce the contract within a reasonable time, will be left to his remedies at Law; and the tendency of modern decisions is to diminish the time allowed to either party for enforcing his rights under the contract (q).

Where time is not of the essence of the contract, and the delay originates in the state of the title, it is sufficient, upon a bill for specific performance being filed by the vendor, if a good title be shown at the date of the decree (r).