Where a conveyance has been executed.

If, on the purchaser's breach of contract, the vendor affirm the agreement and sue for damages thereunder, it does not appear that he can recover his expenses of entering into the agreement or proving title (p), for, as we have seen (q), he is entitled to substantial damages for loss of his bargain on the footing of being placed, as far as money can do it, in as good a position as if the contract had been carried out. But if the contract had been completed, he would have had to bear his own expenses; and to allow him to recover his expenses, in addition to compensation for his loss, would be to place him in a better position by reason of the breach of contract than he would have occupied if the agreement had been carried out (r).

As to the vendor's expenses of the sale.

(i) Above, pp. 22, 951, and n. (f).

{k) Above, p. 62.

(l) Consider Ockenden v. Henly, E. B. & E. 485; above, pp. 952, 956.

(m) Icely v. Grew, 6 N. & M. 467.

(n) Above, p. 924.

(o) Above, pp. 924, 935; Benjamin on Sale, 622, 2nd ed.

(p) Observe the items of the damages recovered in Laird v. Pirn, 7 M. & W. 474; cf. above, pp. 949, 950.

(q) Above, p, 958.

The purchaser's right to damages for breach of the contract is governed by the special rule that, where the breach of the contract is occasioned by the vendor's inability, without his own fault, to show a good title, he shall be entitled to recover, as damages, his deposit, if any, with interest, and his expenses incurred in connection with the agreement, but not more than nominal damages for loss of his bargain (s). Subject to this special rule, however, the purchaser's right appears to be regulated by the general law (t). The reason given for the rule in Flureau v. Thornhill (u) is that, owing to the difficulties and uncertainty of the English law of real property, the parties to a sale of land must be taken to have contracted on the understanding that, if the purchase goes off because of the vendor's inability to make a good title, the purchaser shall only be recouped the expenses he has incurred, and shall not recover any other damages (x). This rule applies in every case where the vendor's breach of the contract is owing to his inability, without his own fault, to make a good title, even though he had expressly or impliedly (y) represented, contrary to the fact but without fraud, that he had a good title (z). Thus, where the owner of leaseholds not assignable without the lessor's licence has sold them without mentioning this restriction (a), and the lessor has refused to give his consent to the sale, the purchaser can recover no damages beyond his expenses (b). But the rule in question is only applicable where the vendor's breach of contract arises from his inability to make a good title after he has made an honest effort to discharge his obligation in this respect, and has done all that lies within his own power to carry out the agreement (c). For example, where an owner of leaseholds not assignable without the lessor's licence had sold them subject to his consent to the assignment being obtained (d), and, instead of endeavouring to procure the lessor's licence, actually induced him to refuse it, it was held that the purchaser was entitled to recover substantial damages for the vendor's breach of duty (e). And it appears that, where the vendor's breach of contract consists in his wilful refusal or neglect to take the steps proper to prove his title, as to deliver an abstract, he would be liable to pay substantial damages (/). So if the vendor commit a breach of his duty to convey the land sold or to put the purchaser in possession (g), and the breach be caused, not by his inability to make a good title, but by his wilful refusal or neglect to do some act, which lies entirely within his own power and is necessary to discharge his obligation in these respects, the purchaser is entitled to recover damages for loss of his bargain to be calculated according to the general principle of the law (h). Thus where mortgagees sold the mortgaged Land, with vacant possession, under their power of sale, and the mortgagor was in possession and they deliberately omitted to eject him, and were therefore unable to hand over possession at the time for completion, it was held that the purchaser was entitled to recover substantial damages for his loss, and that the measure of damages was the difference between the contract price and the value of the land at the time of the breach of contract; and the purchaser having resold the land at an advanced price, it was considered that, in the absence of any other evidence, the price at which the purchaser resold might be taken to be the value of the land; and the purchaser recovered accordingly the amount of the profit on the resale (i). It should be noted however that, although a vendor, who has contracted to give vacant possession, is bound at his peril to eject a tenant by sufferance (k), a tenant at will or a trespasser (l), who refuses to give up possession, he is not obliged to engage in litigation with persons asserting in good faith and with apparent or reasonably possible right claims adverse to his title (m). And it is thought that, if he preferred to renounce the contract rather than engage in such litigation, he could not be cast in substantial damages. And where his title is imperfect, he is of course not liable to pay substantial damages if he decline to buy in any outstanding estate or incumbrance. Such an act as this would depend on others' consent, and does not lie entirely within his own power (n).

What damages are recoverable by the purchaser.

(r) It is clear that, if the vendor execute a conveyance without payment, his lien extends only to the price and interest thereon, and he has no claim to be recouped his expenses. Consider cases cited above, p. 925. And it is thought that the same principle is applicable where the vendor is not entitled to recover the whole price as damages. See below, pp. 967, 968.