(a) Greenhalgh v.Brindley, 1901, 2 Ch. 324. It should be noted that non-disclosure, on the sale of land, of a fact material to the title of the property sold stands on a different footing from nondisclosure of a fact relating to its quality. The vendor's title is a matter which is exclusively within his own knowledge, and he is bound to state it fairly; and his suppression of a fact material to the title may, according to the degree in which it affects the title, Non-disclosure of a fact material to the title.

On the other hand, if the vendor represent that a house is in good repair (b), or is not damp (c), or that the drains are in good order (d), or the cellars dry (e), or that a farm is in a high state of cultivation (f), or sell land as being fit for building purposes (g), or as business premises (h), then any latent defect, which prevents this representation from being fulfilled, will be a good ground of objection by the purchaser to his completing the contract (i). If, however, the defect were patent or obvious, then the purchaser may be obliged to perform the contract, notwithstanding the representation, on the ground that he must be taken to have bought with notice of the defect (j). But any active concealment of defects which would otherwise be discoverable by inspection is a fraud (k); and if a purchaser be deceived thereby (l) he may avoid the contract accordingly. Thus if cracks in the walls of a house be papered or painted over with intent to conceal them, and the house be then sold, though without any warranty or verbal representation as to its state of repair, to a purchaser, who has inspected it, the contract is voidable for fraud (m). And any conduct calculated to mislead a purchaser with respect to some material fact, or to divert him from inspection or inquiry, which would discover a defect known to the vendor, is equally fraudulent, and may be a ground for avoiding the contract at law as well as resisting its specific performance (n). It should be noted that an innocent misrepresentation as to the quality of land sold may be a good ground for the purchaser to resist the specific performance of the contract, notwithstanding that it be insufficient to procure the contract to be rescinded (o). Thus where a house let on a quarterly tenancy was sold as an eligible freehold property for investment, but was being used, unknown to the vendor, as a brothel, the Court of Appeal refused to oblige the purchaser to perform the contract specifically, but also declined to rescind the contract (p). The reason given by the Court was that the purchaser, if forced to complete, would be liable under the Criminal Law Amendment Act, 1885, to be fined unless he evicted the tenant. It is submitted that this decision must be referred, in principle, to the ground that the defect was incompatible with the enjoyment promised by the contract, coupled, possibly, with that of great hardship on the purchaser (q). A property, of which the rent-paying occupier must be immediately ejected, on pain of the purchaser becoming liable to criminal proceedings, hardly fulfils the expectation of enjoyment, which is raised by the description of an eligible freehold property for investment (r). Or perhaps the principle may be put in this way - that the Court will not enforce the specific performance of a contract to purchase a thing, which is positively noxious in quality, notwithstanding that there were no warranty of quality, and that in other respects the thing answer the description. For example, a house may be so ill-drained that it is dangerous to live in it; the vendor may be aware that illness has been actually caused by the state of the drains and maintain silence in this respect; and yet the purchaser may be unable to avoid performance of the contract. He buys at his own risk; he ought to have the drains tested for himself; and drains may be tested and put right without any extraordinary danger to the workmen (s). If, however, a house were infected with the germs of disease, such as plague or smallpox, so that any person entering it must incur the danger of catching the malady, and the vendor concealed this fact, it is thought that he could not enforce specific performance; for the thing sold was actively harmful (t). The house might indeed be disinfected, but only at the risk of the health and life of those who entered it to do so. It appears therefore that where one has bought land or a house under a mistaken impression as to its quality, he must in general abide by the consequences of his own mistake, unless the vendor made by warranty or representation some promise as to the quality, or actively concealed some defect which was known to him.

Representation that land is fit for a particular purpose.

Representation obviously inapplicable.

Active concealment of defects.

Be a ground for avoiding or resisting the specific performance of the contract; see Edwards v. Wickwar, L. R. 1 Eq. 68; Mostyn v. West Mostyn Coal and Iron Co., 1 C. P. D. 145; Re Marsh and Earl Granville, 24 Ch. D. 11; Heywood v. Mallalieu, 25 Ch. D. 357; Nottingham Brick and Tile Co. v. Butler, 16 Q. B. D. 778; Reeve v. Berridge, 20 Q. B. D. 523, 528; Re Davis and Cavey, 40 Ch. D. 601; Re While and Smith's Contract, 1896, 1 Ch. 637; Re Haedicke and Lipski's Contract, 1901, 2 Ch. 666; above, pp. 61, n. (w), 64, 65, 157 - 159, 166, 351, 537, n. (d).

(b) Grant v. Munt, G. Coop. 173; Dyer v. Hargrave, 10 Ves. 505.

(c) Strangways v. Bishop, 29 L. T. O. S. 120.

(d) De Lassalle v. Guildford, 1901, 2 K. B. 215.

(e) Lamare v. Dixon, L. R. 6H. L. 414.

(/) Dyer v. Hargrave, 10 Ves. 505.

(g) Re Puckett and Smith's Contract, 1902, 2 Ch. 258.

(h) Re Davis and Cavey, 40 Ch.D. 601; above, p. 166.

(i) Above, pp. 539-541.

(j) Above, p. 541; Dyer v. Hargrave, 10 Ves. 505, 508; Grant v. Munt, G. Coop. 173, 177; Sug. V. &P. 331, 332.

(k) Pickering v. Dowson, 4 Taunt. 779, 785; Schneider v. Heath, 3 Camp. 506, 508.