Rescission where the purchaser has been in possession.

(h) Palmer v. Temple, 9 A. & E. 508, 520, where a stipulation, that either party making default should pay 1,000/. as liquidated damages, was held to exclude any intention that the deposit should be forfeited; Howe v. Smith, 27 Ch. D. 89, 93, 97.

(i) Hart v. Porthgain Harbour Co., Ld., 1903, 1 Ch. 690. Cf. Re Keen, ]902, 1 K. B. 555.

(k) Above, pp. 457 - 459.

(l) Clark v. Wallis, 35 Beav. 460; above, p. 948, and n. (m).

(m) Hutchings v. Humphreys, 54 L. J. Ch. 650, 652; cf. above, pp. 750, 751, and n. (e).

(n) Above, pp. 948, and n. (m), 950, 951.

Here it may be noted that, where conveyance has been made without payment of the price, and the vendor afterwards brings an action to enforce his lien, and, the laud proving unsaleable, obtains an order authorising him to enter into and hold possession (r), it appears that the order is really made by way of giving him specific enjoyment of the thing pledged to satisfy his lien and in the nature of foreclosure, and not by way of rescission of the contract involving restitutio in integrum; and it does not appear that the purchaser could be required to account for any rents or profits received by him (s).

Where an order is made authorising entry into possession to satisfy the vendor's lien, after conveyance, that is not rescission of the con-tract.

Where the vendor lawfully rescinds the contract for the purchaser's breach, he is remitted to his former position as full owner of the land, which was the subject of the contract, and thenceforth may well exercise all rights incident to such ownership, including the power of disposition. He may therefore lawfully resell the land (t). But a resale under the liberty of resale arising from the ownership restored to the vendor by his rescission of the contract is entirely different both from a resale under a power of resale expressly reserved to the vendor in case of the purchaser's default, and from a resale by a vendor who has not rescinded the contract, but resells in order to realise his lien for the price under a power in that behalf alleged to be implied in the contract (u). If the vendor resell after he has elected to rescind the contract, he resells in his capacity of owner of the land and for his own benefit and at his own risk exclusively. If the land realise a higher price than at the sale rescinded, he is entitled to keep the surplus (x); and if the price were lower, he has no right of action against the former purchaser for the difference; for, having once elected to rescind the contract, he can no longer claim to treat it as subsisting and recover damages for its breach (y). On the other hand, where the land is resold under an express power of resale on the purchaser's default, the contract is indeed rescinded (z) and the vendor at liberty to retain any surplus over the original price (a): but if the resale were at a lower price the vendor is entitled to recover the difference from the purchaser, not as general damages for breach of the contract, but under a special stipulation to that effect expressed (b) or to be implied in the agreement (c). Where these stipulations are incorporated in the contract, the deposit, if any, must be applied as far as it will go in satisfaction of the difference in price on the resale, notwithstanding that the contract expressly provide that the deposit shall be forfeited on the purchaser's default (d). A resale made to enforce the vendor's lien, either by the vendor himself affirming the contract and claiming an implied power to resell for the purpose (e), or under an order of the Court obtained at the vendor's instance (f), is like a sale made by a pledgee of goods to recoup himself (g). The contract is not thereby rescinded [h); any surplus in price obtained on the resale belongs to the purchaser (i); and if the land be resold at a lower price, the vendor may recover the difference in an action on the contract claiming general damages for the purchaser's breach (k).

Rights of vendor electing to rescind.

(o) See the last two notes.

(p) Winterbottom v. Ingham, 7 Q. B. 611, 619; Sug. V. & P. 179; Markey v.Coote, 10 I. R. C. L. 149.

(q)Howard v. Shaw, 8M.&W. 118: Markey v. Coote, ubi sup.

(r) Above, p. 931.

(s) Consider Allgood v. Merry-bent, etc. Ry. Co., 33 Ch. D. 571.

It is respectfully submitted that, though the decision in this was correct, the learned judge was wrong in suggesting that in an ordinary case of vendor's Lien (that is, where a conveyance has been executed' the vendor would be entitled to rescind the contract for the purchaser's failure to pay the price. It is submitted that in this respect the law is the same for a sale of land as of goods, and that, subject only to the vendor's equitable lien and the remedies for enforcing it, the contract cannot be rescinded after conveyance for the purchaser's failure to paytile price; see above, p. 931, and n. (t).

Resale after an election to rescind.

Resale under an express power of resale.

(t) Howe v. Smith, 27 Ch. D. 89, in which case it was considered that the reservation in the contract of an express power of resale on the purchaser's default did not prevent the vendor from rescinding the contract in that event and thereafter selling as owner; above, p. 951, n. (f).

(a) See above, pp. 42 - 45, 931, where it is maintained that the better opinion is that, in the absence of express stipulation, the vendor has no power of resale to realize his lien for the price.

(x) Expte. Hunter, 6 Ves. 94, 97; Sug. V. & P. 39; dealing with the case of a resale under an express power, which rescinds the contract; above, p. 45, and n. (f). The same law applies. à fortiori, in the case of a resale as owner after an election to rescind.

(y) Above, p. 940; Henty v. Sehroeder, 12 Ch. D. 666; and consider Harding v. Harding, 4 My. & Cr. 514, 520; Lamond v. Davall, 9 Q. B. 1030; Sug. V. & P. 39 - 41; Benjamin on Sale, 648, 2nd ed.