(q) See Lawes v. Gibson, L. R. 1 Eq. 135; above,pp.67,74, 523.

(r) Above, p. SO.

(s) Above, pp. 50. 520 Bq.

(t) Re Bettetwortk and Richer, 37 Ch. D. 535.

(u) See Stock v. Meakin, l900, 1 Ch. 683: above, p. 521.

Here it may be mentioned that when a part of lands rated or charged together for the purposes of land tax or tithe rent charge is sold, the tax or rent-charge may be apportioned (x): but as land tax and tithe rent-charge are not incumbrances (y), it does not appear that it is the vendor's duty to procure this to be done; the purchaser must see to it himself after completion (z). So also the purchaser must see for himself after completion that the property sold is separately rated for the purposes of imperial or local taxation. But when the land sold is subject to some incumbrance charged thereon and on other lands as well, such as a rent reserved out of the entirety of leaseholds sold in lots or at rent-charge issuing out of the land sold and other land, the charge is of course, in the absence of stipulation to the contrary, an objection to the title (a); and if the vendor should have sold the land as being subject only to a part, proportionate to its value, of the rent or other charge, he must procure the same to be legally apportioned (b) or he cannot enforce the contract. In such cases, therefore, as a legal apportionment cannot generally be made by consent of the vendor and purchaser alone, it is usual for the vendor to make special stipulations exonerating him from the obligation of procuring a legal apportionment and providing for the incidence of the charge as between the parties to the sale (c). Where the reversion of part of lands let on lease at one entire rent is sold, the vendor should stipulate that the purchaser will be entitled to a certain yearly rent (stating the amount) as an apportioned part of the entire rent, and that the consent of the tenant to this apportionment (d) shall not be required (e). If the vendor should represent that the land sold were let at the rent stated, without mentioning that this was only an estimated part of a larger rent intended to be apportioned, he would be bound to procure a legal apportionment of the rent; and further, if in such case the land were sold with the benefit of a condition of reentry on breach of covenant, and this condition would be destroyed by severance of the reversion (f), he would not be enabled to enforce the contract for sale (g).

Apportionment of land tax and tithe rent-charge.

Sale of land subject to a rent attaching thereon and on other laud.

(x) See stats. 42 Geo. III. c. 116, s. 35, as to land tax; 5 & 6 Viet. c. 54, s. 14; 23 & 24 Vict. c. 93, s. 11, as to tithe rent-charge.

(y) Above, p. 176.

(z) See Re Ebsworth mid Tidy, 42 Ch. D. 23. If this were not so, special stipulations would be required on every sale of freeholds in lots: but it is not considered that these are necessary, except where the vendor represents in the particulars or agreement for sale that the lots sold are each subject to particular sums payable in respect thereof for land tax and tithe rent-charge. In this case, he would, in the absence of stipulation to the contrary, be bound to procure a legal apportionment, if the whole of the lots were rated or charged together for these purposes. See 1 Davidson, Pree. Conv. 616, 622, 6S9, 4th ed.; 1 Key & Elph. Prec. Conv. 310, 8th ed.

(a) Above, pp. 167, 176, 177. 361-363.

(b) Above, pp. 363, 405, n. (m).

Sale of reversion of part of land let at one rent.

The rules respecting the purchaser's liability to pay interest on the unpaid purchase money have been already stated. As we have seen (h), this obligation arises either by implication of law or express stipulation at the time when the purchaser acquires the right to enter into possession or receipt of the rents and profits of the property sold; the principle being that enjoyment of the fruits of the contract by the purchaser ought only to be had on condition of payment of the price, and that if payment be deferred, interest should be chargeable (i). In this respect the provisions implied by law in an open contract are far more equitable than those of the usual express stipulation made on London sales by auction, which is grossly unfair to purchasers and frequently works great hardship (k). Thus, under an open contract, where the vendor is in possession, the purchaser is only liable to pay interest, if there be delay in completion, from the time when he may safely take possession, that is, when a good title has been shown (l); and this is the case, although a day be fixed for completion, and owing to delay attributable to the state of the title, or otherwise to the vendor, a good title is not shown until after that day (m). And if the purchaser be in possession at the time of the contract for sale, or actually enter into possession afterwards, but before completion, or if the property sold be of such a nature that the enjoyment thereof necessarily runs from the time of sale, as in the case of a remainder expectant on a life estate returning no rent (n), then interest is payable from the time when actual possession or enjoyment by the purchaser as such so commenced, that is, from the date of the contract for sale or actual entry into possession (o). Then under an open contract, if there be delay in completion which is attributable to the vendor, the purchaser may, by appropriating his money to the purchase and giving to the vendor notice of such appropriation, relieve himself of the liability to pay any greater interest thereon than such, if any, as is allowed upon such appropriation. Though he cannot escape his regular liability to pay interest by making such appropriation, if there be delay in completion which is attributable to himself (p). But under the usual stipulation for payment of interest in case the contract shall not be completed on the appointed day from any cause whatever, or from any cause whatever other than the wilful default of the vendor (q), the purchaser must pay interest at the rate agreed upon (though far exceeding the return derived from the rents and profits), if there be delay in completion arising from the state of the title, a cause which would otherwise be attributable to the vendor (r). And the purchaser cannot, according to the better opinion, divest himself of this liability by appropriating his money to the purchase (s). The ground on which the law has been so established is that the purchaser having chosen to enter into such a stringent agreement must abide by its terms, and that owing to the difficulties attendant on making-out a title to land, delays so caused cannot be ascribed to the vendor's wilful default. Where the contract is to ipny interest, if from any cause whatever the contract be not completed on the appointed day, it is considered that the purchaser cannot escape the express obligation so undertaken unless the delay be caused by the vendor's vexatious conduct, dealing in bad faith, or gross negligence (t). Where the purchaser has agreed to pay interest if completion be delayed from any cause whatever other than the vendor's wilful default, he must show that the vendor has committed some wilful default within the meaning of the clause, and must furl her prove that such default was the effective cause of the delay (u). As we have seen (r), the late Lord Bowen remarked upon the futility of attempting to formulate an exact definition of wilful default which would cover all eases, whilst at the same time he ascribed to each of these words a particular meaning. And his explanation of this term has been religiously adopted in subsequent cases, but has hardly proved a satisfactory guide (y). The particular acts or omissions which have been held to fall within or without the expression " wilful default" have been already stated(z); and as we have seen, in the last of these cases four judges were divided equally in opinion upon the question, whether it is wilful default for a vendor to insist mistakenly, but in apparent honesty, upon an unreasonable contention with respect to the form of the conveyance (a). The further point above alluded to, that the purchaser must prove that the vendor's wilful default (where it exists) is the effective cause of the delay, is illustrated by the cases of Re Mayor of London and Tubbs' Contract and Bennett v. Stone already cited (b). In the first of these, it was considered by the whole Court that, even if there were wilful default by the vendor - as to which they differed in opinion - the purchaser could not escape liability to pay interest, if the delay were in truth caused by his own conduct in making voluntary requisitions and his inability to find the purchase money. And in the latter case, three judges out of four held that, if the vendor were in wilful default, yet the purchaser was not on that account released from his obligation to pay interest, where the real cause of the delay was his own inability to provide the purchase money. Where a purchaser had agreed to pay interest if from any cause whatever other than "the default" of the vendor the sale were not completed on the day fixed, and completion was delayed on account of an objection to the title, which was not obviously apparent on the face of the title deeds and was not known to the vendor at the time of sale, Lord Bowen's explanation of the meaning of default (c) was adopted, and it was held that the purchaser was not excused from paying interest, for the vendor had not failed to do something which he ought reasonably to have done (d). Where the contract is that if completion be delayed from any cause whatever "the purchaser in default" shall pay interest, he is not obliged to pay interest if there be delay arising from the state of the title or otherwise attributable to the vendor (e). Where there was in effect an express contract to pay interest in the case of delay in completion, unless it should arise from some other cause than the neglect or default of the purchaser, and delay was caused by the purchaser making a requisition, which on appeal to the House of Lords was held to be untenable, it was considered that the purchaser was in default in insisting on such a requisition, and must pay interest accordingly (f).