Vendor fences off part of site for sale, but his solicitors mistakenly refer in contract to whole of his registered title–Purchaser held to have understood that part only was for sale, rectification ordered–Negligence of his solicitors held not to debar vendor from seeking relief–Statement to opposite effect in Halsbury criticised as ‘misleading’
This was a
claim by Mr Basil Mark Weeds, of Fenny Farm, Welney, Wisbech, Cambridge, for
rectification or rescission of a contract whereby he had sold or purported to
sell a piece of freehold farmland at 10 Whin Common Road, Denver, Downham
Market, Norfolk, to the first defendant, Mr Daniel Warner George Blaney, of
Lancing Road, Harold Hill, Romford, Essex, for £5,000. The second defendants,
Baylor Securities Ltd, of 2 Promenade Chambers, Edgwarebury Lane, Edgware,
London, were holders of a charge over the land registered after the date of the
contract of sale.
Mr J H Hames
QC and Mr R Laurie (instructed by Barlow, Lyde & Gilbert, agents for
Metcalfe, Copeman & Pettefar, of Downham Market) appeared for the
plaintiff, and Mr N B Primost (instructed by S B Gilinsky, of Edgware)
represented the defendant.
Giving
judgment, JUDGE THOMAS said that the plaintiff had inherited a farmhouse and
land. It was undisputed that he intended to sell the farmhouse and the southern
part of the land in Whin Common Road, and to develop the remainder. He
instructed David Bedford, estate agents, of Downham Market, to offer the
southern part for sale. He caused a fence to be erected along the proposed
boundary dividing the two parts. The agents advertised the southern part for
sale, and the first defendant inquired. The plaintiff claimed that the first
defendant was orally told on July 31 1973 about the proposed boundary.
Unfortunately, in a written contract which was eventually entered into on
November 20 1973, the property for sale was described as all the freehold
property comprised in Title No NK 19064, which included the disputed land. That
was a blunder for which the plaintiff’s solicitors were responsible, as they
admitted. The plaintiff said that he intended to sell only the southern half of
the property; that the first defendant well knew this; that he (the plaintiff)
had before exchange of contracts obtained planning permission for erection of a
bungalow on the other part of the property and had no intention of selling that
part; and that in any event the whole of the property was worth £8,900 when
contracts were exchanged, so that he could not have been thought to be willing
to sell it for £5,000. The second defendants came into the picture because on
February 12 1974 they were registered as proprietors of a charge upon the whole
of the property. They took no part in the action, but in their pleading broadly
adopted the defence of the first defendant, which was that the contract was for
the whole of the land and not part of it. The first defendant claimed that he
would never have purchased only part of the property for £5,000 and that there
never was a common intention or a common agreement for him to purchase only the
southern part.
In order to
succeed in his claim, the plaintiff must establish by convincing proof (i) that
prior to the contract there was an intention on the part of the first defendant
to purchase only the land which the plaintiff intended to sell, ie that there
was a common intention as to the subject-matter of the contract: (ii) that the
common intention continued up to the date of the contract; and (iii) that there
was some outward expression of accord on the part of the first defendant: see Joscelyne
v Nissen [1970] 2 QB 86. In his (Judge Thomas’s) view the plaintiff had
proved these matters to the requisite standard. The first defendant came on the
scene as an interested purchaser on July 28 1973. On that day he visited 10
Whin Common Road, and he made a second visit on July 31 1973. He was armed with
the sale particulars. He was looking, he said, for a big place with character
which he could buy cheaply and do up himself to live in. That was what he
found. He had since spent some £15,000 in converting and renovating no 10,
building a swimming-pool on, and a new access road from Whin Common Road
across, the undisputed land. The sale particulars which the first defendant had
with him did not give a clear description of the land, and they were more apt
to describe the undisputed land only than to describe that and the disputed
land. For instance, they did not mention certain outbuildings which were on the
disputed land. The only mention of an outbuilding was of a brick privy, which
was on the undisputed land. So far as the fence erected by the plaintiff was
concerned, the first defendant said that when he visited the land the fence was
in a collapsed state and overgrown, and did not indicate any boundary. He (the
judge) did not accept this. The fence was seen on June 3 1973 by a Mr Burgess,
another prospective purchaser. It was then intact. It was seen on August 10
1973 by a Mr C Bycroft ARICS, a qualified surveyor and valuer. It was a bit
overgrown, but he recognised it as a boundary fence. Mr Robert Weeds junior, a
cousin of the plaintiff living at 12a Whin Common Road, said that it was plain
enough to see in February 1974.
On July 31 the
first defendant went to David Bedford’s offices in Downham Market and saw Mr
Deans, the member of that firm handling the matter. According to Mr Deans,
whose evidence he (his Lordship) accepted, he told the first defendant what the
plaintiff was selling, ie the undisputed land, and what he was retaining, ie
the disputed land, and indicated the extent of the undisputed land on the
Ordnance Survey map. The first defendant (said Mr Deans) signified his
acceptance of this and paid a part deposit of £50, for which he obtained a
receipt. Under cover of a letter dated August 28 1973 the plaintiff’s solicitor
sent to the first defendant’s solicitors a plan to enable local searches to be
made. It was a copy of the plan annexed to the assent, and on it the boundaries
of no 10 and the undisputed land were clearly delineated by a red line. It
failed, however, to give the location of the property, so the first defendant’s
solicitors returned it. The plaintiff’s solicitors then indicated on it Whin
Common Road and the direction of Denver and Downham, and sent it back under
cover of a letter dated
time with a blue line, was then used by the first defendant’s solicitors to
conduct local searches. In the meantime, on August 6 1973, Mr Bycroft was
instructed by the first defendant’s solicitors on behalf of the mortgagees to
prepare a report and valuation for the purpose of a mortgage by the first
defendant. Mr Bycroft carried out an inspection on August 10 1973 and valued no
10 and the undisputed land. He did not take the disputed land into his
reckoning. The inference to be drawn from this was that Mr Bycroft was valuing
what the first defendant intended to purchase. The value he placed upon it was,
incidentally, £5,000, ie the same as the purchase price.
The first
defendant visited the property on February 23 or 24 1974. There he had a
conversation with Mr Robert Weeds junior. He asked him where the boundary of
his land was. Mr Robert Weeds junior, who had seen the construction of the
fence and knew something about the position, said that so far as he knew it was
up to the fence. The first defendant’s reaction was to say that his plans must
be wrong and that he had better see about it. It was at this stage, as it
seemed to him (his Lordship), that he (the plaintiff) realised for the first
time that a mistake had been made. It was a mistake in the contract, one
engendered by the plaintiff’s solicitors and overlooked and perpetuated by the
first defendant’s solicitors. In these circumstances, the plaintiff was
entitled to rectification on the ground of common mistake. He had also claimed
relief on other and alternative grounds, but in view of the finding on the
first claim it was unnecessary to go into these. There remained one matter
raised by Mr Primost. He argued that since the mistake arose because of the
gross negligence of the plaintiff’s solicitors, the plaintiff was not entitled
to rectification. In support of his argument counsel cited some passages from Halsbury’s
Laws of England 3rd ed vol 26 at pp 905, 906. So far as material these
passages read as follows:
1676. Classification
of kinds of relief. The relief to be granted in case of mistake may be (1)
rescission (2) rectification (3) application of the rules of construction of
documents (4) refusal of specific performance. . . .
1679. The
court will not interfere in favour of a man who is wilfully ignorant of what he
ought to know or, in other words, who commits a mistake without exercising the
due diligence which the law would expect of a reasonable and careful person,
nor will relief be granted when the ignorance was due to the negligence of the
party’s legal adviser.
In support of
the last proposition Barrow v Isaacs & Son [1891] 1 QB 417
was cited. In so far as the text in Halsbury suggested that negligence
on the part of the plaintiff or his legal adviser was a bar to rectification,
he (his Lordship) thought it was misleading; and Barrow v Isaacs
& Son was a case, not of rectification, but of relief from forfeiture
of a lease for breach of covenant. The law seemed to him (Judge Thomas) to be
correctly stated in Snell 27th ed at p 618: ‘It is no defence [to
rectification] that the plaintiff was careless or that the plaintiff, being a
solicitor, drafted the instrument himself,’ citing Monaghan County Council
v Vaughan [1948] IR 306 and Ball v Storie (1823) 1 Sim
& St 210.
The plaintiff
was awarded costs.
