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West Indian Reports/Volume 5 /Salisbury v Dias - (1963) 5 WIR 497

(1963) 5 WIR 497

Salisbury v Dias

BRITISH CARIBBEAN COURT OF APPEAL

JACKSON P, LUCKHOO AND DATE JJA

30, 31 MAY, 19 JULY 1963

Contract -- Sale of land -- Misdescription of property -- Common mistake of parties -- Vendor unable to give
title to whole of property intended to be sold -- Rectification -- Whether rectified contract should be
specifically performed with or without abatement of purchase price or should be rescinded -- Judicial
discretion of trial judge.

The appellant had agreed to purchase from the respondent an area of land described in the written
agreement as the eastern half of lot 201 Barr Street, Kitty, with the buildings and erections thereon. The half
lots ran in a general north to south direction. At the time of the agreement both parties understood that an
area of land situate between palings on its eastern and western sides constituted the eastern half of lot 201.
They were thus ad idem as to the property the subject matter of the agreement. Upon survey, however, it
was discovered that the parcel of land between the palings fell 17.35 feet within the true western boundary of
that half lot and 6.25 feet outside the true eastern boundary, encroaching to that latter extent on lot 195 which
was owned by a stranger. The portion falling 17.35 feet outside the western palings had for over 12 years
been in the occupation of the owners of the western half of lot 202. The area of land which the respondent
could lawfully transport to the appellant was 3,460 square feet, whereas the parties had contemplated an
area somewhat over 20 per cent in excess of that figure.

Held: (i) where a vendor is unable to give title as to a part of the property intended it is for the purchaser to
decide whether or not he wishes to go on with the contract;

(ii) in the exercise of its equitable jurisdiction a court may order rectification of a misdescription due to the
common mistake of the parties;

(iii) whether there should be rectification and whether the contract so rectified should be specifically
performed with or without abatement of the purchase price or should be rescinded are questions which must
be decided on the position as it was before the trial judge by whom a judicial discretion had to be exercised;

(iv) before the trial judge the appellant as purchaser wished to go on with the contract and the issue was
whether specific performance of the contract rectified to include the correct description of the property which
the respondent could legally convey should be granted with or without an abatement of the purchase price;
(1963) 5 WIR 497 at 498

(v) in considering whether abatement should be ordered the contract price of $10,000 must be related not
only to the deficiency of land area but also to the value of the buildings and erections thereon and the
existence of a servitude;
Page 3

(vi) the burden was on the appellant to give some evidence in order to establish what abatement, if any,
should be granted; this evidential burden the appellant failed to discharge;

(vii) on the evidence before the trial judge he would not have erred in finding (as he did on other grounds)
that there should be a decree of specific performance without abatement.

Appeal dismissed; order varied.

Cases referred to

Bain v Fothergill (1874) LR 7 HL 158, 43 LJEx 243, 31 LT 387, 39 JP 228, 23 WR 261, HL, affg (1870),
LR 6 Exch 59, 40 Digest (Repl) 294, 2456

Mortlock v Buller (1804), 10 Ves 292, 32 ER 857, LC, 12 Digest (Repl) 176, 1165

Appeal

Appeal from a decision of a judge of the Supreme Court of British Guiana ordering rectification of a
contract for the sale of land and specific performance of the contract so rectified.

J H S Elliott QC, (instructed by H B Fraser) for the appellant

S L Van B Stafford QC, and C A F Hughes (instructed by H A Bruton) for the respondent

LUCKHOO JA. This action concerns the property described in an agreement of sale and purchase dated 23
June 1959, between the respondent Ursula Mendes Dias as vendor and the appellant Cecil Eustace
Salisbury as purchaser of "the eastern half of lot 201 Barr Street, Kitty, in the Kitty and Alexanderville Village
District, with the buildings and erections thereon."

In 1946, Mortimer Salisbury, the father of the appellant Cecil Salisbury, became the owner by transport of the
property described in transport No 20 of 14 January 1946, as follows:

'Eastern two-thirds of eastern three-fourths that is to say, the eastern halves of lots numbers
201 (two hundred and one) and 202 (two hundred and two) parts of that part of Plantation Kitty
situate on the east coast of the county of Demerara and colony of British Guiana, known as the
Village of Alexanderville, which said lots are laid down and defined on a diagram of an
extension of the Village of Alexanderville being a portion of Plantation Kitty made by John Peter
Prass, Sworn Land Surveyor, dated 24 November 1888, and deposited in the office in
Georgetown of the Registrar of British Guiana on 24 November 1888, with all the buildings and
erections thereon, save and except one building thereon, owned by J C Wellington, subject to
the right to the proprietor or proprietors of the adjoining premises on the west of the land hereby
transported namely, the western one-third of the eastern three-fourths of the said lots to empty
the sewage from the water closet installed on the front one flat house as at present existing into
the septic tank laid down on the land hereby transported, subject to the payment by the
proprietor or proprietors of the western one-third of the eastern three-fourths of the said lots to
the proprietor or proprietors of the land hereby transported of one half of the cost of the
maintenance, upkeep and repairs of the said septic tank in good order and condition, and
subject to a First Mortgage passed in favour of the British Guiana and Trinidad Mutual Fire
Insurance Company, Limited, on 30 October 1944, No 440...'
Page 4

These half lots run in a general north to south direction. Mortimer Salisbury went into occupation of a parcel
of land situate between palings on its eastern and western sides as the eastern half of lot 201. In 1954,
Mortimer Salisbury went to reside in a house situate on this parcel of land and has ever since been
(1963) 5 WIR 497 at 499

residing there with his family including the appellant. In 1956 a receiving order was made against Mortimer
Salisbury and in April 1959, he was adjudged insolvent. In June 1959, the Official Receiver in his capacity as
the assignee of the estate of Mortimer Salisbury put up for sale at public auction the eastern halves of lots
201 and 202 and those half lots were purchased by the respondent Mrs Ursula Mendes Dias on 16 June
1959. Transport therefor was passed to her by the Official Receiver on 24 August 1959. The description of
that property in the respondent's transport is substantially the same as in Mortimer Salisbury's transport
except for reference to Wellington's house (which had been removed prior to the respondent's purchase of
the property) and the mortgage which apparently had been cleared off.

On 17 June 1959--the day after the sale to the respondent--Mortimer Salisbury, desiring to retain the family
home on what he occupied as the eastern half of lot 201, approached the respondent and offered to buy that
half lot with the buildings and erections thereon for an undisclosed purchaser. A few days later they met by
arrangement at the office of Mr H A Bruton, solicitor. There, Mortimer Salisbury introduced his brother-in-law
Issri Persaud as the intended purchaser. An agreement of sale and purchase in respect of the eastern half of
lot 201 was prepared by Mr Bruton with Issri Persaud being named as the purchaser. Mortimer Salisbury
took away the unsigned agreement after arranging to meet the respondent at Mr Bruton's office on the
following day. On meeting as arranged on the following day at Mr Bruton's office Mortimer Salisbury
produced another agreement of sale and purchase in relation to the property which differed from the one
prepared on the day before by Mr Bruton only in that the purchaser named was the appellant Cecil Salisbury,
a son of Mortimer Salisbury, and the provision relating to forfeiture of the deposit had been omitted. The
appellant later came to Mr Bruton's office and this agreement of sale and purchase was executed by the
appellant and the respondent. The appellant paid the sum of $3,500 on account of the purchase price. The
appellant, whose father had been in possession of the property the subject matter of the agreement of sale
and purchase since 1946, was formally given possession thereof under the terms of the agreement. The
appellant has admitted that throughout the transactions relating to the agreement of sale and purchase
Mortimer Salisbury has acted as his agent.

On 14 October 1959, the necessary papers, which included the affidavit of the appellant as purchaser, were
lodged with the Registrar of Deeds for conveyance by way of transport of the east half of lot 201 to be
advertised to and in favour of the appellant. In the affidavit of purchaser sworn by the appellant on 13
October 1959, the description of the property purchased was not simply that stated in the agreement of sale
and purchase but was as set out in the transport of the respondent passed to her by the Official Receiver on
24 August 1959.

On 20 October 1959, the appellant wrote the Registrar of Deeds requesting him to stay advertisement of the
transport until further notice on the ground that the instructions to advertise were not in accordance with the
agreement of sale and purchase entered into between the parties and would have to be rectified.

On 14 September 1959, that is prior to the appellant swearing his affidavit of purchase on 13 October 1959,
Mortimer Salisbury as agent of the appellant had told the respondent that there was a deficiency in the area
of land between the palings with that agreed to be sold and transported by the respondent. This was said on
the occasion when the respondent had caused S S R Insanally, a Sworn Land Surveyor, to establish the
common boundary between the eastern halves of lots 201 and 202 in order that it could be ascertained
whether the existing back building on the eastern half of lot 201 encroached on the eastern half of lot 202.
This inquiry was provided for by the parties in the agreement
(1963) 5 WIR 497 at 500
Page 5

of sale and purchase. It was discovered as a result of the survey carried out by S S R Insanally that the
existing back building was situate entirely on the eastern half of lot 201.

Consequent upon the appellant's letter of 20 October 1959, requesting the Registrar of Deeds to stay
advertisement of the conveyance, the respondent on the advice of her solicitor engaged the services of
Messrs. Wong and Khan, Sworn Land Surveyors, to carry out a survey of the entire property she had
purchased from the Official Receiver. For some reason which does not appear in the evidence Wong and
Khan did not carry out the survey. Sometime in November 1959, S S N Insanally, a Sworn Land Surveyor
(not to be confused with S S R Insanally), sent a notice of intended survey to the respondent at the instance
of the appellant. Thereupon, the solicitor for the respondent wrote the appellant and S S N Insanally
informing them that S S N Insanally was not permitted to enter upon or to undertake any survey of the
property, the respondent having objected to the survey by S S N Insanally.

It has turned out upon a survey carried out by C S Spence, a Sworn Land Surveyor, on 7 December 1959,
that the parcel between the eastern and western palings agreed to be sold by the respondent and purchased
by the appellant falls 17.35 feet within the true western boundary of that half lot and 6.25 feet outside the true
eastern boundary, encroaching to that latter extent on lot 195 which is in the ownership of one Mrs Fraser. At
the hearing of this appeal it was stated that the house in which the appellant resides encroaches on lot 195
for a distance of three feet. The portion falling 17.35 feet outside the western palings has for over twelve
years been in the occupation of the owners of the west half of lot 202 which in 1959 was in the occupation of
one Beharry.

S S N Insanally had been present on behalf of the appellant at Spence's survey. Insanally was later
instructed by the appellant to carry out a survey of the eastern half of lot 201 and sent a notice of intended
survey to the respondent. He was, However, prevented by the respondent from carrying out a survey.

In correspondence passing between the legal advisers of the parties since Spence's survey the respondent
called upon the appellant to take transport of such portion of the eastern half of lot 201 as had been
conveyed to the respondent and was occupied by the appellant, failing which the respondent would treat the
agreement as rescinded, refund the amount already paid under the agreement less any advances made and
would require the appellant to pay her the sum of $75 per month as from 23 June 1959 (the date of the
agreement), until possession was delivered up by the appellant to the respondent. In reply the appellant
intimated that he would be prepared to accept transport of the property (that portion which the respondent
could lawfully convey) on condition that the purchase price was reduced by $2,000. The respondent
thereupon filed a writ of summons claiming specific performance of the agreement of sale and purchase and
damages for breach of contract. In the alternative the respondent claimed rescission of the agreement,
possession, mesne profits and other consequential relief. The appellant in his statement of defence and
counterclaim asked for an order for a survey of the east half of lot 201, specific performance of the contract
or damages for breach of contract. The pleadings of the appellant also raised the question of the property
being sold free of any servitude but although this was an issue at the trial (decided by the trial judge in favour
of the respondent) no such question falls for consideration in this appeal, counsel for the appellant conceding
that the property if conveyed must be conveyed subject to the servitude described in the respondent's
transport.

Counsel for the respondent (plaintiff) in his opening address at the trial of the action stated that the
respondent was not asking for rectification of the agreement but was asking for a rescission of the
agreement. He also observed that the parcel as occupied consists of only a little more than one half of the
(1963) 5 WIR 497 at 501

east half of lot 201 and also a portion of lot 195 for which the respondent has no title. Counsel for the
respondent suggested to the trial judge that the fairest solution of the difficulty would be rescission of the
contract, the return to the appellant (defendant) of the deposit and the payment by the appellant of mesne
Page 6

profits or a sum for the use and occupation from the date of the agreement to the date of delivery of
possession by the appellant to the respondent.

Counsel for the respondent (plaintiff) in his closing address re-affirmed the stand he had taken in his opening
address though the respondent in her evidence had stated that she sought specific performance of the
contract or, in the alternative, rescission of the contract. Counsel for the appellant (defendant) submitted that
there should be a decree of specific performance with an abatement of the purchase price.

The trial judge has found, and counsel do not challenge his finding in this regard, that at the date when the
parties entered into the agreement of sale and purchase what the respondent intended to sell to the
appellant and what the appellant intended to purchase from the respondent was the property situate between
the palings. The miscellaneous condition inserted in the agreement while it required a plan to be made and
the position of the existing back building ascertained in relation to the respondent's eastern half of lot 202 did
not contain anything which would suggest that either party was in doubt about the true positions of the
eastern and western boundaries.

It is apparent from the record that the case for the appellant (defendant) proceeded before the trial judge on
the basis that what the appellant had agreed to purchase was the mathematical eastern half of lot 201. The
cross-examination of Spence by counsel for the appellant and the arguments adduced by counsel indicate
that before the trial judge this was the stand taken by the appellant and in the grounds of appeal filed this is
also clearly indicated at paragraph 2(d). Indeed, Mortimer Salisbury on 14 September 1959 (on the occasion
when SSR Insanally had determined that the existing back building was situate entirely on lot 202), had told
the respondent that he was sorry that she had already taken transport from the Official Receiver because the
land did not contain a half lot and he felt that the respondent could have compelled the Official Receiver to
find the extra portion of land and give it to the respondent. This is important for it indicates the attitude
adopted by or on behalf of the appellant in the appellant's dealings with the respondent.

The learned trial judge has found that on the evidence the respondent intended to sell and agreed to sell to
the appellant the portion of land which was in occupation of Mortimer Salisbury with the building thereon and
that the appellant, through his agent Mortimer Salisbury, intended to buy and agreed to buy that portion of
land with the building thereon, the land being situate between the eastern and western palings and regarded
by the appellant and Mortimer Salisbury as being the east half of lot 201.

Neither counsel for the appellant nor counsel for the respondent at the hearing of this appeal has sought to
impugn this finding of fact by the learned trial judge which indeed is fully supported by the evidence he has
accepted.

The learned trial judge also quite rightly came to the conclusion that the parties being ad idem as to the
property the subject matter of the agreement there was a common mistake between the parties as to a mere
misdescription of the property. The learned trial judge also came to the conclusion that the purchaser has got
all or substantially all of what he had agreed to purchase. This finding has been challenged by counsel for
the appellant at the hearing of this appeal. who pointed out that Spence's evidence disclosed that the whole
occupation by the appellant was 35.25 feet on the northern side including 6.25 feet encroaching on lot 195.
The occupation converges to the south, the convergence being two feet on the southern side. The area
which the respondent can lawfully convey to the appellant is 3,460 square feet whereas the parties
(1963) 5 WIR 497 at 502

contemplated an area somewhat over twenty per cent. in excess of that figure. It cannot therefore be
considered that the appellant was getting substantially what he had agreed to purchase in so far as quantity
of land is concerned, though it may well be considered that having regard to the object of the appellant's
purchase the defect in quantity did not so affect the substance of what he had bargained for were it not for
the fact that the house in which the appellant resides is situate partly on lot 195.
Page 7

It is undoubted that a court in the exercise of its equitable jurisdiction may order rectification of a
misdescription due to the common mistake of the parties. The real question in the instant case is whether the
contract so rectified should be specifically enforced with or without abatement of the purchase price or should
be rescinded. This question must be decided on the position as it was before the trial judge by whom a
judicial discretion was to be exercised rather than on any change in the wishes of the parties since the trial
judge delivered his judgment. This observation is made because at the hearing of this appeal counsel for the
appellant abandoned the appellant's stand at the trial and indeed the main remedy stated in the grounds of
appeal for specific performance with abatement of the purchase price and now seeks to obtain a rescission
of the contract with a return of the deposit and damages for breach of contract by the respondent. Counsel
for the respondent at the hearing of this appeal in supporting the judgment of the learned trial judge pursued
the remedy of specific performance as formulated in the statement of claim and asked for by the respondent
in her evidence and abandoned his plea made at the trial for rescission of the contract and the other
remedies referred to earlier in this judgment.

In the first place where a vendor is unable to give title as to a part of the property it is for the purchaser to
decide whether or not he wishes to go on with the contract. In the instant case, the appellant as purchaser
did wish to go on with the contract and before the trial judge he claimed specific performance with
compensation. The respondent as vendor wished to enforce the contract and also claimed specific
performance. The appellant, had he wished to do so might have claimed rescission of the contract though he
would have been unable to succeed in general damages for breach of contract because of the rule in Bain v
Fothergill ((1874) LR 7 HL 158, 43 LJEx 243, 31 LT 387, 39 JP 228, 23 WR 261, HL, affg (1870), LR 6 Exch
59, 40 Digest (Repl) 294, 2456). The issue before the trial judge eventually was narrowed down to this:
whether specific performance of the contract rectified to include the correct description of the property which
the respondent could legally convey should be granted with or without an abatement in the purchase price.
The trial judge held that prior to the date of the contract Mortimer Salisbury was unaware that the respondent
could not give a title to the whole to the east half of lot 201 and that as the parties were ad idem as to the
property the subject matter of the agreement the appellant could not obtain an abatement of the purchase
price. The trial judge also found that the appellant and Mortimer Salisbury were aware of the existence of the
servitude already referred to at the time the contract was made. As has already been stated counsel for the
appellant does not challenge this latter finding.

It is not doubted that as a general rule a vendor may be compelled to convey such interest as he may have in
the subject matter of the sale if the purchaser chooses to accept it without compensation. Where (as in the
Court below in the instant case) the purchaser claims specific performance with an abatement of the
purchase money the general rule is that laid down by Lord E LDON in Mortlock v Buller ((1804), 10 Ves 292,
32 ER 857, LC, 12 Digest (Repl) 176, 1165), (10 ves, at p 315):
'If a man, having partial interests in an estate, chooses to enter into a contract representing it
and agreeing to sell it as his own, it is not competent to him afterwards to say that, though he
has valuable interests, he has not the entirety, and, therefore, the purchaser shall not have the
benefit

(1963) 5 WIR 497 at 503


of his contract. For the purpose of this jurisdiction, the person contracting under these
circumstances, is bound by the assertion in his contract, and, if the vendee chooses to take as
much as he can have, he has a right to that, and to an abatement.'

The position is perhaps more comprehensively stated in DART ON VENDORS AND PURCHASERS (8th Edn), at p
931 as follows:
'The result of the authorities appears to be that, except where there is a good defence on the
ground of hardship, mistake, or injury to third parties, the Court will (in the absence of an
Page 8

express stipulation excluding compensation, or entitling the vendor to rescind) insist on a


vendor making good his contract to the extent of his ability, and on his submitting to a
proportionate reduction of the purchase money, if the purchaser was ignorant of the defect at
the date of the contract, and is willing to complete on these terms.'

It is stated in FRY ON SPECIFIC PERFORMANCE (6th Edn), at p 588, that the court will almost invariably refuse
specific performance with an abatement in favour of a purchaser who contracted with knowledge of the
defect at the date of the contract.

The trial judge has rejected the evidence of Mortimer Salisbury relating to his alleged doubt as to the true
boundaries of the east half of lot 201 and has found that at the date of the contract Mortimer Salisbury
believed that he was in occupation of that half lot within its true boundaries. The trial judge also found that
the appellant himself had no knowledge one way or the other of the true boundaries of the east half of lot 201
and the question of any doubt as to the true positions of those boundaries never arose in so far as both the
appellant and Mortimer Salisbury were concerned until after the contract was made. This was a finding of
fact eminently suitable for the learned trial judge to make, and an appellate tribunal would be loath to disturb
this finding having regard to the fact that it involved the acceptance and rejection of evidence of parties
whom this court did not have the benefit of observing as had the learned trial judge. There are passages in
the judgment of the learned trial judge which appear to be in conflict with his finding that at the time when the
contract was made Mortimer Salisbury was not doubtful of the true position of the boundaries of the east half
of lot 201. Perhaps the learned trial judge was dealing with Mortimer Salisbury's evidence on this aspect on
the assumption that it might be accepted as true. Counsel for the appellant has submitted that any
knowledge gained by Mortimer Salisbury not in the course of his agency cannot be imputed to the appellant
and that the relationship of father and son does not have any bearing on this legal principle. It is, however,
unnecessary for the purposes of this case to decide whether this submission is sound in view of the trial
judge's rejection of Mortimer Salisbury's evidence on this aspect of the matter.

Although both the appellant and the respondent erroneously and honestly believed at the time of entering
into the contract that the respondent could convey the entire portion situate between the palings the
appellant was in fact misled that he could get title for the entire portion of the land between the palings.
However, it does not automatically follow that the appellant is entitled to an abatement. From the letter dated
23 February 1960, addressed by the appellant's solicitors to the respondent's solicitors the abatement asked
for was $2,000. This was on the basis that the mathematical east half of lot 201 was, with the buildings and
erections thereon, the property contracted to be sold to the appellant and that there was no servitude
attached to the enjoyment of the property. On that basis the deficiency (according to paragraph 2(d) of the
appellant's grounds of appeal) would be 2,268 square feet out of 5,728 square feet or about 39 per cent of
the area agreed to be conveyed.

In fact the deficiency in the area of the land is just over 20 per cent, and the
(1963) 5 WIR 497 at 504

contract price of $10,000 must be related not only to the deficiency of land area but also to the value of the
buildings and erections thereon and the existence (now conceded) of the servitude. The burden was upon
the appellant to give some evidence in order to establish what abatement, if any, should be granted. This
evidential burden the appellant has failed to discharge. The sole remedy sought by the appellant before the
trial judge being one of specific performance with abatement, on the state of the evidence before the trial
judge he would not have erred in finding (as he did on other grounds) that there should be a decree for
specific performance without abatement.
Page 9

The appellant cannot blow hot and cold at the same time. In the court below he elected to stand or fall by his
sole plea for specific performance with abatement. Nothing has been advanced on his behalf on appeal
which would allow a change of front; this is permitted only in the most exceptional circumstances.

Counsel for the respondent has submitted that the appellant has, under the agreement of sale and purchase,
obtained a possessory title to that portion of the property situate between the palings which the respondent
cannot convey by way of transport. Such investigation as was made in the court below of the possession of
Mortimer Salisbury by himself and his predecessors in occupation is wholly insufficient to enable a court to
come to any conclusion on this aspect of the matter. Further, it was never within the contemplation of the
parties when they entered into the contract that the appellant would be given other than title by way of
transport.

Counsel for the respondent has referred to the fact that the order made by the trial judge does not deal with
the possibility of the appellant failing to accept transport of the property which the respondent has been
ordered and directed to convey. The order of the trial judge should be varied by the addition thereto of the
further order that in the event of the defendant failing to pay or cause to be paid to the plaintiff the balance of
purchase price with interest thereon, or to accept transport of the property, the agreement of sale and
purchase shall be deemed to be rescinded and the sum of $3,500 paid by the defendant to the plaintiff
forfeited to the plaintiff.

The defendant has been in occupation of the property under the contract without payment of any sum
therefor. The contract, had there been no appeal, should have been completed by the passing of transport by
the end of December 1961. In the circumstances I would order that the appellant should pay a reasonable
sum for use and occupation of the property from 1 January 1962, until transport is accepted by him or until
he vacates the property, whichever is the sooner. The only evidence on the question as to what would be a
reasonable sum for use and occupation of the building came from the respondent. She said that the upper
flat is worth $75 per month. The appellant should pay $75 per month for the use and occupation of the
property for the period above stated. In the event of the appellant failing to accept transport he shall vacate
the property on or before 1 November 1963.

I would order that the judgment of the trial judge should be affirmed subject to the variations stated above
and subject to rectification of the contract by amendment of the description of the property agreed to be sold
by the respondent to the appellant and to be purchased by the appellant from the respondent.

The respondent's costs of this appeal and in the court below to be paid by the appellant.

JACKSON P. I agree.

DATE JA. I concur.

Appeal dismissed; order varied

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