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PRECAUTIONS BY THE SELLER.

LETTER IV.

In this Letter I intend to draw your attention to the precautions to be observed on the sale and purchase of estates as between yourself and the other party; and first as to your conduct and duty as a Seller.

I will not argue with you whether in selling an estate you are bound in conscience to disclose all its defects to the purchaser. Moralists, as you know, agree that a seller is bound to do so, although the principle has been controverted. I shall content myself with stating how the law on this subject stands.

If the person to whom you sell was aware of all the defects in the estate, of course he cannot impute bad faith to you in not repeating to him what he already knew; neither will you be liable if you were yourself ignorant of the state of the property. And even if the purchaser was at the time of the contract ignorant of the defects, and you were acquainted with them, and did not disclose your knowledge to him, yet he will be without a remedy if they were such as might have been discovered by a vigilant man. The disclosure of such defects is at most what the civilians term a duty of imperfect obligation; and to claim the aid of the law, you must yourself be vigilant. If, however, you should, during the treaty, industriously prevent the purchaser from seeing a defect which might otherwise have easily. been discovered-for example, if you carefully conceal from him the necessary repairs of a wall to preserve the estate from the sea, the contract would not bind the purchaser. In one case, a seller plastered up a defect

DEFECTS.-FALSE DESCRIPTION.

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in a main wall, and papered it over, so as to conceal the defect, and the purchaser was relieved from the contract.

So if there is a latent defect in your estate, of which you are aware, and which the purchaser could not by any attention whatever possibly discover, you are, it seems, bound to disclose it to him, although you should sell the estate expressly subject to all its faults. Upon this point, however, the authorities are divided.

This point has several times arisen on the sale of ships sold with all faults, yet described in an attractive manner, and kept afloat, so that the defects well known to the seller could not be discovered, and that has been held to be a fraud, which renders the sale void. But generally speaking, a sale with all faults is binding, and the seller is not bound to disclose faults within his own knowledge, although he must not conceal them. Where a seller knows there is a defect, which was concealed before he acquired the property-for example, where the defective wall was plastered and papered over before his purchase, and he only acquired a knowledge of the concealment after his purchase, and he sells with all faults, still he should disclose the defect, although it is a doubtful point of law whether he is bound to do so.

If you actually describe the estate in the particulars of sale or agreement, you will, of course, be bound by the description. And if you misdescribe the estate with a fraudulent intent, it is unimportant that you expressly stipulated that an error in the description of it should not annul the sale. This was decided before the first Reform Act, in a case where the estate was described to be about a mile from a borough-town; and it was provided in the conditions of sale that an error in the description should not vitiate the sale. It turned out that the estate was between three and four miles from the place,

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and therefore the purchaser resisted the contract, and brought an action for recovery of the deposit which he had paid. It was left to the jury to say whether this was merely an erroneous statement, or the misdescription was wilfully introduced to make the land appear more valuable from being in the neighbourhood of a borough-town. In the former case, the contract remained in force; but in the latter case, the purchaser was to be relieved from it, and was entitled to recover back his deposit. The purchaser had a verdict; so that the jury must have thought the misdescription fraudulent.

The sale of what is really a rack or full rent cannot be enforced if it be sold under the description of "a groundrent." Where the sale was of a " brick-built house," and the house was built partly of brick and partly of timber, and some parts of the exterior were composed of lath and plaster only, without any party-wall to the house, the purchaser was not compelled to complete the purchase. There must not be a substantial misdescription.

But although you misrepresent the nature of the property, yet the purchaser cannot be relieved if he bought with full knowledge of the actual state of it: thus, if you describe an estate to be in a ring-fence, and the buyer knew that it was intersected by other lands; or you warrant a house to be in perfect repair, and he knew. that it was without a roof or windows, he cannot in either case object that the property does not agree with the description of it.

But it would not be safe to rely upon the purchaser's knowledge in opposition to your own statement. If you were to state that a house was in good repair, knowing that it had the dry-rot, and were not to communicate this fact to the purchaser, and the state of the house was not perfectly visible to everybody, you could not

CONCEALED ENCUMBRANCES.-FALSEHOODS.

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enforce the contract, although the purchaser might take the property if he pleased, with a compensation for its defective state.

The same rules apply to encumbrances on the estate, and defects in the title to it, as to defects in the estate itself. You must either deliver to the purchaser the instrument by which the encumbrances were created, or on which the defects arise, or you must acquaint him with the facts, if they do not appear on the title-deeds. If you neglect this, you are guilty of a direct fraud, which the purchaser, however vigilant, has no means of discovering. And if your attorney keep back any encumbrance, he as well as you will be answerable for the fraud. Indeed, now, a fraudulent concealment of a deed or other instrument by a seller or his solicitor or agent may amount to a misdemeanour, and be punished as a criminal offence.* He would also be liable for false representations as to the property in order to induce the party to buy, but he must know that the representations are false, for the deceit is the foundation of the action.

Thus I have told you what truths you must disclose. I shall now tell you what falsehoods you may utter in regard to your estate. In the first place, you may falsely praise, or, as it is vulgarly termed, puff your property; for our law, following the civil law, holds that a purchaser ought not to rely upon vague expressions uttered by a vendor at random in praise of his property. And it has even been decided, that no relief lies against a vendor for having affirmed, contrarily to truth, that a person bid a particular sum for the estate, although the buyer was thereby induced to purchase it, and was deceived in the value. So you may affirm the estate to be of any value which you choose to name, for it is deemed a purchaser's own folly to credit a bare assertion like * 22 and 23 Vict., c. 35, s. 24. See Letter V. +Turn to page 32.

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MISREPRESENTATION.-PUFF.

this: besides, value consists in judgment and estimation, in which many men differ.

Again, you may, with impunity, describe your land as uncommonly rich water-meadow, although it is imperfectly watered. In selling an advowson you may, in like manner, state that an avoidance of the living is likely to occur soon. So where a renewable interest is sold, and a fine on renewal is payable, the seller may state it to be a small fine, although it is of considerable amount. Such statements are cautions to purchasers to inquire. So mere puff, as that a house is fit for a respectable family, is entitled to no weight; but you must not, in answer to inquiries, assert, contrary to the fact, that your house is not damp. You are not bound to inform the purchaser that, upon the tenant's complaint, the full amount of rent has not been paid; nor are you bound to tell him what offers have previously been made to you; for a concealment, to be material, must be of something that the party concealing was bound to state. But you must disclose any right of sporting over the estate, or any right of common over it, or any right to dig for mines upon it, or the liability to repair the chancel of a church, or the like. And you cannot safely refer a purchaser to an agent who is ignorant of circumstances affecting the property of which you yourself are aware. If you instruct your agent to make a false statement, that of course would be a fraud, although the agent was ignorant of any deceit. If, with knowledge of a nuisance, you appoint an agent who is unconscious of it, and he accordingly denies its existence, this operates equally to the damage of the other party; and although you made no declaration, and the agent was guilty of no fraud, yet the purchaser ought not to be bound. This, however, is not a settled point. If your agent should be guilty of a fraudulent representation, or a fraudulent concealment,