1891 HARRIS v. GOLLINGS. Webb, J. But at the auction, before proceeding to sell, the auctioneer read out a memorandum, which he had previously written for the purpose, in these terms: "This valuable property consists of about 48 acres of land situate on the Brown's Plains Road. The whole of the land has been thoroughly cleared and grubbed, and a portion of the land has been under cultivation. The title to the land is as to 22 acres, a Crown grant, and as to the remaining 26 acres, is held under sec. 65 of the Land Act." thought was going to pass from the vendors to the purchasers was the property described in that document. The surveyor who saw it evidently drew the same inference from what he saw on the ground that I have done. Consequently I have arrived at the conclusion that that was what one party agreed to sell and the other party to buy. I need not express any opinion about the memorandum, or the contract subsequently signed. Of course I find that the memorandum and contract were signed. Then I find that an application was made on the 18th August by the plaintiff's solicitor to the defendant's solicitor to bring the land under the Act, or rather to show them a certificate of title. In other words, I do not put it as a requisition on title, but as substantially asking for the land to be brought under the Act, and a certificate of title produced. I also find that the application to bring the land under the Act was lodged, I think, about the 13th or 17th of August by the National Bank, the predecessors in title, and that a certificate of title was issued on the day mentioned in the pleadings. Then I find, as a fact, that Cummin & Smith, and persons occupying their premises, had a right to go, not only down that 33 feet road coloured blue on the plan, but they also had a right to go on the land coloured yellow and use the pier, and I do not know whether, in that finding, I am not putting it rather weakly against the plaintiff, for it seems to me from the evidence that that right, as exercised by Cummin & Smith, and successors in title, has been over more than the land which has been coloured yellow, because with a building 60 feet by 30 feet on what has been called made ground there would be a distance of at least 60 feet from the river over which there would be this easement. However, to that extent over the land coloured yellow there was that right, and I find, as almost a necessary consequence from that, that neither the defendant nor the person from whom he claims had, on the 13th July 1888 or since, a title to the land coloured yellow except subject to that easement; that he could not get, and had no right to get, a certificate of title to that land except subject to that easement. And consequently the defendant never has procured a certificate of title to that land except subject to the easement. And then I find that the existence of the easement over that land coloured yellow materially affects the value of the whole of the piece of land south of the 33 feet road, and deprives that portion of its main value. I find that at the time this action was commenced a reasonable time had not elapsed to enable the defendant to procure a certificate. I find that upon this ground. The time at first sight seems somewhat long, but the application appears to have been lodged quite as soon as the plaintiff could expect. He has given no evidence to show that there was any remissness whatever in procuring that title. Now, on that state of facts the plaintiff brought this action to rescind the contract and recover back his money, and in the statement of claim as originally The only objection taken to that is not that all these statements as to the value of the land are not perfectly true-it is not alleged that there was misrepresentation—but it is said that the statement that the 26 acres were held under sec. 65 of the Land Act gave no intimation to the defendant of what he was buying—that he thought sec. 65 was something else to what it was. If a man goes into an auction room and chooses to bid for land, it is not open to him afterwards to say that he thought the land, though described as being under sec. 65 of the Land Act, was held in such and such a framed, and as framed up to the amend ment, I suggested this morning he was, in my opinion, bound to fail, and consequently I think, on that finding, I ought to give the defendant the costs of that part of the dispute, and it would be as if the claim, as originally framed, were dismissed with costs. But the amendment, in my opinion, entitles the plaintiff to succeed, because the defendant not having a title and not having the means of procuring it-I do not mean the money when I say the means-I mean the right which would entitle him to get a certificate for a portion of the land, and that being a portion which substantially deprives a large part of the land of its real value, I could not, I think, enforce that contract even with compensation. I think the cases cited clearly show that I could not enforce it with compensation where the defect was so serious as it was here. Consequently, on the amended statement of claim, the plaintiff is entitled to judgment, but without costs. It I now come to the counterclaim. stood in precisely the same position as the claim, and, in my opinion, up to the end of the reply the defendant would have been entitled on the facts, as I find them, to succeed. But the defendant started off in his rejoinder to set up a certificate of title, and from that has arisen the whole of the difficulty which there really has been in this case. The certificate of title for the first time brought out the defendant's troubles and the impossibility of his ever giving to the purchaser a clear certificate of title (except From this decision the defendant appealed to the Full Court. Topp, Mitchell, and Weigall for the appellant. Goldsmith and Neighbour for the respondent. Cur, adv. vult. HIGINBOTHAM, C.J., delivered the 1891 HARRIS v. GOLLINGS. Webb, J. 19611477 March 10, 11. March 18. 1891 HARRIS v. GOLLINGS. Webb, J. way. I think that the statement was, practically, information that so much of this land was freehold and so much held under sec. 65. If a person at an auction sale hears a proper description of the tenure of the land he is going to buy, and asks nothing further about it, he cannot afterwards say he thought it was some other tenure. So that I am against the defendant on this question. The defendant's next defence is that the plaintiff at the time of the sale had no title, and could not get title-that the 26 acres were held under license only, and that the license was forfeitable at the time of the sale. A license is title. In the absence of any restriction against the licensee's assigning, a license is a very good rescission of a contract for the sale by the defendant to the plaintiff company of fifteen acres of land on the banks of the Yarra, for the sum of 33,000l., the repayment of part of the purchase-money which had been paid, and the return and cancellation of the promissory notes given for the residue of the purchase-money. The single ground on which the plaintiff's claim for the rescission of the contract rested, was that the defendant had not within a reasonable time produced a certificate of title to the land in accordance with the condition of the contract, by which the defendant was bound, as soon as conveniently might be after the sale, to cause application to be made to have the land brought under the operation of the Transfer of Land Statute. The learned judge held that at the time the action was commenced-16th May 1889-a reasonable time had not elapsed to enable the defendant to procure a certificate, and that the plaintiff company was bound to fail on the statement of claim as it was originally framed. The defendant, in his counterclaim, claimed payment of the amount of four promissory notes given to the plaintiff in part payment of the purchase-money and interest. The plaintiff company in their reply to the rejoinder, which alleged that a certificate of title had been issued for the land on 11th July 1889 after action brought, set up alleged variances between the description of the land in the contract of sale and the plan of the land as shown by the certificate of title. Evidence was given as to the defendant's title, more particularly as to whether a small portion of the land coloured yellow on the plan, and immediately adjoining the present site of a pier, was or was not subject to a claim of easement by third parties. The defendant was bound by the terms of the contract with the plaintiff company to show that the deed described in the contract as "an indenture of conveyance, registered No. 262, Book 202," created a right-of-way from Whitehall Street to the place where the pier is now situated, and not merely to the place where the pier is shown on the plan contained in that deed, which is dated 4th July 1870. The learned judge held, rightly in our opinion, that the defendant failed in proving this, and he thereupon allowed the plaintiff company to amend the statement of claim by adding an averment that the defendant had not at the time he made the contract, and had not down to the date of the hearing, either by himself or by the person from whom he purchased, a title to the possession of the land coloured yellow. And upon issue joined on this new claim, the judge ordered the plaintiff to pay the costs of and occasioned by the claim up to the time of the amendment, and gave judgment for the plaintiff on the claim as amended, and on the counter title. The plaintiff had this license for 20 acres of land. As to 6 acres, the license was in the name of another person who had before the sale authorised the plaintiff to sell. It has been argued that a man must have absolute title at the time of sale-that if he sells with his title defective in any respect he cannot afterwards remedy the defect or get a title. That principle was considered by the Full Court in South Melbourne Land Company Limited v. Peel (f). The old rule, as I always understood it before the Judicature Act, was that it was sufficient for a vendor of land to show title in the Master's office after the decree. It was said in the case of Forrer v. Nash (g) that specific performance would be refused to a vendor who at the time of the contract had no power to convey or to compel a conveyance of the land contracted to be claim with costs. The defendant desired that before judgment should be given time should be allowed to him to buy in the alleged easement, and thus remove the blot on his title. It does not clearly appear that this wish of the defendant was distinctly conveyed to the mind of the learned judge. At all events he did not give effect to it. Having regard to the time and the circumstances of the objection taken to the defendant's title, and the radical amendment of the statement of claim allowed, and properly allowed to the plaintiff company at the last moment, we think that the defendant should have been permitted upon terms, and within a time limited, an opportunity of removing, if he could, the objection taken to title, and we shall vary the judgment appealed from accordingly, if the defendant consents to the following terms; if the defendant withholds consent the appeal will be dismissed with costs. ORDERED that the appeal be allowed with costs, and that the judgment of his Honour Mr. Justice Hodges, pronounced herein on the 16th day of October 1889, be reversed, and in lieu thereof it is ordered that, the defendant consenting to return or forego interest on his purchasemoney for the period between the 11th day of July 1889 (the date of the certi- [Counsel for the defendant, after con- (f) Supra, p. 690 (n). 1891 HARRIS V. GOLLINGS. Webb, J. 1891 HARRIS v. GOLLINGS. Webb, J. sold. That case is, in my opinion, entirely inconsistent with the case of South Melbourne Land Company Limited v. Peel, in which, upon certain terms, power was given to the defendant to buy up an easement, which would be utterly wrong if he must have a title at the time of the contract. That case has been recently affirmed by the Privy Council, who dismissed the appeal. I am bound by that decision. Then it is said that the license to the land was voidable at the time of the sale, and that where an agreement, or a lease, or title is voidable at the time of the contract, it cannot be forced on a purchaser. Now this original license of May 1888 was made subject to the terms and conditions specified on the back of it, one of which was, "The licensee is required to reside on the land during the continuance of this license, or within a period of four months from the date thereof to enclose the same with a good and substantial fence." It appears that this land was not resided on, and it is said that within four months of the date of the license the plaintiff did not enclose it with a good substantial fence. The license to the 20 acres was in the name of the plaintiff; that to the 6 acres was in the name of Jacob Brann. The 8th interrogatory was put in evidence. It was, "Had you, or had the said Jacob Brann, within four months from the respective dates of the issue of the said licenses to you and to the said Jacob Brann, enclosed the respective pieces of land held by you and by the said Jacob Brann under the said licenses with a good and substantial fence ?" The answer to that is that he had not enclosed with a good and substantial fence, and he told us in the box to-day that he did not do so because it had a good and substantial fence at the time he bought it. It has been asserted that, even though the land is enclosed with a good substantial fence, the terms of the Act require, if the licensee does not reside on the land, that he must pull down the fence and build it up again. Such a proposition seems to me absurd. Another answer is that this was an annual license; that it expired on the 9th May 1889, and renewals have been granted from year to year since. Each renewal must be held to be a new license. Sec. 65 of the Act provides "The Governor in Council may from time to time grant licenses for any period not exceeding one year, which shall entitle the holders thereof respectively to reside |