United Kingdom House of Lords Decisions

This was an appeal from a judgment of the Court of Session of date July 16, 1878, reported ante, vol. xv., p. 718, 5 R. 1076. The appellant (Brownlie) contended (1) that there was legal fraud or concealment on the part of sellers’ agent; and (2) that they were entitled under the clause of warrandice to recover the amount of the composition they had been obliged to pay.

Page: 806↓

The respondents' counsel were not called upon.

In moving the judgment of the House

The Lord Chancellor said he had come to the conclusion that the judgment in this case was correct. There were two points on which it had been called in question—one as to warrandice, and the other as to fraud or improper concealment. As regards the objection founded on the clause of warrandice, it was only necessary to examine one by one the parts of that clause to see that none of those parts referred to the present circumstances. The appellant had got possession of all the subjects which had been sold or were intended to be conveyed to him; and as he had not been evicted or lost any of the subjects, he could found no claim on any such obligation of the vendors as he now set up. The utmost he could say was that he had been called on to pay something which the words of the deeds and titles might have led him to expect he was not to pay, but it would be an alarming doctrine if it were to be laid down that when a purchaser of an estate had the estate duly conveyed, and possession given, that the vendors should agree to bind themselves that each and every part of the titles would be borne out in future should certain future claims be made against it. It would be impossible to hold such a claim as that now made to be valid unless something were imported into the clause relating to warrandice which the words did not according to their ordinary meaning express. The objection founded on warrandice in this case therefore entirely failed. As regards the objection founded on misrepresentation and fraud, no authorities had been cited at the bar which supported such a claim on that ground. The moment that titles were produced, and the purchaser had the opportunity of examining them, the maxim caveat emptor applied. Here the agent of the vendors said there was no valid claim against the estate though a claim had been made. He acted under the bona fide belief that that claim so made by the mid-superior was not well founded. If he was wrong, that did not amount to fraudulent representation. If the purchaser wished to protect himself against the contingency of being sued for this casualty, he ought to have had a special warrant to that effect inserted in the conveyance, for the usual clause of warrandice and the usual duties of the vendor's agent did not protect it on the present occasion. There was thus no ground for the appeal, and it ought to be dismissed with costs.