Graham & Ors v Mayrick

For the purposes of an open contract for the sale of land, the implied obligation to show title may be modified by what the purchaser knew when contracting. Where the purchaser knew that the vendor relied on an ancient possessory title, the purchaser may be required to accept proof of that possessory title.

A possessory title may be forced on a purchaser where the evidence establishes a good title and the purchaser faces no relevant risk. A contractual description of land satisfies section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 if, read in its factual context, it identifies the property with sufficient certainty. An informal variation does not discharge the contract unless the parties intended to replace it with a new agreement.

The appellant appealed against HHJ Cooke’s decision of 3 December 2004 granting the respondents summary judgment for specific performance of a compromise contract concerning land in Greenwich.

The contract required the respondents to transfer land at the rear of 122 Old Woolwich Road and the appellant to transfer other land. The appellant contended that the respondents could not prove good title to part of the land, that the contractual description failed to satisfy section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and that a later variation of the boundary discharged the contract.

The central issues were whether the respondents had a sufficient possessory title, whether the land was identified with adequate certainty, and whether the later correspondence invalidated the compromise.

1. The appeal was dismissed. The appellant had no real prospect of succeeding at trial, and summary judgment for specific performance was properly granted.

2. The respondents’ title to the Rear land had not been barred. Shared use by the tenants of Nos. 122 and 124 did not constitute exclusive possession capable of starting time running in favour of either landlord. On the assumed facts, exclusive possession could have arisen at the earliest in 1995, and the requisite limitation period had not elapsed before the county court claim.

3. The ordinary implied obligation in an open land contract to show a good title may be modified by notice known to the purchaser at the date of the contract. Applying Alderdale Estate Company v McGrary [1917] 1 Ch 414, the appellant’s knowledge that the respondents relied on an ancient undocumented title meant that documentary proof of a conventional root of title was not required.

4. The authorities concerning the forcing of a possessory title on a purchaser, including Re Nisbet & Potts’ Contract [1905] 1 Ch 391, George Wimpey & Co Ltd v Sohn [1967] Ch 487 and Ashe v Hogan [1920] 1 R 159, concerned substitution of possessory title for a stipulated paper title. They did not prevent enforcement here, because the contract, properly construed, required no more than a possessory title and the respondents had proved a good one.

5. The description of the land was sufficiently certain under section 2 of the 1989 Act. Reading the words in their factual matrix, the land to be transferred was identifiable as the respondents’ land at the rear of No. 122 north of the new fence line. The Front land was outside the description.

6. The later variation to the fence line did not discharge the contract. Although the court doubted whether the variation’s materiality could be determined on the evidence, it was impossible to conclude that the parties intended to discharge the contract and enter into a new one. The respondents could enforce the contract by reference to the original plan.

• High Court (Chancery Division): Appeal from HHJ Cooke’s summary judgment decision dated 3 December 2004 dismissed.