J.A. Judgment. what was sought was to have it declared that the purMACLENNAN chasers were bound to pay interest at five per cent. from the day fixed for completion, there having been considerable delay, and a stipulation for payment of interest, if from any cause, except the wilful neglect or default of vendor, completion was delayed. The purchasers had deposited the money in a bank, and had notified the vendors that it was ready and lying idle there. North, J., held there was no wilful neglect or default, and that the deposit of the money was no excuse, and he observed: "Then it comes simply to this: a contract that the purchaser will pay interest until completion. Why should he be relieved from paying interest, which he has contracted to pay, by the fact that he simply placed the money to his account at his bankers, or even placed it to a separate account, if you please, at the bankers as distinguished from his own account? I do not see how the purchaser can take the matter into his own hands, and put an end to this contract to pay interest by anything he does other than by completing the purchase and paying over the principal." I think that upon the authorities there would have been no ground for depriving the vendor of interest in this case, even if there had been no stipulation qualifying the vendor's ordinary duty as to shewing a good title, for I think it was the covenant of the purchasers to pay interest from a day named and fixed, irrespective of the time which might be required to investigate the title and to complete the contract, a day long before completion was contemplated or even possible, and no good ground has been made or reason shewn to excuse its performance. I also think the case against the vendor fails for the other reason, namely, that the delay complained of was caused by the state of this title merely, and without any wilful default on his part. The truth is that contracts for the sale of land vary very much, and so, of course, do the rights and obligations of the parties. The terms of the agreement must govern in every case. If circumstances occur for which no express provision is made, the Court settles the rights of the Judgment. parties on principles of justice and equity; but where the MACLENNAN parties themselves have made provision, the Court has no right or power to relax or vary the terms of their agree ment. In the simple case of a sale of a parcel of land for so much money, nothing being said about title, or rents, or interest, the law implies the condition of the vendor having and shewing a good title; and so it is uncertain from the beginning whether it will ultimately be carried out. The title is first to be investigated, and when it is shewn, and not till then, has the time arrived for completion. It is then for the first time that a vendor has a right to receive payment, and that the purchaser is bound to be ready with his money. In the investigation of the title both parties are bound to use reasonable diligence, at the peril of costs and, perhaps, loss of interest. But when a good title is shewn, questions of interest and rent arise, because, in the simple case I have supposed, the effect of the contract in equity is that from its date the purchaser is the owner of the land, and the vendor is the owner of the money. It follows from that that the purchaser is entitled to the rents from the date of the contract, and if he claims and gets the fruit of the land, it is only reasonable that the vendor should get the fruit of the money, that is, interest for the same period. But then all cases are not alike. The land may be vacant, or it may be in the occupation of the vendor, or it may be in the occupation of tenants, or the purchaser may himself be in possession. The law has to apply a just rule in all these different In all cases the purchaser has the option of taking the rents from the date of contract, in the absence of agreement to the contrary, but if he do, he must pay interest from the same date. So, also, if he is in actual possession, he pays interest. If not in possession, he has the option of not paying interest until a good title having been shewn, he gets, or can, if he chooses to take it, get possession: Dart's Vendors and Purchasers, 6th ed., p. 711. cases. J.A. J. A. Judgment. Then there may be cases in which a time has been fixed MACLENNAN by the contract for completion. If everything is ready when that time arrives, the rights of the parties are as above expressed, but if delay is occasioned by the vendor the purchaser will be protected from loss as far as possible by being relieved from the payment of interest; and on the other hand, if the purchaser is guilty of delay, he must pay interest, although out of possession, and although the profits of the land may be little or nothing: Dart's Vendors and Purchasers, pp. 708, 709. . But wherever the parties have themselves, by the express terms of the contract, defined what is to be done with regard to the profits of the land and the interest of the purchase money, I repeat that it is not in the power of the Court to alter or vary what they have so settled between themselves, or to make a new agreement for them. The parties have done that in this case, and I think their agreement must prevail. The appellant also rested his appeal on another ground which, perhaps, ought to be noticed. The statute under which this petition was filed authorizes a summary application to the Court "in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of, or connected with, the contract (not being a question affecting the existence or validity of the contract)." The petition makes no case, and asks no relief, in respect of interest, or damages, or compensation for delay, and merely asks that the vendor be directed to remove certain specified objections to the title. The order of reference, too, merely directs an enquiry whether the vendor can make a good title, and if so, when it was first shewn. I think the vendor ought not to have been deprived of interest without a case being made for it, and without his having an opportunity of meeting it, and defending himself against it; and that the question of depriving the vendor of interest was in reality not properly before the learned Chancellor for decision. It follows, I think, from the conclusion to which I have come on the question of interest that the appellant is also Judgment. entitled to succeed on the question of costs, and that he MACLENNAN ought to have the whole of the costs, both of the petition and of the reference. It is necessary, however, to say a word as to the costs referred to in the judgment, of the requisitions in relation to the street called Piper Street, and the strip of land adjacent thereto. There is no mention of this in the report of the referee, but as explained to us in the argument by the counsel on both sides, I think the objection raised in respect of that street was altogether without substance, and no exception should be made of the costs of it. The sale is of certain lots on plan 52, extending 185 feet more or less from Wellington Street to a street called Piper Street. The plan referred to is produced from the registry office, and appears to have been registered on the 8th of April, 1853. It was prepared and registered by and on behalf of the then owners of the land, and it shews an allowance for a street fifty feet wide, at a distance from Wellington street of 185 feet, 6 inches. The allowance for street is distinctly marked on the plan, with the word street in large letters. I think that plan so prepared, marked and registered by the owners of the land, is sufficient evidence of dedication to make the allowance a highway, and also sufficient evidence that the parcels contracted to be sold actually extend to Piper Street, as shewn on the plan, although the street, as at present opened and used, appears to lie a foot or two further south. The order of the 26th of September will, therefore, be varied by giving the vendor interest on his purchase money, according to the terms of the contract, and also the whole of the costs of the petition, and the reference. The appeal should be allowed with costs, except so far as they have been increased by the appeal from the order of the 8th of October, which latter appeal is dismissed. J.A. Judgment. OSLER, J.A. : OSLER It is evident that the petition under the Vendors and Purchasers Act did not raise any question as to the right to interest, or the time from which the purchasers should assume or be liable for it. Nor do I see that there was any consent by either party to the question being taken up and disposed by the learned Chancellor at the hearing on further directions, so as to bar the right of appeal. The now respondents seem to have urged before him that, as it appeared from the Registrar's report that a good title was not shown until the 14th August, they should be excused from paying interest earlier than that date, at all events. The now appellant said nothing about the interest, but ineffectually attempted to attack the report. It was properly held that it was not open to him to do so, because he had not appealed from it. Then, instead of applying at that stage to postpone the hearing, and for leave to appeal, or to enlarge the time for appealing, he suffered judgment to be pronounced, and the order on further directions to be drawn up and entered, and applied afterwards for that relief. It was then too late, and on that ground his appeal from the order refusing to extend the time for appealing must be dismissed. But if, on the purchaser's appeal, the case had been presented to the learned Chancellor as it has been argued to us, I think the direction as to interest would probably not have been made. It appears to me that the petition submitted no question upon that point, and consequently that it was not before the Court for decision. Assuming, however, that it was, I must, with all respect, hold that the rights of the parties are governed by the contract. The purchasers expressly agreed to assume all interest upon the mortgages subject to which they bought, after the 1st of July, 1889, and it is a clear implication from another term of the contract that they were to pay interest on that part of the purchase money which is payable in cash, from the 18th of July, 1889. That was the bargain between the parties, and I think it is manifest that it was |