Vendor's position at law after his action for specific performance has been dismissed because the title is doubtful.

(m) Tredegar v. Windus, L. R. 19 Eq. 607, 613 - 615.

(n) Langmead v. Maple, 18 C. B. N. S. 255. And note that, under the old practice in equity, where a vendor's suit for specific performance was dismissed on some ground, which would prevent his succeeding in an action on the contract at law, as his failure to show a good title, the Court would order the return of the deposit with interest, unless the order were intended to be made without prejudice to the vendor's remedy at law; Anson v. Hodges, 5 Sim. 227; Southcomb v. Exeter, 6 Hare, 213, 225 - 228; Webb v. Kirby, 7 De G. M. & G. 376; Rede v. Oakes, 2 De G. J. & S. 518; Sug.

V. &P. 641.

(o) Above, pp. 31, 685, 692.

(p) Beere v. Fleming, 13 Ir. Com. Law Rep. 500, 513; Tredegar v. Windus, L. R. 19 Eq. 007, 614; and consider Mortlock v. Sutler, 10 Ves. 292, 318; Thomas v. Bering, 1 Keen, 729; Wedgwood v. Adams, 8 Beav. 103, 105; Collins v. Care, 4 Jur. N. S. 31; Maiden v. Fyson, 11 Q. B. 292; Webster v. Cecil, 30 Beav. 62, 64; above, pp. 69, 166 - 168, 685, 709.

(q) Hodges v. Litchfield, 1 Bing. N. C. 492; above, p. 948; Simmons v. Heseltine, 5 C. B. N. S. 554.

(r) Above, pp. 665 .sq.

(s) Above, p. 777.

20 (2)

Vendor may recover damages if the purchaser refuse such a title as he contracted to take.

Is the vendor bound at law to show a good marketable title?

(t) Above, pp. 107, 158, 1CS, 332, 430; and see next section.

(u) See Cooper v. Denne, 1 Ves. jun. 565, 566; and consider the cases cited above, n. (p), and below, notes (y), (c). Where a vendor, whose action for specific performance has been dismissed on the above ground, is entitled to retain a deposit paid to him for the reason that the purchaser has committed a breach of contract in not accepting the title, he must be equally entitled, as an alternative, to sue for damages for the breach; see note (y).

(x) Above, p. 958.

(y) Best v. Hamand, 12 Ch. D. 1, 12; and consider Re Scott and Alvarez's Contract, 1895, 2 Ch. 603; above, pp. 165 - 168; and consider Rosenberg v. Cook, 8 Q. B. D. 162; above, p. 144.

(z) Above, pp. 32, 64, 69, 70, 165 - 168, and note (y), above.

(a) See above, p. 743.

(b) Jeakes v. White, 6 Ex. 873, 881; diss. Martin, B. Note that this opinion was a dictum only, not necessary for the decision in the case.

Here it may be useful to give a brief analysis of the defences which may be made to an action for damages for breach of a contract to sell land. It should be premised that the onus lies on the plaintiff of proving the formation of the contract (i), his own fulfilment of any condition precedent to the defendant's liability (J), and the defendant's breach of the agreement (k). The defendant may set np as a defence (1) a denial of the formation of the contract, or (2) a denial of its enforceability, or (3) a denial of its validity, or (4) an assertion of his discharge from the obligation of the contract, or Defences to an action for damages for breach of the contract.

(c) Above, p. 435.

(d) Boyman v. Gulch, 7 Bing. 379. But it should be noted that, as a vendor is bound to show a good title in equity as "well as at law (above, pp. 130, 135), it was considered, after some conflict of opinion, that an equitable incumbrance might form a good ground of objection to a title in a Court of law, even before the Judicature Acts or the Common Law Procedure Act, 1854; Sug. V. & P. 400, 401; Stevens v.

Austen, 3 E. & E. 685.

(e) See Simmons v. Heseltine, 5 C. B. N. S. 554, 569, pointing out that Boyman v. Gutch was not cited in Jeakes v. White; Stevens v. Austen, 3 E. & E. 685, 700; cases cited above, pp. 165 - 168; Sug. V. & P. 400; 2 Dart, V. & P. 976, 5th ed.

(f) Above, p. 938. {g) Above, p. 333. (h) See above, p. 435. (i) Above, pp. 1 sq.

(5) a denial of the plaintiff's performance of all conditions precedent to the defendant's liability, or

(6) a denial of the alleged breach. Denial of the formation of the contract is illustrated where the plaintiff asserts and the defendant denies that some letters which have passed between them amount to a binding agreement of sale (l); or where the defendant denies that some third person, with whom the plaintiff has contracted or who has signed the memorandum of contract, was his agent having his authority to bind him (m). The defence that the alleged contract is not enforceable is raised by a plea of the Statute of Frauds (n), or of any Statute of Limitation (o). If the defendant must admit the formation, or apparent formation (p), of the contract, and cannot take the above-mentioned objections to its enforceability, he may attack the validity of the contract, and may maintain either that it is void ab initio or that it is voidable at his option and he has elected to avoid it. The contention that the contract is altogether void is illustrated where the defendant says that, owing to a mistake which he is not estopped from asserting, there was no true consent, and, therefore, no real agreement, between the plaintiff and himself (q); also where it is asserted that there has been a mistake, common to both parties, as to some fact, which is a condition precedent to their agreement (r); and where it is pleaded that the contract is void for illegality (s). The defence that the agreement was voidable at the defendant's option, and that he chooses to avoid it, occurs where he resists the enforcement of the contract on the ground of misrepresentation, whether fraudulent or innocent, duress, or undue influence (t); in most cases where he pleads some legal incapacity (u); and where he sets up some relative equitable disability in bar of the plaintiff's claim (x). The plea of discharge from the obligation of the contract has been considered in the preceding chapter (y). The objection, that the plaintiff has not fulfilled some condition precedent to the defendant's liability, is illustrated where the vendor sues for non-acceptance of the title and the defendant denies that a good title has been shown (z); or where the purchaser sues for refusal to convey and the vendor denies that the plaintiff was ready to pay the price (a); also where the contract was made subject to some condition precedent, which has not been performed (b). A denial of the alleged breach occurs where the defendant admits the contract and does not charge the plaintiff with any default in its performance, but disputes the facts alleged to constitute his own breach of the agreement. Under the present practice any defences which may be taken to an action may be raised in the alternative, notwithstanding that one ground of defence may be inconsistent with another (c).