Interest payable by purchaser in possession notwithstanding ambiguity in contract.

And inasmuch as, until a title is shown, there is no right to either principal or interest, arrears of interest, not for six years only, but for an indefinite period, may be recovered when a title is shown: the case in the interval not being within the Statutes of Limitation (g).

Claim not confined by statute to six years' arrears.

As a general rule, possession and interest are mutually exclusive; so that if the purchaser is in possession he is chargeable with interest (independently of special contract), but if the vendor is in possession, the purchaser will not usually be chargeable with interest. A special bargain, purporting to give either party both rents and interest, will be narrowly scrutinized by the Court (h).

Agreement giving purchaser rents and interest.

(d) (1850) 1 Mac. & G. 336; 18 L. J. Ch. 159; 19 L. J. Ch. 52; stated inf. p. 552.

(e) See Dyson v. Hornby, (1851) 4 De G. & S. 481; and see inf. p. 552 el seq.

(f) A.-g. v. Christ Church, (1843) 13 Si. 214; 12 L. J. N. S. Ch. 28; Powell v. Martyr, (1803) 8 Ves. 145; Fludyer v. Cocker, (1806) 12 Ves. 25; Birch v. Joy, (1852) 3 H. L. C. 565; Ballard v. Shutt, (1880) 15 Ch. D. 122; 49 L. J. Ch. 618.

(g) Toft v. Stephenson, (1854) 5 D. M. & G. 735, 737; 21 L. J. Ch. 129. (h) Birch v. Joy, (1852) 3 H. L. C. 565.

If no time is fixed for completion, the purchaser pays interest upon his purchase-money, unless lying idle with notice of the fact to the vendor, from (it is conceived) the date of the contract, if the purchaser is then in possession, etc. (i): or, if he is not then in possession, from the time of his taking possession (k); or from the time at which he might prudently have taken possession (l), - supposing it to have been offered to him; - i.e., the time when a good title was 6hown.

If no time fixed for completion, interest is payable from possession taken or title shown.

With regard to purchases by a railway company under its statutory powers, the ordinary rule in respect of payment of interest as between vendor and purchaser applies, accordingly interest is to be calculated from the time when the company might prudently take possession (n).

The rule as to interest on purchases under statutory powers.

And a vendor's claim to interest from the time when a good title was actually shown, may be enforced, notwithstanding his having subsequently and unnecessarily adduced further evidence upon which the purchaser accepted the title (o). And the non-production of material evidence will not negative the vendor's claim to interest, if it has been occasioned by the purchasers having taken and insisted on an untenable objection to the title, and has not in itself been a point in dispute (p).

Right to in ordinary cases, how affected by production or non-production of evidence.

A purchaser taking possession subsequently to the contract cannot, by giving up possession, escape his liability even to subsequent interest (q).

Payment not evaded by giving up possession.

(i) Ex p. Manning, (1727) 2 P. W. 410.

(k) Fludyer v. Cocker, (1806) 12 Ves. 25; A.-g. v. Christ Church, (1842) 13 Si. 214; 12 L. J. N. S. Ch. 28.

(l) Binks v. Lord Rokeby, (1818) 2 Sw. at p. 226; and see Portmpn v. Mill, (1839) 3 Jur. 356; 8 L. J. N. S. Ch. 161; Moloney v. Henshaw, (1891) 29 L. R. Ir. 363; Re Cary-elwes' Contract, 1906, 2 Ch. 143, 148.

(n) Rhys v. Dare Valley R. Co., (1874) 19 Eq. 93; Re Pigott and. G. W. R. Co., (1881) 18 Ch. D. 146; 50 L. J. Ch. 679; Spencer-bell to L. & S. W. R. Co., (1886) 33 W. R. 771; and see Re Shaw and Birmingham Corp., (1884) 27 Ch. D. 614; 54 L. J. Ch. 51; Fletcher v. Lanes. & Y. R. Co., 1902, 1 Ch. 901; 71 L. J. Ch. 590.

(o) Litchfield v. Brown, (1853) 23 L. J. Ch. 176.

(p) Monro v. Taylor, (1852) 3 M. & G. 713; 21 L. J. Ch. 525.

(q) See Binks v. Lord Rokeby, (1818) 2 Sw. 222, 226.

In cases, however, to which the statutory conditions of sale of 1925 apply, it would seem that a purchaser in possession is, prima facie, not liable to pay interest if the delay in completion is due to the default of the vendor (r).

Upon the purchase of a reversion, the mere wasting of the particular estate by lapse of time appears to be (for the purpose of the above rules) equivalent to possession by the purchaser (s); and where an estate which has been let for a long term, which has some years to run, at a rent originally representing its agricultural value, is sold as building land, subject to the term, the purchase may be considered as the buying of a reversion, within the stringency of the rule (t).

Vendor's default excludes purchaser's liability to interest under statutory conditions.

Wasting of particular estate on sale of reversion equivalent to possession.

In an unreported case, where delay had occurred in making out the title upon a sale by the Court of an estate subject to a lease for a life at a low rent, it was contended and acquiesced in that the purchaser, paying interest during the delay, should be allowed by way of compensation the difference between such interest and the sum of the rents received, and the increase in value of the reversion by the wearing out of the life, such increase being ascertained by an actuary; so that he was, in effect, charged with, in lieu of interest, merely his actual receipts and the estimated improvement of the reversion; and this seems correct (u).

Upon a purchase by a mortgagee, the Court after the lapse of several years held that, in the absence of any e±pres8 agreement, interest upon his mortgage debt must be set off against the interest of a corresponding portion of the purchase-money, from the time of his taking possession (a;).

Mortgagee, interest set off on purchase by.

(r) See the Condition No. 4 set out in the Appendix.