LAND CONTRACTS. In actions for the breach of contracts for the sale of land where the vendor fails to convey, the Eng lish rule limits the damages to the amount advanced with interest and expenses incur red in examining the title. The rule dates back to Y. B. 30 Edw. III, 14 b; but the leading case is Flureau v. Thornhill, 2 W. Bla. 1078. The rule was qualified by an ex ception, established in Hopkins v. Graze brook, when the vendor knew of the defect in title ; 6 B. & C. 31; but that case was discredited as authority and the earlier rule adhered to by the house of lords ; L. R. 7 H. L. 158, affirming L. R. 6 Excheq. 59, which was followed in 36 Ch. D. 619. In American law there is great lack of harmony in the decisions, and a distinction is taken in many cases growing out of the motive of the party in default. The extreme English rule has been followed in Pennsylvania, and, appar ently, even where there is fraud ; Burk v. Serrill, 80 Pa. 413, 21 Am. Rep. 105 ; see Bet ner v. Brough, 11 Pa. 127; Meason v. Kaine, 67 Pa. 126. In other states a failure to convey for want of good title does not involve liabil ity for the value of the bargain, unless there be fraud, bad faith, or other misconduct ; Margraf v. Muir, 57 N. Y. 155 ; Baltimore Permanent Bldg. & Land Society v. Smith, 54 Md. 187, 39 Am. Rep. 374 ; Tracy v. Gunn, 29 Kan. 508 ; Yokom v. McBride, 56 Ia. 139, 8 N. W. 795 ; see Erickson v. Bennet, 39 Minn. 326, 40 N. W. 157. • Knowledge of the defendant that the ti tle was in a third person has been considered in some ,cases sufficient to warrant substan tial damages ; Purapelly v. Phelps, 40 N. Y. 59, 100 Am. Dec. 463 ; and where the failure to convey was the result of the refusal of the wife to sign the deed, the same rule was applied, Upon the theory that the vendor knew that it was doubtful if his wife would, sign; Drake v. Baker, 34 N. J. L, 358 ; Plum mer v. Rigdon, 78 Ill. 222, 20 Am. Rep. 261. In a case of contract by the defendant to sell the lands of another which he had con tracted to purchase, and failed to accomplish his object because the real owner could not make title, the judgment was reversed be cause the judge had charged in favor of sub stantial damages, and Cooley, J., held, upon a review of the cases, that Flureau v. Thorn hill must be considered as established law, but that where a party acted in had faith or sold what he did not own, such damages should be allowed ; Hammond v. Hannin, 21
Mich. 374, 4 Am. Rep. 490.
In many jurisdictions what is sometimes called the rule of the United States Supreme Court is adhered to and the purchaser is held to be entitled to the difference between the amount he has agreed to pay and the value at the time of breach. This is the op posite extreme from the English rule. Bar bour v. Nichols, 3 R. I. 187 ; Harrison v. Charlton, 37 Ia. 134; Doherty v. Dolan, 65 Me. 87, 20 Am. Rep. 677 ; Carver v. Taylor, 35 Neb. 429, 53 N. W. 386 ; Telfener v. Russ, 145 U. S. 522, 12 Sup. Ct. 930, 36 L. Ed. 800 ; Bangs v. Paullin, 37 Ill. App. 465 ; Dunshee v. Geoghegan, 7 Utah 113, 25 Pac. 731.
When the purchaser refuses to perform, the measure has been held, in England, to be the difference between the price fixed in the contract and the value of the land at the time fixed for the delivery of the deed; 7 M. & W. 474. But the rule does not appear to be well settled in this country.
The English rule has been followed by some courts ; Sanborn v. Chamberlin, 101 Mass. 409; Meason v. Kaine, 67 Pa. 126; Evrit v. Bancroft, 22 Ohio St. 172 ; Allen v. Mohn, 86 Mich. 328, 49 N. W. 52, 24 Am. St. Rep. 126. In some states where a deed has been tendered and, refused, it is held that the contract price may be recovered in full; Richards v. &lick, 17 Barb. (N. Y.) 260, the question having been left undecided in Fran chot v. Leach, 5 Cow. (N. Y.) 506 ; Alna v. Plummer, 4 Greenl. (Me.) 258 ; Goodpaster v. Porter, 11 Ia. 161; contra. 1 Pugs. 195. A purchaser in possession on an instalment contract of sale on eviction was held entitled to recover instalments made and cost of im provements ; Hawkins v. Merritt, 109 Ala. 261, 19 South. 589 ; contra, if buildings were erected without the vendor's, request; Ger bert v. Trustees of Congregation, 59 N. J. L. 160, 35 Atl. 1121, 69 L. R. A. 764, 59 Am. St. Rep. 578.
One who has' contracted for the right to purchase public land is entitled on a breach to the difference between the contract price and the saleable value of such right, and it is the vendor's duty to re-sell the right, or, failing this, to show its market value ; Tel fener v. Russ, 145 U. S. 522, 12 Sup. Ct. 930, 36 L. Ed. 800 ; evidence of particular sales of other real estate is not admissible to es tablish market value ; Allison v. Montgomery, 107 Pa. 460.