Millard v. Darrow

Millard v. Darrow

Because the defendant validly tendered the full purchase money into court and proved entitlement to a deed with covenants, he succeeded on his counterclaim for specific performance and could not properly be required to pay costs incurred after that tender as a condition precedent to conveyance; the decree was varied to award immediate conveyance and appropriate allocation of costs.

Citation
(1901) 31 SCR 196
Parties
Appellant: John Millard; Respondent: John L. Darrow
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 March 1901
Procedural Posture
Action for Price of Land; Counterclaim for Specific Performance / Appeal to the Supreme Court of Canada From Nova Scotia (judgment Below Affirmed by Court En Banc)
Outcome
Appeal allowed with variation of decree
Legal Topics
Specific Performance, Payment Into Court, Counterclaim, Conveyancing/deed, Allocation of Costs
Source Language
English
Contract Property Equity Civil Procedure Costs Specific Performance Payment Into Court Counterclaim +2 more

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Parties

John Millard

Appellant

John L. Darrow

Respondent

Procedural Posture

Action for Price of Land; Counterclaim for Specific Performance / Appeal to the Supreme Court of Canada From Nova Scotia (judgment Below Affirmed by Court En Banc)

Legal Issues

  1. 1 Whether defendant was entitled to specific performance on tendering full purchase money into court
  2. 2 Whether delivery of deed could be made conditional on defendant paying subsequent costs
  3. 3 Proper allocation of costs after payment into court and filing of counterclaim

Ratio Decidendi

Because the defendant validly tendered the full purchase money into court and proved entitlement to a deed with covenants, he succeeded on his counterclaim for specific performance and could not properly be required to pay costs incurred after that tender as a condition precedent to conveyance; the decree was varied to award immediate conveyance and appropriate allocation of costs.

Court Disposition

Appeal allowed with variation of decree

Orders

  • Respondent (plaintiff) ordered to execute and deliver forthwith a good and sufficient conveyance in fee simple of the property with usual covenants to appellant (defendant) on demand
  • Respondent to pay to appellant when taxed all costs of the counterclaim less the amount of the respondent's costs of the action up to the filing of the counterclaim; those plaintiff costs to be set off and deducted from the defendant's costs on the counterclaim