Taylor J:

Following what may now be called the interlocutory judgment* of 21 June, the defendants paid into Court the sum required, and filed amended pleadings counter-claiming specific performance of the agreement held to have resulted in equity from the letting to the Association.The plaintiffs filed it defence to the counterclaim and the suit was set down for further hearing.No further evidence was adduced by either side.

The plaintiffs plead that they had no express notice of the agreement.In the absence of any evidence of special circumstances the Court is entitled to presume that the plaintiffs made the ordinary enquiries before they bought the property.Immediately after completion they wrote to the defendants (AB p. 11) claiming rent and asking them to "enter into a new tenancy". It is therefore clear, not only that the plaintiffs knew the facts but also that at that stage and for several months afterwards, they and their then solicitor believed that the apparent tenancy was valid.

The main argument for the plaintiffs was that equity will not decree specific performance of an agreement to grant a term which has expired.The authorities do not support the proposition in that unqualified form.Great emphasis was laid on Walters v. Northern Coal Mining Co. 43 ER 1015 but that case is readily distinguishable on the facts.There, the landlord sought to compel execution of a lease, the intended term of which had expired, not because either party wished to enforce the lease as such, by occupation, but solely to enable the plaintiffs to sue on the covenants.That was long before fusion under the

Judicature Acts.The Court held that the plaintiffs had other and sufficient remedies.Here the claimants genuinely seek enforcement of the agreement so that they can continue in actual occupation and they have no other remedy.

Moreover in order to found the argument, it is necessary for the plaintiffs to show that the intended term had expired.Their contention is that if it was agreed to grant a monthly tenancy, that tenancy was terminated by the letter of 27 May 1952.That letter was in the form of an ordinary legal notice to quit, with a parenthesis denying the tenancy.On its face it is inconsistent.If no tenancy exists the form of the notice is inappropriate.The construction most favourable to the owner is :- "We deny that you are legal tenants but in case it should be held that you are, we hereby give you formal notice to quit.In any event we require you to vacate.

As there was no legal term in existence the letter could not and did not put an end to a term.Its effect depends on the nature of the relation between the parties at that date.They were not in any relation arising from tenure or legal contract.There never was any actual agreement between them.The only actual agreement was the agreement with the previous owners.The plaintiffs came on to the scene later as purchasers, with notice.

It is well settled that purchasers of land in which a party other than the vendor has an interest, are trustees for that party of all the rights of which they have notice.The attempted letting to the Association operated as an agreement to grant a tenancy to trustees for the Association.The plaintiffs therefore became constructive trustees for the Association and were bound in equity to grant a tenancy to express trustees when appointed.The letter amounted to a repudiation of this equitable obligation to create a legal term.

Other arguments advanced by the plaintiffs may be mentioned briefly.They objected that the right to sue for specific performance does not arise unless and until performance of the contract has been requested and refused.No authority for this proposition was cited.It is a technical point to which the defendants suggested several technical answers.It is not necessary to discuss these here because, in my view, the point affects costs only.

The plaintiffs raised the question of limitation.This was debated on its merits and dropp