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 Ball ft Beatty 
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 Bing-ham, N. 
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 Carringrton & 
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 Chitty— '2 vols. 
 Clark ft Finne 
 36 
 CoUyer— 2 vols 
 Common Beni 
 72, 75, 77, 78, 
 Common Ben' 
 Cooper temp. 
 Cooper, G. 
 Cooper, Pr. Ci 
 Cooper temp. 
 
 COJC— •-' vols. 
 
 Craig: & Philli 
 Crompton ft J 
 Crompton & M 
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 Daniell 
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 CASKS FROM 
 
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 Jurist 
 
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 15 
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 60, 61. 63, 64, 66 
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 51
 
 Second Edition, Now Complete in 15 Volumes, 
 Price £15 15s. Cash with order, £14 19s. 3d. 
 
 ENCYCLOPEDIA 
 
 OF THE 
 
 LAWS OF ENGLAND 
 
 WITH 
 
 FORMS and PRECEDENTS. 
 
 THE work has been completed in a definite number of 
 volumes and within a definite date. 
 
 It is not a collection of small text books, but is a 
 work which enables the enquirer to find with a minimum 
 of time and trouble the point he is in search of, and does 
 not necessitate first a reference to an index. It contains 
 numbers of articles on subjects not to be found in any 
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 The articles are all written by competent lawyers whose 
 names guarantee accuracy, and their work does not need 
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 application to 
 
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 A 
 
 f^rrali^e 011 tire 'Xnfo af 
 
 VENDOE AND PURCHASER 
 
 OF 
 
 REAL ESTAIE AM) CHATTELS IIKAL. 
 
 INTENDED FOR THE USE OF 
 
 CONVE VANCE RS 
 
 OF EITHER BRANCH OF THE PROFESS/OA\ 
 
 BY 
 
 T. CYPRIAN WILLIAMS, 
 
 OF LINCOLN S INN, BABKISTER-AT-LAW, LL.B. ; FOEMt^HLY LECTIEER ON CONV>:YANriNf> 
 TO THE INCOEPOKATEB LAW SOCIF.TY OF THE UNITED KINGDOM, 
 
 Editor of " jnilinnis oti Real Froperii/'^ and " WilliamH on Prrx&nf'/ I'lopftti/.'^ 
 
 SECOND EDITION 
 IN TWO VOLUMES. 
 
 Vol. I. 
 
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 3, CHANCERY LANE, WO. 
 
 1910.
 
 
 LONDON : 
 PRINTED BY C. F. EOWOETH, 88, FETTEE LANE, E.G.
 
 
 ft 
 
 '^o the Jttcmori) of 
 
 AIY FATHER AND MASTER IN THE LAW, 
 
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 SOMETIME ONE OF THE CONVEYANCING COUNSEL TO THE 
 
 COURT OF CHANCERY, AND AFTERWARDS ONE OF 
 
 HER LATE MAJESTy's COUNSEL, 
 
 Whose wish it was that his Son should keep his name in 
 Remembrance in Lincoln's Inn, 
 
 IS A FFECTl ON A TEL T INSCRIJi ED. 
 
 722831
 
 ( ^ ) 
 
 PREFACE 
 
 TO THE SECOND EDITION. 
 
 In this edition arc incorporated all the changes made 
 in the law since the first publication of the book (aj, 
 and the whole of the text has been carefully revised. 
 Besides these emendations, the author has been 
 emboldened by the very kind and gratifying recep- 
 tion, which his treatise met with at the hands of the 
 profession, to add a considerable amount of entirely 
 new matter. This work, in its first edition, was 
 originally planned on a smaller scale than that on 
 which it was executed. But over ten years elapsed 
 between the commencement of the book and its 
 completion ; and the author, in the course of working 
 out his design, was led to elaborate the later part of 
 his treatise in a way which rather exceeded the pro- 
 portions observed in the earlier chapters. The aim of 
 the additions now made, which occur chiefly in the 
 first half of the book, has been to harmonise those 
 proportions with the lines on which the work was 
 finished. 
 
 (a) Vol. i., containing Chaps. I. — XII., was published in October, 1903 ; 
 a temporary volume, containing Chaps. XIII. — XVI., appeared in 
 January, 1905 ; and vol. ii. in its entirety was published in April, 1906.
 
 VI PREFACE TO THE SECOND EDITION. 
 
 The writer is well aware how delicate a task the 
 enlargement of a law book is, and knows that such an 
 undertaking too often results in marring the symmetry 
 and injuring the literary quality of the original work. 
 But he has done his best to avoid these evils ; and 
 trusts that his additions have not damaged the book, 
 but will make it more useful to the profession. 
 
 As the additions are much intermixed with the 
 original text, it may be convenient to point out 
 exactly what they are. The following matter is 
 new: — The note (p. 4, n. {ni)) on the question whether 
 on the sale of land without naming the price the law 
 implies an agreement to buy at a reasonable price ; 
 the examples stated on p. 6 of the sale of land by a 
 general description (notes (u — (>) ), and the criticism 
 in note (b) of the case of Plant v. Bourne (b) ; the 
 whole paragraph on pp. 24 — 26 as to the inadvertent 
 acceptance of a bidding lower than the reserve 
 price, &c. ; the paragraph on pp. 29, 30, as to altera- 
 tions in the contract ; the sentences on pp. 33 — 35, to 
 which are annexed notes (k, n and u) ; the statements 
 on p. 36 as to the remedies for breach of the contract ; 
 the sentences on pp. 37 and 39, to which are annexed 
 notes {a, c and k) ; paragraphs (3) and (4) on pp. 44, 45 
 (these have been re-written); the paragraph on pp. 54, 
 55, as to re-sale as owner ; the paragraph on pp. 69, 
 70, as to the stipulations left to be implied on sales by 
 auction, and the sentences, to which notes {(/, h) are an- 
 
 {h) 1897, 2 Ch. 281.
 
 PREFACE TO THE SECOND EDITION. Vll 
 
 nexed, in the succeeding parao^raph ; the whole of p. 76 ; 
 the paragraphs on pp. 78 — 83, as to special stipulations 
 usually made in particular cases of sale by auction ; 
 the sentences on pp. 106, 107, as to the conveyance of 
 an equity of redemption and a transfer of mortgage ; 
 that on p. 114 as to documents incorporated by refer- 
 ence; the paragraph on pp. 119, 200 as to title-deeds 
 executed by attorney; those on pp. 124 — 180, as to 
 title-deeds in the custody of a mortgagee or subject to 
 a solicitor's lien ; the sentence on p. 139 as to state- 
 ments of fact in public documents and notes {c, d) 
 thereto ; that on p. 154 to which note (/) is annexed; 
 the statements on pp. 155 — 159 as to presumptions; 
 the statement at the end of note (n) to p. 166, calling 
 attention to what seems to have been an oversight in 
 the decision of Parker, J., in Halkett v. Dudley {c)\ 
 note (,y) to p. 168 ; the sentences on pp. 176, 177, to 
 which notes (c, </, o, ^>, ^, r) are annexed ; those on 
 pj). 183, 184, to which notes (,^, 5-, <?, /) are annexed; 
 the last half of p. 185 from ''It is held," and 
 notes (/<:, I) thereto, the latter note containing a 
 criticism of the grounds alleged by Parker, J., in 
 Halkett v. Dudley [d)^ for the purchaser's right to 
 repudiate the contract at once, if the vendor fail to 
 show a good title ; the sentence on p. 1 87 to which 
 note {n) is annexed ; the last two sentences on p. 191 ; 
 the sentence on p. 244, to which note {t) is annexed ; 
 that on p. 264, to which note (/) is annexed ; that on 
 
 (c) 1907, 1 Ch. 590, 606. {d) 1907, 1 Ch. 590.
 
 Vlll PREFACE TO THE SECOND EDITION. 
 
 p. 267, to which note (d) is annexed ; p. 269 down to 
 note(o) ; note (d) to p. 294, dealing with the execution 
 of powers by will ; the statements on pp. 297, 298, as 
 to the exercise of powers to appoint land amongst 
 unborn issue ; the paragraph in the middle of p. 299 ; 
 the first sentence on p. 317; pp. 318 — 327, dealing 
 with the law expounded in Be Dickin (ind KehalVs 
 Contract [e], as to a tenant for life's power of convey- 
 ance under the Settled Land Acts, &c. ; the latter 
 half of p. 329 from " It is submitted " to the end of 
 p. 331 ; the sentences on pp. 332, 333, to which notes 
 {n, 0, s) are annexed ; that on p. 339, to which note (a) 
 is annexed ; the paragraph on pp. 344, 345, as to sale 
 by the mortgagee's attorney ; that on pp. 349, 350, as 
 to fines on admittance after the death of an unadmitted 
 surrenderee ; pp. 363 — 372, dealing with the sale of 
 renewable leaseholds, satisfied terms, merger of terms, 
 enlarged terms, leaseholds settled to go with freeholds, 
 options to purchase contained in leases, and rever- 
 sionary leases ; note {Jc) to p. 374 ; note {z) to p. 377 ; 
 the sentences on p. 379 to which notes [n, o, p) are 
 annexed; the statements in note (/>) to p. 385, dis- 
 cussing the criticism made in the " Law Quarterly 
 Review " on a passage in the text ; pp. 386 (from '' It 
 is also desirable") to 393 (end of § 3), dealing princi- 
 pally with the possibility of evading compulsory regis- 
 tration of title ; so much of pp. 396 — 398 as relates to 
 the changes made by the Finance (1909-10) Act, 1910 ; 
 
 (e) 1908, 1 Ch. 213.
 
 PREFACE TO THE Si:COND EDITION. IX 
 
 the paragraph on pp. 400, 401, as to sale of the reversion 
 on a lease, where succession duty is payable at the end 
 of the term, <fec. ; pp. 403, to the end of the tirst para- 
 graph on p. 405 ; pp. 409 to 483, dealing with allot- 
 ments, exchanges, mines, roads, rivers, water rights, 
 fishing and sporting rights, wastes, rights of support, 
 undivided shares in land, and trusts for conversion ; 
 the sentence on p. 436 as to the release of part of land 
 subject to a rent seek; note {z) to p. 446, as to the 
 meaning of " an assurance " ; pp. 456 — 459, discussing 
 the question whether a contract to sell land to a charity 
 is an assurance within the meaning of the Mortmain 
 and Charitable Uses Acts, 1888 and 1^91; the first 
 paragraph on p. 465 ; pp. 469, 470, as to the power of 
 a surviving partner to sell or mortgage the lands of 
 the firm ; pp. 482 — 487, as to marshalling securities, 
 clog on redemption and mortgages to moneylenders ; 
 pp. 489, 490, as to compensation for non-renewal of 
 licences; the sentence on p. 491 to which note {})) is 
 annexed, and notes {q^ r) to that page ; those parts of 
 notes (/, u) to p. 492 which deal with the case of Be 
 Nisbet and Potts' Contract (/), and lands taken under 
 the Lands Clauses Act, 1845; the statement in note (^) 
 to p. 493 ; note ( ji) to p. 532 ; the sentence on p. 546 
 to which note [y) is annexed ; those on p. bb 1 to which 
 notes (c, t', /') are annexed; the statements on pp. 559, 
 560, as to execution against the purchaser ; those on 
 p. 580 as to the acceptance of title by not sending in 
 
 (y ) lyuG, 1 Ch. oS6.
 
 X PREFACE TO THE SECOND EDITION. 
 
 requisitions in time ; notes (.r, //) to pp. 599, 600 ; 
 note(/)to p. 616; the sentence on p. 617 to wliicli 
 notes (<7, r) are annexed ; that on p. 624 to which 
 note {y) is annexed; pp. 630 from " We have seen " 
 to 638 and note {m) to p. 634, discussing the questions 
 raised in the recent case of Re Sansom and Narhethh 
 Contract {g) as to the purchaser's right to conveyance 
 by reference to a plan ; the sentence on p. 635 to 
 which note (?•) is annexed ; the second sentence in 
 note {t) to p. 650 ; those on p. 668 to which notes (r, 6-) 
 are annexed ; the last three sentences in note (s) to 
 p. 678 ; the paragraph on p. 684 as to solicitor's lien ; 
 the statements on pp. 696, 697, as to the new stamp 
 duties ; pp. 706 — 712 relating to increment value duty ; 
 note ( p) to p. 7 1 3 as to the taxes on land ; note {z) to 
 p. 733 as to solicitors' remuneration ; the last part from 
 " The case of Re Meijer " of the note on p. 752 ; the 
 sentence on p. 753 to which note (w) is annexed ; the 
 statements on pp. 790, 791. as to the case of Thompson 
 V. Hickman {li) ; the sentences on pp. 829, 830, to 
 which notes (^, t/, e) are annexed ; the latter half of 
 note ( J)) to p. 842 ; the sentence on p. 843 to which 
 note (,//) is annexed ; that on p. 856 as to stipulations 
 in general restraint of alienation and note (6) thereto; 
 and the paragraph on p. 865 as to the sale of land for 
 tlie use of a charity. Altogether the fifteen chapters 
 now included in the first volume contain one hundred 
 and thirty-five pages more than in the first edition. 
 
 (7) 1910, 1 Ch. 741. (70 1907, 1 Ch. 550.
 
 PREFACE TO THE SECOND EDITIOX. XI 
 
 Owing to the proposed enlargement of the table of 
 cases, which will expand the size of tlie second 
 volume, Chapters Xlll. to XV., on Mistake, Mis- 
 representation, &c. and Illegality, are in this edition 
 transferred to the first volume. In connexion with 
 the subject of Mistake, the author may point out that 
 the theory, which he has adopted, as to the law of 
 Mistake in relation to contract, is su])ported by the 
 recent cases of Re Meijer {i) and Hood v. McKinnoii (^) ; 
 see pp. 749, 750 and note(/). He also submits that 
 his criticism of the doctrine applied in Davies v. 
 Fitton (I) and 31af/ v. Piatt {m) has since been justified 
 by the judgment of Neville, J., in Thompson v, 
 Hichmui iyn) \ see pp. 786 — 791. The writer may 
 also cite the authority of the same learned judge in 
 Beaie v. Kyte (o) in support of his criticism of the 
 case of Bloomer v. Spittle [p)\ see pp. 794 — 801, 
 796, n. (/•). 
 
 The long delay in passing the Finance (1909-10) 
 Act, 1910, made it impossible to keep the section on 
 the Death Duties in the place allotted to it in the first 
 edition (Chap. VII. § 2). This section has therefore 
 been moved into the second volume, and will be 
 printed at the end of it as a separate cliapter 
 
 (i) 1908, P. 353. writing together with specific per- 
 
 {k) 1909, 1 Ch. 470. formauce of the agreement as 
 
 (/) 2 Dru. & War. 225. rectified. 
 
 (//() 1900, 1 Ch. 016. This doc- {n) 1907, 1 Ch. 550. 
 
 trine is that the Court will not (o) 1907, 1 Ch. 564. 
 
 grant, at suit of a phiintiti', the (/<) L. U. 13 E4. 427. 
 rectification of an agreement in
 
 Xll PREFACE TO THE SECOND EDITION. 
 
 (Cliap. XXL). The Appendix, which will contain 
 some additional forms, has also been transferred to 
 the second volume. 
 
 As in the first edition, the tables of cases and 
 statutes, as well as the general index, will be placed 
 at the end of the second volume. In this edition, 
 however, references to all the reports will be given in 
 the table of cases ; and a separate index will be added 
 of the defendants' names in the cases cited. The 
 general index will also be tlioroughly revised and 
 enlarged. 
 
 The entire work of correcting the press for this 
 edition has been undertaken by the author's former 
 .pupil, Mr. H. Ernest Glaisyek, of Lincoln's Inn, 
 who is also responsible for the table of contents, and 
 is engaged in preparing the tables of cases and 
 statutes and the general index. 
 
 The Addenda to this volume contain cases reported 
 whilst it was in the press, and include those reported 
 in the Law Reports for October, 1910. 
 
 7, Stone Buildings, Lincoln's Inn, 
 I'lth October, 1910.
 
 ( xiii ) 
 
 INTRODUCTION 
 
 TO THE 
 
 FIEST VOLUME OF THE FIRST EDITION. 
 
 The writer can hardly put forward a treatise on the law of Vendor 
 and Purchaser of Land without an apology for adventuring upon 
 the field successively occupied by so eminent a Real Property 
 lawyer as Lord St. Leonards, and a writer of such profound know- 
 ledge of conveyancing and great literary skill as Mr. Dart. His 
 excuse is that so many years have elapsed and so many and great 
 changes have been made in the law, not only since Mr. Dart first 
 wrote, but even since he himself supervised an edition of his book, 
 that there appears to be room for a re- statement of the principles of 
 the law of sale of land from the standpoint of the present time. 
 Such a statement of the law it has been the writer's aim to make ; 
 and he has particularly endeavoured to give a readable account 
 of it. 
 
 This book is intended for the use of those engaged in the practice 
 of conveyancing, whether as counsel or solicitors. Its design has 
 therefore been to discuss the incidents of a contract for the sale of 
 land as they are usually presented to the notice of conveyancers ; 
 that is to say, in order of time. And the scheme of the work is to 
 treat first of the normal course of such a contract, where it has been 
 made between persons of full capacity and is duly brought to com- 
 pletion, and to examine afterwards the grounds for avoiding the 
 contract, such as incapacity, mistake, fraud or misrepresentation, 
 and the remedies to be pursued in case of its breach. Thus the 
 book begins with a statement of the law relating to the formation 
 of a contract for the sale of land. It then gives a brief general 
 account of the rights, obligations and remedies of the parties who
 
 XIV INTRODUCTION TO THE 
 
 have concluded sucli a contract ; and the terms of an open contract 
 are particularly set out («) in the same form in which the special 
 provisions of a contract for sale are usually expressed. After this, 
 the usual conditions of sale are dealt with ; and the reader's 
 attention is then directed to the vendor's obligation to show a good 
 title and its discharge. The subject of the investigation of title is 
 considered, first generally, and afterwards with regard to a variety 
 of special points or subjects, all of which are of constant occiirrence 
 in the work of advising on title. In selecting the subjects to be so 
 discussed and in determining upon their mode of treatment, the 
 writer has necessarily had to take into account the exigencies of the 
 law and practice at the present time ; and he has often been 
 constrained to deal at some length with topics which may be 
 thought to be ephemeral, and which would be disposed of by a 
 statement of very different proportion, if he could regard nothing 
 else than the ideal form of a literary composition. Thus he has 
 devoted the whole of one chapter to the subject of devolution on 
 death, and the death duties {b), regarded from the conveyancer's point 
 of view. But his reason is that on these subjects the law has been 
 so lately recast by the Land Transfer Act, 1897, and the Finance 
 Acts, that its interpretation has not yet been settled ; whilst the 
 questions which are raised by these statutes occur upon almost every 
 title. At the end of the dissertations on particular points arising on 
 the investigation of title, or on particular titles, the main thi'ead of 
 the discourse is again taken up in the chapter on the effect of the 
 contract pending completion. This is followed by an account of the 
 completion of the contract, dealing with the acts to be performed 
 from the time of the acceptance of the title down to the execution of 
 the conveyance. 
 
 At this point the first volume concludes (c), the reader having 
 been conducted throughout the whole of the normal course of a 
 contract for the sale of land. In the second volume it is proposed to 
 treat of the parties' position after completion (as with regard to a 
 want of title not ascertained until after that time") and with the 
 avoidance of the contract and the remedies for the breach thereof, as 
 already mentioned. The second volume will also include a chapter 
 on the sale of registered land, a subject which would have been 
 
 (a) Pp. 39, 41 sq. (b) See above, p. xi. 
 
 (c) See above, pp. v, n., xi.
 
 FIRST VOLUME OF THP: FIRST EDITION. XV 
 
 considered in the present volume, but for the delay in promulgating 
 the new Land Transfer Rules. 
 
 The writer has not attempted to compile an encyclopaedia of the 
 law of sale of land. His object has been ratlier to treat of the 
 main principles of the law and practice incident to such sales than 
 to note every special circumstance which may possibly attend them. 
 His belief is that a sound kno<vledge of these principles is by far the 
 best aid to the solution of the particular problems which are 
 encountered in practice. And his hope is that, in this respect, 
 his book may be found a useful guide to those gentlemen who are 
 obliged (as constantly happens in small transactions) to advise 
 on difficult questions of conveyancing without the as.sistance of 
 counsel. 
 
 Perhaps the writer may be allowed to say that he has not 
 avoided the discussion of points of law or practice, which are not 
 exactly covered by decided cases, or settled by the opinion of 
 conveyancers or text writers of acknowledged eminence ; nor has he 
 hesitated to criticise judicial decisions or dicta, which appear to him 
 to be of questionable autliority. Thus, he has discussed the 
 following amongst other questions: — Whether, after the acceptance 
 of a bidding at an auction, either party can revoke the authority 
 conferred by him upon the auctioneer to sign a memorandum of the 
 contract (d) ; whether the purchaser's right to a good title is an 
 implied term of the contract or a collateral right (e) ; whether a 
 vendor under an open contract has the right of re-sale on the 
 purchaser's failure to observe tlie terms of the contract {/) ; 
 whether a voluntary conveyance is a good root of title under an 
 open contract {y) ; at what time the purchase-money is payable on 
 a sale of land situate in a compulsory registration district (A) ; and 
 to what extent the usual remedies for securing payment of a rent- 
 charge in fee are obnoxious to the rule against perpetuities [i). He 
 has tried to elucidate the mystery of what is called " the compound 
 settlement " in connection with sales under the Settled Land Acts (k), 
 and he has respectfully protested {I) against the decision in the late 
 case of Re Cormvallis West and Mtmro's Contract {ni). He has 
 
 {d) P. 21, n. [r]. {«) Pp. 435, 436, 674—679. 
 
 {e) P. 32, note. ^j.^ p 3^^ 
 
 (/) Pp. .51-53. ^ ' ^ 
 
 iff) P. 109. (0 Pp. 314-316. 
 
 (A) P. 385 and n. (p). (,„) I903, 2 Ch. 150.
 
 XVI INTRODUCTION TO THE 
 
 likewise considered the important point — on which, he is aware, his 
 IB vox clamanlis in deserio — whether a convej'ance by a tenant for 
 life under the Settled Land Acts can override a mortgage by the 
 remainderman (n). And he has adverted to the difficulties now 
 raised where a limited owner pays estate duty out of his own 
 pocket and so becomes entitled to a charge for the amount paid (o) ; 
 with regard to the charge of estate duty on the de^th of several 
 joint mortgagees not appearing to be trustees (/>) ; where a 
 purchaser receives notice of some unregistered process of execu- 
 tion (q) ; and with regard to the effect of orders made in exercise 
 of bankruptcy jurisdiction in creating a charge on land (r). He has 
 suggested (s) that the assignee of part of land let on lease, who pays 
 the rent for the whole under threat of distress, may have a remedy 
 which was overlooked in the case of Johnson v. Wild{t). And he has 
 criticised the decisions in Bolton v. London School Boiird (u), Re 
 Selous (x), Re Williams and Netvcasile's Contract {y) and the late 
 case of Re Highett and Bird\i Contract (z). Besides this, he has 
 inquired into the advantages of official over private searches {a). 
 He has made a strong effort to convince his readers of the great 
 hardship which may befall a purchaser by private contract, whose 
 advisers tamely submit to the incorporation in the contract of the 
 conditions usual on London sales by auction {b). He has dealt with 
 the subject of the investigation of title in view of a mortgage (c). 
 And he has treated at some length of the law of restrictive 
 covenants (r/), a subject on which many important decisions have 
 been given during the last few years, and on which the latest 
 leading case (e) is of such recent date that it has not yet been 
 reported in the Law Reports. He has moreover taken account, 
 from the outset (y"), of the additional burthen laid on conveyancers' 
 
 («) See p. 319, n. (i). (y) 1897, 2 Ch. 144; see p. 681, 
 
 (o) See Chap. XXI. below. 
 
 {p) Pp. 242—245. (z) 1902, 2 Ch. 214 ; 1903, 1 Ch. 
 
 [q) P. 584. 287; seep. 354, below. 
 
 (»•) P. 386. [a) Pp. 605 sq. 
 
 (a) P. 362. (*) Pp. 83—93. 
 
 {t) 44 Ch. D. 146. [c) P. 498. 
 
 \u) 7 Ch. D. 766; below, p. 137. {d) Pp. 491 ,sq., 647, 666, 670, 674. 
 
 n. {p). [e) Formbi/ v. Barke)-, C. A. (July 
 
 (a:) 1901, 1 Ch. 921; see p. 466, 14), 1903, W. N. 133; 72 L. J. Ch. 
 n. {z), below. 716; 51 W. R. 646. 
 
 (/) Pp. 38, 39, 88, 204—208.
 
 FIRST VOLUME OF THE FIRST EDITION. XVll 
 
 shoulders by the development of the doctrine, which culminated {g) 
 in the extraordinary case of Scott v. Alvarez (h). 
 
 It is hoped that this book may be useful, not only to practitioners 
 but also to students preparing for conveyancing practice in either 
 branch of the profession. With this object the author has en- 
 deavoured, throughout the vrork, to write in a manner intelligible 
 to those who have no greater preliminary knowledge of the subject 
 than an acquaintance with the elements of the law of real property 
 and of contract. He may point out that the earlier part of his 
 treatise (Chapters I. — V.), which 'gives a general account of the 
 subject, is especially adapted to the use of students, and that it is 
 designed to prepare them to understand the rest of the book, in 
 which matters of interest to practitioners are more particularly 
 dealt with. The writer has started with the assumption that his 
 readers will at least have such an acquaintance with the law of real 
 property as may be gathered from a text-book like " Williams on 
 Eeal Property " ; and he has not thought it necessary to repeat here 
 descriptions of those parts of the law, which are explained in that 
 book in an elementary way. Thus he has not inserted an account 
 of the historical progress of the law of creditors' rights (/) as an 
 introduction to his discourse about searches {k). But he has tried 
 throughout so to treat his subject that readers may understand, 
 who have no greater knowledge than this. 
 
 ((/) This doctrine appears to have minster Hall a man may succeed in 
 
 originated with the case of Best v. his suit under circumstances in which 
 
 Ilamancl (1879), 12 Ch. D. 1 ; see Fry, he would undoubtedly be defeated on 
 
 Sp. Perf. § 1325, p. 592, 3rd ed. the other side" (Wms. Real Prop. 
 
 (A) 1896, 1 Ch. 596; 2 Ch. 603. 129, 1st ed. ; 177, 13th ed.). But this 
 
 This case must have shattered the last npparent paradox is eclipsed by the 
 
 ruins of the delusion that law and judicial ruling that, in the same Court 
 
 equity were fused by the Judicature and cause and in a matter depending 
 
 Acts. It appears in truth to be on the effect of the same stipulation in 
 
 equally destructive of the pretensions the same contract, a suitor may at the 
 
 put forward by eminent judges (see same time obtain and be denied sub- 
 
 p. 58, n. («), below), that a contract is stantial relief according as his claim is 
 
 really construed in the same manner rested on the doctrines of equity or of 
 
 in equity as at law. In the days when law. 
 
 the Courts of Common Law and Chan- (i) See Wms. Real Prop. Chap. XI., 
 
 eery were separate, the student's curi- 2l8t ed. 
 
 osity used to be stimulated by the (/•) Below, p. 580. 
 statement that ' ' on one side of West-
 
 XVlll INTRODUCTION TO THE 
 
 The writer is conscious of many imperfections in his treatise, and 
 for these he must ask the indulgence of the profession. He has 
 been occupied with the task of its production for several years ; hut 
 he has only been able to prosecute his undertaking during such 
 time as he could spare from his other work. He will be much 
 obliged if readers, who discover mistakes or omissions, will kindly 
 inform him of them. 
 
 Mr. J. F. Iselin is responsible for the correction of the press, 
 except as regards pp. 1 — 128 ; and he has undertaken the work of 
 preparing the Index. He has also supplied the writer with many 
 valuable notes for the preparation of Chapter XI., and is aflfording 
 him the like assistance with regard to certain parts of the second 
 volume. The author has endeavoured to make up for the absence 
 of the Index from Vol. I. by using particular care in compiling the 
 Table of Contents, and by inserting therein references to the pages 
 under each heading. 
 
 7, Stone Buildings, Lincoln's Inn, 
 
 Sfh October, 1903. 
 
 The following parac/raph, relating to Chaps. XIII. to 
 XV., now included in the First Volume (^l), originallg 
 formed part of tfie Introduction to the Second Volume. 
 
 The writer may mention thai; at the very outset he 
 lias found himself beset with many doubts and diffi- 
 culties as to the true theory of English law with 
 respect to mistake as a ground of avoiding the 
 contract. The view he has put forward is warranted, 
 he believes, by the English authorities ; and it is 
 supported by the statements made by the late Mr. 
 Benjamin's classical treatise on Sale. On the other 
 
 (/) See above, p. xi.
 
 FIKST VOLUME OF THE FIRST EDITION. XIX 
 
 hand, it seems to conflict with the opinion maintained 
 by Mr. Justice 0. W. Hohnes, of the Supreme Court 
 of the United States, who is perhaps the most brilliant 
 and original of all living writers on the Common Law, 
 and with that adopted by Professor Holland. And it 
 is with extreme diffidence that the writer ventures to 
 criticise their conclusions (m). The question, how far 
 mistake is available, either as a ground of avoiding a 
 contract for the sale of land at law, or of resisting its 
 specific performance in equity, was raised in an acute 
 form in the recent case of Van Praagh v. Everidge (w), 
 which unfortunately went off in the Court of Appeal 
 on the point of non-compliance with the 4tli section of 
 the Statute of Frauds. The writer has fully discussed 
 the case in both of these aspects (o). Another difficult 
 point, relating partly to the law of mistake and partly 
 to that of misrepresentation, is the effect upon the 
 contract at law and in equity of non-disclosure by the 
 vendor of a latent defect of quality, of which he is 
 aware ; and the authorities on this point have been 
 carefully considered (^?). A full examination has been 
 made of the questions, whether one may well claim 
 the rectification of a written executory agreement 
 together with the specific performance of the agree- 
 ment as rectified (y), and whether rectification ought 
 ever to be granted wliore the mistake has been 
 unilateral nnd not counnon to l)ntli parties (r). In 
 
 (w) Soe pp. 750, 7.")1, and note (i). (/>) See pp. 764 — 7<'>S. 
 
 (;/) ]'.>02, 2 Ch. '2GG; 190;',. I Ch. (y) Pp. 7SG-791. 
 
 434. (>•) Pp. 70;)— 802. 
 (o) Pp. 7t)l, 7'2G, 77<) and note (.r). 
 
 63
 
 XX INTRODUCTION TO FIRST VOLUME OF FIRST EDITION. 
 
 connection with these questions, the cases of MaTj v. 
 Piatt {s)^ Garrard Y. Frankel{t), Harris y. Pep2Jerell{ti\ 
 Bloomer Y. Spittle [x)^ and Paget v. Marshall [y) have 
 been criticised. Under the head of fraudulent mis- 
 representation, the much discussed case of Cornfoot v. 
 Fowhe {z) has been considered ; and it is suggested 
 that the decision there given may yet be in point 
 where an agent has innocently and without express 
 authority made a false statement as to some fact, on 
 which his principal was accurately informed, and it is 
 sought on this ground to set aside the contract after 
 completion («). 
 
 (.v) 1900, 1 Ch. 616. (y) 28 Ch. D. 255. 
 
 [t) 30 Beav. 445. (;) 6 M. & W. 358. 
 
 {u) L. R. 5 Eq. 1. , . p j,.,^ ^^^ ^^^^ ^^. ^^_,^ ^^24. 
 
 [x] L. R. 13 Eq. 427. > a ,
 
 ( xxi ) 
 
 TABLE OF CONTENTS. 
 
 4 
 
 PAGE 
 
 ABBREVIATIONS xlviii 
 
 ERRATUM xlviii 
 
 ADDENDA xUx 
 
 Chap. I. 
 
 OF THE FORMATION OF THE CONTRACT OF SALE. 
 
 PAGE 
 
 Sale defined 1 
 
 Requisites of a valid contract .... 1 
 
 Capacity 2 I 
 
 General capacity to buy or sell land 2 | 
 Exceptional cases reserved for I 
 
 future consideration . . 2 | 
 
 Expression of consent 3 
 
 Form 3 
 
 Consideration 3 
 
 Statute of Frauds requiring signed 
 
 writing 3 
 
 The whole agreement must appear 
 
 from the writing 4 
 
 Description of the parties o 
 
 Description of the property 6 
 
 Flnnt V. Boiime 6 
 
 The memorandum may be made 
 
 out by several documents 7 
 
 Rule as to connecting dociunents. . 7 
 
 The signature required 9, 10 
 
 Signature of the party to be charged 
 or his agent sufficient 11 
 
 Memoi'andum subsequent to the 
 contract 11 
 
 Cases where agreement enforceable 
 without compliance with Statute 
 of Frauds 11 
 
 1. Sale by Court 11 
 
 2. Where defence of statute 
 
 not taken 11 
 
 3. Fraud 12 
 
 A. Part performance 12 
 
 PAQK 
 
 Formation of contract, ofFer and 
 
 acceptance 14 
 
 Communication 14, lo 
 
 Revocation 15 
 
 Communication through the post. . 15 
 
 Time for acceptance 17 
 
 Negotiation of a contract for sale. . 17 
 
 Open contract 17 
 
 Answering proposals as to sale .... 18 
 
 The whole of the correspondence 
 
 will be looked at 19 
 
 Oral agreement 19 
 
 Oral acceptance of written offer . . 19 
 
 Sale by auction 20 
 
 Auctioneer agent to sign 20 
 
 Auctioneer's clerk 20, u. 
 
 Question of revocation of the au- 
 thority to sign 21 , n. 
 
 Employment of a puffer at an 
 auction 22 
 
 Inadvertent acceptance of bidding 
 lower than reserve 24 
 
 Liability of the o^\'ner advertising 
 a sale without reserve 25 
 
 Advertisement of 
 offer 
 
 sale is not an 
 
 Payment of a deposit 26 
 
 Deposit on sales by private contract 27 
 Stamj) on contract for sale of lands 28 
 Alterations in the contract 29
 
 XXll 
 
 TABLE OF CONTENTS. 
 
 Chap. II. 
 
 OF THE parties' RIGHTS, OBLIGATIONS AND KEMEDIES GENERALLY. 
 
 TAGE 
 Conveyancers' duties on sales .... 31 
 Outline of the effect of the contract 32 
 Whether the right to a good title 
 is an imj^lied term of the contract 
 
 or a collateral right 32, n. 
 
 Proof of title 35 
 
 Requisitions and answers 3") 
 
 Remedies for breach of the con- 
 tract 36 
 
 1. Rescission and rcHtitiitio in 
 
 intcfinim 36 
 
 2. Action for damages 36 
 
 3. Action for specific perfonn- 
 
 ance 37 
 
 Unfairness • 38 
 
 Hardship 39 
 
 4. Vendor and purchaser sum- 
 
 mons 39 
 
 Formal and informal memorandum 
 
 of an open contract 40 
 
 The fee simple sold, unless other- 
 wise specilied 41 
 
 Terms of an open contract 41 
 
 Vendor to show a good title 41 
 
 Delivery and verification of abstract 41 
 Proof of identity 41 
 
 PAGE 
 
 Necessity of a good root of title . . 41 
 
 Proper evidence of title 42 
 
 Recitals in documents 20 years old . 42 
 
 Inquiries as to earlier title 42 
 
 Vendor must produce a property 
 identical with that described in 
 
 the contract 13 
 
 Substantial errors to purchaser's 
 
 detriment 43 
 
 Insubstantial errors 44 
 
 EiTors to vendor's detriment 44 
 
 Verification of the abstract 4.5 
 
 Purchaser to accept the title, if 
 
 shown to be good 46 
 
 Completion of the purchase 46 
 
 Delivery of or statutory acknow- 
 ledgments, &c. as to muniments 
 
 of title 47, 48 
 
 Time for carrying out the contract 48 
 Rights of property and possession 
 
 pending completion 49 
 
 Interest payable if completion de- 
 layed ^O 
 
 Has vendor a right of re-salc with- 
 out express stipulation":' ol 
 
 Re-salc as owner after rescission or 
 judgment *34 
 
 Chap. HI. 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Stipulations usually made on sales 
 by auction 56 
 
 Reserving right to bid 56 
 
 Deposit; signing a memoi'andura.. 57 
 
 Time for completion 57 
 
 Time when of the essence of the 
 contract 58 
 
 Effect of fixing day for completion 
 without fui'ther stipulation .... 00 
 
 Fixtures nr timber to be taken at a 
 
 valuation 60 
 
 Eufon'ing contract to sell at a 
 
 valuation 61 
 
 Commencement of title 61 
 
 Limiting time for making requisi- 
 tions 62 
 
 Purchaser should ask for abstract . 64 
 Reservation to vendor of right to 
 rescind the contract 64
 
 TABLE OF CONTENTS. 
 
 XXlll 
 
 Chap. III. — condnued. 
 
 PAGE 
 
 Evideuce of ideutity 65 
 
 EiTors of description ; compensa- 
 tion 65 
 
 Conveyance 66 
 
 Apportionment of rents and out- 
 goings 67 
 
 Interest in case of delay in com- 
 pletion 67 
 
 Right to re-sell 68 
 
 Stipulations left to be implied in 
 sales by auction 60 
 
 Fonu uf conditions of sale l)y 
 auction of freeholds in one lot . . 70 
 
 Bidding; right to bid reserved. ... 70 
 
 Deposit ; contract to be signed .... 71 
 
 Fixtures and timber to be paid for 
 at a valuation 71 
 
 Commencement of title 71 
 
 Time limit for making requisitions 
 on title, &c 71 
 
 Reservation to vendor of right to 
 rescind the contract 72 
 
 Identity 72 
 
 No compensation for errors of 
 description 73 
 
 Completion 73 
 
 Rents, outgoings, &c 74 
 
 Interest 74 
 
 Power of re-sale 74 
 
 Memorandum to be indorsed on 
 the conditions 74 
 
 General condition on sale under a 
 trust or power 76 
 
 Sale by mortgagee 76 
 
 Special conditions of sale 77 
 
 tipulations iu crrtain i>articular 
 cases 7.S 
 
 Insufficiently btaiuped documents.. 7S 
 
 PAGE 
 
 Unregistered documents 79 
 
 Sale of leaseholds 79, 80 
 
 Duplicate of conveyance 80 
 
 Sale of land held by underlease , . 80 
 
 Sale of land subject to some rent or 
 
 statutory charge 81 
 
 Sale of land by auction in lots .... 82 
 Custody of title deeds 82 
 
 Sale of land subject to restrictive 
 
 covenants 83 
 
 Purchaser to be entitled to one 
 
 abstract only 83 
 
 Stipulations in formal contracts 
 
 for private sale 83 
 
 Vendor's reasons for not desiring 
 
 an open contract 86 
 
 Points to be considered in settling 
 
 a private contract 87 
 
 Deposit 87 
 
 Time for completion 89 
 
 Fixtures or timber at a valuation . . 89 
 Commencement of title 89 
 
 Limiting time for making requisi- 
 tions or objections 89, 90 
 
 Reservation to vendor of right to 
 rescind the contract 90 
 
 Expense of verification of the 
 abstract 90 
 
 Evidence of identity 91 
 
 Compensation for errors of descrip- 
 tion 91 
 
 Conveyance 91 
 
 Apportionment of rents and out- 
 goings 92 
 
 Interest iu case of delay in com- 
 pleti< "U 92 
 
 Re-sale 92
 
 XXIV 
 
 TABLE OF CONTENTS. 
 
 Chap. IV. 
 
 OF THE vendor's OBLIGATION TO SHOW A GOOD TITLE 
 AND ITS DISCHARGE. 
 
 § 1 . Of the general nature of the proof required. 
 
 Origin of the rule that the vendor 
 
 must show a good title 94 
 
 Proof of sixty years' title prima 
 
 facie proof of a good title .... 95 
 
 Sixty years' title had to be shown , 
 
 as a rule, in all cases 96 
 
 When earlier title could be re- 
 quired 97 
 
 1 . Advowson 97 
 
 2. Long term 97 
 
 3. Tithes or property held by 
 
 Crown grant 97 
 
 4. Reversionary interest .... 97 
 
 Contract to grant a lease 97, n. 
 
 Vendor and Purchaser Act, 1874.. 98 
 Forty years' title only now re- 
 quired 98 
 
 Title on purchase of leaseholds . . 99 
 
 Enfranchised copyholds .... 99, and n. 
 The present law as to showing 
 
 title 100 
 
 PAGE 
 
 Freeholds or copyholds 100 
 
 Enfranchised copyholds 100 
 
 Leaseholds 100 
 
 Lease when intended to mean lease 
 
 from the freeholder 100, u. 
 
 Contract to grant a lease for years 
 
 or underlease 101 
 
 Advowson 101 
 
 Tithes or property held by Crown 
 grant 101 
 
 Reversionary interest 101 
 
 Property held by underlease . . 101, n. 
 
 Best and the usual evidence of 
 title is production of the title 
 deeds 102 
 
 Other evidence of title 103 
 
 Title depending on Statute of 
 Limitations 1 04 
 
 Vendor must produce the title 
 deeds, if he can 105 
 
 2. Of the abstract of title. 
 
 Vendor bound to make and deliver 
 an abstract of title 105 
 
 What the abstract ought to con- 
 tain 106 
 
 The abstract should commence 
 with a good root of title 106 
 
 General devise 106 
 
 Conveyance of equity of redemp- 
 tion 106, 107 
 
 Transfer of mortgage 107 
 
 Reason of the rule requiring a 
 good root of title 107 
 
 Deed exercising a power 108 
 
 Disentailing assurance 108 
 
 Whether the abstract must com- 
 mence with a conveyance for 
 
 valuable consideration 108 
 
 Voluntary conveyance 109 
 
 Family settlement 109 
 
 Specific devise 109 
 
 Root of title where the time for 
 showing title is curtailed by 
 
 special stipulation 109 
 
 What documents should be ab- 
 stracted after the root of title. . 109, 
 
 110 
 The manner of making an abstract 112 
 
 What are material clauses 113 
 
 Execution of deeds, &c. should be 
 
 stated 114 
 
 Tracings of maps or plans 115
 
 TlBLE OF CONTENTS. 
 
 XXV 
 
 Chap. IV. — continued. 
 
 § 3. Of the verification of the abstract. 
 
 PAOfe 
 
 Vendor bound to verify the abstract 115 
 
 Expense of procuring evidence 
 
 not in vendor's possession .... 116 
 Evidence requii-ed is (1) of docu- 
 ments, (2) of facts 116 
 
 Proof on sales differs from proof 
 
 in litigation 116 
 
 Proof of documents in Court .... 116 
 
 Documents thirty years old 116 
 
 Attested documents 116 
 
 No evidence of the execution of 
 
 any document required on sales 116 
 What is the strict right of a pur- 
 chaser as to proof of execution 
 
 of title deeds 118 
 
 Title deeds executed by attorney . 119 
 
 Documents may be in private or 
 
 official custody 121 
 
 Vendor must produce evidence of 
 
 documents in official custody . . 121 
 Expense of proving documents not 
 
 in vendor's possession 121 
 
 Evidence of public document .... 121 
 
 Examined copy 122 
 
 Exemplification 122 
 
 Office copies 122 
 
 Certified copies 122 
 
 Proper place for verification of the 
 abstract 123 
 
 Expense of examining title deeds 
 not in vendor's possession. . 123, 124 
 
 Deeds in possession of vendor's 
 mortgagees, or other persons 
 than vendor 124 
 
 Mortgagor's right of access to 
 deeds in possession of mort- 
 gagee 124, 125 
 
 Where vendor has a mere right 
 to production 126, 127 
 
 Where vendor has a covenant for 
 production 127 
 
 Solicitor's lien 128 
 
 Solicitor acting for vendor 128 
 
 Solicitor acting for both parties . . 1 29 
 
 Lien of solicitor commensurate 
 with client's right to hold the 
 
 deeds 129 
 
 Stamps 130 
 
 Evidence of facta required on sales 131 
 Evidence that certain events, which 
 would certainl)'^ have affected the 
 
 title, did not happen 132 
 
 Rule as to presumptions of fact . . 134 
 
 Events of which the happening 
 may or may not have affected 
 the title 134 
 
 Expense of proof of facts 136 
 
 Recitals and statements in docu- 
 ments twenty years old 136 
 
 Criticism of Bolton \. London School 
 Board 137, n. 
 
 Recitals of documents forming part 
 of the title prior to the time for 
 commencing the ab.stract . . 137, 138 
 
 Recitals no evidence, as a rule : 
 exceptions 138 
 
 Recital in a public statute or 
 document 1 38, 1 39 
 
 Statutory declarations 140 
 
 Recitals in deeds of other docu- 
 ments 140 
 
 When the dociunent is lost 141 
 
 Recitals of fact do not excuse 
 vendor from proof 141 
 
 Acceptance of in-egular evidence . . 141 
 
 Great importance of verification of 
 
 the abstract 143 
 
 And of the examination of the 
 
 deeds with the abstract 143 
 
 Proof of identity of property .... 144 
 
 Evidence of particular matters . . 145 
 
 Acknowledgment 145 
 
 Act of Parliament 146 
 
 Award of enfranchisement or in- 
 
 closure 146, 147 
 
 Bankruptcy 147 
 
 Copyhold assurances 148 
 
 Courts, proceedings of 149 
 
 Office copies 149
 
 XXVI 
 
 TABLE OF CONTENTS. 
 
 Cliap. lA'. § o — cundnued. 
 
 PAGE 
 
 Crown grants 150 
 
 Deeds 150 
 
 Missing- documents 150 
 
 Enrolment 151 
 
 Exchange or partition, order of. . 152 
 
 Fine 153 
 
 Lease for a year 153 
 
 Pedigree, birth 153 
 
 Age 153 
 
 Blarriage 154 
 
 Death 154 
 
 PAGE 
 
 Presumption as between vendor 
 and purchaser in matters of 
 
 pedigree 155 
 
 No presumption of death 15G 
 
 Presumption of marriage ; Legi- 
 timacy or paternity 157 
 
 Record in Record Office 159 
 
 Recovery 1 GO 
 
 Registration in Middlesex or York- 
 shire KiO 
 
 Seisin Kid 
 
 Will 161 
 
 Chap. V. 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 Duty of conveyancer advising the 
 purchaser on title 163 
 
 What should be the general scope 
 and residt of the abstract .... 164 
 
 Vendor need not show the whole 
 estate to be vested in himself, if 
 he have the right to procure its 
 conveyance 164 
 
 Distinction between showing a 
 good title on the abstract and 
 proving it 166 
 
 Good title not shown, if any estate 
 outstanding in one, whom the 
 vendor has no right to direct to 
 convey 167 
 
 lie Bryant unci Baniingh((m''fi Con- 
 tract 1G8 
 
 Purchaser nuist at once repudiate 
 the contract, if he wisli to insist 
 on this objection 168 
 
 Requisitions as to the contents of 
 and manner of making the ab- 
 stract 169 
 
 Estate of grantee to uses 172 
 
 Identity 173 
 
 Calling for evidence of facts .,,. 173 
 
 Death duties 174 
 
 Stamps 174 
 
 Inquiries respecting the property 
 
 sold 175 
 
 Vendor bound to answer all rele- 
 vant questions 178 
 
 Ee Ford and Hill 178 
 
 Course usually taken by counsel 
 
 advising on title 179 
 
 Searches 179 
 
 Time for making requisitions. ... 179 
 
 IFant v. StaUlbrass 180 
 
 Jic Tanqiierai/- Willaume and Landau 180 
 What requisitions should be made 
 
 and insisted on 182 
 
 Where the vendor may rescind . . 182 
 
 Where the vendor has no title . . 184 
 Obligation of the vendor to show 
 
 a good title 186, u. 
 
 Where the vendor has knowingly 
 or recklessly made a material 
 
 misrepresentation 187 
 
 Objection as to matter of convey- 
 ance 187 
 
 Waiverof objectionsorrequisitions 188 
 
 Purchaser desiring to go on where 
 the abstract shows an objection 
 to the title 190
 
 TABLE OF CONTENTS. 
 
 XXVll 
 
 Chap. VI. 
 
 0¥ STIPULATIONS LIMITING THE OBLIGATION TO SHOW A GOOD TITLK. 
 
 PAGE 
 
 The statutory limitations 192 
 
 Sect. 3 (3) of Conveyancing Act, 
 
 1881 193 
 
 Its effect 194 
 
 Phillips V. Caldcleugh 195 
 
 Xottinyham, t^r. Co. v. Bidhr .... 196 
 lie Marsh and Eurl Granville .... 197 
 Vendor discloHUig a defect of title 199 
 
 Misrepresentation 199 
 
 He Banistif, Broad v. Mitntun .... 199 
 Construction of express stipula- 
 tions before the Conveyancing 
 
 Act, 1881 200 
 
 Special stipulations as to title .... 202 
 Humr V. Beidleij 202 
 
 Purchase with notice that a good 
 title cannot be made 203 
 
 Difference in purchaser's position 
 when resisting specific perform- 
 ance and seeking to recover his 
 deposit 204 
 
 Best v. Hainund 204 
 
 I'AOE 
 
 Ee Davis to Carey 205 
 
 Re National Vrovinvial Bank of 
 England and Marsh 20G 
 
 Re Scott and Alvarez's Contract . . 206 
 
 Recovery of deposit under agree- 
 ment that title shall commence 
 with some specified instrument 
 which turns out not to be a good 
 root of title 208 
 
 Purchaser under usual condition 
 as to identity requiring further 
 evidence 210 
 
 Course to adopt in making requi- 
 sitions 210 
 
 Conditions jequiring assumptions 
 of fact 211 
 
 Positionof purchaser buying under 
 special conditions as against jier- 
 Hons claiming adversely to the 
 vendor 211 
 
 Purchaser not investigating title 
 has constructive notice of equities 
 which he might have discovered 
 by inquiry 211 
 
 Chap. VII. 
 
 01' DEVOLUTION ON DEATH 
 
 Devolution on death before 1898.. 213 
 
 Dower 213 
 
 Curtesy 215 
 
 Succession to freeholds after death 
 before 1898 215 
 
 Estates tail and pur aatre vie ; 
 gavelkind and borough-English 216 
 
 Copyholds 216 
 
 Leaseholds 217 
 
 Equitable estates 218 
 
 Estates held un trustor in mortgage 219 
 Vendor and Purchaser Act, 1874 . 220 
 Sect. oO of Conveyancing Act, 
 
 1881 221 
 
 Copyholds , . 222 
 
 Liability of real estate to deceased 
 owner's debts 222 
 
 Executors formerly had no interest 
 in their testator's real estate . . 225 
 
 Power for executors to sell real 
 
 estate might be implied 
 
 Statutory powers 
 
 Administrators 
 
 Land Transfer Act, 1897 
 
 Personal representative trustee for 
 
 the heir or devisee 
 
 Powers of personal representatives 
 
 over real estate 
 
 Liability of real estate to deceased 
 
 owner's debts 
 
 Personal representatives' assent Ut 
 devise of real estate 
 
 Effect of the Act 
 
 Order of application of assets on 
 death 231 
 
 Estates tail 
 
 Equitable estates 
 
 Copyholds, ajuitiiblc estjites in . . 
 
 Escheat 
 
 225 
 22<; 
 228 
 228 
 
 229 
 
 229 
 
 230 
 
 230 
 231 
 
 I u. 
 234 
 235 
 235 
 236
 
 XXVlll 
 
 TABLE OF CONTENTS. 
 
 Chap. VIII. 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 § 1. Of notice of trusts. 
 
 PAGE 
 
 Notice of a tru«t '237 
 
 Mortgage to trustees 238 
 
 Course taken on appointment of 
 new trustees 238 
 
 Acceptance of statements intended 
 to conceal the fact that mort- 
 gagees or owners are trustees. . 239 
 
 Notice of a document disclosing 
 the trust 240 
 
 Cii-cumstances may make disclo- 
 sure of a trust unavoidable. ... 241 
 
 Succession and estate duty on 
 death of one of several mort- 
 gagees not appearing to be 
 trustees 241 
 
 Notice of a document, how far 
 notice of its contents 24.3 
 
 Notice, actual or constructive. . . . 246 
 
 Restriction on constructive notice 
 by sect. 3 of the Conveyancing 
 Act, 1882 246 
 
 Reason for the rule that notice to 
 the agent is notice to the prin- 
 cipal 248 
 
 The exception in case of fraud . . 248 
 The law previous. to the Convey- 
 ancing Act, 1882 249 
 
 Kennedy v. Green 250 
 
 Boursot v. Savage 250 
 
 Atterbury v. Wat'is 251 
 
 Bradley v. Richea 251 
 
 Sharpe v. Foy .". .'. 251 
 
 Cave v. Cace 252 
 
 Effect of the Conveyancing Act, 
 
 1882, s. 8 252 
 
 Taylor v. London and County Banl; . 252 
 Vendor or mortgagor acting as 
 purchaser's or mortgagee's soli- 
 citor 253 
 
 What inquiries ought a purchaser 
 
 to make ? 254 
 
 Oliver V. Hinton 255 
 
 Notice that property is subject to 
 charges or incumbrances 255 
 
 § 2. Of sales by trustees. 
 
 Sales by trustees 256 
 
 Trusts for or powers of sale .... 257 
 Milh V. Bugmore 257 
 
 Time for exercising such a trust 
 or power 257 
 
 Acceleration of time for exercis- 
 ing a power or trust 258 
 
 Ti-vists for sale and settlement of 
 the purchase -money 259 
 
 Trusts declared by will for sale in 
 order to pay testator's debts . . 260 
 
 Re Homnaill 260 
 
 Executor's power of sale under 
 the Land Transfer Act, 1897 . . 261 
 
 Rule against perpetuities in con- 
 nection with trusts for and 
 powers of sale 262 
 
 Order of tli6 Court for adminis- 
 tration of the trust 263 
 
 Duties of trustees for sale 263 
 
 Trustees for sale must sell for 
 money 266 
 
 Whether a trust for or power of 
 sale. authorizes a mortgage .... 267 
 
 Whether a trust or power to 
 mortgage authorizes a sale, or 
 a mortgage with power of sale . 268 
 
 Sale of leaseholds by way of 
 underlease 269
 
 TABLE OF CONTENTS. 
 
 XXIX 
 
 Chap. VIII. § 2 — contmued. 
 
 PAGK 
 
 Timber aud miaei'als ; 269 
 
 Trustees .should not sell at a valu- 
 ation 270 
 
 Option of purchase 271 
 
 What persons, besides the original 
 trustees, can exercise a trust for 
 
 or power of sale 271 
 
 As to trusts or powers coupled 
 
 with an interest. ..-.•..• 272 
 
 Survivorship of the trust 272 
 
 Disclaimer ...'.' 272 
 
 New trustees 272 
 
 Trustees appointed by the Court. . 273 
 Persons succeeding to the estate 
 ou the death of a sole or last 
 
 surviving trustee 273 
 
 Heir of sole or sur\nving trustee . . 274 
 
 Devisee 274 
 
 Personal repi-esentatives of sole or 
 
 surviving trustee 275 
 
 Failure of devise of legal estate to 
 
 trustee 275 
 
 Question in case of a devise by a 
 sole, trustee under the present 
 
 law 276 
 
 Power without an interest 278 
 
 Survivorship of powers given to 
 
 tru-stees 278 
 
 Survivorship of bare powers .... 278 
 General rule 278 
 
 PAGE 
 
 Powers given to executors 278 
 
 Powers arising by implication of 
 
 law 279 
 
 Powers given to trustees 279 
 
 Powers given to a class 279 
 
 Release and disclaimer of powers . 280 
 Release of power, where a breach 
 
 of trust 281 
 
 Exercise of a bare power by neR- 
 
 trustees 281 
 
 By any others after the death of 
 
 the original donees 281 
 
 Trustees exercising a power con- 
 ferred by a settlement for some 
 purpose provided for in the 
 
 Settled Laud Acts 282 
 
 Where two or more persons to- 
 gether constitute the tenant for 
 
 life 285 
 
 Estate duty chargeable on land 
 
 settled on trust for sale 287 
 
 Sale of land purchased in breach 
 of trust 287 
 
 Trustees' receipts 288 
 
 Purchase by trustees 288 
 
 What kind of property should be 
 bought by trustees for persons 
 entitled successively 290 
 
 Valuation on behalf of trustees 
 selling or purchasing 291 
 
 Chap. IX. 
 
 OF TITLE UNDER THE EXERCISE OF TOWERS. 
 
 Title depending on exercise of a 
 power of appointment 293 
 
 Domicile of testator 294, n. 
 
 Equitable relief against defective 
 execution of a power 295 
 
 Title undt'r .a special power of 
 appointment 296 
 
 Fraudulent execution 296 
 
 Remoteness of limit^itiou 297 
 
 Attestation clause to instruments 
 
 exercising powers 298 
 
 Inquiry whether a power men- 
 tioned in the abstract has been 
 
 exercised 299 
 
 Sale under statutoiy power 299 
 
 Sales under the Settled Land Acts 300 
 As to giving notice of an intended 
 .sale . i . . ; . . I . . ; 301
 
 XXX 
 
 TABLE OF CONTENTS. 
 
 Chap. IX. — continued. 
 
 PAGE 
 
 As to whether there are trustees 
 of the settlement at the time of 
 
 sale ;502 
 
 Who are trustees for the purposes 
 
 of the Settled Land Acts 304 
 
 Deposit on sale hy auction of 
 
 settled land 306 
 
 As to the power of conveyance 
 under the Settled Land Acts . . 306 
 
 What is "the settlement" 307 
 
 Re Aileshury and Iccagh 307 
 
 Re Miwdy and Roper'' x Contract . . 308 
 Assignments of or charges on the 
 life estate in consideration of 
 marriage or by way of family 
 
 arrangement 310 
 
 The compound settlement 310 
 
 Trustees of the compound settle- 
 ment 310 
 
 Principle to determine under what 
 settlement one is tenant for life 313 
 
 Criticism of Rf CornicnUl>< West 
 and Mnnro's Contract 314 
 
 The courses open to a tenant for 
 life after a re -settlement 315 
 
 Sale by a tenant for life deriving 
 his estate from the re-settle- 
 ment alone 317 
 
 The exceptions to the tenant-for- 
 life' 8 power of conveyance .... 317 
 
 Estates, &c. having priority to 
 the settlement 317 
 
 Estates, &c. conveyed or created 
 for securing money actually 
 raised 318 
 
 Re Dickin and Keh((Ws Contract . . 318 
 
 Mortgages by beneficiaries of their 
 interests under the settlement . 318 
 
 Mortgage by a tenant for life or 
 remainderman of his estate. ... 318 
 
 Purchaser cannot require the con- 
 currence of such mortgagees ,. 319 
 
 Mortgage by the tenant for life 
 and remainderman in fee 319 
 
 Mortgages by a remainderman 
 alnne 319 
 
 What mortgages come within the 
 second exception 320 
 
 PAGE 
 
 Purchaser must require the con- 
 currence of all whose charges 
 fall within the second exception 320 
 
 The third exception from the life 
 tenant's power of conveyance. . 321 
 
 Dispositions made by the tenant 
 for life in exercise of the right 
 of alienation incident to his 
 ownership 321 
 
 Rights of an assignee for value of 
 the life estate 321 
 
 Mortgages by the tenant for life 
 of his life estate 322 
 
 Lease granted by the tenant for 
 life at common law 323 
 
 Absolute assignment for value of 
 the life tenant's estate ........ 323 
 
 Assignments of the life estate in 
 consideration of marriage or by 
 way of family arrangement . . 323 
 
 Settlement and re-settlement limit- 
 ing rentcharges in priority to 
 the original life estate 323 
 
 Gratuitous assignment of the life 
 estate 324 
 
 Release of the life estate 324 
 
 Bankruptcy of the tenant for life. 325 
 
 Act of bankruptcy after the sale 
 but before completion 325 
 
 Sale under the Settled Land Acts 
 by a bankrupt tenant for life . . 326 
 
 Trustee taking the life estate 
 under a composition or scheme 
 of arrangement 327 
 
 Purchaser should require evidence 
 of the non-existence of estates, 
 &c. which the tenant for life 
 cannot convey 327 
 
 Practice as to abstracting the 
 settlement on sales under the 
 Settled Land Acts 329 
 
 The second and third exceptions 
 relate to interests created before 
 the date of the conveyance, not 
 of the contract for sale 330 
 
 As to seeing that a tenant for life 
 selling has not committed any 
 breai'h of his duty as trustee , . 332
 
 TABLE OF CONTENTS. 
 
 XXXI 
 
 Chap. IX. — co7ifiniie(h 
 
 PAGE 
 
 Stipulation that the purchaser 
 shall pay the vendor's costs of 
 the sale 3.'>o 
 
 Title depending on the exercise of 
 a mortgagee's power of sale . . 335 
 
 Title under a mortgagee's statu- 
 tory power of sale 337 
 
 Waiver of any particular re- 
 striction on the exercise of a 
 mortgagee's power of sale .... 338 
 
 Conveyance should be in profes^srd 
 exercise of the power of sale . . 339 
 
 Mortgagor's concurrence cannot 
 be required 339 
 
 What estate the mortgag-ee can 
 convey 339 
 
 PAGK 
 
 Copyholds 340 
 
 Title under the power of sale given 
 to mortgagees by Lord Cran- 
 worth's Act c40 
 
 Conveyance by mortgagee selling 
 under Lord Cranworth's Act . . 341 
 
 Mortgagee selling under power of 
 sale bound only to act in good 
 faith 341 
 
 Sale by mortgagee in possession 
 
 after mortgagor's title barred. . 343 
 Sale after foreclosure absolute .. 343 
 Sale pending foreclosure or re- 
 demption proceedings 34;'. 
 
 Sale by mortgagee's attorney .... 344 
 
 Re Bounou and JenJcbiH^ Contract . . 344 
 
 Purchase of foreclosed property. . 34 o 
 
 Chap. X. 
 
 OF P A R T I C U L A K TITLES. 
 
 § 1. Sdh' of copi/holds. 
 
 Wliat the purchaser is entitled to Wliat fines payable and by wliom 
 
 require on sale of copyholds . . 346 349, 3.')0 
 
 Devise by unadmitted surren- 
 Where no tenant on the rolls .... 349 deree 3.")0 
 
 § 2. Sale of leaseholds. 
 
 Leaseholds 3.50 Criticism of Re HighHt and Bird's 
 
 Lease from the freeholder must be f 'on tract 3;")4 
 
 shown unless otherwise agreed.. 3.)0 Sale of land held by underlease . . 3.J7 
 
 Covenants more onerous than Sale of leaseholds not assignable 
 
 usual an objection to title witliout the landlord's licence 
 
 unless disclosed 3.')1 :{o8 3.)9 
 
 Evidence that a lease held subject Where landlord's consent not to 
 
 to a condition of re-entry has be unreasonably withheld .... 3(11 
 
 not determined 3.V2 f^.^,,. ^f j,,^^.^ ^f ^^^^ j^^i^j ^^, ,^^^^^ 
 
 Waiver of forfeiture by receipt of for yeai-s ' 3Gi 
 
 '■''"* • • ■'•'•^ Sale of leaseholds in lots .36:! 
 
 Pun^hascr buying le.'iseliolds with a ^ e i i i i 1 1 
 
 t I -I t: ,. Sale oi renewable leaseholds 'M]^ 
 
 notice ot a breach oi covenant '"' 
 
 that cannot or will not be Sale of lease granted on sun-ender 
 remedied 3-53, 3,)4 of prior lease , 365
 
 XXXll 
 
 TABLE OF CONTENTS. 
 
 Chap. X. § 2 — continued. 
 
 PAGK 
 
 Satisfied tenns 365 
 
 Proviso for cesser 365 
 
 Merger 366 
 
 Surrender of term by trustees .... 366 
 
 Cesser under Satisfied Terms Act. 366 
 
 Merger at law and in equity .... 367 
 Purchase of fee by termor or of 
 
 term by freeholder 368 
 
 Present law as to merarer 368 
 
 PAGE 
 
 Enlargement of long term into fee 
 
 simple 368 
 
 Leaseholds settled in trust to go 
 
 with freeholds 369 
 
 Options to purchase contained in 
 
 leases 370 
 
 How far subject to rule against 
 
 perpetuities 370 
 
 Reversionary leases 372 
 
 Terms to commence in futaro .... 372 
 
 § .3. Sale of lands in a register county or compulsory 
 registration district. 
 
 Lands in Middlesex or Yorkshire. . 373 
 
 Effect of an unregistered assurance 374 
 
 Wills 376 
 
 Yorkshire Registries Act, 1884 .. 377 
 
 Exceptions 378 
 
 Wills of leaseholds 379 
 
 Lands registered in the Land 
 Registry 380 
 
 Lands in a district where registra- 
 tion of title is compulsory on sale 
 
 380, 381 
 
 Leaseholds 382 
 
 Sale of unregistered land situate 
 in a compulsory district 385 
 
 Sale of leaseholds in compulsory 
 districts , 386 
 
 Priority noti(;e in favour of pur- 
 chaser's application for first 
 registration 386 
 
 Registered transfer or charge by 
 purchaser before his own regis- 
 tration 387 
 
 Suggested evasion of compulsory 
 registration 387 
 
 Successive purchases of several 
 undivided shares 388 
 
 Conveyance on purchase of an 
 undivided share alone 389 
 
 Purchase of undivided shares from 
 different owners 389 
 
 Successive purchases of undivided 
 shares from the owner of the 
 entirety 390 
 
 Completion of a contract to buy 
 the entirety by successive con- 
 veyances of undivided shares . . 391 
 
 Suggested scheme for avoiding 
 registration of title in a com- 
 pulsory district 392 
 
 Lands forming part of the Bedford 
 Level 392 
 
 § 4. Voluntary conveyances. 
 
 In favour of a charity 393 
 
 Tending to defeat or delav credi- 
 
 tors 
 
 393 
 
 Bankruptcy within 2 or 10 years 
 
 thereafter 394 
 
 Leaseholds 395 
 
 Proof that a voluntary conveyance 
 has not been avoided 39;'} 
 
 Liability to estate duty after a 
 voluntary conveyance 396 
 
 Stamp duty on voluntary convey- 
 ances 397 and n.
 
 TABLE OF CONTENTS. 
 
 XXXlll 
 
 Chap. X. — continued. 
 
 § 5. Sole of ground rents., reversions and remainders, mines, roads, 
 
 rivers, &c. 
 
 PAGE 
 
 Purchase of ground rents 398 
 
 Inquiries on purchase of the re- 
 version on a lease 399 
 
 Succession duty 400 
 
 Reversion duty 401 
 
 Effect of grant of reversion on 
 lessee's covenants and con- 
 ditions 401 
 
 Rights given by the Conveyancing 
 Act, 1881, as to covenants and 
 conditions 403 
 
 Remedy given to the person en- 
 titled to the income of the land 
 leased 404 
 
 Assignee of reversion cannot sue 
 for rent due before his time . . 404 
 
 Effect of severance of reversion on 
 a lease for years 405 
 
 Notice to quit where reversion has 
 been severed 406 
 
 Stipulation precluding legal ap- 
 portionment of rent 400 
 
 Reversions or remainders on an 
 estate of freehold 40G 
 
 Subject to exercise of the powers 
 given by the Settled Land 
 Acts 407 
 
 Subject to succession and estate 
 duty 408 
 
 Sale of reversionary interests at an 
 undervalue 408 
 
 Time the essence of the contract 
 on sale of reversion . . 408 
 
 Allotments under an Inclosure 
 Act 409 
 
 Exchange effected by mutual con- 
 veyances 409 
 
 Exchange by order under the In- 
 closure Act, 1845 410 
 
 Sale of mines and minerals 411 
 
 Royal mines 411 
 
 What are minerals 411 
 
 Powers implied in an exception of 
 mines and minerals 412 
 
 Surface cannot be let down with- 
 out special power 413 
 
 W. 
 
 Mines and minerals go with the 
 
 surface until severed 414 
 
 Title to severed mines by adverse 
 
 possession 415 
 
 Mines under copyholds 415 
 
 Soil of roads 416 
 
 Streets within an urban district . . 417 
 Mines and iniucrals thereunder . . 417 
 
 Streets in the metropolis 418 
 
 Public conveniences under roads 
 
 in London 418 
 
 Main roads 418 
 
 Soil of rivers 419 
 
 Island in a river 419 
 
 Owner of several fishery pre- 
 sumed to be owner of the soil. . 420 
 
 Soil of tidal rivers 420 
 
 Public right of navigation 420 
 
 Sea-shore 420 
 
 Foreshore 420 
 
 Several fishery over foreshore. ... 421 
 Laud below low watermark .... 421 
 Foreshore when a barrier against 
 the sea 421 
 
 Land bounded by the sea-shore . . 421 
 Riparian owner's right of access 
 
 to the sea 421 
 
 No public right to walk on the 
 
 foreshore 421 
 
 Inland lake 422 
 
 Water rights in natural rivers . . 422 
 
 Surface or underground water not 
 flowing in a defined channel .. 423 
 
 Water rights in artificial water- 
 courses 423 
 
 Rights of fishing and sporting . . 425 
 
 Rights of fishing in tidal and non- 
 tidal waters 425 
 
 Severed from the ownership of 
 
 the soil 426 
 
 Several fishery . 426 
 
 Common of piscary 426 
 
 Right of sporting 427
 
 XXXIV 
 
 TABLE OF CONTENTS. 
 
 Chap. X. § 5 — continued, 
 
 PAGE 
 
 Lessee's rig-hts of fishing aud 
 
 sporting 427 
 
 Ground Game Acts 428 
 
 Waste land of a manor 428 
 
 Approvement of part of a common 429 
 
 Right of lateral support 429 
 
 Sale of land with buildings or for 
 building purposes 430 
 
 PAGE 
 
 Support of buildings by buildings 
 
 on adjoining land 430 
 
 Party walls 430 
 
 Boundary hedges and ditches .... 43 1 
 
 Undivided share in land 431 
 
 Tenant in common buying other 
 
 shares 431 
 
 Title under trust for conversion . . 432 
 
 § 6. iSale of purely incorporeal hereditaments. 
 
 Sale of purely incorporeal here- 
 ditaments 433 
 
 Contract to grant an incorporeal 
 hereditament de novo 434 
 
 Rent-charge 434 
 
 Perpetual rents, when redeemable 434 
 Remedies of owners of rents ... 434 
 Covenant to pay a rent-charge . . 435 
 Proviso for re-entry on non-pay- 
 ment of rent- charge 435 
 
 Release of part of land subject to 
 
 a rent-charge 436 
 
 Release of part of land subject to 
 
 a rent seek 436 
 
 Registration of a rent-charge, 
 
 where necessary 436 
 
 Land charges 437 & n. 
 
 Tithe rent-charge 438 
 
 Lands sold as tithe-free 438 
 
 Advowson 439 
 
 Benefices Act, 1898 441 
 
 Prohibition as to sales of advowsons 
 
 by auction 443 
 
 Right of presentation pending 
 completion of sale of an ad- 
 vowson 443 
 
 Devices formerly used on sale in 
 expectation of a vacancy 444 
 
 § 7. Sale of charity lands. 
 
 Points to be considered on pur- 
 chase of charity lands 445 
 
 Requisites of the conveyance of 
 land to charitable uses . . . .445, 446 
 
 Assurance by registered disposi- 
 tion under the Land Transfer 
 Acts 447 
 
 Enrolment of separate deed of 
 trust 447 
 
 Power to enrol instruments not 
 enrolled within due time 448 
 
 No power to amend other defects 
 than want of enrolment 449 
 
 The assurance will be void though 
 the charitable trusts be not 
 disclosed 449 
 
 The charity may gain title under 
 the Statutes of Limitation .... 449 
 
 To what interests in land the 
 Mortmain and Charitable Uses 
 Act extcjids 449 
 
 Assurance of personal estate to be 
 laid out in purchase of land for 
 a charity 450 
 
 Exemptions from the requirements 
 of the Mortmain Acts 450 
 
 Gift of land by will to a charity , . 454 
 
 Construction of Consolidation and 
 Codifying Acts 454, n. 
 
 Contract to sell land for the use of 
 a charity 456 
 
 Restriction on the sale, mortgage, 
 or leasing of charity lands .... 459 
 
 Dispositions of charity lands by 
 authority of the Charity Com- 
 missioners 462 
 
 Assurance of lands purchased 
 from a charity 463 
 
 Board of Education substituted for 
 Charity Commissioners 465
 
 TABLE OF CONTENTS. 
 
 XXXV 
 
 Chap. X. — continued. 
 
 § 8. Partnership property. 
 
 Sale of land which is partnership 
 property 465 
 
 Devolution on death of land which 
 is partnership property 466 
 
 Criticism of lie Selous 466, n. 
 
 Disposition of land which is 
 partnership property 468 
 
 Power of surviving partner to sell 
 or mortgage the firm's lands . . 469 
 
 § 9. Sale by order of the Court. 
 
 Title under an order for sale made 
 by the Court 470 
 
 Jurisdiction of the Court to order 
 a sale of land 471 Sc n. 
 
 What interests are bound by an 
 order for sale 472 
 
 Conveyance of the legal estate . . 47^ 
 The order should have been duly 
 made, and must be properly 
 
 carried out 474 
 
 Order of the Court not to be in- 
 validated for wantof jurisdiction 475 
 
 10. Sale of an equity of redemption. 
 
 Risks on purchase of an equity 
 of redemption 
 
 Prior eqiiities, consolidation, tack- 
 ing 
 
 What inquiries the purchaser 
 shoiild make 
 
 Notice to the mortgagee 
 
 Purchaser's right of tacking .... 
 
 Puri'hasor of equity of redemption 
 
 paying off the first mortgage . . 
 
 Keeping the charge on foot .... 
 
 476 
 
 477 
 
 478 
 478 
 480 
 
 480 
 481 
 
 Purchase by mortgagee of the 
 
 equity of redemption 481 
 
 Marshalling securities 482 
 
 Tacking 485 
 
 Interest now chargeable on a 
 
 mortgage 486 
 
 Mortgage cannot be made irre- 
 deemable 486 
 
 Equity of redemption not to be 
 closrared 487 
 
 Mortgages to moneylenders 
 
 48( 
 
 §11. Sale of licensed property . 
 
 Obligations of vendor of licensed 
 
 property 488 
 
 Time of essence of the contract . . 488 
 Compensation for non-renewal of 
 licence 489 
 
 Compensation charge on licences 489 
 
 Effect of refusal to renew licence 
 in case of a leasehold licensed 
 house 400 
 
 §12. Land subject to restrictive covenants. 
 
 How x'estrictions on land may bo 
 created 403 
 
 Devolution of the benefit of re- 
 strictive covenants 49G 
 
 Loss of right to enforce them. . . . 497 
 
 Title to benefit of restrictive 
 covenant must be proved 498 
 
 c2 
 
 Restrictive covenants a defect of 
 
 title 491 
 
 Statutory restriction 491 
 
 Devolution of the biu-then of 
 
 restrictive covenants 492 
 
 Furmbii v. liarker 492 
 
 Covenants to do some positive act 
 on laud 493
 
 XXXVl 
 
 TABLE OF CONTENTS. 
 
 Chap. X. — continued. 
 
 § 13. Investigation of title in vieiv of a mortgage. 
 
 Intending mortgagee in a different 
 position from purchaser 498 
 
 He should stipulate for payment 
 of his costs in any event 499 
 
 Not an implied term of an agree- 
 ment for a mortgage that mort- 
 gagor shall show a good title . . 499 
 
 PAGE 
 
 Euforcement of contract to lend 
 or borrow on mortgage ."lOO 
 
 What title should be required on 
 behalf of a mortgagee •''00 
 
 Good marketable title •'iOl 
 
 Evidence of title in view of a 
 mortgage •''02 
 
 Title on transfer of mortgage .... .'i02 
 
 Chap. XI. 
 
 OF THE EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 §1.0/ the rights and liabilities of the parties pending completion 
 in respect of the property sold. 
 
 Effect of the contract in equity . . 504 
 Subject to vendor's duty to show 
 title, his lien, and right to pos- 
 session until the proper time for 
 completion, the lands are the 
 purchaser's .504 si?. 
 
 Conversion ^505 
 
 The vendor's trusteeship 505 
 
 Losses and improvements pending 
 completion 507 
 
 Destruction by fire pending com- 
 pletion of a house insured by 
 the vendor '^08 
 
 Rights of the parties and the in- 
 surance oifice in i-espect of the 
 policy ■ '508 
 
 Purchaser should himself insure 
 against fire '512 
 
 Vendor's duty to take care of the 
 property sold 512 
 
 Repairs, &c 512 
 
 Vendor not bound to inijirove the 
 property 513 
 
 Vendor entitled to retain posses- 
 sion untQ actual completion . . 515 
 
 Vendor's liability to account for 
 the rents ^'5 
 
 The vendor's beneficial interests 
 pending completion 516 
 
 Vendor's lien 51G 
 
 His right to the profits 517 
 
 Wliat profits he may take 517 
 
 He must not diminish the value 
 of the inheritance 518 
 
 He may be restrained from dis- 
 posing of the legal estate to the 
 purchaser's prejudice 518 
 
 Vendor remaining in possession 
 after the date fixed for comple- 
 tion 519 
 
 Vendor's duty to discharge the 
 outgoings 520 
 
 What outgoings he must dis- 
 charge 521 
 
 Apportionment of outgoings .... 523 
 
 Purchaser taking possession before 
 completion 524 
 
 Purchaser already in possession as 
 vendor's tenant 525 
 
 Orders for purchaser in possession 
 to pay price into Court or give 
 up possession 526
 
 TABLE OF CONTENTS. 
 
 XXXTll 
 
 Chap. XI. — cnntimied. 
 
 § 2. Of the transfer pendiny completion of the rights and liabilities 
 under the contract. 
 
 Transfer pending coinpletion of 
 the rights and liabilities under 
 
 the contract 527 
 
 Death of the vendor .528 
 
 Devolution of the vendor's estate. 528 
 
 Freeholds in fee 529 
 
 E>*tate tail 532 
 
 Sale by tenant in tail under the 
 
 Settled Land A.ct9 532 
 
 Copyholds 533 
 
 Leaseholds 534 
 
 Conversion of the land sold in the 
 
 vendor's hands 534 
 
 Option to purchase 535 & n. 
 
 Conveyance of deceased vendor's 
 
 estate by vesting order 536 
 
 When the Court may make a 
 
 vesting order 537, n. 
 
 Death of vendor who sold under a 
 
 power 538 
 
 Contracts for the sale of settled 
 land under the Settled Laud 
 Acts 539 
 
 Devolution of the burthen of the 
 contract on the vendor's death . 540 
 
 Death of the piu-chaser 540 
 
 Purchaser's heir or devisee now 
 takes subject to the vendor's 
 lien 542 
 
 Test of the property devolving as 
 land on the purchaser's death . . 543 
 
 Devolution of the burthen of the 
 c(mtract on the purchaser's 
 death 544 
 
 Banki'uptcy of either party to the 
 cont ract 544 
 
 Bankruptcy of the vendor 546 
 
 Act of bankruptcy by the vendor. 547 
 
 Insolvent vendor when discharged 
 from liability on the cimtrait . . 550 
 
 Vendor an undischarged bankrupt 
 at the time of the contract .... 550 
 
 Bankruptcy of tenant for life em- 
 powered to consent to a sale . . 551 
 Bankruptcy of the purchaser .... 552 
 Act of bankruptcy by the pur- 
 chaser 552 
 
 Adjudication of bankruptcy 
 against the purchaser 554 
 
 Insolvent p\irchaser when dis- 
 charged from liability on the 
 contract 556 
 
 Purchaser an undischarged bank- 
 rupt at the time of the contract 556 
 
 Land taken in execution pending 
 completion 557 
 
 Notice of unregistered process of 
 execution 559 
 
 Lunacy 560 & n. 
 
 Marriage of either party to the 
 contract 561 
 
 Conviction of treason or felony . . 563 
 
 Outlawry 564 
 
 Party becoming an alien enemy. . 564 
 Assignment by a party to the con- 
 tract 564 
 
 Assignment by the vendor of the 
 land sold 564 
 
 To purchaser for value without 
 notice 565 
 
 Tacking by vendor's alienee .... 567 
 
 Alienation by the purchaser of the 
 land sold 567 
 
 Assignment of the benefit of the 
 
 contract 568 
 
 Shaw V. Foster 569 
 
 As to the burthen of the contract 
 
 after an assignment 570 
 
 Transfer of part of the benefit of 
 
 the contract 570 
 
 Browne v. London Necropolis Co. .. 571 
 Contract specifically enforceable 
 against persons whose estate 
 would be displaced by a con- 
 veyance 572
 
 XXXVlll 
 
 TABLE OF CONTENTS. 
 
 Chap. XII. 
 
 OF THE COMPLETION OF THE CONTKACT. 
 
 § 1. Of completion generally. 
 
 PAGE 
 
 Time for completion 57.'5 
 
 Where time of the essence of the 
 contract 575 — 578 
 
 Making time of the essence, where 
 not originally so, by subsequent 
 notice 577 
 
 Time for performance by vendor 
 of a condition which is a term 
 of the sale 578 
 
 The acts to be performed on either 
 
 side for completion 578 
 
 The purchaser's duties 579 
 
 Acceptance of the title 579 
 
 Searches and inquiries to be made 
 
 by the purchaser 57'.' 
 
 Acceptance of title by not send- 
 ing in requisitions in time .... 580 
 Soper V. Arnold 580 
 
 2. Of searches and inquiries. 
 
 Searches, their object 580 
 
 Judgments, Crown debts and writs 
 
 of execution 581 
 
 Land Charges Act, 1900 581 
 
 Notice of judgments or Crown 
 debts of record or by specialty 
 
 or public accountantship 584 
 
 Crown debts by simple contract. . 584 
 Notice of unregistered process of 
 
 execution 584 
 
 Orders made in exercise of bank- 
 ruptcy jurisdiction 586 
 
 Annuities or rent-charges 587 
 
 Notice of life annuities 587 
 
 Land charges 588 
 
 Notice of unregistered ] and charges 588 
 Land improvement charges created 
 
 before 1889 588 
 
 Land improvement charges not 
 requiring registration before 
 
 1889 591 
 
 Statutory charges on land of a 
 principal sum, not payable by 
 
 way of annuity 591 
 
 What are land charges created 
 
 after 1888 592 
 
 Lis pendens 593 
 
 Lands in Lancashire or Durham.. 594 
 
 Banki'uptcy 594 
 
 Deeds of arrangement 595 
 
 DisentaiHng assurances 
 
 Deeds acknowledged 
 
 Search in Middlesex and York- 
 shire Registries 
 
 Copyholds 
 
 What searches should usually be 
 made 
 
 1. Writs and orders affecting 
 
 land 
 
 2. Lis pendens 
 
 3. Life annuities 
 
 4. Bankruptcy 
 
 5. Deeds of arrangement .... 
 G. For registration of title . . 
 
 7. Land charges 
 
 8. Middlesex or Yorkshire 
 
 Registers 
 
 9. Com-t rolls 
 
 10. On purchase of land from 
 
 a company 599 
 
 Against what names seai'ches 
 should be made 
 
 No obligation on purchaser to 
 search 
 
 Search is notice 
 
 Duty of purchaser's solicitor to 
 search 
 
 Official searches 
 
 59G 
 596 
 
 597 
 597 
 
 597 
 
 597 
 597 
 597 
 597 
 598 
 598 
 598 
 
 598 
 599 
 
 &n. 
 
 601 
 
 603 
 604 
 
 604 
 604
 
 TABLE OF CONTENTS. 
 
 XXXIX 
 
 Chap. XII. § 2 — continued. 
 
 PAGE 
 
 Official searches for disentailing 
 deeds, and in the Yorkshire and 
 Middlesex Registries 607 
 
 Inquiries to be made before com- 
 pletion 607 
 
 As to statutory charges 607 
 
 As to discharge of outgoings pay- 
 able by the vendor 608 
 
 Ascertaining that possession is in 
 accoi'daiice with the title 609 
 
 Inquiry of tenants and occupiers 
 as to their interest 
 
 609 
 
 Inspection and survey of the pro- 
 perty 610 
 
 Purchaser's rights before and after 
 completion in respect of vendor's 
 innocent misrepresentation .... GIO 
 
 Purchaser buying w-ithout inspec- 
 tion must accept patent, but not 
 latent defects 611 
 
 •3. Of the preparation of the conveyance. 
 
 Preparation of the conveyance .. 612 
 
 Wlio are necessary parties to the 
 conveyance 612 
 
 Intermediate trustees 614 
 
 Incapacity of any party to the 
 convej'ance 615 
 
 Parties to the conveyance on the 
 grantee's side 615 
 
 Conveyance to the purchaser's 
 nominee 615 
 
 To sub-purchaser 616 
 
 Form of the conveyance 617 
 
 Sale of lauds subject to incum- 
 brances 619 
 
 The usual stipulation as to the 
 costs of conveyance C20 
 
 Discharge of incumbrances on sale 
 by payment into Court 621 
 
 Vendor should never be allowed 
 to obtain the legal estate 622 
 
 Purchase followed by an imme- 
 diate mortgage 624 
 
 Purchaser receiving notice of 
 mesne incumbrances 625 
 
 Framing the conveyance 627 
 
 Recitals 627 
 
 Parcels 629 
 
 When is the purcha*<er entitled to 
 a conveyance by reference to a 
 
 plan ':' 631 
 
 Re Sparrow and Jameii' Contract . . 631 
 lie Satmoiii and Xarbrlh'x Contract . 632 
 Description independent of or by 
 reference to a plan 633 
 
 Connecting a new description with 
 the old 634 
 
 Mortgagees and tnistees convey 
 by the description under which 
 they took 634 
 
 Trustee-mortgagees gratuitously 
 releasing part of their security . 636 
 
 General words 637 
 
 What easements or other privi- 
 leges the purchaser can require 
 to be conveyed to him 639 
 
 Where vendor may limit the efPect 
 of the statutory general words . 640 
 
 Whether purchaser may claim an 
 express grant of an easement 
 impliedly sold 640 
 
 Reservations in the vendor's 
 favour 641 
 
 Where the property is sold sub- 
 ject to some inciuubrance 643 
 
 Effect of this as regards the statu- 
 tory covenants for title 644 
 
 Sale of such estate as the vendor 
 has 646 
 
 Vendor's (jualified covenants for 
 title confer no indemnity against 
 eviction by title paramount. . . . 647 
 
 Sale of land subject to restrictive 
 covenants 647 
 
 How far vendor may be bound by 
 restrictive stipulations 648 
 
 Estate clause 649 
 
 Limitation of the purchaser's 
 estiite 650 
 
 Limitation to grantee to uses .... 650
 
 XI 
 
 TABLE OF CONTENTS. 
 
 Chap. XII. § 3 — continued. 
 
 PAGE 
 
 Limitatiou by deed of equitable 
 
 estates in land 651 
 
 Vendor of land bound to give the 
 
 usual covenants for title 652 
 
 No warranty of title now implied, 
 as a rule, by the conveyance of 
 
 land 653 
 
 False representation by vendor 
 that he is the owner of the land 
 
 sold 654 
 
 Sale by trustee as such 654 
 
 By mortgagee as such 655 
 
 By cestui que trust or mortgagor. . 655 
 
 By trustee in bankruptcy 655 
 
 Sale under power 656 
 
 Sale by trustees for sale 657 
 
 Sale by order of the Court 657 
 
 The statutory covenants for title . 657 
 Their limitation or variation .... 659 
 Devolution of the benefit thereof . 659 
 Covenants for title on sale of an 
 
 equitable estate 660 
 
 Covenants for title obtained by 
 
 fraud 661 
 
 Purchaser may take either express 
 or the statutory covenants for 
 
 title 66l> 
 
 Covenants for title on sale of 
 
 copyholds 663 
 
 Payment of price on sale of copy- 
 holds 664 
 
 Where the laod sold is to be con- 
 veyed subject to any incum- 
 brance 664 
 
 Covenants for title intended to 
 
 cover an apparent defect 665 
 
 Purchaser agreeing to observance 
 
 of restrictions on the use of the 
 
 land bought must enter into an 
 
 absolute covenant to that effect 666 
 
 In what cases the purchaser is 
 
 bound to indemnify the vendor. 667 
 On sale of leaseholds 667 
 
 Indemnity on sale of land subject 
 to restrictive covenants 670 
 
 Indemnity on sale of laud subject 
 to a charge for which the vendor 
 will remain liable 672 
 
 PAGE 
 
 Sale in consideration of a rent- 
 charge 672 
 
 To what remedies the vendor is 
 entitled 673 
 
 Sale partly in consideration of an 
 agreement by the purchaser to 
 build 674 
 
 Whether the usual remedies for 
 securing a rent-charge in fee are 
 void for remoteness 674 
 
 Power of re-entry to satisfy arrears 675 
 
 Power to limit a terra 676 
 
 Power of re-entry by way of for- 
 feiture 677 
 
 Criticism of Re UoUis'' Hospital and 
 Hague 678, n. 
 
 Power on breach of covenant to 
 enter and hold imtil perform- 
 ance thereof 679 
 
 Delivery of title-deeds on comple- 
 tion 680 
 
 What documents must be handed 
 over 680 
 
 Criticism of Re Williiait.s and New- 
 castle's Contract 681 
 
 Vendor who has covenanted to 
 produce the deeds 682 
 
 Vendor who has given a statutory 
 acknowledgment and under- 
 taking 683 
 
 Sale of land in lots 683 
 
 Solicitor's lien on the deeds 684 
 
 Vendor's duty to fui-nish statutory 
 acknowledgments and under- 
 takings 684 
 
 What documents should be in- 
 cluded in a statutory acknow- 
 ledgment 684 
 
 Statutory declarations ... 686 
 
 Where the purchaser will have the 
 legal right to enforce an exist- 
 ing covenant or acknowledg- 
 ment for production 687 
 
 Vendor must, as a rule, give both 
 acknowledgment and under- 
 taking 689 
 
 Exceptions 690
 
 TABLE OF CONTENTS. 
 
 xli 
 
 Chap. XII. § 3 — continued. 
 
 PAGE 
 
 Proper acknowledgment and un- 
 dertaking can only be given by 
 the person retaining possession 
 of the documents 690 
 
 Sale by mortgagor witli mort- 
 gagee's concurrence (500 
 
 Person in constructiye possession 
 of documents 692 
 
 Acknowledgment, whether to be 
 g'iven by separate document . . 693 
 
 Endorsement of memorandum on 
 conveyance 693 
 
 Expenses of acknowledgment and 
 undertaking 694 
 
 Liability created by acknowledg- 
 ment or undertaking 694 
 
 Endorsement of receipt on con- 
 vej'anoe 695 
 
 Settling the conveyance 69o 
 
 Conveyancing etiquette 695 
 
 Engrossment 696 
 
 Stamps on conveyance 696 
 
 Increment value duty stamp .... 696 
 
 Stamp duty on conveyances on sale 696 
 
 Meaning of conveyance on sale in 
 Stamp Act, 1891 . 698 
 
 How ad valorem duty to be calcu- 
 lated in respect of stock and 
 securities 698 
 
 How consideration consisting of 
 periodical payments to be 
 charged 699 
 
 How conveyance in consideration 
 of a debt, &c. to be charged . . (599 
 
 Duty on conveyance in separate 
 parcels of property sold for one 
 consideration 699 
 
 On conveyance in separate parcels 
 of property bought fur one con- 
 sideration by or for several 
 persons 700 
 
 Where there are several instru- 
 ments of conveyance for com- 
 pleting one sale 700 
 
 Sub-sale by purchaser before con- 
 veyance 700 
 
 PAGE 
 
 Conveyance in separate parcels 
 
 after a sub-sale 700 
 
 Where sub-purchaser has taken a 
 conveyance of the purchaser's 
 
 interest 700 
 
 As to sale of annuity or right not 
 
 before in existence 700 
 
 Conveyance by se veral instruments 701 
 Copyholds conveyed by deed .... 701 
 By surrender 701 
 
 Sale of an equitable interest in 
 
 lands 701 
 
 Of equity of redemption 701 
 
 Stamp duty on forefilosure order . . 702 
 
 Conveyance in consideration of a 
 rent-charge 703 
 
 Conveyance partly in considera- 
 tion of improvement or covenant 
 to improve 703 
 
 Where several transactions are 
 carried out by one instrument . 704 
 
 Where incumbrances are got in by 
 the conveyance 704 
 
 Or prior to conveyance 70.") 
 
 Expense of stamping 70.5 
 
 Increment value duty 70o 
 
 Sale of a lease of a separate tene- 
 ment, &c., part of a larger 
 building 706 
 
 Ou what occasions is increment 
 value duty payable 706, n. 
 
 Regulations as to the collection of 
 increment value duty 707, n. 
 
 Increment value duty stamps. ... 70S 
 
 When increment value duty 
 stamps are required 708 
 
 Vendor must pay increment value 
 duty 709 
 
 Whether the contrac^t or the con- 
 veyance should be stamped with 
 increment duty stamp .... 710 & u. 
 
 Where it is advisable to stamp the 
 contract 710 
 
 Conditions of sale as to increment 
 value duty stamp 711
 
 xlii 
 
 TABLE OF CONTENTS. 
 
 Chap. XII. — continued. 
 
 §4.0/" the adjustment of accounts. 
 
 Apportionmeut of rent ou com- 
 pletion 713 
 
 Of outgoings 713 
 
 Of duties imposed by stat. 10 
 
 Edw. VII. c. 8 714, n. 
 
 Of land tax and tithe rent-charge 716 
 
 Sale of land subject to a rent at- 
 taching thereon and on other 
 land 71G 
 
 Sale of reversion of part of land 
 let at one rent 717 
 
 Purchaser' s liability to pay interest 717 
 
 Under an open contract 717 
 
 Under the stipulation usual on 
 London sales 718 
 
 Contract to pay interest in case of 
 delay from any cause 719 
 
 To pay interest except in case of 
 vendor' s wilful default 719 
 
 To pay except on vendor's default 721 
 
 Purchaser in default to pay interest 721 
 
 Items chargeable against or for 
 
 vendor 721 
 
 Deterioration of the property 722 
 
 Compensation for errors of descrip- 
 tion 722 
 
 Claims to compensation under an 
 
 open contract 722 
 
 The vendor's position at law and 
 
 in equity 723 
 
 The purchaser's right to specific 
 performance with compensation 724 
 
 Exceptions 725 
 
 Condition excluding any right to 
 compensation for errors of de- 
 scription 727 
 
 Condition allowing compensation ; 
 
 the vendor's rights 727 
 
 Re Fawcett and Holmes 728 
 
 The rule in Flight v. Booth 728 
 
 Extent of the condition for com- 
 pensation 729 
 
 Behenham v. Sawbridge 730 
 
 Purchaser's rights under condition 
 providing for compensation. ... 731 
 
 Neither party can enforce specific 
 performance with an indemnity 733 
 
 Costs of the sale and of conve}'^- 
 ance 733 
 
 Costs of concuirence of necessary 
 parties other than the vendor . . 734 
 
 Where the vendor's interest has 
 been transfeiTed pending com- 
 pletion 730 
 
 I 5. Of the execution of the conveyance. 
 
 On a sale by trustees 74 1 
 
 Where the conveyance is executed 
 
 Completion 73G 
 
 Attestation of the conveyance by 
 a witness of the purchaser's 
 choosing 737 
 
 Vendor must convey in person . . 738 
 
 Power of attorney when revoked . 738 
 
 Execution of the conveyance by 
 attorney 739 
 
 Execution of some title deed by 
 attorney 740 
 
 To whom the purchase money 
 should be paid 740 
 
 Solicitor's authority to receive the 
 purchase money on production 
 of the conveyance 741 
 
 by attorney 742 
 
 Payment should be made to the 
 solicitor acting for the person 
 
 entitled to give a receipt 743 
 
 Payment to solicitor ostensibly 
 acting for a conveying party . . 743 
 
 King v. Smith 744 
 
 The deed must be produced at the 
 
 time of payment 744 
 
 Payment to the solicitor's clerk . . 744 
 
 What is a proper payment 745 
 
 Effect of the execution of the con- 
 veyance 745
 
 TABLE OF CONTENTS. 
 
 Lliii 
 
 Chap. XIII. 
 
 OF MISTAKE. 
 
 § 1. Of luisfake as precludiny true consent. 
 
 WhcTo the coutract i^ iiupfucluihlu 
 for mistake, rai'^i-epicseiitatioii, 
 fraud, &c., there is always an 
 apparent couseut 748 
 
 No real assent in the case of mis- 
 take 748 
 
 In tlie case of misrepresentation, 
 fraud, &c., there is real con- 
 sent induced by belief in non- 
 existent facts or by coercive 
 influence 748 
 
 Mistake makes the contract void 
 from the beginning 748 
 
 Contracts induced by misrepre- 
 sentation, fi-aud, &c., are void- 
 able only 749 
 
 Necessity of consent to convey- 
 ance 749, n. 
 
 The rule is that, whei'e owing to 
 mistake the parties' minds are 
 not at one, there is no contract. 749 
 
 Unilateral mistake 750 
 
 If one manifest a certain inten- 
 tion, he is estopped from prov- 
 ing that his real intention was 
 different 750 
 
 Necessity of consent to contract.. 7 5 0,n. 
 
 Mistake on some point going to the 
 whole subject of the contract . . 751 
 
 liaJjUx V. Wivliclhaus 751, u. 
 
 Estoppel by manifestation of a 
 parti(^ular intention 753 
 
 Mistake^ in the nature of the trans- 
 action 75li 
 
 Letter of acceptance sent without 
 the writer's authority ,. 754 
 
 Uuilaternl mistake 755 
 
 Estoppel ai'ising from a man's own 
 careles.sness 755 
 
 Executing, without inquiry, a 
 document presented by one's 
 solicitor 75(3 
 
 Misunderstanding as to effect of a 
 legal document 756 
 
 Difference between transactions 
 void and voidable 75C 
 
 Conveyance induced by misrepre- 
 sentation, fraud, &c. , not void- 
 able as against a purchaser for 
 value without notice 757 
 
 Contracts induced by fraud remain 
 voidable, as against the other 
 contractor's assigns , . . 758 
 
 Where a sale of land is executed 
 by payment of the purchase- 
 money 758 
 
 Mistake as tu the pei'son of the 
 other party to the contract .... 75'J 
 
 Estoppel from proving error in 
 the person 75'J 
 
 Smith V. fVheatcraft 700 
 
 Mistake as to the property sold or 
 the price 760 
 
 Van Praagh v. Evcrldije 761 
 
 Mistake as to price 76J 
 
 Mistake as to the property or 
 price goes to the root of the 
 contract 762 
 
 Mistake as to quality 763 
 
 Warranty of quality 763 
 
 Mistake as to the quality of a 
 thing sold 763 
 
 The rule is caveat emptor 763 
 
 Defect of quality amounting to 
 a defect of title 763 
 
 No warranty of quality implied by 
 the sale of land 764 
 
 Latent defects of quality 764
 
 xl 
 
 IV 
 
 TABLE OF CONTENTS. 
 
 Chap. XIII. § 1 — continued. 
 
 PAGE 
 
 Unknown latent defects 764 
 
 Latent defect known to the vendor 76'> 
 
 Sale of a thing with all its faults . 765 
 
 The rule in equity as to a mere 
 silence about a defect of quality 765 
 
 Lucas V. James 766 
 
 Silence of the purchaser about a 
 fact enhancing- the value 767 
 
 Specific performance may be re- 
 fused on grounds of unfairness 
 or hardship 768 
 
 Non-disclosure of a fact material 
 to the title 708 
 
 Representation that land is fit for 
 a particular purpose 769 
 
 Representation obviously inappli- 
 cable 769 
 
 Active concealment of defects ... 769 
 
 Misleading conduct 770 
 
 Specific performance may be re- 
 sisted in some cases where the 
 contract cannot be rescinded . . 770 
 
 Hope V. Walter 770 
 
 Specific performance not granted 
 where the thing sold in positively 
 noxious iu quality 771 
 
 Purchase under a mistaken im- 
 pression as to quality 771 
 
 Vendor not bound to disabuse 
 purchaser of his erroneous belief 
 as to the quality of the thing 
 sold 772 
 
 It does not alter the case that the 
 purcha.ser believed the vendor 
 to be warranting the quality, if 
 the vendor did not know this 772 
 
 But if the vendor knew of this 
 belief, the contract is void for 
 want of true consent 773 
 
 A<;ceptauce of an offer which the 
 acceptor knows to be mistaken . 773 
 
 Mistake as avoiding true consent 
 in equity 774 
 
 Unilateral mistake in equity .... 774 
 
 Specific performance against a 
 party mistaken may be refused 
 on the ground of hardship .... 776 
 
 Where one has contributed to the 
 other's mistake 777 
 
 Where one has notice of an error 
 in the particulars 777 
 
 Where one knew of the other's 
 mistake and sought to take 
 advantage of it 778 
 
 Common mistake as to some fact 
 which is a condition precedent 
 to the formation of a contract. . 778 
 
 Depreciation in quality unknown 
 to the contracting parties 780 
 
 Common mistake as to private 
 ria-ht 780 
 
 § 2. Of mist((ke in the expression 
 Mistake iu the expression of con- 
 
 sent 
 
 780 
 
 Rectification of written instru- 
 ments a matter of the exclusive 
 jurisdiction of Courts of Equity 781 
 
 An exception to the rule that ex- 
 trinsic evidence is not admissible 
 to explain or vary written in- 
 sti'uments 781 
 
 Con'ection of obvious errors 
 
 781 
 
 of consent, and its rectification. 
 
 Rectification may be obtained 
 where a written instrument 
 does not express the parties' 
 real agreement 782 
 
 1. There must be an ante- 
 
 cedent contract 783 
 
 2. There must be a common 
 
 intention to embody or 
 give effect to the contract 
 by writing 783 
 
 3. The antecedent contract 
 
 and intention to embody 
 or give effect to it by 
 writing must be clearly 
 proved 784
 
 TABLE OF CONTENTS. 
 
 xlv 
 
 Chap. XIII. § 2 — continued. 
 
 PAGE 
 
 EflPect of denial of the agreement 
 by one party 785 & n. 
 
 It has ever been held that one 
 may clainn rectifioiition as 
 plaintiff 786 
 
 Rectification granted of instru- 
 ments embodying executory as 
 well as executed agreements . . 7^7 
 Claim for rectification might be 
 joined with claim for relief 
 under the Avriting rectified .... 787 
 Rule that specific performance of 
 a written contract with a parol 
 variation cannot be enforced by 
 
 a plaintiff 788 
 
 Rich V. Jackson ; Woollam v. Ream 788 
 
 Davies v. Fitton 788 
 
 The defendant in specific perfor- 
 mance may set up a parol varia- 
 tion 788 
 
 Olley V. Fisher ; May v. Plait 790 
 
 Thompson v. Hickman 790 
 
 Distinction where a parol varia- 
 tion is proved, and whore the 
 defendant's own mistake is 
 alone proved 791 
 
 Where a parol variation is pleaded 
 in defence, the relief may vary 
 according to the facts proved . . 791 
 
 To obtain rectific^ation there must 
 be a common mistake 793 
 
 PAGE 
 
 Cases where rectification -with the 
 alternative, at the defendant's 
 option, of rescission, has been 
 ordered on the ground of uni- 
 lateral mistake 794 
 
 Garrard v. Frankel 794 
 
 Harris v. Pepper ell 795 
 
 Bloomer v. Spittle 796 
 
 Payet v. Marshall 796 
 
 Criticism of the above-mentioned 
 
 cases 797 
 
 ^fay V. Flatt 797 
 
 Analysis of the circumstances in 
 which rectification may be 
 claimed 798 
 
 1. Common mi-stake 798 
 
 2. Plain tifi^ mistaken, but 
 
 estopped at law 798 
 
 3. Defendant mistaken, but 
 
 estopped at law, and sub- 
 sequent correction of the 
 error 800 
 
 4. No antecedent contract at 
 
 all 801 
 
 5. Fraud 802 
 
 Rectification of a conveyance can- 
 not be had against a purchaser 
 for value with notice 803 
 
 On sale of land, rectification may 
 be obtained either before or 
 after conveyance 803 
 
 Chap. XIV. 
 
 OF FH.\UI), MISREPRESENTATION, DURESS AND UNDUE INFLUENCE. 
 § 1. Of Fraud and Misrfpresentntinn. 
 
 Contract voidable for fraud or 
 misi'epresentation 805 
 
 Representation 805 
 
 The representation must have in- 
 duced the contract 805 
 
 Fraudulent representation at coni- 
 mou law 806 
 
 Innocent misrepresentation, .-ind 
 even non-disclosui'e, might 
 avoid contracts uberrimte fiffet . . 806 
 
 Effect of innocent misrepresenta- 
 tion at common law in the case 
 of other contracts 807
 
 xl 
 
 VI 
 
 TABLE OF CONTENTS. 
 
 Chap. XIV. § 1 — continued. 
 
 PAGE 
 
 The common law treatment of 
 misrepresentation was a par- 
 ticular instance of its rules re- 
 specting the dependence of 
 mutual stipulations 808 
 
 Equitable rules as to fraud or mis- 
 representation inducing con- 
 tract Sll 
 
 Contract induced by fraud might 
 be set aside in equity Sll 
 
 Innocent misrepresentation in 
 equity 813 
 
 No rescission for innocent misre- 
 presentation after completion . . 813 
 
 Difference in principle between 
 the rules of common law and 
 equity as to innocent misrepre- 
 sentation 814 
 
 The law since the Judicature Acts 814 
 
 To be fraudulent, a false repre- 
 sentation must be made know- 
 ingly or recklesjsly 816 
 
 No obligation to take pains to 
 ascertain the truth 816 
 
 What must be proved to give rise 
 to the right to rescind a con- 
 tract for misrepi'esentation .... 816 
 
 1 . Falsity essential 816 
 
 2. There must be a represen- 
 
 tation 816 
 
 Ambiguous statements 817 
 
 Promise not properly a represen- 
 tation 818 
 
 3. The representation must 
 
 be of some fact 818,819 
 
 Representation of intention, 
 whether a representation of 
 fact 818, n. 
 
 4. The fact must be material 819 
 
 5. The representation must 
 
 be made by a party to the 
 contract or his agent . . 820 
 False representation by agent. . . . 820 
 Cnrtifoot V. Fowke 820, n. 
 
 6. The representation must 
 
 be a part of the trans- 
 action ending with the 
 formation of the contract 821 
 
 7. The representation miist 
 
 have induced the con- 
 tract 821 
 
 PAGE 
 
 8. The party claiming to 
 have been misled must 
 not have known that the 
 statement was false .... 822 
 
 What is requisite to maintain an 
 action for a false representation 
 inducing a contract 822 
 
 Motive, as a rule, immaterial .... 822 
 
 Principal when liable in an action 
 of deceit for a false representa- 
 tion made by his agent 823 
 
 Agent, where liable 825 
 
 Action of deceit may lie against 
 one not a party to the contract . 820 
 
 Contracts for sale of land are not 
 voidable for non-disclosure .... 820 
 
 Except in case of suppression of 
 defects of title 826 
 
 Suppression of the existence of 
 restrictive covenants 826 
 
 Misrepresentation as a defence to 
 a claim for specific performance 826 
 
 Sale by mistake, or through fraud, 
 of land to which the vendor has 
 no title 827 
 
 Election to rescind or affirm a 
 contract induced by misrepre- 
 sentation 828 
 
 Purchaser's right to specific per- 
 formance with compensation . . 828 
 
 Election to rescind must be made 
 within a reasonable time 828 
 
 Must be communicated 828 
 
 Election may be evidenced by acts 829 
 
 No rescission after an election to 
 affirm the contract 829 
 
 Nor where by the act of the party 
 claiming to rescind restitutio ii/ 
 integrum has become impossible 829 
 
 No rescission as against a pur- 
 cliaser for value withoiit notice 830 
 
 No rescission for innocent misre- 
 presentation after completion. . 830 
 
 By what persons the right of res- 
 cission is exercisable 831 
 
 Assignee of a voidable contract 
 pending completion 831 
 
 Against what persons the right of 
 rescission is exercisable 832 
 
 Action of deceit maintainable after 
 death of party deceived 832
 
 TABLE OF CONTENTS. 
 
 xl 
 
 Vll 
 
 Chap. XIV. § 1 — continued. 
 
 PAGE 
 
 But not of deceiving party 833 
 
 On what terms the contract will 
 be rescinded before completion . 834 
 
 Purchaser's Hen, where the con- 
 tract is rescinded ... 834 
 
 Effect of taking possession ... 83 1, n. 
 
 On what terms the contract will 
 be rescinded after completion . . 836 
 
 PAGE 
 
 Whether purchaser chargeable on 
 
 the footing of wilful default . . 837 
 
 Forged documeuts 838 
 
 Adoption of a forged instrument . 838 
 
 Recovery of money paid on the 
 
 faith of a forged document. . . . 839 
 
 Liability of agent propounding a 
 
 forged authority 839 
 
 2. Of Duress and Undue Influence. 
 
 Contracts induced by duress or un - 
 due influence are voidable .... 839 
 
 Duress at common law 840 
 
 Equitable doctrine of undue in- 
 fluence 840 
 
 Marriage induced by duress, &c.. 840, u. 
 
 Two classes of cases of undue in- 
 fluence 841 
 
 1. Where exercised indepen- 
 
 dently of any special re- 
 lation between the parties 84 1 
 
 2. Where implied from the 
 
 existence of some confi- 
 dential relation 841 
 
 Examples of relations where in- 
 fluence is presumed 842 
 
 The doctrine not confined to any 
 particular set of relations .... 842 
 
 Husband and wife 843 
 
 Voluntary conveyances 843 
 
 Gifts by will 843 
 
 Undue influence presuined from 
 confidential relation on the 
 ground of public policy 844 
 
 What the duty of advising another 
 imports 844 
 
 It includes the duty of communi- 
 cating facts material to the 
 value 844 
 
 Non- disclosure of these avoids the 
 sale 844 
 
 Purchase by trustee from astiii- 
 que-trmt 845 
 
 How far a solicitor buying from 
 his client must see that the client 
 has independent advice S4.'i 
 
 Solicitor or adviser buying from 
 client after the relation has been 
 severed 84G 
 
 Trustee so buying from ccstui-que- 
 trust 84G 
 
 E.xamples of the exercise of undue 
 
 influence 846 
 
 (Viliiams v. Baijley 846 
 
 FJli" v. Barker . . 846 
 
 Stitrge v. Slurge 846 
 
 Inequality of position between the 
 parties, coupled with unfair- 
 ness 847 
 
 Longmate v. Ledger 847 
 
 Clark V. Malpas 847 
 
 Inequality of position alone is not 
 sufficient 848 
 
 Inadequacy of con.xideratiou alone 
 is not sufticient 848 
 
 Inadequacy of consideration alone 
 no ground for resisting specific 
 performance 849 
 
 luadetjuacy of consideration on 
 sale of a reversion 8.')0 
 
 Contracts induced by duress or un- 
 due influence voidable within 
 the .same limits as those induced 
 by fraud 8.51 
 
 Tenns of .setting aside sales in- 
 duced by duress or undue in- 
 fluence 
 
 Whether purcha-ser accountable on 
 the footing of wilful default . . 
 
 8.')2 
 853
 
 xlviii 
 
 TABLE OF CONTENTS. 
 
 Chap. XV. 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 PAGE 
 
 There must be nothing: unlawful 
 
 in the object of the afj:reenient . . 854 
 Sales for illegal purpcses void. . . . 854 
 
 Contract for sale of land including 
 some unlawful term 854 
 
 What contracts or stipulations are 
 unlawful 854 
 
 Contracts particularly prohibited . 855 
 
 Sale by auction of an advow^son 
 alone 855 
 
 Sale by way of lottery 855 
 
 Contracts infringing some rule of 
 law 855 
 
 Contracts contemplating an il- 
 legal act 855 
 
 Stipulations in unreasonable re- 
 straint of trade 857 
 
 Contracts made with the inhabit- 
 ants of hostile states 857 
 
 Sales involving maintenance or 
 champerty 857 
 
 Sale of a right of entry or action 
 to recover land 857 
 
 PAGE 
 
 Sale of pretenoed right or title . . 858 
 
 Sales made void or unenforceable, 
 but not prohibited 860 
 
 Contract to sell land for the use 
 of a charity 860 
 
 What i.s an assurance 860, n. 
 
 Illegal contracts are void 860 
 
 Property transferred thereunder 
 cannot be recovered back 860 
 
 Sale for illegal purposes known to 
 both parties 861 
 
 To one party only 861 
 
 Exceptions to the rule that pro- 
 perty parted with under an 
 illegal contract cannot be re- 
 covered . .861, 862 
 
 Property transferred under void 
 contracts 863 
 
 Contracts unenforceable under the 
 Statute of Frauds 864 
 
 Contract for sale of land to a 
 charity 865 
 
 Illegality supervening since the 
 formation of the contract .... 866 
 
 A BBRE VIA TIONS. 
 
 Fry, Sp. Porf. . .Fry on Specific Performance. The 3rd edition, the last revised 
 by Sir Edward Fry himself, is referred to : but the para- 
 graphs cited have the same numbering in the 4th edition. 
 
 Dart, V. &- P. . .The 5th edition, the last revised by Mr. Dart himself, is cited 
 as an authority, but references are given to the parallel 
 passages in the 6th and 7th editions. 
 
 ERRATUM. 
 
 Page 616, n. [l). . .For Hvcherhy read Hiwkksby.
 
 ADDENDA. 
 
 Page 
 
 5, note (?•) Add, " See also Commins v. Hcolt. L. R. 20 Eq. 11." 
 
 11, note (/) Add at end, " Humphries v. Hi4mphries, 1910, 2 K. B. 531." 
 
 19, note {d) After Rossiter v. Miller, insert " Filby v. Hounsell, 1896, 2 Ch 
 
 737," and after Winn v. j?m//, add " Santa Fe Land Co. v. 
 Forestal, ^-c. Co., Ld., 26 Times L. R. 534." 
 
 35, line 3 After "title," add a note, " Cozens-Hardy, M. R., Re 
 
 Taylor, 1910, 1 K. B. 562, 571, 572." 
 47, after line 8 ..Add, "(4) The vendor shall, before the completion of the 
 purchase, do what is requisite on his part for enabling the 
 purchaser to procure the contract or the convej'ance to be 
 stamped with the appropriate increment value duty 
 stamp; see stat. 10 Edw. VII. c. 8, ss. 1, 4, 11 ; below, 
 pp. 696, 705—712." 
 
 64, line 20 After "contract," add a note, " Cozens-Hardy, M. R., Re 
 
 Taylor, 1910, 1 K. B. 562, 571, 572." 
 
 159, note (c) Add at end, " Re Hoyles, 1910, 2 Ch. 333, 341." 
 
 165, note ((/) Add, " i?e Hucklesby ^ Atkinson's Contract, 102 L. T. 214, 
 
 217, where it appeared that the vendor was entitled under 
 an uncompleted contract of purchase." 
 
 224, note (.i) Add, "The heir or devisee of land charged by wOl with 
 
 debts and also with legacies or annuities could give a good 
 discharge to a purchaser or mortgagee without the con- 
 currence of the legatees or annuitants : but if the land 
 were charged with legacies or annuities only, the con- 
 currence of the legatees or annuitants was necessary in 
 order to sell or mortgage the land free from their charge ; 
 see Jebb v. Abbott, Co. Litt. 290b, note (1), sect. xiv. 3; 
 Horn V. Horn, 2 S. & S. 448 ; Johnaon v. Kennett, 3 My. 
 & K. 624, 630 ; Rage v. Adam, 4 Beav. 269 ; Sug. V. & P. 
 658 ; Williams on Real Assets, 62—64 ; Wuis. Real Prop. 
 223, 13th ed. (261, 262, 21st ed.); Re Rebbcck, 63 L. J. Ch. 
 596 ; Re Hvnson, 1908, 2 Ch. 356." 
 
 294, n. (i), line 10.. Add after Fepin v. Brnyhe, ''Re Hoyles, 1910, 2 Ch. 333, 
 341," 
 
 297, note (0 Add, "Cloidtew Storey, 1910, W. N. 163, 103 L. T. 131." 
 
 359, note (/), 2nd column, 4th line. .After Jenkins v. Friee, add " If'ilbnott v. 
 London Road Car Co. Ld., C. A., 1910, W. N. 209, reversing 
 S. C, 1910, 1 Ch. 754." 
 
 361, note [t) Willmott v. London Road Car Co. Ld., has been reversed in 
 
 theC. A. ; 1910, W. N. 209. 
 450, note {s) Add, " Re Hoyles, 1910, 2 Ch. 333." 
 
 W. d
 
 THE LAW 
 
 RELATING TO 
 
 VENDOR AND PURCHASER OP LANDS. 
 
 CHAPTER I. 
 
 OF THE FORMATION OF THE CONTRACT OP SALE. 
 
 The subject of the present treatise is the sale of real Sale defined. 
 
 estate and chattels real, or the formation and completion 
 
 of contracts for the conveyance of land or other 
 
 hereditaments in consideration of a price in money (a). 
 
 Now in order to create a valid contract, that is, an Requisites of 
 
 agreement enforceable at law, it aj^pears that there contr^t 
 
 must be : — 
 
 (1.) Due capacity to contract on the part of the 
 
 persons entering into the agreement ; 
 (2.) The expression by all parties of a common inten- 
 tion to create an obligation binding some or 
 one of them ; tliat is, an intention that some 
 or one of them should do or forbear some- 
 thing affecting their legal relations for the 
 benefit of the others or other of them ; 
 (3.) Due compliance with the forms or the presence 
 of other matter required to make a promise 
 enforceable by English law, beyond the mere 
 expression of a common intention ; 
 
 (a) See Wills, J., /. <^- P. Coats v. Commissiotitrs of Itilaud Revenue, 
 1897, 1 Q. R 778, 78:5. 
 
 W. 1 
 
 ^r
 
 OF THE FORMATION 
 
 (4.) Nothing unlawful in the object of the agreement; 
 
 (5.) True, full and free consent of the parties ; that 
 is, consent unimpeachable as having been 
 induced through mistake, misrepresentation, 
 fraud, duress or undue influence (h). 
 
 Capacity. 
 
 General 
 capacity to 
 buy or sell 
 land. 
 
 Exceptions 
 
 — reserved 
 future con- 
 sideration. 
 
 Applying ourselves to the first of these elements of 
 contract, it is to be observed that, in order to form a 
 valid contract for the sale of land, the parties must 
 have, not only capacity to make contracts generally 
 but also due capacity to buy and sell land. As a 
 general rule, all natural persons enjoy either capa- 
 city : but there are exceptions in the case of infants, 
 persons of unsound mind, drunken persons, married 
 
 ~ women and convicts. Outlaws, too, and alien enemies 
 are disabled by their incapacity for bringing actions 
 from enforcing though not from making contracts (c). 
 And corporations are limited in their capacity for 
 buying and selling land (d). There are also eases in 
 which the formation of an unimpeachable contract for 
 the sale of land is prevented by the relation existing 
 either between the vendor and purchaser, as in the 
 instances of solicitor and client, trustee and ce>ifu/ que 
 trust, or between one party to the sale and the beneficial 
 owner of the land or money dealt with, as where a man 
 exercising a trust or power to sell or purchase land 
 endeavours in the one case to buy the land himself, or 
 in the other to sell his own land for the purpose [e) . 
 
 ^°^ All these exceptional cases are reserved for subsequent 
 consideration ; and it is proposed fii'st to examine the 
 formation, incidents and usual course of a contract for 
 sale of land made between persons of full contractual 
 capacity ; and to treat afterwards of any grounds for 
 
 [b) Wms. Pers. Prop. 158, 
 16th ed. 
 
 {c) Bar. Abr. Outlawry, D. (3), 
 Aliens, D. ; Co. Litt. 129 b. See 
 
 below, Chap. XVI. 
 
 [d) See below, Chap. XVI. 
 {e) See below, Chap. XVII.
 
 OP THE CONTRACT OF SALE. «* 
 
 imjDeaching the contract. For the present therefore we 
 will pass over the first, fourth and fifth of the above- 
 mentioned elements of a valid contract, and devote our 
 attention to the second and third, namely, the expres- 
 sion of consent, and its form. 
 
 The common intention or consent of the parties to Expression of 
 an agreement may be expressed either by their uniting 
 in a set form of written or spoken words, or by the 
 acceptance by some or one of them of an offer made to 
 them or him by the others or other of them (./'). As Form, 
 to the forms or other matter requii-ed to make a promise 
 enforceable by English law beyond the mere expression 
 of a common intention, the main rule is that the con- 
 tract must be evidenced b}^ deed or else there must be a 
 consideration for the promise (r/). In contracts for the 
 sale of land the element of consideration is always 
 present. The promise on the vendor's part to convey 
 the land to the purchaser is made in consideration of 
 the purchaser's promise to pay tlie price, and vice verm. 
 So that a contract for sale of land, though it be not 
 made by deed, fulfils the requirements of English law, 
 in so far as consideration is essential to its validity. A 
 contract for sale of land is however one of those con- 
 tracts on which the law imposes a requisite of form 
 besides the element of consideration. For by the fourth 
 section of the Statute of Frauds (A), no action shall be 
 brought to charge any person upon any contract or sale 
 of lands, tenements or hereditaments, or any interest in 
 or concerning them, unless the agreement upon which 
 such action shall be brought, or some memorandum or 
 note thereof, shall be in writiug and signed by the 
 party to be charged therewith, or some person by him 
 thereunto lawfully authorized. So that writing and 
 signature by the party to ho charged or hix agent are 
 
 (/) Wnis. VovH. Prop. 160, (./;) Ibid. 161. 
 
 IGth f(l. (),) Stat. 29 Car. II. r. 3. 
 
 1(2)
 
 OF THE FORMATION 
 
 The whole 
 agreement 
 must appear 
 from the 
 writing. 
 
 necessary to make a contract for the sale of land 
 enforceable at law (/). 
 
 Contracts for the sale of land are generally concluded, 
 on a sale by private treaty, by the signature by both 
 parties or their agents of a formal written contract ; and 
 on a sale by auction, by the purchaser or his agent 
 signing a memorandum embodying formal conditions 
 of sale, which the auctioneer also signs as agent for 
 the vendor. But such contracts may also be established 
 by informal written memoranda or letters signed by the 
 party to be charged therewith or his agent. So that a 
 binding contract may result from the acceptance in 
 writing duly signed of an offer to sell land. It is 
 essential, however, whether the writing given in 
 evidence be of a formal or an informal nature, that the 
 terms of the agreement sought to be proved thereby 
 should be sufficiently ascertained therein (./). The 
 parties to the contract (k) and the property to be sold 
 must therefore be sufficiently described (/), and the 
 price, or the means of ascertaining it, be stated (ni) ; 
 
 (i) The writing required by the 
 fourth section of the Statute of 
 Frauds need not be executed 
 with pen and ink ; the note of 
 the agreement may be made in 
 pencil or print, by engraving, 
 lithography or photography, or 
 "in any other mode of repre- 
 senting or rei)roducing visible 
 words." And the signature of 
 the party to be charged or his 
 agent may be affixed by any 
 similar means. See Schneider v. 
 
 Norris, 2 M. & S. 286 ; Geary v. 
 Physic, 5 B. & C. 234 ; Bennett y. 
 BrionfUt, L. R. 3 C. P. 28 ; Bench 
 V. Bench, 2 P. D. 60 ; Tourrct v. 
 Cripps, 48 L. J. N. S. Ch. 567 ; 
 Stat. 52 & 53 Vict. c. 63, s. 20. 
 
 {j) Seagood v. Meale, Prec. Ch. 
 560 ; Wain v. Warlters, 5 East, 
 10 ; lUagden v. Bradbcar, 12 Ves. 
 466, 471. 
 
 [k) Williams v. Lake, 2 E. & E. 
 349. 
 
 {I) See next paragraph. 
 
 (•;«) Milnes v. Gery, 14 Ves. 400 ; Elmore v. Kinqscote, 5 B. & C. 
 583, 584 ; Morgan v. Milman, 3 De G. M. & G. 24. It is thought 
 that the rule applying to the sale of goods, that in the absence of 
 express agreement as to the price the law implies an agreement to 
 biiy at a reasonable price {Hoadlcu v. McLaine, 10 Bing. 482, 487 ; 
 Joyce V. Swann, 17 C. B. N. S. 84, 102; stat. 56 & 57 Vict. c. 71, 
 s. 8 (2)), has no application to the sale of land. This rule appears to 
 have been laid down with respect to commodities so regularly sold 
 that the market or the usual price is easily ascertainable. With 
 regard to land, tlie law of specific performance of contracts to sell it is 
 founded on the principle that the advantage of the possession of a
 
 OP THE CONTRACT OF SALE. 
 
 and any other terms of the bargain (except, of course, 
 such as are implied by law, as that a good title shall 
 be shown (w) ) must be defined (o). 
 
 Witli regard to the question, What is a suflfieient Description 
 description of the parties to the contract, or the property ° ^ ^'^ 
 to be sold ? the rule is id cevtum est quod ccrtum reddi 
 potent [p). Thus a man may be sufficiently identified 
 by reference to some character which he fills, if there 
 can be but one answer to the inquiry. To whom does the 
 description apply (</) ? So that the description of a 
 vendor as the proprietor, owner or mortgagee of certain 
 land is good enough (/•). But if the description be so 
 vague that it does not necessarily apply to some 
 particular person, it is insufficient. Thus it is not 
 
 particular piece of land may be inestimable, and no amount of money 
 may be assessable as an exact equivalent for it ; Addcrley v. Dixon, 
 1 S. & S. 607, 610; Falcke v. Gray, 4 Drew. 651, 657; Hexter v. 
 Pearce, 1900, 1 Ch. 341, 346; see below. Chap. XIX. s. 3. Au 
 express agreement to buy land at its fair value is, however, valid, 
 and would, it seems, be specifically enforced ; Grant, M. R., Milncs 
 v. Gery, 14 Ves. 400, 407 ; Cranworth, C, Morgan v. Milman, 3 De 
 G. M. & G. 24, 34 ; Sug. V. & P. 287. And aii agreement to buy at 
 the fair value of the land may be inferred from the terms of the 
 memorandum ; see Gregory v. Zlighcll, 18 Ves. 328, 333, 334 ; Goarlay 
 V. {ioiiwrsct, 19 Ve.'i. 429, 431. But it is submitted that, if the 
 memorandum do not specify the price or the means of ascertaining it, 
 and contain no evidence of an intention to sell at a fair price, it is 
 insufficient to prove a contract of sale. It is quite clear that, where 
 the price is in fact agreed upon, it must be mentioned in the memo- 
 randum ; Elmore v. Kbxjscote, ubi sup. ; Re Kharoskhoma, <S;c. Syndi- 
 cate, 1897, 2 Ch. 451, 464. 467. Where the parties intend that a 
 particular piece of land .shall be the object of au agreement of sale 
 between them, but have not determined whether the price .shall be 
 (1) a definite sum of money, or (2) a sum to be ascertained in some 
 specified manner, or (3) a sum equivalent to the fair value of the 
 land, it is thought that their agreement as to the sale rests incom- 
 plete, and does not amount to a contract legally enforceable. 
 
 (m) ^q Fowlew. Freeman, ^Wea. Ch. 613. 
 351. (r) Sale v. Lambert, L. R. 18 
 
 (o) Cooper V. Ifood, 26 Beav. "Eq^. \ \ Rossiter v. Miller, xxhismp. 
 293 ; Van Praagh v. Evei'idge, So the descriptions " the execu- 
 1903, 1 Ch. 434. tors of A." {Hood v. Lord liar- 
 
 (p) Rossiter v. Miller, 3 App. rington, L. R. 6 Eq. 218), "a 
 Cas. 1124, 1141. trustee for sale of certain pro- 
 
 (7) Potter V. Dufiield, L. R. 18 perty " [Catling v. King, 5 Ch. D. . 
 Eq. 4, 7 ; Carr v. Lynch, 1900, I 660) have been held sufficient.
 
 OF THE FORMATION 
 
 Description 
 of the 
 property. 
 
 Plant V. 
 liourne. 
 
 enough to describe the party to a contract of sale as the 
 vendor of certain property, or as the chent or friend of 
 a named agent (.s). The same general rule is applied 
 in determining the sufficiency of the description of the 
 property sold, parol evidence being admissible in either 
 case to elucidate the description (t) . Thus in a written 
 agreement for the sale of Mr. Ogilvie's house (n), or 
 Trogues Farm (:?:), or the Ashford Hall Estate (y), or 
 of the property sold on a day specified at the Sun Inn, 
 Pinxton (s), the land sold is ascertained with sufficient 
 certainty to make the contract valid and enforceable ; 
 and it may be shown by oral evidence what land in 
 fact answers to each particular description. So also 
 " the property in Cable Street " has been admitted to be 
 equivalent to all the vendor's property in Cable Street, 
 and so sufficient to uphold the memorandum (a). 
 And it has even been held that a memorandum of 
 sale between two persons named at a price specified of 
 " twenty-four acres of land at Totmonslow " contained 
 a description sufficiently ascertaining the land sold to 
 satisfy the Statute of Frauds {h). 
 
 (.s) Potter V. Buffield, ubi sup. ; 
 Jarrett v. Hunter, 34 Ch. D. 18'2 ; 
 Lavery v. PurseU, 39 Ch. D. 608, 
 518. 
 
 [t] Ogilvie v. Foljambe, 3 Mer. 
 53; Shardloiv v. Coiterell, 20 Ch. D. 
 •dQ, 9^; Plants. Bourne, 1897, '2Ch. 
 281. 
 
 [u) Ogilvie v. Foljambe, 3 Mer. 
 63, 61. 
 
 {x) Goodtith d. Radford v. 
 Southern, 1 M. & S. 299. 
 
 (y) Rickelts v. Turquand, 1 H. 
 L. C. 472, 487, 493. 
 
 (z) Shardlow v. (Jottcrell, 20 Ch. 
 D. 90. 
 
 («) Bleakley v. Smith, 11 8im. 
 150, where note that the only 
 question argued and determined 
 was as to the sufficiency of the 
 vendor's signature. 
 
 (A) Phmt V. Bourne, C. A., re- 
 versing Byrne, J., 1897, 2 Ch. 
 
 281. In that case the quantity 
 mentioned was all the land the 
 vendor had there, and he had 
 shown the purchaser over it just 
 before the contract was signed. 
 The C. A. admitted oral evidence 
 of these facts on the ground that 
 the description in the memoran- 
 dum must be takeu to mean the 
 vendor'' s 24 acres or those so pointed 
 out by him. Byrne, J., had ex- 
 cluded this evidence because the 
 meiuorandum did not say so, 
 though he would have admitted 
 the evidence if the description 
 had been the 24 acres, &c. Qucere, 
 whether in principle the judg- 
 ment of BjTne, J., were not 
 sounder than those delivered in 
 the Court of Appeal, where the 
 Lords Justices appear to have 
 adopted as the rule of law, not 
 the decision in Ogilvie v. Foljambe
 
 OF THE CONTRACT OF SALE. 7 
 
 The memorandum required b}' the Statute of Frauds Memorandum 
 need not be contained in one document ; it may be J^Yby^several 
 made out from several documents, if they can be con- documents, 
 nected together. It was formerly laid down that, in Rule as to 
 order to connect two documents together so as to documents 
 establish a sufficient memorandum to satisfy the Statute 
 of Frauds, one must contain some reference to the 
 other (c). But later cases have established a wider 
 rule, which appears to be this : — You are entitled to 
 explain by parol evidence the meaning of any general 
 expression used in any document {(I). If therefore you 
 have a document, signed by a party to be charged, which 
 refers to an agreement made by him, but in such terms 
 that the description of the agreement is obviously 
 incomplete, you are entitled to give evidence to show 
 what that agreement is, and if the evidence so adduced 
 comprise another document containing all the terms of 
 the agreement, or the terms not specified in the first 
 document, the two documents may be read together as 
 a memorandum sufficient to satisfy the Statute, although 
 
 (3 Mer. 53), that "' Mr. Ogilvie's the actual decision of the Court 
 
 house" was a description suffi- of Appeal may be supported on 
 
 ciently certain to allow of its the ground that a sale of 24 acres 
 
 being elucidated by parol esi- of land at Totmonslow would be 
 
 denee, but the dictum of Grant, a valid sale of 24 acres of land to 
 
 M. R., that "the subject-matter be selected by the purchaser out 
 
 of the agreement is left indeed to of the vendor's land there; -Shepp. 
 
 be ascertained by parol evidence. Touch. 251 ; TapUy v. lAtglcton. 
 
 and for that purpose, such evi- 12 Ch. D. 683; and that being 
 
 dsDce may be received"; see so, it was competent to the ven- 
 
 1897, 2 Ch. 287, 289. This dictum dor to prove that the purchaser 
 
 was of course uttered purely with had made his selection before the 
 
 reference to ascertaining what memorandum of the contract was 
 
 house answered to the description signed; see Wylson v. Dunn, 34 
 
 of Mr. Ogilvie's h(msf. But, Ch. D. 569. 
 
 surely, apart from this, it is not {(■) lildgwaij v. Wharton, 3 D. 
 
 the law that a written memo- M. A: Gr. 677, 693-7, per Cran- 
 
 randum of a contract is sufH(deut worth, C, who changed his mind, 
 
 to satisfy the Statute of Frauds, S. ('., 6 H. L. C. 238. 256 ; di-<- 
 
 although the subject-matter of the senting judgment of Williams, J., 
 
 agreement is left to be ascertained X. Stajfurdshirr Rij. v. Peck, E. B. 
 
 by parol evidence ; see cases cited & E. 986, 1000-3. 
 above. i)p. 4, n. (,/). 5, n. io). [d\ Bainbridye v. Wade, 16 O. 
 
 It is respectfully subiuitted that B. 89.
 
 OF THE FORMATION 
 
 the evidence connecting them be parol evidence only [e) . 
 But if a signed document contain a reference to an 
 agreement made by the signer in such terms that a 
 complete agreement is described, and no explanation of 
 the terms of the document is required on the face of it, 
 the party seeking to charge tlie signer is not entitled to 
 give parol evidence that the agreement is other than is 
 described, although the signer may prove by parol 
 evidence that the agreement described in the writing 
 does not contain some term of the agreement into which 
 he entered, and so avoid the contract under the Statute 
 of Frauds ( /"). To give examples : — Parol evidence has 
 been admitted to connect a signed letter referring to an 
 agreement to purchase land with an other document giving 
 the terms of purchase {g) ; to connect a letter promising 
 to " grant the extension of lease you solicit " with another 
 letter showing the day on which the term granted by 
 the lease was to expire (A) ; to show that the " instruc- 
 tions " to a solicitor referred to in a letter were a written 
 memorandum containing fully the terms of the agree- 
 ment sought to be enforced (/) ; to connect a letter 
 containing a promise to grant a lease for fourteen years 
 " at the rent and terms agreed upon " with another 
 document in which such rent and terms were specified (k) ; 
 and to show that the purchase referred to in a signed 
 receipt for 31/. " as a deposit of the purchase " of 
 certain land was an agreement for purchase of which 
 
 {e) Rldnicay v. Wharton, 6 H. L. R. 9 Q. B. '210; Mishton v. 
 
 L. C. 238; Banmann v. Janien, JFhatmorc, S Gh. D. iGl. 
 
 L. R. 3 Ch. 508 ; Zonp v. Millar, (y) Tf'esfern v. Emscll, 3 V. & 
 
 4 C. P. D. 450 ; Shardlow v. Cot- B. 187. See also Cave v. HaHtbigs, 
 
 terill, 20 Ch. D. 90; Studda v. 7 Q. B. D. 125 (reference to «' our 
 
 Watson, 28 Ch. D. 305 ; IJ'ykon arrangement for the hire of your 
 
 V. Dunn, 34 Ch. D. 569, 574, 575 ; carriage "). 
 
 Oliver v. Huntmy, 44 Ch. D. 205 ; [h) Verlandcr v. Codd, T. & R. 
 
 Sheers v. Thimhlehy, 13 Times 352. 
 
 L. R. 451. (J) Ridyway v. Wharton, 6 H. 
 
 (/) Hindc V. WhitehouHe, 7 East, L. C. 238. 
 
 obS, h69, 570 ; Kemvorthyv. Scho- (/) Bauinann v. Ja»icx, L. R. 
 
 Jicld, 2 B. & C. 945 ; Peircey. Corf, 3 Ch. 508.
 
 OF THE CONTRACT OF SALE. ^ 
 
 the terms were contained in a memorandnra signed by 
 the purchaser (/). So if one write a letter saying, " I 
 accept your offer," there is no doubt that this may be 
 shown by parol evidence to refer to another letter 
 previously received, in which the terms of the offer are 
 fully stated, so that a complete contract in ^vi'iting may 
 be established by the two letters read together (/«). 
 Similarly, parol evidence has been admitted to connect 
 a letter addressed " Dear Sir " only with the envelope 
 in which it was enclosed, and on which the purchaser's 
 name was written {ii). On the other hand, memoranda 
 of sales written in auctioneers' books in terms, which 
 needed no explanation, have been held insufficient to 
 satisfy the Statute, on the ground that they contained 
 no reference to special conditions on which the sales 
 were made (o). 
 
 The signing contemplated by the Statute appears to The signature 
 be writing the name {])) of the party to be charged or '""^i"^^^ • 
 
 (1) Long V. Millar, 4 C. P. D. tials only of the Christian name 
 450 ; see also Studds v. fFatson, and surname, or even makiug a 
 28 Ch. D. 305 ; Olirei- v. HuhUikj, mark, appears to be a sufficient 
 44 Ch. D. 205 ; in -which cases signature, if the signer be other- 
 writings referring to ' ' the pur- Avise sufficiently described in the 
 chase - money " were allowed to memorandum; Sctbtj v. Selhy, 3 
 be explained by parol evidence Mcr. 2 ; Hubert v. Moreau, 12 B. 
 and so connected with other docu- Moore, 21G, 219. And it seems 
 ments containing the remaining that signature by initials only 
 terms of the purchase. may be enough without any other 
 
 {m) Bramwell, L. J., Lony v. description of the signer, parol 
 
 Millar 4 C. P. D. 450 454 ; evidence being admissible to 
 
 Field, J., Cave x. Haxlings, 7 q'. identify him: C/nc/wsfn- v. Cobb, 
 
 B. D. 125, 128; Kekewich, J., 1* L. T. N. S. 433; cf. Swat v. 
 
 Oliver v. Bunting, 44 Ch. D. 205, -^^'^ ^ Man. & Gr. 4o2, 460. But 
 
 209. signature by mark alone without 
 
 , V „ /--.I 1 on-T 1 name or description is open to 
 
 (n) Fearce v. Uardner, 1897, 1 .i i • ..■ 4.1 a j.i 
 OB rss the objection that the momoran- 
 
 ^' ■ ■ dum is incomplete in not showing 
 
 (0) Hinde v. Whitehume, 7 the party to be charged ; Hubert 
 
 East, 556, 569, .')70 ; Kcnworthy v. J/f-jrrtM, 2 C. & P. 528. A de- 
 
 V. Schojicld, 2 B. & C. 945 ; Peirce scription, which may be sufficient 
 
 V. Corf, L. R. 9 Q. B. 210 ; Rish- to identify the person described 
 
 ton V. IVhatmure, 8 Ch. D. 467. as a party to the agreement (see 
 
 [p) The party's usual signa- ante, p. 5), may not be suffi- 
 
 ture, with initials for the Chris- cient to constitute his signature 
 
 tian names, will do ; ll.\.Arerii, of the memorandum; Srlby v. 
 
 18 Q. B. 57(i. Writing the iui- fielby, 3 Mer. 2.
 
 10 
 
 OF THE FORMATION 
 
 liis authorized agent (^/), so as to authenticate the memo- 
 randum (y). And as the Statute requires signing only 
 and not subscribing, it does not much matter in what 
 part of the document the signature is placed, provided 
 the name be inserted in such a manner as to govern the 
 whole memorandum (s). Thus in the case of memo- 
 randa drawn up in the third person, the mention of the 
 names of the parties at the beginning has frequently 
 been held to be a sufficient signature (f). So writing a 
 person's name at the head of a memorandum of an 
 agreement, to which he is a party, has been held to be 
 a sufficient signature (u). But where a name inserted 
 in the body of a memorandum relates only to particular 
 sentences, it cannot be regarded as a signature of the 
 whole document (,r). And writing the names of the 
 parties in a memorandum of agreement (even so as to 
 govern the whole) will not be considered to be signing, 
 if the terms of the instrument show that the parties 
 intended it to be authenticated by further signature (//) . 
 If, however, the terms of a memorandum, in which the 
 parties' names are inserted, leave a doubt, whether 
 further signature was intended, parol evidence is ad- 
 missible to show that either party made, authorized or 
 adopted such signing of his name as his signature (s). 
 
 {q) Philliiiwrev. Borrij, 1 Camp. 
 ■513; White v. Proctor', i Taunt. 
 •20'J. 
 
 (»•) Stoke-sv. Moore, 1 Cox, 'ilQ. 
 
 (s) Ogilvie v. Foljamhe, 3 Mer. 
 53 : Lobb v. StanJey, 5 Q. B. 574 ; 
 Cato)i V. Caton, L. R. 2 H. L. 
 127, 143. 
 
 [t) See cases cited in preceding 
 note : and I'ropcrt v. Parker, 1 
 Russ. & My. 625 : Blmklei/ v. 
 Smith, 11 Sim. 150. 
 
 («) Schneider v. Norri!f, 2 M. & 
 S. 286 ; Elans v. Hoarc, 1892, 1 
 Q. B. 593, where note that the 
 letter was written by the defen- 
 dants' clerk by their authority, 
 
 and then presented to the plain- 
 tiff for signature ; so as that the 
 defendants' name was actually 
 written by their authorized agent; 
 St'im V. Landrai/, 1894, 3 Ch. 
 318. 
 
 [x] Stokes V. Moore, 1 Cox, 219; 
 Caton V. Caton, L. R. 2 H. L. 
 127. 
 
 {>/) Hubert v. Trehcrne, 3 Man. 
 & Gr. 743 ; 6'. C, nom. Hubert v. 
 Turner, 4 Scott, N. R. 486. 
 
 iz) Johnson v. Dudyiion, 2 M. t^- 
 W. 653 ; see also Schneider v. 
 Norris and Evans v. Hoare, ubi 
 sup., which were decided upon 
 this principle ; Hucklesby v. Hook, 
 82 L. T. 117.
 
 OF THE CONTRACT OF SALE. 11 
 
 The memorandum mentioned in the 4th section of the Signature of 
 Statute of Frauds is required to be signed b}' the party ^har^ai or 
 to be charged, or his agent. It is settled that the other hi« agent, 
 pnrty need not sign the memorandum, in order to enforce 
 the agreement ; it is sufficient that he be ready and 
 mlling to perform his part of the contract {a). An 
 agent authorized to sign a memorandum of contract for 
 his principal need not, it is held, be thereunto authorized 
 in loritiny (/>). And the memorandum may well be Memoraudum 
 made or signed at any time after the contract has been t" th^"^" 
 entered into, but before an action is brought to enforce contract, 
 it {c). Agreements made without complying with the 
 requirements of the Statute are held to be, not void, but 
 only not enforceable {d). 
 
 An oral agreement for the sale of land may be enforced Cases where 
 in certain exceptional cases, although the requirements enforceable 
 of the Statute of Frauds have not been complied with, without com- 
 These are, first, where the sale is made by the Court, statute of 
 when the judicial character of the proceedings is held Fi'aiKi^- 
 to preclude the danger of the mischief, which the Statute Court.^ ^ 
 was intended to prevent {e) . Secondly, according to the 2. Where 
 present practice, the defence of non-compliance with statute not 
 the requirements of the Statute of Frauds must be taken, 
 specially pleaded in an action upon a contract (./). So 
 that if one sued in respect of an oral agreement for the 
 sale of land omit to plead the defence of the Statute, the 
 agreement may be established either by the admission 
 of its existence in the defendant's pleading (^), or if not 
 
 (a) Lnythonrp v. Bryant, 2 {e) A.-G. v. Daif, 1 Ves. sen. 
 
 Bing. N. C. 735 ; Jieu.ss v. Picks- 218, 221; Sug. V. A: P. 109; 
 
 Iry, L. R. 1 Ex. 342. Dart, V. & P. 197, 1201, 5th ed. ; 
 
 (A) IFalln- v. Hendon. .5 Viu. 227. 1329-30, 6th ed. ; 218, 1168, 
 
 Abr. 524, pi. 45 ; Sug. V. Ac P. ^th ed. ; Fry. Sp. Perfce. § 562. 
 
 145; Sim.s v. Landroy, 1894, 2 (/) R. S. C, Order 19, r. 15; 
 
 Ch. 318. Clarke v. CnUoic, 46 L. J. N. S. 
 
 I \ -D II 11 7 lono .J r>u -irn Q- B- '"'3; See Oiham.s v. Bnin- 
 
 (c) Jie lIoll(ni(i, 1202, liyh. 660. i.i rp- t t> .jr..> 
 
 ^ ' ' ' ntny, 12 Times L. R. 303, re- 
 
 (d) Lerotix v. Brown, 12 C. B. versed 13 Times L. R. 65. 
 
 801 ; Maddi'^on v. Afderson, 8 (g) See R. S. C, Ordor 19. rr. 
 
 App. Cas. 467, 474, 488. 13-20.
 
 12 
 
 OF THE FORMATION 
 
 3. Fraud. 
 
 4. Part per- 
 formance. 
 
 SO admitted by oral evidence (A). Aud the Courts will 
 now enforce an agreement so established, whether the 
 relief claimed be the specific performance of the contract 
 or damages for its breach (^). Thirdly, an agreement 
 may be established by oral evidence, notwithstanding 
 the terms of the Statute of Frauds, where it would be 
 a fraud to repel proof of the agreement under cover of 
 the Statute (/>•). Thus if an absolute conveyance of land 
 be obtained under an oral agreement for a mortgage, 
 the mortgagee will not be allowed to set up the Statute 
 of Frauds as a defence to an action to enforce the right 
 of redemption (/). So if one be induced to sign a 
 written contract for the sale or purchase of land on the 
 faith of some variation being made in the terms of the 
 written agreement or of the performance of some col- 
 lateral stipulation, oral evidence of the variation or 
 stipidation so agreed upon will not be excluded by 
 reason of the Statute {m) . So where it is arranged that 
 an agreement made orally shall be put into writing, but 
 this is prevented by the fraud of one of the parties, he 
 will not be allowed to avail himself of the defence of 
 the Statute («). Fourthly, if an oral contract for the 
 
 (k) Ollcij V. Fisher, 34 Ch. D. 
 367 ; James v. Smith, 1891, 1 Ch. 
 384. 
 
 («) Under the old Chancery- 
 practice, an oral agreement would 
 be specifically enforced, if it 
 were admitted by the defendant's 
 answer, and he did not insist on 
 the Statute ; Limondson v. Swecd, 
 Gilb. 35 ; Gunter v. Halscy, Amb. 
 .'580 ; Ridgway v. Wharton, 3 De 
 G. M. & G.'677, 689-692. But 
 at common law, it was not neces- 
 sary or proper to plead the Sta- 
 tute specialh/. If the defendant 
 pleaded the general issue (that is, 
 a general denial of the contract), 
 the plaintiff had to establish a 
 contract enforceable at law ; and 
 if he failed to prove compliance 
 with the Statute of Frauds, the 
 defendant might then raise the 
 defence of the Statute ; see Butte- 
 
 mcre v. Hayes, 5 M. & W. 456, 
 460 ; Leaf v. Tuton, 10 M. & W. 
 393. And see Futeher v. Futcher, 
 45 L. T. N. S. 306. 
 
 {K) Eldon, C, Mestaer v. Gil- 
 hspie, 11 Ves. 627-8 ; Haiyh v. 
 Eaye, L. R. 7 Ch. 469, 474 ; 
 Rochefoucauld v. Boustead, 1897, 1 
 Ch. 196, 206. 
 
 {D 1 Eq. Ca. Abr. 20, pi. 5 ; 
 Walker v. Walker, 2 Atk. 98 ; 
 England v. Codringtmt, 1 Eden, 
 169 ; Lincoln v. Wright, 4 De G. 
 & J. 16, 22 ; Loiiglas v. Culver- 
 well, 3 Giff. 251 ; 4 De G. F. & J. 
 20. 
 
 (;«) See Pember v. Mathers, 1 
 Bro. C. C. 52 ; Clarke v. Grant, 
 14 Ves. 519 ; Jervis v. Berridge, 
 L. B. 8 Ch. :-!5I ; Fry, Sp. Perfce. 
 ^ 568, 809. 
 
 (?*) Maxwell v. Montacute, Prec. 
 Ch. 526. But unless there be
 
 OF THE CONTRACT OF SALE. 13 
 
 sale of land be partly performed by one of the parties 
 thereto, that may preclude the other from setting up the 
 defence of the Statute of Frauds to an action under the 
 equitable jurisdiction of the Courts for the specific en- 
 forcement of the contract (o). For it is held in equity 
 that when there has been part performance of an oral 
 contract for the sale of land (which, as we have seen, is 
 not void {]))), the parties are to be charged not so much 
 upon the contract (q) as upon the equities arising from 
 the acts of performance. The case is considered to have 
 gone beyond the stage of mere contract and therefore 
 to be outside the mischief aimed at by the Statute ; and 
 in order to do justice between the parties, oral evidence 
 of the contract is admitted (/•). But to have this effect, 
 the acts of part performance must, according to the 
 authoritative phrase, be " unequivocally and in their 
 own nature referable to some such agreement as that 
 alleged " (.s). That is to say, the acts must be such 
 that the existence of an agreement such as alleged is the 
 only reasonable inference therefrom ; they must be not 
 only consistent with the contract asserted but referable 
 to no other title (f). The acts moreover must be such 
 as would render it a fraud to raise the defence of want 
 of signed writing {u). The terms of the agreement, of 
 
 fraud, au oral agreement to put on account of part performance 
 
 in writing and sign the terras of of the contract ; Lavnii v. Pur- 
 
 a contract rcguhited by the 4tli sell, 39 Ch. D. 508, 518. 
 section of the Statute of Frauds {p) Above, p. 11. 
 
 cannot be enforced; Wood v. (</) See the words of the Sta- 
 
 Midgleij, 5 Do G. M. & G. 41, 45 ; tute ; above, p. 3. 
 see Fry, Sp. Perfce. \ 575, p. 267, (r) See Maddison v. Alderxon, 8 
 
 3rd cd. ; p. 254, 4th ed. ; Johns- App. Cas. 475-8. 
 <o« V. //oye*, 42 Sol. J. 610 ; 6'. ^., (,s) Maddison v. Aldemon, 8 
 
 on further proceedings, 1899, 2 App. Cas. 479. 
 Ch. 73. (t) See JFi/ls v. Stradlinn, 3 
 
 (o) See Sclborn(>, C, Muddison Vcs. jun. 378, 381 ; .^forp/icff v. 
 
 V. Aldemon, 8 App. Cas. 467, 474 Jones, 1 Sw. 172, 181. 
 et seq. A party sued for dam- (h) Biukmastery. ITarrop^'iYen. 
 
 ages on an oral contract imdcr 341, 345; Redesdale, Ir. C, 6Vi«(?w 
 
 the common law jurisdiction of v. Cooke, 1 Sch. & Lef. 22. 41 ; 
 
 the Courts is not precluded from .Viindi/ v Jolift'e, 5 My. it Cr. 
 
 raising the defence of the Statute 167,177.
 
 14 
 
 OF THE FOKMATION 
 
 which the existence is so inferred, must be duly proved 
 by oral evidence (./•). And the agreement so proved must 
 be a contract enforceable (in all respects save the absence 
 of signed writing) under the equitable as distinguished 
 from the common law jurisdiction of the Courts (y). 
 To give examples, taking possession of land under an 
 oral agreement for the purchase or lease of it is the 
 strongest case of an act of part performance raising the 
 equity in question. For " the acknowledged possession 
 of a stranger in the land of another is not explicable 
 save on the supposition of an agreement, and has there- 
 fore constantly been received as evidence of an ante- 
 cedent contract " (s). But mere holding over by a 
 tenant whose term has expired is not unequivocally 
 referable to a new contract with his landlord {a). So 
 payment of part and possibly the whole of the purchase- 
 money is not sufficient to let in oral evidence of a 
 contract for the sale of land ; for " the payment of 
 money is an equivocal act, not (in itself), until the 
 connection is established by parol testimony, indicative 
 of a contract concerning land " {h). 
 
 Offer and 
 acceptance. 
 
 Communica- 
 tion. 
 
 In regard to the expression of the parties' consent, the 
 formation of a contract for the sale of land is governed 
 by tlie general law of contract, subject of course to the 
 requisite of form (e) (namely, signed writing), which 
 has just been considered. Thus in order that the accept- 
 ance of an offer {d) may make a contract, it is essential 
 that there should be eonimunicafio)! of the offer and its 
 
 (.r) Cooth V. Jackson, 6 Ves. 12, 
 
 38 ; Thynnew. Glengall, 2 H. L. 0. 
 131, 158 ; Muddison v. Alder son, 
 8 App. Gas. 467. 
 
 (y) Britain v. Eossifcr, 11 Q. B. 
 D. 123 ; McManus v. Cooke, 3o 
 Ch. D. 681 ; Laveri) v. Pursell, 
 
 39 Ch. D. 508, hik ; Fry, Sp. 
 Perfce. §^ 592-098. 
 
 {z) Pluraer, M. R., Morphett 
 V. Junes, 1 Sw. 181 ; and see 
 
 Jesse], M. R., TJngley v. TJngh'y, 
 5 Ch. D. 887, 891) ; Dickinson v. 
 Barrow, 1904, 2 Ch. 339, 344. 
 
 (a) Wills V. Stradling. 3 Ves. 
 jun. 381 ; Maddison v. Aldcrson, 
 S App. Cas. 480. 
 
 [h) M add lion V . Alder son, 8 App. 
 Cas. 478-9. 
 
 (r^ .Above, p. 3. 
 
 {d) See above, p. 3.
 
 OF THE CONTRACT OF SALE. 15 
 
 acceptance to each party respectively (c), and the ac- 
 ceptance must be absolute and identical with the terms 
 of the offer (/). If therefore you offer to sell me your 
 land, though I make up my mind to accept, there is no 
 contract between us until I duly signify to 3'ou my 
 acceptance. And this Avill be the ease, even though 
 you state in your offer that, unless you hear from me, 
 you will con5>ider the matter as concluded ; for though 
 you may indicate to me the manner in which my accept- 
 ance shall be signified, you are not at liberty to stipulate 
 that my acceptance shall be implied, if I do nothing (//). 
 Again if I offer to sell you my land for 1,0(»()/., an 
 answer that you will give 950/. for it is no acceptance 
 of my offer, but a counter- proposal on your part ; it is 
 a rejection of my offer ; and if I should decline your 
 proposal, you would not be at liberty to bind me by ac- 
 cepting my terms, unless I had renewed my offer to 
 you {/i). An offer may be revoked {i) at any time Revocation. 
 before its acceptance be duly communicated to the pro- 
 poser : but, as in the case of acceptance, mere change 
 of mind is not enough to revoke an offer ; the change 
 must be communicated to the other party (/.•) . When 
 the acceptance of an offer is duly commimicated to the 
 proposer, the contract is completely formed, and neither 
 party is at liberty to recede (/). Here we may notice Communica- 
 that, where the parties are in communication through *j°" through 
 
 ^ " the post. 
 
 (e) Fclthou.se v. Bindleif, 11 C. man v. Mnrn/af, '21 Beav. 14, 20, 
 
 B. N. S. 869 ; Dickinson v. iJodds, affd. 6 H. L. C. 112. 
 2 Ch. D. 463 ; Brogden v. Metro- [k) Byrne v. Van Tienhoven, ft 
 
 politaii Ml/. Co., 2 App. Cas. 666, C. P. D. U4, 317 ; Henthorn v. 
 
 691-2. Frii.sn; 1892, 2 Ch. 27, 31, 32, 36. 
 
 (/) Hyde v. Wrench, 3 Beav. It appears, however, that an offer 
 
 334 ; and see Fe/thon.se v. Bindley, may be effectually revoked, if the 
 
 ubi sup. ; lionnewell v. Jenkins, H proposer liave distiucily siu-iiiti.d 
 
 Ch. D. 70. 'li'^ change of mind and this come 
 
 (ff) See cases cited in hist note *" *^'^ knowledge of the other 
 
 but one. party, though the proposer did 
 
 not make the communication ; 
 1) ayae v. nreiicn, .) neav. 
 
 334 
 
 {h) Hyde v. Wreiich. 3 Beav. j)ickimon v. Dodds, 2 Ch. D. 463! 
 
 (/) Adams V. I.indsetl, 1 B. I'i: 
 
 (i) Or varied, variation hciiig a A. 681 ; Byrmy. J'an Tienhovni, 
 revocation and new offer ; Honey- Henthorn v. Fnuer, ubi .sup.
 
 16 
 
 OF THE FORMATION 
 
 the post, or where the post is the natural channel for 
 sending the answer to a proposal of contract, acceptance 
 of the offer is held to be duly signified when a letter of 
 acceptance is posted [m) . So that the proposer is bound, 
 notwithstanding that the letter be delayed in the 
 post beyond the time when he naturally expected to 
 receive it (n), and even though the letter be lost in the 
 post and he never received it (o) ; and he cannot 
 withdraw his offer after a letter accepting it has been 
 posted to him {■/>) . This is a rule of convenience, and 
 its best explanation seems to be that a proposer making 
 an offer, to which he might naturally expect the answer 
 to be sent by post, must be taken, if not to have autho- 
 rized that mode of communication, at least to have 
 accepted its usual conditions and risks. Posting a letter 
 of acceptance of such an offer is therefore considered as 
 a compliance with the conditions of the offer as regards 
 the signification of acceptance (q) . It follows that the 
 acceptor ought not to be prejudiced by anything which 
 may occur after his letter has been posted. Thus it 
 would be unjust, and it would be impossible to carry on 
 business through the post, if the proposer were allowed 
 to withdraw in the interval between the posting of the 
 acceptance and its arrival. So delay or loss of a letter 
 in the post is no fault of the sender, who parts with all 
 control over it when it is posted ; and he ought not to 
 suffer therefrom (>•). This doctrine, it should be stated, 
 has no application in the case of the revocation of an 
 offer ; which, if communicated by post, only takes effect 
 
 {ill) See Household Fire Insurance [p) Re Imperial Land Co. of 
 
 Co. V. Grant, 4 Ex. D. 216 ; Hen- Marseilles, Harris's Case, L. R. 7 
 
 thorn V. Fraser, 1892, 2 Ch. 27; Ch. 587 ; Byrne v. Van llenhorcn, 
 
 lie London and Northern Bank, 5 C. P. D. 344 ; Henthorn v. 
 
 1900, 1 Ch. 220. Fraser, 1892, 2 Ch. 27. 
 
 {n)l)unlop V. Hiygins, 1 H. L. ^^^ g^^ Henthorn v. Fraser, 
 
 Air 7 ;^ c- r n 1892, 2 Ch. 27. 
 
 (o) Household tire Insurance Co. ' 
 
 V. Grant, 4 Ex. D. 216, diss. (»•) Sec the cases cited in the 
 
 Bramwell, L. J. five preceding uotes.
 
 OF THE CONTRACT OF SALE. 17 
 
 when the lettei' actually reaches the person to whom it 
 is addressed ; for the revocation of an offer is not a 
 matter which its recipient can be expected to con- 
 template, and his acceptance of the exigencies of postal 
 communication cannot be infen-ed (s). In order to bind Time for 
 the proposer, an offer must in general be accepted within 
 a reasonable time after it is made (t). What is a reason- 
 able time is of course a question of fact in each parti- 
 cular case («). Here it may be noticed that a promise 
 to keep an offer open for a particular time is unenforce- 
 able for want of consideration (x) ; so that an offer 
 accompanied by such a promise may be withdrawn, 
 provided it has not been accepted, before the time speci- 
 fied has elapsed {y). 
 
 Owing to the above-mentioned provisions of the Negoiiation 
 Statute of Frauds, tlie object of all negotiations as to fo/sale! ^'^'^ 
 the sale of land is to arrive at an agreement, not merely 
 expressed orally, but put into writing and signed (;:). 
 And it is usually desired, on the vendor's part at least, 
 not to enter into an open contract (that is, a contract Open 
 simply ascertaining the parties, the property to be sold 
 and the price and leaving the other terms to be implied 
 by law), but to modify by express stipulation the legal 
 incidents of the bargain. For as we shall see, the law 
 imposes on every vendor of land the duty of strictly 
 proving his title ; and it is not often advisable that 
 he should undertake his full legal liabilities in this 
 respect {(i). Thus a formal contract for the sale of land 
 
 (.*) Set! the cases cited in note If the promise be made by deed 
 
 (/>) to p. 1(), above; iii«(> Curtice or for valuable consideratiou, it 
 
 V. Lundon, ('ilijnud Midlaud liauk, is of course enforceable. 
 
 Ltd., 190S, 1 'K. B. 'ifKJ. [ij) RouUediie v. Grant, \ Bing. 
 
 (<) liummcnn v. liolniis, 3 De G. 653 ; JJickiiixon v. Doddi, 2 Cli. D. 
 
 J. & S. 88 ; liaiiisgatc rutoria 463 ; Hcnthorn v. Frascr, 1892, 
 
 Hotel Co. V. Moiite/iure, L. R. 1 2 Ch. 27. 
 
 Ex. 109. (z) See above, pp. 3, 4. 
 
 (m) See Diiiilo/) V. Jii(/!/i>ii, 1 (a) It is frequently desirable 
 
 H. L. C. 3j1. that a vendor should limit by 
 
 [x) Cooke V. Oxiey, 3 T. R. 653. express stipulation the time for 
 
 w. 2
 
 18 OF THE FORMATION 
 
 generally contains special stipulations of a teclinical 
 character. It is therefore very necessary for those who 
 negotiate the sale of land to understand the principles 
 of the formation of contract. The main thing to 
 remember is that unconditional acceptance of an offer 
 makes a contract, to which no new term can be added, 
 and from which neither party can recede, except by the 
 consent of both : whilst any acceptance, which is con- 
 ditional on the variation of some term of the offer, is 
 really a new proposal, and must in its turn be accepted 
 Answering \)y the other party before a contract is formed (h). Any 
 ^g"o"saie. one, who receives an offer of sale or purchase, to which 
 he is favourably inclined, should make up his mind 
 before answering whether he wishes to conclude an 
 immediate contract or merely to signify his assent that 
 the terms proposed shall form the basis of a future 
 contract. In the former case he should accept un- 
 conditionally and in the simplest words ; for instance, 
 " I aocej)t the offer contained in yoiu- letter of such a 
 date." In the latter event he should be very careful to 
 express [daiuly his intention to give a provisional assent 
 only and not to be bound until all the terms of a future 
 agreement have been settled. The best way to do this 
 is to state clearly that the intended contract may contain 
 other terms than those provisionally accejited ; to say, 
 for example, " I am willing that the terms of purchase 
 proposed in your letter dated, &c. shall form the basis 
 of a future contract between us to be approved by my 
 solicitor and to contain such stipulations as he may 
 advise me to insert therein" (c). For if an offer be 
 
 which he is to show title ; audit p. 15; and Chi/mock v. Mar- 
 is always advisable that he should chioness of Ely, 4 De G. J. & S. 
 reserve to hinuself the power of 638 ; Cronshy v. Maijcovh, L. E,. 
 rescinding the contract if the 18 Eq. 180. 
 
 purchaser should insist on any (c) See Winn v. B((ll, 7 Oh. D. 
 
 requisition as to title which he is 29, where an .agreement as to 
 
 unable or unwilling to comply terms of lease, "subject to the 
 
 ^itli. preparation and approval of a 
 
 (h) See the cases cited above, formal contract," was held not to
 
 OF THE CONTRACT OF SALE. 19 
 
 accepted with the suggestion that a formal contract shall 
 
 be prepared but without expressing any intention that 
 
 the terms proposed shall or may be varied thereby, the 
 
 acceptance is practically unconditional and the contract 
 
 is formed at once (d) . Here we may notice that, when The whole of 
 
 it is sought to establish a contract by letters which have *^® correspon- 
 
 Y . . . dence will be 
 
 passed between different parties, the Court will take looked at. 
 
 into consideration the whole of the correspondence which 
 has passed, and will not draw the line at any particular 
 letter or letters, which might have afforded evidence of 
 a contract, if considered apart from the rest {c) . Where Oral agree- 
 an agreement for the sale of land is made by word of "^®'^*- 
 mouth, an enforceable contract is of course not made 
 until a proper memorandum of the agreement be wTitten 
 out and signed by one of the parties (/). But an offer Oral accept- 
 in writing specifying all the terms of a proposed agree- ^^^t^^n offer 
 ment and signed by the proposer may be accepted orally, 
 and will then be a sufficient memorandum of the contract 
 to bind him under the Statute of Frauds {[/). 
 
 constitute a contract, the refer- the acceptance is unconditional 
 
 ence to the approval of the formal or not. If not, it is merely a 
 
 contract being considered to imply count»^r- proposal and no contract 
 
 contemplation of the poss-ibilit}^ of is made. See the cases cited in 
 
 introducing new terms ; Ilairkis- this and the two preceding notes, 
 
 irorlh V. ChaJ/'ei/, rib L. J. Ch. 335. and Vale of Xvath Colliery Co. v. 
 
 As to the effect of a stipulation Fumess, 45 L. J. N. S. Ch. 276 ; 
 
 for the approval of one's solicitor, Harrty v. Barnard^ s Inn, 50 L. J. 
 
 see Bartlett v. Greene, 30 L. T. N. S. Ch 750 ; Xorth v. Percivnl, 
 
 N. S. 553 ; Hudson v. Buck, 7 Ch. 1898, 2 Ch. 128 [quare if rightly 
 
 D. 683 ; Huxsey v. Hume Payne, decided ; JFinn v. Bull, 7 Ch. D. 
 
 8 Ch. D. 670, 4 App. Cas. 311, 29, w-as not cited). 
 
 322 ; Clack v. Jrood, 9 Q. B. D. (e) Hussey v. Home Pai/ne, 4 
 
 276. App. Cas. 311, 31ti; Bristol, Car- 
 
 {d) See Fowle v. Freeman, 9 Ves. dift and Swansea Aerated Bread 
 
 351 ; Lewis v. Brass, 3 Q. B. D. Co. v. Mayys, 44 Ch. D. 616, a 
 
 667; Bouniwell \. Jmkins, 8 Ch. case in which, after there had 
 
 D. 70 ; Rossiter v. Milkr, 3 App. been unqualified acceptance of 
 
 Cas. 1124 ; Jluckle^by v. Hook, 82 an offer, the parties continued to 
 
 L. T. 117. When an offer is negotiate about other terms of 
 
 accepted in writing with a refer- their agreement, 
 
 ence to the preparation of a (/) See above, pp. 3, 12, n. (n). 
 
 formal contract, it is of course a (</) Reitss v. PicksUy, L. R. 1 
 
 question of the construction of Ex. 342; Lever v. Koffler, 1901, 
 
 the particular document, whether 1 Ch. 543. 
 
 2(2)
 
 20 
 
 OF THE FORMATION 
 
 Sale by 
 auction. 
 
 Auctioneer 
 ag-ent to siorn. 
 
 With regard to the formation of the contract on the 
 sale of land by auction, a bidding at an auction is no 
 more than an offer, and no contract is created until that 
 offer is accepted by the auctioneer, as the vendor's 
 agent ; acceptance being signified by the fall of the 
 auctioneer's hammer. As an offer is revocable before 
 acceptance, a person bidding at a sale by auction may 
 audibly retract his bidding at any time before the fall 
 of the hammer (/*) . For this reason a stipulation that 
 no bidding shall be retracted is almost invariably made. 
 It seems however that su.ch a condition cannot be 
 enforced (/) . For, as Lord St. Leonards pointed 
 out (/t), to hold that an action would lie on an implied 
 undertaking not to retract a bidding would be an 
 invasion of the before-mentioned provision of the 
 Statute of Frauds (/), whereby no action shall be 
 brought to charge any person upon any contract or sale 
 of lands, unless the agreement be in writing and signed 
 by him or his agent. And sales by auction are within 
 the Statute {m). On a sale by auction the auctioneer 
 is held to be the agent both of the vendor and the 
 purchaser for the purpose of signing a memorandum of 
 the contract. This authority is given by the vendor by 
 his appointment of the auctioneer to conduct the sale. 
 In the case of the purchaser, the agency is conferred by 
 the acceptance of his bidding, which is considered to 
 imply an offer of such authority (n). The vendor may 
 
 (h) Payne v. Gave, 3 T. E,. 148. 
 
 (i) Such a condition made on a 
 sale by the Court has been held 
 to bind the solicitor of a mort- 
 gagee, who consented to the sale 
 but was not a party to the suit ; 
 Auctioneer's Freer v. Rimner, 14 Sim. 391. 
 clerk. {k) Sug. V. & P. 14 ; 1 Dart, 
 
 V. & P. 124, 5th ed. ; 139, 6th 
 ed. ; 136, 7th ed. 
 
 (I) Above, p. 3. 
 
 \m) B lagden v . Bradbear, 1 2 Ves . 
 466. 
 
 (w) Emmerson v. Heelis, 2 Taunt. 
 
 38 ; Whiie v. Froctor, 4 Taunt. 
 209 ; Kemeys\. Proctor, IJ. & W. 
 350 ; Sug. V. & P. 42, 43, 147 ; 
 Fry, Sp. Perfce. § 529 ; the auc- 
 tioneer cannot delegate his autho- 
 rity in this respecc. Fur vendor 
 or purchaser to be bound by tlie 
 signature of the auctioneer's 
 clerk, he must have authorized 
 the clerk to sign for him. It 
 seems that such authority may 
 be implied on the part of the 
 vendor from his appuintment of 
 the auctioneer, the usual course
 
 OF THE CONTEACT OF SALE. 
 
 21 
 
 of course revoke the authority given to the auctioneer 
 at any time before the bidding is accepted (o) . There is 
 no doubt that if property be knocked down to any one 
 at an auction and the auctioneer sign a memorandum 
 of the contract directly after the sale, neither vendor 
 nor purchaser can then withdraw his authority from the 
 auctioneer (yj). But the authority impliedly given by 
 the pm'chaser to the auctioneer is an authority to sign 
 immcdiateh/ after the sale ; and if this be not done, the 
 authority will cease ((/). And it has been held that 
 after the fall of the hammer neither party can revoke 
 the auctioneer's authority to sign for him ; so that a 
 memorandum signed by the auctioneer immediately 
 after the sale will bind both parties, notwithstanding 
 that one of them expressly forbade the auctioneer, after 
 the fall of the hammer, to sign on his behalf (>•). If 
 
 of business being for the clerk to 
 take down the names. But it has 
 been held that no similar autho- 
 rity can be implied on the part of 
 the purchaser from his bidding : 
 Bell V. Balls, 1897, 1 Ch. C63. If, 
 however, either party assent in 
 any way to the clerk's signature 
 on his behalf, he is bound. See 
 Bird V. Boidtcr, 4 B. cV: Ad. 443 ; 
 Peirce v. Corf, L. R. 9 Q. B. 210 ; 
 Dyaa V. Stafford, 7 L. R. Ir. 590, 
 G02; Sug. V. (& P. 146; Fry, 
 Sp. Perfce. ^ 531 ; Siiii.s v. Land- 
 raij, 1894, 2 Ch. 318, where the 
 purchaser stood by while the 
 auctiiineer's clerk inserted his 
 name in the memorandum. 
 
 (o) See Warhw v. Harrison, 1 
 E. & E. 295, 309; Johmton v. 
 Boije.s, 1899, 2 Ch. 73. 
 
 ( p) See the cases cited at the 
 beginning of the last note but 
 one. 
 
 (?) Bell V. Balls, 1897, 1 Ch. 
 663 
 
 (>■) ]'nn Braaqh v. Evcridge, 
 1902, 2 Ch. 206,270, reversed on 
 other grounds, 1903, 1 Ch. 43t. 
 The proposition in the text is 
 also countenanced by the fact that 
 in Mason v. Arinitagc, 13 Ves. 25, 
 
 37, a memorandum signed by an 
 auctioneer was considered to bind 
 the vendor at law, though he 
 swore in his answer that he had 
 revoked the auctioneer's autho- 
 rity before such signature : and 
 by the fact that in I)a>i v. Jf'elh, 
 3U Beav. 220 (approved by Stir- 
 ling, J., Bellx. Halls, 1897, 1 Ch. 
 672), an argument against spe- 
 cific performance, that the vendor 
 so revoked the auctioneer's autho- 
 rity, was held to call for no reply ; 
 and by the statements in 1 Dart, 
 V. &P.182,5thed.; 209, 6th ed.; 
 208, 7th ed. ; Fry, Sp. Perfce. 
 § 530. In Mason v. A riiiiiaffr and 
 Day V. Wells, however, the actual 
 decision was that, if there were a 
 contract enforceable at law, spe- 
 cific perfonnance thereof would 
 not be enforced in equity on 
 account of circumstances of mis- 
 take. And it is said that if one 
 authorize another to sell his land 
 privately, and the agent make an 
 oral contract for sale, the princi- 
 pal may withdraw his authority 
 at any time before the agent signs 
 a written contract on his behalf ; 
 Farmer v. Rohhtson, 2 Camp. 339, 
 n. ; Sug. V. & P. 146. H in the
 
 22 
 
 OF THE FORMATION 
 
 however after a sale by auction the vendor or the purchaser 
 refuse to sign a memorandum of the contract and the 
 auctioneer will not sign for him, it is difficult to see 
 what remed}^ the other party has to enforce his bargain. 
 For, as we have seen, apart from fraud, an agreement 
 to put into writing and sign a contract for sale of land 
 cannot be enforced (s) . And in the absence of a signed 
 memorandum no action lies to charge any person upon 
 the contract for sale {t). 
 
 Employment Under the present law, if a puffer, that is, a person 
 at an auction, engaged to bid on the vendor's behalf in order to 
 prevent a sale at an undervalue or to force up the 
 price, be employed without the vendor having expressly 
 reserved to himself the right to bid, the sale will be 
 invalid. At common law it was well settled that the 
 employment of puffers or of a single puffer on the 
 vendor's behalf rendered the sale void on the ground of 
 fraud, where it had been announced that the sale would 
 be without reserve or that the highest bidder should be 
 the purchaser {ii). In equity however there was autho- 
 rity to the effect that the employment of a single puffer, 
 to prevent a sale at an undervalue, would not invalidate 
 the sale, unless the property were expressly or impliedly 
 offered for sale without reserve (x) : though Lord 
 
 case of a private sale made orally 
 by an agent, the policy of the 
 Statute of Frauds is sufficiently 
 strong to prevail over the general 
 principle that agency cannot be 
 revoked after the agent has so 
 acted under his authority as to 
 induce a third party to alter his 
 legal position (as to which, see 
 Story on Agency, §^ 466-8), it is 
 difiBcult to see why a sale by 
 auction should be governed bj' a 
 different rule ; especially when 
 the publicity of an auction is 
 expressly held to be no reason for 
 excluding the operation of the 
 
 statute; Blagden v. Bradbear. 12 
 Ves. 466. 
 
 («) Above, p. 12, n. («). 
 
 [t) Blagden v. Bradbear, 12 
 Ves. 466 ; and see Rainbow v. 
 Soivkins, 1904, 2 K. B. 322, 324. 
 
 (m) Eou-ard v. Castle, 6 T. R. 
 642 ; Thornett v. Haines, 15 M. & 
 W. 367 ; Sug. V. & P. 9, 10 ; 
 Green v. Barerstoek, 10 Jur. N.S. 
 47 ; 3Iortimer\.Bell,lj. R. 1 Ch. 10. 
 
 {x) Smith V. Clarke. 12 Ves. 
 477 : JFoodicardv. Miller. 2 Coll. 
 279; Sug. V. & P. 9, 10 ; 1 
 Dart, V. & P. 195, 5th ed. ; 224, 
 6th ed. ; 209, 7th ed.
 
 OF THE CONTRACT OF SALE. 23 
 
 Cranworth, in Mortimer v. Beli {//), doubted whether he 
 would be bound to hold that the rule, which had been 
 established at common law, did not hold good in equity. 
 The law is now settled by the Sale of Land by Auction 
 Act, 1867 (2), whereby it is enacted (r/) that whenever 
 a sale by auction of land would be invalid at law by 
 reason of the employment of a puffer, the same shall 
 be deemed invalid in equity as well as at law. The 
 Act also provides (b) that the particulars or conditions 
 of sale by auction of any land shall state whether such 
 land will be sold without reserve, or subject to a reserved 
 price, or whether a right to bid is reserved ; and if it is 
 stated that such land will be sold without reserve, or to 
 that effect, then it shall not be lawful for the seller to 
 employ any person to bid at such sale, or for the 
 auctioneer to take knowingly any bidding from any 
 such person. And it is further enacted {c) that, where 
 any sale by auction of land is declared either in the 
 particulars or conditions of such sale to be subject to a 
 .right for the seller to bid, it shall be lawful for the 
 seller or any one person on his behalf to bid at such 
 auction in such manner as he may think proper. It 
 has been held, under this Act, that if it be stated that 
 land will be sold by auction subject to a reserved price 
 or bidding, without saying that a right to bid is reserved, 
 it is not lawful to employ a puffer to bid up to the 
 reserve price {'/). And the opinion has been judiciall}'- 
 expressed that the Act limits a vendor, who has reserved 
 the right to bid, to the employment of one person only 
 to bid on his behalf (e). The terms of a condition 
 reserving the right to bid must of course be strictly 
 
 ((/) L. E. 1 Ch. 10, 16. (rf) Gilliat v. Gilliaf, L. R. 9 
 
 (;) Stat. 30 & 31 Vict. c. 48. Eq. 60. 
 
 («) Sect. 4. (f) Grove and Lindley, JJ., 
 
 (A) Stat. 30 & 31 Vict. c. 48, Par/in v. Jepson, 46 L. J. N. S. 
 
 s. 5. C. P. 529, 532, 533. 
 (c) Sect. G.
 
 24 OF THE FORMATION 
 
 observed ; as if the vendor reserve tlie right of bidding 
 once, a second bidding on his behalf will invalidate the 
 sale (_/'). In consequence of this law, when land is to 
 be sold by auction, the conditions of sale usually provide 
 that the vendor reserves the right to bid as often as he 
 may please ; and if the sale be stated to be subject to a 
 reserved price, the right of bidding generally is reserved 
 to the vendor as well (g). 
 
 Inadvertent Where land is sold by auction subject to a condition 
 
 biddm^'^lower ^^^^ there will be a reserve price, and the auctioneer 
 than the inadvertently accepts a bid lower than the reserve price, 
 
 he is at liberty to retract such acceptance and to decline 
 to sign a memorandum of the sale, and will incur no 
 liability in so doing ; for the condition is in effect that 
 the property will not be sold for less than the reserve 
 price, and every bidder is bound by that stipulation (h). 
 It appears that, if land be placed in the hands of an 
 auctioneer to be sold, he has authority, in the absence 
 of instructions to the contrary, to put up the property 
 for sale without reserve (t), and that the vendor would 
 be bound by a memorandum signed by the auctioneer 
 on his behalf of a sale so made (A-) . But it seems that 
 if an auctioneer instructed to put property up to auction 
 subject to a reserve price should nevertheless advertise 
 the sale to be without reserve and accept a bidding 
 lower than the reserve price and sign a memorandum 
 of such sale, the vendor would not be liable on the 
 contract so made without his authority (/). It has 
 
 (/) FarJiU v. Jepson, 46 L. J. (k) Above, p. 21. 
 N. S. C. P. 529, 532, 533. 
 
 (g) 1 Davidson, Prec. Conv. (l) See McMannK v. Fortrscuc, 
 
 607, 4th cd. ; 618, oth ed. ; Key 1907, 2 K. B. 1, 6, 7, apparently 
 
 & Elphinstone, Prec. Conv. 257. tjverruling the decision or dicta in 
 
 258 and n. {a), 4th ed. ; 245 and Rainbow y. Hoioliins, 1904, 2 K. B. 
 
 n. (^), 8th ed. 322, to the contrary. The general 
 
 (h) McMannsv.Foytcseuc, 1907, rule certainly is that a plaintiflp 
 
 2 K. B. 1. suing a principal upon a contract 
 
 (i) Rainbow v. Howkins, 1904, made by his agent has the omm 
 
 2 K. B. 322. of proving that the principal did
 
 OF THE CONTRACT OF SALE. 25 
 
 been held that, where an auctioneer instructed to put Liability of 
 up propei-ty to auction at a reserve price, inadvertently advert?^inff a 
 adveitises (without disclosing who is his principal) that sale without 
 the sale will be held without reserve and accepts a bid 
 lower than the reserve price, but declines to sign a 
 memorandum of tlie contract or to carry out the sale, 
 he is liable in damages to the bidder for breach either 
 of a coutract or of an implied warranty of authority 
 that the sale shall be without reserve {/n). 13 ut it has 
 been decided that an auctioneer, who advertises that by 
 the dii'ection of his principal, whose identity he dis- 
 closes, a sale will be held without reserve, does not 
 himself become liable to any bidder at the auction upon 
 a contract that the sale shall be without reserve (w). It Liability of 
 has been considered that a \endor, who as principal property 
 
 issues an advertisement that a sale of land by auction advertising a 
 
 : . sale by 
 
 will be held without reserve or under the condition that auction 
 
 the highest bidder shall be the purchaser, is liable, if ^g*g{.yg*^ 
 
 the sale be held and lie then decline to sell to the 
 
 highest bidder, upon an independent contract that the 
 
 sale shall be carried out under the conditions advertised, 
 
 and such contract is not required to be put in AVTiting 
 
 by the Statute of Frauds (o). But it has been held Advertise- 
 
 . 1.11 IP T ment of a sale 
 
 that, if it be advertised that a sale of property by by auction is 
 auction will be held on a certain day and that the "°*^ ^^ °^°''' 
 
 •^ open to 
 
 highest bidder shall be the purchaser, that does not become a 
 amount to an offer capable of being turned by accept- aoieptance, 
 ance into a contract that the sale shall be held on the *^=\^, ^^^ ^^^ 
 
 shall take 
 
 day specified or at all ; and if on the day named the place, 
 property be not put up for or be withdrawn from sale, 
 
 in fact authorise the apent so bidding. 
 
 to coutract for him ; 8i>e below, {ti) Maitipricc v. Wcstleij, 6 B. & 
 
 Chap. XIX. § 2, at end. S. 420. 
 
 (;w) Warlow v. llarrison, 1 E. ('*) Johnston v. lioyes, 1899, 2 
 
 & E. 295, 309. This was so Ch. 73, 77, following JFurlow v. 
 
 decided on the theory of the Harrison, above, u. {m) ; and see 
 
 advertisimcnt being an offer open Blackburn and Quaiu, JJ. , Harris 
 
 to all, which wiis turned into a v. Nirhirson , L. K. 8 Q. B. 286, 
 
 contract by acceptance of the 288, 289.
 
 26 OF THE FORMATION 
 
 a person, who bad intended to bid for it, has no cause 
 of action to recover damages for his disappointment or 
 his expenses of attending in expectation of the sale (p). 
 If an advertisement of a sale by auction be fraudulently 
 made, any person who is thereby induced to incur useless 
 expense or other detriment has a good cause of action 
 against the advertiser (q) . 
 
 Payment of A matter to be considered before the formation of a 
 
 a deposit. contract is the payment of a deposit. For no deposit 
 of any part of the purchase- money can be lawfully 
 demanded after an open contract for sale has been 
 concluded ; as the whole price is not payable until the 
 time for completion, w^hich in the case of an open contract 
 is the time when the vendor shall have shown a good 
 title (r). On sales by auction a stipulation is invariably 
 made that a deposit of a certain proportion (generally 
 ten per cent.) of the purchase-money shall be paid by 
 the purchaser immediately on entering into the contract. 
 On London sales, it is usually provided that the deposit 
 shall be paid into the hands of the auctioneers; on 
 country sales, the vendor's solicitors are generally ap- 
 pointed to receive it (.s) . The deposit is taken not only 
 ( in part payment of the purchase-money, but also as a 
 "^i guarantee for the due performance of the contract ; and 
 it is liable to be forfeited b}^ the purchaser if he fail to 
 carry out the agreement. This is the case, whether the 
 stipulation for payment of the deposit expressly so 
 provide, or not {f). When the deposit is paid to an 
 
 (p) Harris v. Xkkersun, L. E. 630, 5th ed. ; 711, 6th ed. ; 023, 
 
 8 Q. B. 286. 7th ed. 
 
 [q] Mainpncev. Westley, 6 B. (*■) 1 Davidson, Prec. Conv. 619 
 
 &S. 420, 427; Richardson \. Sil- and n. (c), 5th ed. ; 1 Key & 
 
 ■vester, L. R. 9 Q. B. 34. Elphiustooe, Free. Conv. 258 and 
 
 (>•) Bulks y.ltokebij, 2 Swans. u. (i), 4th ed. ; 246, n. («), 8th ed. 
 
 222; lioe d. Grai/v. iitainon,! M. {t) JIuue v. ^miiJi, 27 Ch. J). 
 
 & W 695, 701 ;'2 Dart, V. & P. 89 ; Spraytir \. Booth, 19U9, A. C. 
 
 576, 579, 580.
 
 OF THE CONTRACT OF SALE. 27 
 
 auctioneer, he receives it as stakeholder, being liable to 
 pay it to the vendor, should the contract be completed 
 or the purchaser break the contract, but to the purchaser, 
 should the contract be broken by the vendor (u). The 
 auctioneer is responsible for the sum deposited with 
 him ; and as he receives the deposit in this character 
 and with this responsibility, and not as agent for 
 either party, he is entitled to retain for his own benefit 
 any interest he may make by the use of the money, 
 whilst it remains in his hands. Until the purchase is 
 completed, the auctioneer ought not to part with the 
 deposit without the consent of the purchaser as well as 
 of the vendor (.^•). Where the deposit is paid to the 
 vendor's solicitor, it is generally received by him as 
 agent for the vendor. In that case he cannot put it out 
 at interest without accounting therefor to the vendor ; 
 and if the vendor demand payment of the deposit to 
 himself, the solicitor will be bound to hand it over to 
 him (//) . If however the vendor's solicitor receive the 
 deposit in the character of stakeholder, and not as the 
 vendor's agent, he will be subject to the same responsi- 
 bilities and enjoy the same advantages as any other 
 stakeholder (~) . 
 
 Sometimes provision is made for payment of a deposit Payment of 
 on sales by private contract. The insertion of such a ^aleahy'^ 
 condition is of great advantage to the vendor, owing to pii^ate 
 the rule that the deposit is a guarantee for the pur- 
 chaser's performance of his agreement (a). To the 
 purchaser, however, the payment of a deposit is cor- 
 respondingly prejudicial; as it leaves him exposed to 
 the danger of losing his deposit in a case where the 
 
 (m) Ilariiifjton v. Uoijgurt, 1 B. (y) Edgcll v. Daij, L. R. 1 C. 
 
 & Ad. 577. See below, Chap. P. 80. 
 
 XIX. § 1. (z) Jn(fgi,isv.LurI,iBe&v.SO. 
 
 {x) 1 Dart, V. & P. 178, 5th (a) Above, p. '26. 
 ed. ; 205, 6th ed. ; 203, 7th ed.
 
 28 OF THE FOEMATION 
 
 Court, while refusing to enforce specific performance 
 against him, will yet hold him to his bargain at law (b). 
 A purchaser by private treaty should therefore take 
 care not to bind himself by a stipulation for payment 
 of a deposit, if he can possibly avoid doing so. And if 
 the vendor refuse to sell except on condition of the pay- 
 ment of a deposit, the purchaser should on no account 
 agree to the payment of the deposit to the vendor, or 
 to the vendor's solicitor as his agent, but should insist 
 on placing the deposit in the hands of a stakeholder. 
 If the vendor's solicitors be of good repute, they may 
 usually be accepted as holders of the deposit, the con- 
 tract expressly providing that the same is to be paid to 
 them as sfakeJiol'Ifrs. For if a purchaser submit to pay 
 a deposit to the vendor's solicitors as the vendor's 
 agents, he may find that the vendor can make no title 
 to the property sold and is insolvent ; and in such a 
 case the purchaser will hnve no right to sue the solicitors 
 for the recovery of his deposit {r). 
 
 Stamp on AH contracts for the sale of land, whether made by 
 
 safeoTlands. formal memoraudum or by letter (rf), must be duly 
 stamped ; otherwise they cannot be given in evidence, 
 except in criminal proceedings, and are not available for 
 any purpose whatever. But they may be stamped after 
 execution, and so received in evidence on payment of 
 the proper duty and the appointed penalty {e) . 
 
 (I)) IScott V. Alvarez, 1895, 2 Ch. (iO'?. See below, Chap. VI. 
 
 ((■) Jdcis V. GouUon, 1893, 1 Q. B. 350. 
 
 (d) See Gvcythor v. Gordon, 3 Times L. R. 461 ; Carlill v. Carbolic 
 Smolce Ball Co., 1892, 2 Q. B. 484, 489, 490, affirmed 1893, 1 Q. B. 256. 
 
 {e) Stat. 54 & 55 Vict. c. 39 (Stamp Act, 1891), ss. 14, 15, rfiplamng 
 33 i: ."^4 Vict. c. 97, ss. 15—17, and M k 18 Vict. c. 125, ss. 28, 29. 
 Under the Stamp Act. 1891, asreements under hand only are, as a 
 rule, iharjieable with the duty of sixpence, which may be deuoted by 
 an adliesive stamp to lie cancelled by the person by whom the agree- 
 ment is first executed ; and agreements under seal »re chargeable, as 
 deeds, with the duty of ten shillings ; sect. 22 & 1st schedule. But 
 by sect, h\): — 
 
 (1) Any contract or agreement mad(! in England or Irelaud under 
 seal, or under hand ovlj, or made in Scotland, with or without any
 
 OF THE CONTRACT OF SALE. 
 
 29 
 
 Any alterations made, after a written contract for Alterations in 
 
 the sale of land has been signed, in the terms of the 
 
 the contract. 
 
 clause of registration, for the sale of any equitable estate or interest in any 
 property ivhatsoever, or for the sale of any estate or interest in any 
 property except lauds, tenements, hereditaments, or heritages, or property 
 locally situate out of the United Kingdom, or goods, wares or mer- 
 chandise, or stock, or marketable securities, or any ship or vessel, or 
 part interest, share, or property of ur in any ship or vessel, shall be 
 charged with the same ad valorem duty, to be paid by the purchaser, 
 as if it were an actual conveyance on sale of the estate, interest, or 
 property contracted or agreed to be sold. 
 
 (2) Where the purchaser has paid the said ad valorem duty and 
 before having obtained a conveyance ur triinsfer of the property 
 enters into a contract or agreement for the sale of the same, the 
 contract or agreement shall be charged, if the consideration for that 
 sale is in excess of the consideration for the original sale, with the 
 ad valorem duty payable in respect of such excess consideration, and 
 in any other case with the fixed duty of ten shillings or of sixpence, 
 as the case may require. 
 
 (3) Where duty has been duly paid in conformity with the fore- 
 going provisions, the conveyance or transfer made to the purchaser or 
 sub- purchaser, or any other person on his behalf or by his direction, 
 shall not be chargeable with any duty, and the Commissioners, upon 
 application, either shall denote the payment of the ad valorem duty 
 upon the conveyance or transfer, or shall transfer the ad valorem duty 
 thereto upon production of the contract or agreement, or contracts or 
 agreements, didy stamped. 
 
 (4) Provided that where any such contract or agreement is stamped 
 with the fixed duty of ten shillings or of sixpence, as the case may 
 require, the contract or agreement shall be regarded as duly stamped 
 for the mere purpose of proceedings to enforce specific performance or 
 recover damages for the breach thereof. 
 
 (5) Provided also that where any such contract or agreement is 
 stamped with the said fixed duty, and a conveyance or transfer made 
 in conformity with the contract or agreement is presented to the 
 Commissioners for stamping with the ad valorem duty chargeable 
 thereon within the period of six months after the first execution of 
 the contract or agreement, or within such longer period as the Com- 
 missioners may think reasonable in the circumstances of the case, the 
 conveyance or transfer shall be stamped accordingly, and the same, 
 and the said contract or agreement, shall be deemed to be duly 
 stamped. Nothing in this provision shall alter or affect the provisions 
 as to the stamping of a conveyance or transfer after the execution 
 thereof. 
 
 (G) Provided also, that the ad valorem duty paid upon any such 
 cimtract or agreement shall be returned by the Commis-^iouers in case 
 the contract or agreement be afterwards rescinded or annulled, or for 
 any other reason be not («ubstantially jierformed or carried into effect, 
 80 as to operate as or bo followed by a conveyance or transfer. 
 
 The provisions of sub-section ] of the above enactment have been 
 considered in Smelting Co. of Australia, Ld. v. Commrs. of Inland 
 Revenue, 1897, 1 Q. B. 17o ; JFest London Syndicate, Ld. v. Commrs. of 
 Inland Revenue, 1898. 2 Q. B. 507; Farmer,^- Co., Ld. v. Commrs. of 
 Inland lievnue, 1898, 2 Q. B. 141 (contract made in England for 
 sale of equity of I'edemption of lands in New South Wides held 
 chargeable with ad valorem duty) ; Chesterfield Brewery Co. v. Inland
 
 30 OF THE FORMATION OF THE CONTRACT OF SALE. 
 
 agreement must also be put into writing and signed, 
 or the contract will not be enforceable in its altered 
 form (./') ; and such further writing must be stamped 
 as a new agreement. 
 
 Revenue Connnrs., 1899, 2 Q. B. 7 ; Banuhian Sugar Factories, Ld. v. 
 Inland Revenue Commrs., 1901, 1 Q. B. 245; Inland Revenue Commrs. 
 V. jVidler, ^-c. Id., 1901, A. C. 217. 
 
 The practical result appears to be that contracts for sale of any- 
 legal estate or interest in any lands, tenements or hereditaments are 
 only chargeable with the stamp duty of sixpence or ten shillings 
 according as they are under hand or seal. While contracts for sale of 
 any equitable estate or interest in any pro^jerty whatsoever, including 
 lands wherever situate, are chargeable with ad valorem duty, but 
 may be stamped with the fixed duty of sixpence or ten shillings, if 
 a further conveyance of the estate or interest sold be contemplated. 
 To leave the last- mentioned contracts unstamped would appear to 
 involve the risk of having to pay double the ad valorem duty on 
 stamping after execution ; see sect. 15 of the Stamp Act, 1891. 
 
 (f) See below. Chap. XVIII. § 1.
 
 31 
 
 CHAPTER II. 
 
 OF THE parties' RIGHTS, OBLIGATIONS AND 
 REMEDIES, GENERALLY. 
 
 Having considered the formation of a contract for the 
 sale of land, let us pass on to examine its terms. As 
 we have seen {a) , such contracts generally contain special 
 stipulations varying the rights and obligations of the 
 parties as defined by law. And a conveyancer's busi- Convey- 
 
 , • •>i 1 £ 1 1 • 1 1 1 • ancers' duties 
 
 ness m connection with sales or land includes drawing ^^ g^^i^^g 
 up the conditions of a sale by auction, a task in which 
 he is engaged exclusively in the vendor's interest ; 
 arranging the terms of a private contract, when he may 
 be acting for either party, making requisitions on title 
 for the purchaser or answering them on the vendor's 
 behalf, and settling the conveyance on either side. It 
 is obvious that these duties cannot be efficiently dis- 
 charged without an accurate knowledge of the position 
 of the parties to any open contract, and a clear under- 
 standing of the conditions generally made in more 
 formal agreements. Our object therefore will be to 
 ascertain the rights and obligations implied by law on 
 a contract to sell land, when the parties, the property 
 and the price are the only terms defined ; and to con- 
 sider at the same time the stipulations by which the 
 contractors' legal relations are commonly modified. 
 And our design is first to take a general view of the 
 contract and the remedies for enforcing it, and then to 
 
 (rt) Above, p. 17.
 
 32 
 
 OF THE PARTIES RIGHTS, 
 
 examine more fully each incident of the sale in turn, 
 as far as possible, in order of time according as each 
 part of the contract has to be performed. 
 
 Outline of 
 the effect of 
 the contract 
 
 When two persons have entered into the relation of 
 vendor and purchaser by duly signing a contract for the 
 sale of land, their chief duties are these : — The vendor 
 is bound to show a good title to the property sold {b), 
 and for that purpose to deliver at his own expense to 
 the purchaser a proper abstract of title to the property, 
 
 {b) Flureau v. TlwruhiU, 2 W. Bl. 1078 ; Smiter v. Brake, ,5 B. & 
 Ad. 992 ; Doc d. Gna/ v. S/aniuii, 1 M. & W. 695, 701 ; Li/saf/ht v. 
 Edwards, 2 Ch. D. 499, 507 ; £l/is v. Eoffers, 29 Ch. D. 661, 670, 672. 
 In the last-menlioued case, Cotton, L..I., suggested a qviestion whether 
 the right to a good title is an implied term in the contract or a col- 
 lateral right given by the law. It is submitted, however, that the 
 obligation to show a good title on a sale of land is not an undertaking 
 collateral to in the sense of independent of the main contract. 
 Cotton, L. J., quoted the authority of Lord St. Leonards (Sug. V. & 
 P. 16) and Parke, B. {Doe d. Grai/ v. Stanton, ubi sup.), for the view 
 that this obligation is an implied term of the contract. The opposite 
 view he rested upon a dictuni of Grant, M. R., in Og'ilvie v. FoJjamhe, 
 3 Mtr. 53, 64. On examining this dictum, however, it appears that 
 Grant, M. R., meant to say nothing more than that in the particular 
 case before him the purchaser's right to have a good title was not 
 provided for by the written agreement between the parties. It is 
 true that he spoke of the controvcrst/ between the parties, as to what 
 title the purchaser could require, as being collateral to the agreement, 
 because no term in the written agreement was sought to be varied or 
 added to ; and said that the right to a good title was a right not 
 growing out of the agreemeut between the parties but given by law. 
 But this sui ely means no more than that, in the particular case before 
 him, the exteut of the purchaser's right to require a good title was a 
 matter depending, not on the express, but on the implied terms of the 
 contract. As the failure to show a good title, on the sale of land, is 
 such a breach of contract as discharges the purchaser from the neces- 
 sity of performing his part of the agreement, it seems clear that the 
 obligation to show a good title is an integral part of the agreement ; 
 see J)Hke of St. Albamv. Shore, I H Bl. 270, 278 ; Sranardv. Willock, 
 5 East, 198, 202 ; Soiiter v. Drake, Ellin v. Rogers, ubi sup. ; Breuer 
 V. Broadu-ood, 22 Ch. D. 105, 109 ; below, Chap. XYIIL, >{ 2. This 
 would not be the case, if the obligation to prove title were strictly 
 collateral to the contract of sale. Breach by the vendor of a strictly 
 collateral warranty upon a sale does not discharge the purchaser from 
 the main contract, as in the case of a warranty of quality on the sale 
 of specific goods, whei'e the buyer has had the opportunity of inspect- 
 ing them ; Street v. Blai), 2 B. & Ad. 456 ; Eeiiivortli v. Hutchitison, 
 L. R. 2 Q. B. 447 ; Benjamin on Sale, 448, 741, 748, 749, 2nd ed. ; 
 Sale of Goods Act, 1893 (stat. 56 & 57 Vict. c. 71), ss. 63, 62 'l) ; see 
 below, Chap. XIV., § 1.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 
 
 showing the. dealings therewith and devolution thereof 
 during the period for which title is by law or express 
 agreement required to be shown (c) . In the absence of 
 special stipulation this period is, as a rule, forty 
 years {(I). The vendor is also bound to verify the 
 abstract by producing proper evidence of all the deeds, 
 wills and other documents appearing on the abstract 
 and of all material facts stated therein, such as births, 
 deaths, marriages or bankruptcies [fi) ; and he is bound 
 -to prove the identity of the property sold with that to 
 which the documents of title relate (/). But the 
 purchaser, in the absence of stipulation to the contrary, 
 must now bear the expense of producing all documents 
 of title, which are not in the vendor's possession (^), 
 and of procuring all other evidence of title which the 
 vendor has not in his possession (h). The purchaser 
 also bears all expense of the examination of the title 
 deeds by his solicitor (i). The vendor is further bound 
 to produce land corresponding substantially in all 
 respects with the description contained in the contract 
 and available to be transferred to the piu'chaser in 
 fulfilment of the agreement (A-). If the title shown be 
 accepted, the vendor is bound to convey the property 
 to the purchaser free from all incumbrances : unless of 
 course the purchaser should have agreed to take the 
 
 (c) Suix.Y. &V. 405 ; Ee John- Olivant and Seadon's Contract, 
 
 son and Tmtin, 30 Ch. D. 42. 1896, 2 Ch. 328. 
 
 {d) Stat. 37 & 38 Vict. c. 78, (A) Stat. 44 & 45 Vict. c. 41, 
 
 8. 1. s. 3, sub-8. 6, reversing the pre- 
 
 [e] Sug. V. & P. 406, 414 et vious rule, 
 seq., 447—450 ; 1 Dart, V. & P. (i) Sug. V. & P. 406, 429, 430 ; 
 
 142, 143, 310 et seq., 407, 5th ed., Wms. Conv. Stat. 47—50. 
 159, 160, 350 et seq., 470, 6th ed., (A-) See Hahnjv. Grant, 13 
 
 155, 156, 345 etseq., 481, 7th ed. ; Ves. 73, 77—79 ; Fliyht v. Booth, 
 
 1 Davidsun, Prec. Conv. 550, 4th 1 Bing. N. C. 370 ; Itc Arnold, 
 
 ed., 457, oth ed. 14 Ch. D. 270 ; Jacobs v. RevcU, 
 
 (/) Ffoucrv. Ilartopp, G Bea-v. 1900, 2 Ch. 858; lie Hare and 
 
 476 ; Cnrlinii v. Austin, 2 Dr. & O'Morr's Contract, 1901, 1 Ch. 93 ; 
 
 Sm. 129; 1 Davidson, Prec. Conv. Be Puckctt and Smith's Contract. 
 
 557, 4th ed., 463, 5th ed. 1902, 2 Ch. 258 ; below. Chap. 
 
 {(/) See He Willett and Argenti, XII., j 4. 
 
 Times L. R. 476 ; Re Stuart ^• 
 
 w. 3 
 
 33
 
 34 
 
 OF THE parties' RIGHTS, 
 
 property subject to an}^ specified incumbrances (/). 
 The vendor is therefore bound, on payment of the 
 purchase-money, to execute a proper deed of conveyance 
 to the purchaser of the estate sold (in), and to put the 
 purchaser into possession of the land so assured (n). 
 And in the deed of conveyance the vendor must give 
 the usual vendor's covenants for title (o). But the 
 purchaser must bear the expense of preparing this 
 I conveyance ; although, in the absence of special 
 stipulation, the expense of the concurrence therein 
 of all necessary parties other than the vendor (such as 
 1 mortgagees or incumbrancers) and of the execution 
 : thereof by the vendor will fall on the vendor (p). 
 The vendor is also bound to hand over to the pur- 
 chaser on completion all deeds and other muniments 
 of title relating solely to the property purchased (q) ; 
 and must, as a rule, furnish the purchaser, at the pur- 
 chaser's expense (r), with a proper statutory acknow- 
 ledgment of right to production and undertaking for 
 safe custody of all such documents, necessary to make a 
 good title, as may be withheld from the purchaser, 
 either because they relate to other property retained by 
 the vendor or because their custody rightly belongs to 
 some other person than the vendor (.s). The chief 
 duties of the purchaser under a contract for sale of land 
 
 (l) Wms. Real Prop. 452, 13th 
 ed., 594, 595, 21st ed. 
 
 {m) Ee Gary Ehves' Contract, 
 1906, 2 Ch. 143, 149. 
 
 (w) Enyell v. Fitch, L. R. 4 
 Q. B. 659; Royal Bristol, ^c. 
 Building Society v. Bomash, 35 
 Ch. D. 390. 
 
 (o) See post, p. 46. 
 
 (p) Sug-. V. & P. 561, see 
 557-8; Dart, V. & P. 707, 721, 
 722, 5th ed. ; 798. 814, 6th ed. ; 
 714, 723, 7th ed. ; 1 Davidson, 
 Prec. ConT. 570-2, 612, 4th ed., 
 477-9, 5th ed. ; He Sander and 
 Walford's Contract, 1900, W. N. 
 
 183; 83 L. T. 316. 
 
 {q) Sug. V. & P. 407, 433 ; Re 
 Duthy and Jesson's Contract, 1898, 
 1 Ch. 419. 
 
 {r) Stat. 37 & 38 Vict. c. 78, 
 s. 2 (rule 4). 
 
 (s) Cooper V. Emery, 1 Ph. 388 ; 
 Sug-. V. & P. 446—450, 453; 
 Stat. 44 & 45 Vict. c. 41, s. 9; 
 the vendor must also furnish the 
 purchaser with attested copies of 
 such last-mentioned muniments 
 of title, if the purchaser require 
 them, but at the purchaser's ex- 
 pense ; stat. 44 & 45 Vict. c. 41, 
 8. 3 (6).
 
 OBLIGATIONS AND REMEDIES, GENERALLY. ^^ 
 
 are to examine the evidence of title offered by the 
 vendor, and if and when a good title is shown, to accept 
 the title, to prepare a conveyance of the property and 
 tender the same to the vendor for his execution, and 
 thereupon to pay the price {f} and to take the con- 
 veyance accordingly (u). 
 
 The most prominent term of the contract is that which Proof of title, 
 requires the vendor to show a good title. This obligation 
 is the cause of most of the disputes and litigation between 
 buyers and sellers of land. As is well known, the procedure 
 usually adopted to secure the fulfilment of the vendor's 
 duties is for the purchaser's advisers, after they have 
 perused the abstract of title, to send in written requisi- Requisitions 
 tions dealing with the points in which they consider the ^^^ answers. 
 title to be deficient or insufficiently proved or the 
 vendor's obligations to be otherwise imperfectly dis- 
 charged. To these requisitions the vendor returns 
 written answers confessing or repudiating his liability 
 to comply with them, as the case may be. Unless he 
 accede to every requisition, his answers will evoke 
 replies from the other side ; and these again will demand 
 further response. So the contest continues until all 
 grounds of difference are removed, the title is accepted, 
 and the parties proceed to completion, or the questions 
 on which neither party will give way are submitted to 
 the determination of the Court. In advising as to the 
 conduct of these negotiations, it is of course of the 
 highest importance to know when to insist and when to 
 yield. On each point the conveyancer's attitude will be 
 determined by the countenance he ma}^ expect his con- 
 tention to receive from the Court, in ease he should fail 
 to convince his opponent ; and at every step ho must 
 
 {t) Baxter v. Z^'M.-is, Forrest, 61 ; Siig. V. & P. 240, 211. 
 Martin v. Smitfi, 6 Eiist, .'iSo : (»<) Jir Cart/ Elwei>' Contract, 
 
 Poole V. Hill, 6 M. & W. 835 ; 1906, 2 Ch. 143. 
 
 3(2)
 
 36 
 
 OF THE parties' RIGHTS, 
 
 consider the alternative of submission or litigation. It 
 is thought therefore that, before entering into a detailed 
 examination of the terms of the contract, it will be well 
 to take a brief survey of the remedies provided to secure 
 its performance and of the principles on which the 
 Court will administer relief against its breach {x) . 
 
 ^ 
 
 1. Rescission 
 and restittitio 
 in integrum. 
 
 Remedies for In the case of a breach of any of the main duties of 
 contract. the contract {i.e., those duties of which the performance 
 
 by one of the contractors is a condition precedent to the 
 other party's liability, as for the vendor to show a good 
 title to or to convey the property sold or for the pur- 
 chaser to pay the price (//) ), the party injured is at 
 liberty, wdiere the contractors can be restored to their 
 former position, either to rescind the contract and to 
 obtain restitutio in integrum including the return of any 
 property transfeiTed and the reimbursement of the 
 expenses incurred by him in consequence of the con- 
 2. Action for tract, Or to affirm the contract and recover damages 
 damages. thereunder for the breach. These riglits are given by 
 _ the common law : but the party electing to rescind the 
 I contract for such a cause may either bring an action for 
 the required return of property or reimbursement of 
 money under tlie common law jurisdiction of the Court, 
 or sue under its equitable jurisdiction to enforce rescis- 
 sion and procure the consequent restitution. Where 
 the contract has been so far performed that reditutio in 
 integrum is impossible, or where the duty broken is such 
 that its performance is not a condition precedent to the 
 other party's liability, the party aggrieved is not entitled 
 to rescind the contract, and his only remedy at common 
 laic is to sue for damages in affirmance of the contract (s). 
 Damages The damages recoverable by a vendor of land for breach 
 
 [x) The remedies for breach of 
 the contract are fully discussed 
 below, Chap. XIX. 
 
 («/) See above, pp. 32, and n. [b), 
 33-3.5. 
 
 {z) See below, Chap. XIX., 
 kk 1, 2.
 
 OBLIGATIONS AND EEMEDIES, GENERALLY. 
 
 37 
 
 purchaser. 
 
 of the contract for sale are governed by the general recoverable by- 
 common law rule as to the measure of damages, by which ~ 
 the parties are to be placed in the same position, so far 
 as can be attained by a money payment, as if the agree- 
 ment had been actually performed (a) . Thus if the 
 vendor have conveyed the land to the purchaser without 
 receiving payment, he can recover the whole price. But 
 if he sue at law for breach of contract, without having 
 parted with his legal estate in the land, he cannot re- 
 cover the full price as damages, but is limited to the 
 amount of the loss he has actually sustained (i). The 
 damages recoverable at law by a purchaser of land for ^y the 
 breach of the contract are regulated by an exceptional 
 principle ; and, as a rule, he is not enabled to recover 
 any damages for loss of his bargain, but can only obtain 
 reimbursement of his expenses of investigating title, 
 &c. and the amount of his deposit, if any (c) . This ex- 
 ception to the common law rule regarding damages for 
 breach of contract seems to have been allowed in con- 
 sideration of the difficulties attending the fulfilment of 
 the vendor's obligation to show a good title. But the 3. Action for 
 most effective remedy of either party is one which the formance.^^" 
 common law did not aiford, and which is granted or 
 withheld on principles entirely different from those of 
 the parties' iegal liability for breach of their agreement — 
 that is, to enforce the specific performance of the con- 
 tract under the equitable jurisdiction of the Court. 
 The administration of this relief, though in unobjec- 
 tionable cases it is granted as much of course as damages 
 are given at law (r/) , is nevertheless held to be in the 
 discretion of the Court — a discretion however which is 
 
 [a) Parke, B., HobinsoHv.Har- 
 man, 1 Ex. 850, 855 ; Wall v. 
 City of London Real Property Co., 
 L. R. 9 Q. B. 249, 253; see 
 below. Chap. XIX., § 2. 
 
 {b) Laird y. Pirn, 7 M. & W. 
 474. 
 
 [o) Flureau v. Thornhill, 2 W. 
 
 Bl. 1078; Bain v. Fothergill, L. 
 E,. 7 H. L. 158 ; see below, Chap. 
 XIX., ^ 2. 
 
 [d) Grant, M. R., Hall v. 
 Warren, 9 Ves. 605, 608 ; ILexter 
 V. Pearcc, 1900, 1 Ch. 341, 346 ; 
 Ruddy. Lascelles, ib. 815, 817.
 
 ^^ OF THE parties' EIGHTS, 
 
 not arbitrary or capricious, but judicial, to be exercised 
 accordiug to fixed rules and principles {e) . To obtain a 
 decree of specific performance is not a matter depending 
 merely on proof of the contract and refusal to perform 
 it, but the Court will have regard to circumstances 
 outside the contract, and especially to the conduct of 
 the parties, and, considering these, will determine 
 whether it is equitable (that is, in accordance with the 
 principles by which Courts of Equity are guided) to 
 grant the desired relief or not (./). Thus it is that in 
 deciding whether the specific performance of a contract 
 should be enforced, the Coui't enters into considerations, 
 which it would not examine in adjudging what relief 
 either party should have for a breach of the same 
 Unfairness. contract at law (g). For example, a vendor of land will 
 not be entitled to enforce specific performance of the 
 contract unless his conduct has conformed to the 
 standard of fair dealing, which the Courts of Equity 
 have set ; although he may be allowed at the same 
 time to stand upon his contractual rights at common 
 law, and to exact his full measure of compensation 
 thereunder. If therefore special stipulations restrictive 
 of the purchaser's rights be inserted in the contract in a 
 manner which a Court of Equity regards as unfair, the 
 Court will not grant specific performance of the contract 
 at the instance of the vendor {//) ; notwithstanding that 
 the vendor may be able to insist on those same stij)ula- 
 tions in any proceedings in which the relief administered 
 is determined solely by the rules of law (?). So also the 
 
 (e) Elrlon, C, White \. I)amo)i, {h) Re Marsh and Earl Gran- 
 
 7 Ves. 30, 35; Romilly, M. R., ville, 24 Ch. D. 11. 
 
 JIaytiood V. Cope, 25 Beav. 140, (t) Me Davis and Caveij, 40 
 
 151; Lord Chelmsford, Lainare Ch. D. 601, 607; Be National 
 
 V. Dixo>i, L. R. 6 H. L. 414, 423. I'rovincial Bank of England and 
 
 (/■) Cloives V. Hiygimon, 1 V. & Mar.sh, 1895, 1 Ch. 190; Scott v. 
 
 B. 524, 527; lainare v. Bixon, Alvarez. 1895, 2 Ch. 603; see 
 
 L. R. 6 H. L. 414, 423, 428. below, Chap. VI 
 
 (ff) See below, Chap. XIX. , § 3 .
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 
 
 39 
 
 Court may decline to enforce the specific performance of Hardship. 
 
 a contract on the ground that that would involve great 
 
 hardship on the contractor in default, but may at the 
 
 same time adjudge him to be liable in damages 
 
 for a breach of the agreement (/»•). Besides an 4. Vendor 
 
 , . „ , , ^ 'r> p • and purchaser 
 
 action lor damages at law or specinc pertormance m gunimons. 
 
 equity, there is another proceeding in which questions 
 arising between vendors and purchasers of land may be 
 decided. This is a summons under section 9 of the 
 Vendor and Purchaser Act, 1874 (/). In such a sum- 
 mons the rights of the parties may be measured by the 
 rules of equity or law, according to the relief claimed. 
 Questions, of which the solution must result in binding 
 either party to complete the purchase (as where it is 
 claimed that the vendor has shown such a title as the 
 purchaser is bound to accept) are determined according 
 to the rules of equity applied in actions for specific per- 
 formance. But if the purchaser claims not only to be 
 relieved from performing the contract, but also to have 
 his deposit (if any) returned to him, and his expenses of 
 investigating the title paid, he is virtually pursuing the 
 remedy accorded for breach of the contract in a Court 
 of law {tn) ; and his title to relief will be governed 
 strictly by the rules of law, without reference to the 
 considerations which would guide the Court in granting 
 or withholding specific performance {n). 
 
 To give a clearer view of the terms implied by law 
 in an open contract of sale, the writer has endeavoured 
 to express them in a manner similar to that in which 
 special conditions of sale are usually drawn. This will 
 facilitate the comparison of the terms of an open contract 
 
 (k) See Tamplin v. James, 15 (;k) Above, p. 37 ; Re Har- 
 
 Ch.D. 215, 22'2, 223 ; Van Praagh greaves and Thompson's Contract, 
 
 V. Ereridf/c, 1902, 2 Ch. 266, 272, 32 Ch. D. 454. 
 273, revervse'i on a different point, («) See the cases cited in 
 
 1903, 1 Ch. 434; below, Chap. note (i), above; below, Chap. 
 
 XIII., §1. XIX., §4- 
 
 (/) JStat. 37 & 38 Vict. c. 78.
 
 40 
 
 or THE parties' rights, 
 
 with those of a formal agreement containing the usual 
 conditions. It will be remembered that the Statute of 
 Frauds requires a written and signed memorandum 
 describing (at least) the parties, the property sold and 
 the price (o). This may take the following form : — 
 
 Fonnal 
 memorandum 
 of an open 
 contract. 
 
 Memorandum of an agreement made this 
 first day of May, 1898, between A. B., of &c. 
 \_Inserf descriptioii~\ and C. D., of &c. [Insert de- 
 scription'] whereby the said A. B. agrees to sell and 
 the said 0. D. to buy at the price of 4,000/., 
 the freehold in fee simple free from incumbrances 
 of All that &c. \ Insert description of the pro- 
 pert>/~\. In witness whereof the said parties have 
 hereunto set their hands the day and year above 
 named. 
 
 (Signed) A. B. 
 CD. 
 
 Contract 
 formed by 
 letters. 
 
 Open contracts, however, are very rarely made 
 by the signature of a formal memorandum. They 
 usually result fi'om the acceptance of a written offer, 
 as thus : — 
 
 The White House, 
 Geeenfield, Sussex. 
 
 1 June, 1898. 
 
 Dear Sir, 
 
 I would take 4,500/. for this house with the 
 garden and two fields adjoining. 
 
 Yoiu-s faithfully, 
 
 A. B. 
 
 C. D., Esq. 
 
 (o) Above, pp. 4, 17.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. ^1 
 
 10, Blank Street, W. 
 
 2 June, 1898. 
 
 Dear Sir, 
 
 I accept the offer made in youi' letter of 
 yesterday. 
 
 Yours faithfully, 
 
 CD. 
 
 A. B.,Esq. (oo). 
 
 In such cases it is understood that the interest sold J^J'j^^p^^^"fgg 
 is the fi-eehold in fee simple free from iucumbrances, simple con- 
 unless it appear from the memorandum that some lesser ^^{ll^ ^^l' 
 
 interest is the suhiect of the contract, or that the pui-- contrary 
 
 -, , . , , i • • appear, 
 
 chaser is to take the property subject to certain incum- 
 brances («). Whether the memorandum of an open Terms of an 
 " \jrj 'i open con- 
 
 contract be formal or informal, the agreement comprises tract. 
 
 the following terms : — 
 
 1.— (1.) The vendor shall show a good title to the Vendor to 
 
 ^ ' show a good 
 
 property sold. title. 
 
 (2.) In order to discharge this obligation, he shall Delivery and 
 
 ,,.,,. 1 J_^ \ verification of 
 
 deliver at his own expense to the pm-chaser a proper abstract, 
 abstract of title to the property, showing the dealings 
 therewith and devolution thereof for the forty years 
 next before the contract, and shall verify the abstract 
 by producing proper evidence of all the deeds, wills and 
 other documents appearing on the abstract and of all 
 material facts stated therein, and shall prove the proof of 
 identity of the property described in the contract with "^entity, 
 that to which the muniments of title relate (j). 
 
 {6.) The vendor shaU prove forty years' seisin in fee Necessity of 
 of the property sold. If therefore an instrument of of "title, 
 disposition be offered in unsupported proof of the 
 
 (oo) See above, pp. 9, 18. v. Caldcleugh, L. R. 4 Q. B. 159. 
 
 {p) Buffhexv. Parker, 8 M. & [q) Above, pp. 32, 33; Re 
 
 W. 244 ; Boucr v. Cuopcr, 1 Hare, IfalHs and Grout^s Contract , 1906, 
 
 408 ; Sug. v. & P. 298 ; rhillips 2 Ch. 206.
 
 42 
 
 OF THE parties' RIGHTS, 
 
 Proper 
 evidence of 
 title. 
 
 Recitals, &o. 
 in instru- 
 ments twenty- 
 years old to 
 be prima facie 
 evidence. 
 
 Production of 
 and inquiries 
 as to the title 
 earlier than 
 for the last 
 forty years 
 not to be 
 required or 
 made. 
 
 commencement of the vendor's title, it must be a good 
 root of title ; that is to say, it must deal with or prove 
 on the face of it, without the aid of extrinsic evidence, 
 the ownership of the whole legal and equitable estate 
 in the property sold, contain a description by which the 
 property can be identified, and show nothing to cast 
 any doubt on the title of the disposing parties. Other- 
 wise, any deficiency in any of the above respects must 
 be made good by further evidence (r). 
 
 (4.) Proper evidence of title means such evidence as 
 a court of equity will force a purchaser to accept on a 
 sale, whether admissible in litigation or not (s). 
 
 (5.) Kecitals, statements and descriptions of facts, 
 matters and parties contained in deeds, instruments, 
 Acts of Parliament or statutory declarations twenty 
 years old at the date of the contract shall, unless and 
 except so far as they shall be proved to be inaccurate, 
 be taken to be sufiicient evidence of the truth of such 
 facts, matters and description (;*). 
 
 (6.) The purchaser shall not require the production, 
 or any abstract or copy, of any deed, will, or other 
 document dated or made before the time prescribed by 
 law or stipulated for commencement of the title, even 
 though the same creates a power subsequently exercised 
 by an instrument abstracted in the abstract furnished 
 to the purchaser ; nor shall he require any information, 
 or make any requisition, objection, or inquiry, with 
 respect to any such deed, will, or document, or the title 
 prior to that time, notwithstanding that any such deed, 
 will or other document, or that prior title, is recited, 
 covenanted to be produced, or noticed ; and he shall 
 assume, unless the contrary appears, that the recitals 
 
 (r) Parr v. Lovcqrove, 4 Drew. 
 170 ; 1 Dart, V. & P. 295, 296, 
 5th ed.; 337, 6th ed.; 331, 7th ed.; 
 Re Cox ^ Neve's Contract, 1891, 
 2 Ch. 109, 118. 
 
 (a) See below, Chap. IV., 
 sect. 3. 
 
 {t) V. & P. Act, 1874, Stat. 
 37 & 38 Vict. c. 78, s. 2 (rule 2).
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 43 
 
 contained in the abstracted instruments of any deed, 
 will, or other document forming part of that prior title 
 are correct and give all the material contents of the 
 deed, will, or other document so recited, and that every 
 document so recited was duly executed by all necessary 
 parties, and perfected, if aud as required, by fine, 
 recovery, acknowledgmeut, inrolment, or otherwise (u). 
 
 2. — {i.) The vendor shall also produce, as available Vendor must 
 to be transferred to the purchaser in fulfilment of tlie propertv* 
 
 contract, a piece or pieces of land substantially identical identical with 
 . ,, • , ■ th'it described 
 
 as respects tenure, mcjidents oi tenure, estate, situation, iu the con- 
 quantity and otherwise, with the property described in *^^*^'^'t- 
 the contract {Xj. 
 
 (2.) If the property, which the vendor is able to Substantial 
 convey m fulfilment of the contract for sale, sJiall not be ^^"riiDtion 
 substantially identical with the property described in tothepur- 
 the contract, the vendor shall not enforce the contract at detriment, 
 law or in equity, and the purchaser may treat the con- 
 tract as broken (.//) ; but if iu such case there be a 
 mere deficiency (whether of estate, area or otherwise) 
 capable of assessment at a money value, the purchaser 
 may in equity exact the specific performance of the 
 contract with compensation for the deficiency, provided 
 this will not prejudice third parties (s), or involve great 
 hardship on the vendor (a) . 
 
 (»«) Conv. Act, 1881, stat. 44 & 1072—1078, .)th ed. ; 151, 152, 
 
 46 Virt. c. 41, s. 3 (3). 1198 — 1205, 6th ed. ; 147, 1086— 
 
 (z) Above, p. 33. 1092, 7th ed. : Fry, Sp. Perfce. 
 
 ■ (y) Fli</ht V. Bout/i, 1 BiuK. §j 1209, 1217-1238. 
 N. C. 370 ; Pii/sford v. Richards, (z) Thoinas v. Derhx/, 1 Keen, 
 
 17 Beav. 87, 95, 96 ; Sivaidandx. 729, 6 L. J. N. S. Oh. 267 ; Will- 
 
 Dtursleii, 29 Beav. 430 ; Torrance mott v. Barber, 15 Ch. D. 96. 
 V. Bolton, L. R. 8 Ch. 118 ; Re (a) JIurtlock v. Buller, 10 Vcs. 
 
 Arnold, UCh.Ji. 21 Vi\ Re Beijfm 292, 315; Cmtlc y. Wilkinson, 
 
 and Masterx^ Contract, 39 Ch. D. L. R. 5 Ch. 534, 536; Hooper v. 
 
 110; Re Faircrttand Jlolme.s' Con- Smart, L. R. 18 Eq. 6S.5 ; Ilor- 
 
 traet, 42 Ch. IJ. 150; Jacobs v. rocks v. Ri;iby, 9 Ch. D. 180; 
 
 Revell, 190O, 2 Ch. 858 ; Re Hare Fry. Sp. Pfrfce. ^ 1209, 1210, 
 
 and O'Morc's Contract, 1901, 1 Ch. 1257 sq. ; Ruddy. LascelUs, 1900, 
 
 93 ; Dart, V. & P. 134, 135, 1 Ch. 815.
 
 44 
 
 OF THE parties' EIGHTS, 
 
 Insubstantial 
 errors of 
 description of 
 the same 
 kind. 
 
 Errors of 
 description 
 made by the 
 vendor to his 
 own detri- 
 ment. 
 
 (3.) If the property available to be conveyed by the 
 vendor in fulfilment of the contract shall correspond 
 substantially with that described therein, but owing 
 to an error innocently made by the vendor there shall 
 be some small and insubstantial deficiency either of 
 quantity or estate or in some other respect, the vendor 
 (though he shall not enforce the contract at law), may 
 nevertheless in equity exact the specific performance 
 thereof, on giving compensation for the error (b) ; and 
 the purchaser shall have the like right to enforce specific 
 performance with compensation (c), but shall not be 
 entitled to insist on his legal right to rescind the contract 
 or recover damages for its breach (d), if the vendor shall 
 be willing to make compensation and shall assert his 
 own right to specific performance on those terms (e). 
 
 (4.) If the vendor by his own fault or inadvertence 
 shall have described in the contract of sale a property 
 more extensive than that which he meant to sell, and is 
 able to convey the property described in fulfilment of 
 the agreement, then (whether the error be substantial 
 or insubstantial) he shall have no right to enforce the 
 contract at law or specifically otherwise than according 
 to its terms or to oblige the purchaser to allow him com- 
 pensation (,/') ; and in case of the vendor's refusal so to 
 perform the contract, the pui'chaser shall be entitled, 
 
 (i) CaJcraft v. Roebuck, 1 Ves. 
 jun. 221 ; Fry, Sp. Perfce. §^ 
 1213, 1229—1238. 
 
 (c) This follows, a fortiori, 
 from the proposition stated in the 
 preceding paragraph. 
 
 [d] At law the vendor's failure 
 in any respect, however small, to 
 produce a property answering to 
 that described in the contract is a 
 breach of one of his main duties 
 under the agreement ; see above, 
 pp. 33, and n. [k), 36, Chap. XIII. 
 
 §1- 
 
 (c) This is a consequence of the 
 vendor's right to enforce specific 
 
 performance with compensation, 
 and of the prevalence of this 
 equitable right over the pur- 
 chaser's rights at common law ; 
 see liri/nolds v. Kelson, 6 Madd. 
 290 ; Frank v. Basnett, 2 My. & K. 
 618 ; Phelps v. Frothero, 1 Be G. 
 M. & G. 722; Hall, V.-C, 
 Tredegar v. TTindiis, L. R. 19 
 Eq. 607, 615; Judicature Act, 
 1873, stat. 36 & 37 Vict. c. 66, 
 ss. 24 (5), 25(11). 
 
 (/) See Manser v. Back, 6 
 Hare, 443, 447, 448; Alvanleijx. 
 Kinnaird, 2 Mac. & G. 1, 8 ; 
 below. Chap. XII. § 4.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 45 
 
 not only to insist on his legal rights {(f) arising from 
 the \endor's breach, but also to enforce the contract 
 specifically (//) ; except that, if the error were innocently 
 made and be so serious that it would be a great hardship 
 on the vendor to oblige him to perform the contract 
 specifically, the purchaser shall not be entitled to enforce 
 specific performance unless lie choose to take without 
 compensation what the vendor really intended to sell (/'). 
 
 3. — (1.) The vendor shall produce all the evidence of Place of veri- 
 title, which is in his own possession, at the proper place abstrant'* ^ 
 for verification of the abstract, that is to say, at his owti 
 residence, upon or near the property sold or in London ; 
 or he shall pay the extra expense occasioned to the 
 purchaser by the examination of any such evidence 
 elsewhere ; but he may produce any documents of title, 
 which are in the possession of other persons than him- 
 self, at the place where such documents are, and the 
 purchaser shall pay any extra expense so caused of the 
 examination of such documents by him or his solicitor {k) . 
 
 (2.) The purchaser shall pay the expense of procuring Expense of 
 and producing all evidence of title which he may require [Jj^^/^^jq ? 
 but which is not in the vendor's possession (/). possession.— 
 
 (•i.) The vendor shall at his own expense procure all And of 
 documents of title, which are required by law to be unstamped 
 
 documents. 
 
 ((/) Above, p. 37. {fc) •Sharp v. Ptiffr, Sug-. V. & 
 
 (/() See Tamplin v. James, 15 P- 430 ; JIuff/ies v. JF;/)!)!,; 8 Sim. 
 
 Ch. D. 2ir,, 222, 223; below, 85; Su-. V. & P. 429, 430; 1 
 
 Chap XIII 6 1 I>art, V. & P. 407, 408, 5tli ed. ; 
 
 rs\T .;'/ ,, n V n -170, 471, Cth cd. ; 481, 482, 7th 
 
 (i) Ncapv. Abbott, (j. F. Ooop. a r< < ^ ic^i \ ^ .. i 
 
 „„V ,,^ 1, I r -a Pd. ; Conv. Act, ISM, stat. 44 \- 
 
 333; Manxer v. Buck, 6 Hare, .- -xt- l. ii o w, 
 
 ..„ A, I r' J . 40 Viot. c. 41, 8. 3 (0 . 
 
 443 ; Alvanlei/ v. Atmiaird, 2 > \ / 
 
 Mac. & G. 1 ; irood v. Scavlh, (/) This is the effect of Conv. 
 
 2 K. k J. 33 ; Scott v. LittMale, Act, 1881, stat. 44 & 45 Vict. 
 
 8 E. & B. 815 ; Webster v. Cecil, c. 41, s. 3 (6); see Re Willett and 
 
 30 Beav. 62 ; Dmham v. Lnjard, Argenii, h Times L. R. 4 76 ; Ji>r 
 
 34 Beav. 611 ; Jiiu/d v. Lascelloi, Stttart, Oliraut and Seadon''s Con- 
 
 1900, 1 Ch. 815, 820 ; see below, tract, 1896, 2 Ch. 328. 
 
 Chap. XII. § 4 ; Chap. XIII. J 1.
 
 46 OF THE parties' RIOHTS, 
 
 stamped but are nnstaraped or insuffiniently stamped, to 
 be properly stamped (m). 
 
 Purchaser to 4. The purchaser shall at his own expense examine 
 accept the j^^ie abstract of title and the evidence offered in support 
 
 title, it shown ^ ^ _ ' "^ 
 
 to be good. of it ; and if and so soon as a good title shall be shown, 
 he shall accept the title {n). 
 
 Completion 5. — (1.) The purchase shall be completed so soon as 
 
 °h*^^ P"^' the vendor shall have shown a good title, that is to say, 
 when the title contracted for shall have been proved 
 upon the abstract and by all the evidence necessary to 
 verify the same (o). The purchaser shall thereupon 
 prepare at his own expense a proper conveyance of the 
 property to the purchaser or as he shall direct {j)), and 
 shall tender the same to the vendor for execution, at the 
 same time tendering the whole amount due in payment 
 of the purchase-money (q) ; and the vendor shall there- 
 upon accept such payment and execute the conveyance 
 at his own expense and shall give possession of the 
 property to the purchaser (r), and the purchaser shall 
 take such conveyance accordingly («). 
 
 (2.) A proper conveyance of the property means an 
 assurance effectual to vest the whole estate contracted 
 for, both legal and equitable, in the purchaser or his 
 nominee, and containing the usual covenants for title by 
 the vendor. These are covenants for right to convey, 
 quiet enjoyment, freedom from incumbrances and 
 further assurance, extending to indemnity against any- 
 thing done, omitted or knowingly suffered by the 
 vendor and his predecessors in title back to and including 
 the last person who became entitled to the propertj^ on 
 
 {m) Whiting to Loemes, 14 Ch. [p) Ef/monty. Smit/i, 6 Ch. D. 
 
 D. 8-2, 17 Ch. D. 10; i?c Lovell 469, 474. 
 
 and Canard's Contract, 1907, 1 Ch. [q] Above, p. 35. 
 
 249. (»'/ Above, p. 34. 
 
 («) Above, p. 35. (s) Re Gary Elwes^ Contract, 
 
 (o) Above, p. 33. 1906, 2 Ch. 143.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 4/ 
 
 a sale or another occasion on whieli proper covenants for 
 title were given {t) . 
 
 (3.) If the state of the vendor's title be such that, in 
 order to convey to the purchaser the whole estate con- 
 tracted for, other parties than the vendor must join in 
 the conveyance, the vendor shall at his own expense 
 procure all such other necessary parties to join in and 
 execute the conveyance {u). 
 
 6. — (1.) Tlie vendor shall deliver to the purchaser on Vendor to 
 completion all muniments of title relating- solelv to the ^ehveroyer 
 
 '■ D ./ the muni- 
 
 property purchased (.r) , but he sliall retain any docu- ments of title 
 ments of title which are in his own possession and tion.""^^ ^' 
 relate to any part of an estate retained by him as well 
 as to the property sold (//) : and he shall not be required 
 to obtain and hand over to the pui*chaser any documents 
 of title, which relate to other property as well as to the 
 property sold, and of which any person other than the 
 vendor is entitled to retain possession (s) . 
 
 (2.) The vendor shall give or procure to be given to Or give 
 the purchaser proper statutory acknowledgments of gjl^^uto 
 right to production and delivery of copies, and proper acknowledg- 
 statutory undertakings for safe custody, and also (if re- undertakino-s 
 quired by the purchaser, but at his expense) attested ^^ ^° ^^J 
 
 • fii 11 I'-i ITT aocumeuts of 
 
 copies 01 all such documents or title as are not handed title rightfully 
 over to the purchaser on completion and are necessary '*^*^™^"- 
 to make a good title according to the contract ; except 
 documents in public or official custody and other docu- 
 
 {l) Church V. Broun, I'l Ves. 4th ed. ; lie Sander and Wat forWs 
 
 258; Williams, Real Prop. 447— Contract, 1900, W. N. 183, 83 
 
 419, 13th ed. ; 607-610, 2l8t L. T. 316. 
 
 ed. ; Williams, Conv. Stat. 74— (.c) Above, p. 34 : below 
 
 86. Chap. XII. $ 3. 
 
 («) Esdaile v. Oxcnhnm, 3 B. & (v) V. & P. Act, 1874, stat. 
 
 C. 22o, 228. 229 ; Siig. V. & P. 37 & 38 Vict. c. 78. s. 2 (rule 5) • 
 
 557, 558, 561 ; 2 Dart, V. & P. see below, Chap. XII. ^ 3. 
 707, 721, 1'1>. -ith ed. ; 79.S, 814. (;) Suir. V. .»c P. 446 -4iO. 4.J3 ; 
 
 6th ed. ; 714, 723, -th ed. ; 1 1 Dart. V. & P. o26, 6th ed. ; 
 
 Davidson, Prec. Conv. 572, 612, 578, 7th ed.
 
 48 
 
 ments, not being in the vendor's possession or power, 
 of which the purchaser can always obtain good evidence 
 himself : but the purchaser shall not require any fresh 
 acknowledgment, undertaking or covenant to be given 
 to him as regards any documents lawfully retained by 
 some other person than the vendor, for the production 
 and safe custody whereof the pui-chaser will on comple- 
 tion have the right to enforce at law a proper statutory 
 acknowledgment and undertaking or a covenant given 
 to the vendor or his predecessor in title (a). 
 
 (3.) A proper statutory acknowledgment or under- 
 taking can only be given by the person who retains 
 possession of the documents [h). 
 
 (4.) Such statutory acknowledgments and under- 
 takings as the purchaser can and shall require shall be 
 furnished at his expense ; but the vendor shall bear the 
 expense of the perusal and execution thereof on behalf 
 and by himself and all necessary parties other than the 
 vendor (c). 
 
 (5.) The inability of the vendor to furnish the pur- 
 chaser with proper statutory acknowledgments and 
 undertakings with regard to any documents of title 
 shall not be an objection to title in case the purchaser 
 will on completion of the contract have an equitable 
 right to the production of such documents (d). 
 
 Time for 7. — ( 1 .) Any act necessary to be done by either party 
 
 carrying out ^^^ order to carry out the contract, such as the delivery 
 
 of j the abstract, the statement of the objections to or 
 
 («) Cooper V. Emery, 1 Ph. 388 : as modified by Conv. Act, 1881, 
 
 Sug. V. & P. 446 — 400, 453, and stat. 44 & 45 Vict. c. 41, s. 9 
 
 n. ; Conv. Act, 1881, stat. 44 & (8, 11). 
 
 45 Vict. 0. 41, ss. 3 (6), 9(8, 11) ; {cl) V. & P. Act, 1874, stat. 
 
 see below. Chap. XII. § 3. 37 & 38 Vict. c. 78, s. 2 (rule 3), 
 
 {b) See Conv. Act, 1881, stat. as modified by Conv. Act, 1881, 
 
 44 & 45 Vict. c. 41, s. 9 (1, 9). stat. 44 & 45 Vict. c. 41, s, 9 
 
 (c) V. & P. Act, 1874, stat. (8, 11), 
 37 & 38 Vict. 0. 78, s. 2 (rule 4),
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 49 
 
 the acceptance of the title, or the preparation of the 
 conveyance, shall he done within a reasonable time (e). 
 
 (2.) In the ease of imreasonahlo delay by either party 
 in the performance of any act necessary to caiTy out 
 the contract, the other party may serve a notice on the ' 
 party in default requiring him to do the act, which he 
 delays to perform, within some time (which must be a 
 reasonable space of time as from the date of the notice) 
 specified in the notice, and intimating the other party's 
 intention to put an end to the contract, if the notice be 
 not complied with ; and if such a notice be served and 
 be not complied with, the party in default shall not 
 enforce the specific performance of the contract in 
 equity ( /), and shall be liable at law for a breach of the 
 contract (g). 
 
 8. — (1.) As from the date of the contract for sale the Rights of 
 
 -ill i ii 1 'J.!, property and 
 
 property shall in equity belong to the purchaser, witn possession 
 
 this exception, that the vendor shall until the proper ^^^^^fj^j^ 
 
 time for completion take the rents, crops and other 
 
 ordinary profits for his own use : but with this exception 
 
 the vendor shall in equity have no other beneficial 
 
 interest in the j)roperty than a lien for the price {h). 
 
 (2.) The vendor shall be entitled to an apportioned 
 
 part of all rents accrued due at but not payable until 
 
 after the proper time for completion (/) . 
 
 {e) Romilly, M.R., Jiaker v. 599—601. 
 Metropolitan Ittj. Co., 81 Beav. (17) Compton v. Bagleij, 1892, 
 
 504, 509, 510 : Fry, J., Green 1 Ch. 313. 
 
 V. Sevin, 13 Ch. D. 589, 599; (A) Paine \. ^[eller,&\es. M9, 
 
 .ffow V. <S»ii7/i, 27 Ch.D.89, 103, 352; Plumer, M.R., Wall v. 
 
 104 ; Romer, J., Compton v. Bright, 1 J. & W. 494, 500 ; 
 
 Bagley, 1892, 1 Ch. 313, 321. Cairns, C, Shatv v. Foster, L. R. 
 
 (/) Spurrier v. Hancock, AYqs. 5 H. L. 321, 338 ; Jessel, M.R., 
 
 667 : Lang-dale. M.R.. Taylor v. Lymghl v. Edaardx, 2 Ch. D. 
 
 Broun, 2 Beav. 180, 183 ; Romilly, 499, 505-8 ; Be Cary Elwes' Con- 
 
 M.R., Parkin v. Thorold, 16 Beav. tract, 1906, 2 Ch. 143, 149 ; Dart, 
 
 59, 71 ; Pegq v. Wisdeu, 16 Beav. V. & P. 247, 649, 5th ed. ; 285, 
 
 239, 244 ; Fry. J., Cratr/ord v. 733, 6th ed. ; 289, 672, 7th ed. 
 Toogood, 13 Ch. D. 153, 158 ; (i) Apportionment Acf, 1870, 
 
 Green v. Serin, 13 Ch. D. 589, stat. 33 & 34 Vict. c. 35, a. 2. 
 
 W. 4
 
 50 
 
 OF THE PARTIES RIGHTS, 
 
 (3.) Pending the completion of the piu'chase the 
 vendor shall retain possession of the property sold, and 
 shall manage and preserve it with the same care as a 
 trustee is bound to use with regard to the property 
 subject to his trust (A-). 
 
 (4.) The vendor shall pay all rates, taxes and other 
 outgoings payable in respect of or charged upon the 
 property sold up to the proper time for completion. 
 
 (5.) Of such outgoings as are apportionable by law 
 he shall only pay a due proportion up to the proper 
 time for completion : but he shall discharge all out- 
 goings not apportionable and becoming charged on the 
 premises before such time, notwithstanding that they 
 may not be payable until after such time (/). 
 
 Interest pay- 
 able if com- 
 pletion be 
 delayed. 
 
 9. — (1.) If the purchase shall not be completed at 
 the proper time (;«), the purchaser shall pay interest at 
 the rate of 4/. per cent, per annum (n) on the price 
 agreed upon from that time until the completion of the 
 purchase, and shall be entitled as from that time to the 
 rents and other ordinary profits of the property (o) : 
 but the vendor shall retain possession or receipt of the 
 rents and profits until the purchase shall be actually 
 completed, when he shall account to the purchaser for 
 all rents and profits accrued due since the proper time 
 for completion (p). 
 
 {k) Phillips V. Silvester, L. R. 
 8 Ch. 173 ; Egmont v. Smith, 
 6 Ch. D. 469 ; Royal Bristol, ^-c. 
 B(l(j. Soc. V. Bomash, 35 Ch. D. 
 39u; Clarke y. Baimiz, 1891, 2 
 Q. B. 456 ; see 2 Dart, V. & P. 
 649-651, 5th ed.; 733-735, 6th ed.; 
 673-675, 7th ed. 
 
 (I) Carrodus v. Sharp, 20 Beav. 
 56 ; Midfflty v. Coppock, 4 Ex. 
 D. 309; lie Bettesworth and Richer, 
 37 Ch. D. 535 ; Tubbs v. Wynne, 
 1897, 1 Q. B. 74 ; Barsht v. Tagg, 
 1900, 1 Ch. 231 ; Stock v. Meakin, 
 ib. 683 ; see Egg v. Blayney, 21 
 Q. B. D. 107. 
 
 [m) See above, p. 46. 
 
 («) This is the rate usually 
 allowed in equity ; Sug. V. & P. 
 643 ; 2 Dart, V. & P. 627, 5th 
 ed. ; 708, 6th ed. ; 650, 7th ed. ; 
 1 Davidson, Prec. Conv. 575, 576. 
 4th ed. ; 483, 5th ed. ; Re Davy, 
 1908, 1 Ch. 61. 
 
 (o) Baine v. Meller, 6 Ves. 349, 
 352 ; Hardwicke v. Sandys, 12 M. 
 & W. 761 ; Monro v. Taylor, 8 
 Hare, 51, 70, 3 Mac. & G. 713, 
 Sug. V. & P. 627. 
 
 [p) M'Namara v. Williams, 6 
 Ves. 143 ; see below. Chap. XI.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 51 
 
 (2.) If the vendor shall be in occupation of the 
 property sold, he shall pay a fair occupation rent from 
 the proper time for completion until the time of actual 
 completion iq). 
 
 (3.) If the delay in completion shall be attributable 
 to the vendor, and the purchaser shall appropriate his 
 money to the purchase by depositing it in a bank or 
 otherwise, and giving the vendor notice of such appro- 
 priation, the purchaser shall, as from the time of such 
 appropriation, pay no more interest on the purchase- 
 money, except such interest, if any, as he shall receive 
 in respect of such deposit (>•) ; but if the delay in 
 completion shall be attributable to the purchaser, the 
 purchaser shall not be exonerated from his liability to 
 pay interest on the purchase-money by any such 
 appropriation of his money to the purchase (s) . 
 
 We have already briefly described the contracting 
 parties' remedies by application to the Court (f) . It Has the 
 remains to inquire whether, in the absence of express riJht°of re- 
 stipulation, a vendor of land has the right to re-sell, in sale without 
 ease the purchaser make default in performing the stipulation? 
 contract. This appears exceedingly doubtful. It 
 was incidentally held by Bacon, V.-C, in Noble v. 
 EdwardeK (u), that, if the purchaser unjustly repudiate 
 
 (q) Sherwin v. SJiakspear, 5 De this point was really necessary. 
 
 G. M. & G. 517, 18 Jut. 843; The acition was brought by a 
 
 Metropolitan It;/. Co. v. Defrie.s, vendor, who had re-sold at a 
 
 2 Q. B. D. 189, ;)87. See Le(/ffott loss, to enforce his claim at ooin- 
 
 V. Metropolitan lit/. Co., L. R. 5 mon law for damages for breach 
 
 Ch. 716. of contract. All that the V.-C. 
 
 (>•) Roberts v. Maxsey, 13 Ves. decided was that the vendor was 
 
 56i ; RegenCs Canal Co. v. Ware, entitled to sue for the dift'erence 
 
 23 Beav. 575, 587 ; 1 Davidson, between the original contract 
 
 Prec. Conv. 573, 574, 4tli ed. ; price and the price on the re-sale : 
 
 480, 481, 5th ed. see 5 Ch. D. 392. But it seems 
 
 (.i) Sug. V. & P. 628 ; 1 Dart, that the vendor was clearly en- 
 
 V. & P. 627, 628, 034-636, 5th titled to make this claim at law, 
 
 ed. ; 708, 709,716-18, 6th ed. ; even though the re-sale were 
 
 650, 651, 657-659, 7th ed. wrongful: see Stephens v. Wil- 
 
 (<) Above, pp. 36-39. hinsou, 2 B. & Ad. 320; Page v. 
 
 (k) 5 Ch. D. 378, 388. It does Cowasjee, L. R. 1 P. C. 127 ; Ben- 
 
 not appear that the decision of jamin on Sale, 648, 654. 2nd ed. 
 
 4(2)
 
 •52 OF THE parties' RIGHTS, 
 
 the contract, as by refusing to accept a good title, the 
 vendor may re-sell, after notice to the purchaser of his 
 intention to do so, and sue the purchaser for the amount 
 of any deficiency in price occurring on the re-sale. The 
 V.-C.'s judgment was reversed for other reasons by the 
 Court of Appeal, which made no pronouncement as to 
 the correctness of his decision on the point in question. 
 And his decision has been accepted by the editors of 
 
 f Dart's Vendors and Purchasers (v), and Davidson's 
 Precedents in Conveyancing (?r), as an authority for 
 the proposition that the vendor of land has the right 
 
 i of re-sale, on breach of contract by the purchaser, 
 without any express stipulation to that effect. But 
 the correctness of this opinion seems questionable. The 
 Y.-C. held (x) that the common law gives to the vendor 
 of land the same right of re-sale, in case of the pur- 
 chaser's default, as it gives to a vendor of chattels. It 
 is to be observed, however, that the assertion of a right 
 I at common law for the vendor of goods to re-sell them 
 upon the buyer's default rests upon very slender autho- 
 rity (?/) . And the utmost extent of the common law 
 
 (v) P. 185, 6th ed. (w) P. 476, .5th ed. [x] b Ch. D. 388. 
 
 (y/) In Benjamin on Sale, 2nd ed. 1873, pp. 649, 6o5. it is laid down 
 that the ca.ses decide expressly that the vendor has no right to re-sell, 
 for they determine that he is responsible for nominal damages for 
 non-delivery of the goods where there is no difference between the 
 contract and the market price thereof ; and in support of this pro- 
 position Valpij V. OakeJet/, 16 Q. B. 941, and Griffiths v. Ferrn, 1 E. & 
 E. 680, are cited. But see the view now maintained by the editors 
 of Benjamin on Sale, 934 sq., .5th ed. In Ex parte Stnpleton, Re Nathan, 
 1879, 10 Ch. D. 586, it was decided that an unpaid vendor of goods, 
 who had re-sold (after notice of his intention to do so) upon the pur- 
 chaser's bankruptcy, was entitled to prove for a deficiency in price on 
 the re-sale. But it appears that he would have had this right even 
 though the re-sale were wi-ongful; Stephens v. Wilkinson, 2 B. & Ad. 
 320; FagcY. Cowasjee, L. R. 1 P. C. 127; Benj. Sale, 654, 2nd ed. 
 Mr. M. D. Chalmers, however, in his Digest of the Law of Sale of 
 Goods (1890), sect. 50 (3), evolved out of certain obiter dicta in Page v. 
 Cotvasjee, L. R. 1 P. C. 145 ; Lord v. Frice, L. R. 9 Ex. 55, and Ex 
 parte Stapleton, ubi sup., the rule afterwards adopted in the Sale of 
 Goods Act, 1893, stat. 56 & 57 Vict. c. 71, s. 48 (3), viz., "Where 
 the goods are of a perishable natui-e, or where the unpaid seller gives 
 notice to the buyer of his intention to re-sell, and the buyer does not 
 within a reasonable time pay or tender the price, the unpaid seller 
 may re-sell the goods and recover from the original buyer damages for 
 any loss occasioned by his breach of contract."
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 53 
 
 authorities appears to be to allow to an unpaid vendor 
 of goods a right of sale, after notice, on the buyer's 
 default, to realize his lien for the price, similar to the 
 right of sale, after due demand and notice, given to a 
 pledgee of goods where a day is fixed for payment (s). [ 
 But the lien, which a vendor of land has for the price 
 pending completion, is a purely equitable charge {a), 
 quite different from the common law right of a pledgee 
 or an unpaid vendor of chattels. It does not appear to 
 follow therefore that a vendor of land can enforce his 
 equitable lien by sale, because an unpaid vendor of 
 goods may, in certain circumstances, realize his common 
 law lien by sale. And the proper remedy to enforce 
 an unpaid vendor's lien on lands sold appears to be to 
 apply to a Court of Equity for an order for sale {b). It 
 is submitted, therefore, that the better opinion is still 
 that expressed, before the case of Noble v. Sdwardes, 
 by the authors of Davidson's Precedents in Convey- 
 ancing (c) ; namely, that are-sale to enforce the vendor's 
 lien for the price in case of the purchaser's default, can 
 only be lawfully made with the authority of a Court of 
 Equity or Bankruptcy. It appears, however, that, as in 
 the case of goods {d), a re-sale made on the purchaser's 
 default by a vendor of lands, without any express 
 power to re-sell, does not rescind the original contract ; 
 that, even if re-sale in such circumstances be unlawful, 
 the vendor may sue the original purchaser or prove in 
 his bankruptcy for any deficiency in price occurring on 
 the re-sale {e) ; and that, if the re-sale result in an 
 
 (z) See preceding note ; and 95, n. ; Seton on Judgments, 
 
 Johnson v. Stear, 15 C. B. N. S. 2290—2294, 6th ed. ; see below, 
 
 330 : I'if/ot V. C'ub/ei/, ib. 701 ; Chap. XL § 1, XVIII. § 2, XIX. 
 
 Blackhum, J., Donald V. Sucklitii/, § 1. 
 
 L. R. 1 Q. B. 585. C16 ; Black- (c) Vol. i., pp. 568-70, 4th ed. 
 
 burn on Sale, 325, cited Benj. (c?) See Benj. Sale, 648, 654, 2nd 
 
 Sale, 644, 2nd ed. ed. ; Maclean v. Dunn, 4 Bing. 
 
 (a) See Jessel, M.R., Lymqht 722; Stephens v. Wilkinson, 2 B. 
 
 V. Edwards, 2 Ch. D. 499, 506, & Ad. 320 ; Page v. Coivasjee, 
 
 507 ; above, p. 49. L. R. 1 P. C. 127. 
 
 (i) Bowles V. Rogers, 6 Ves. [e) Ex parte Seaforth, 19 Ves.
 
 54 
 
 OF THE PARTIES RIGHTS, 
 
 Re -sale as 
 owner after 
 a rescission 
 for the 
 purchaser's 
 default — 
 
 or after 
 judgment in 
 
 excess over the original price, the vendor must pay 
 over the amount of such excess to the original pur- 
 chaser (/). But if re-sale by a vendor of lands on the 
 purchaser's default be unlawful without the authority 
 of the Court, it is questionable whether the vendor 
 would be entitled to recoup himself the expenses of 
 re-sale out of the proceeds thereof [g) . And it seems 
 very doubtful whether a purchaser on a re-sale made 
 without the authority of the Court would obtain a good 
 title, if he had notice of the original contract for 
 sale [h). In this respect the case of lands differs entirely 
 from that of goods, in which the purchaser on a lawful 
 re-sale now obtains a good title under an express 
 enactment in the Sale of Goods Act, 1893 (/). 
 
 If the vendor rescind the contract for the purchaser's 
 breach of one of the main duties under the agree- 
 ment (/r) , he is restored to his former beneficial owner- 
 ship of the land, and can then as owner re-sell or 
 otherwise dispose of it as he j)leases (/) . If he so re-sell 
 for a higher price, such purchase-money is all his own ; 
 and if the re-sale produce less than the former contract- 
 price, he must bear the loss himself {w) . The vendor can 
 
 2^5; Hope v. Booth, 1 B. & Ad. 
 498 ; Gray v. Grai/, 1 Beav. 199 ; 
 Harding v. Harding, 4 My. & Cr. 
 514. 
 
 (/) Greaves v. Ashlin, 3 Camp. 
 426; Valpy v. Oakeley, 16 Q. B. 
 941 ; Griffiths v. Ferry, 1 E. & E. 
 680. The contrary appears to be 
 laid down in 1 Davidson, Prec. 
 Conv. 570, 4th ed., and 1 Dart, 
 V. & P. 186, 6th ed. ; 179, 180, 
 7th ed. ; but Ex parte Hunter, 
 6 Ves. 94, 97, cited as the autho- 
 rity for these statements, was a 
 case of re-sale under an express 
 power of re-sale, whereby the 
 original contract is rescinded ; 
 Lamond v. Davall, 9 Q. B. 1030; 
 Sug. V. & P. 39. And it appears 
 from 1 Dart, V. & P. 163, Sth ed., 
 that Mr. Dart's statement was 
 
 made with respect to such a sale. 
 It seems too that Mr. Davidson's 
 statement was really intended to 
 apply only to such a sale. 
 
 (//) 1 Davidson, Prec. Conv. 
 570, 4th ed. Note that Bacon, 
 V.-C, decided nothing in Noble 
 V. Edivardes, 5 Ch. D. 378, 392, 
 as to the vendor's right to re- 
 cover the expenses of re- sale. 
 
 ih) He might, of course, ob- 
 tain a good title as a bond fide 
 purchaser ivithout notice of the 
 original sale. 
 
 (0 Stat. 56 & 57 Vict. c. 71, 
 s. 48 (2). 
 
 {k) Above, p. 34. 
 
 (/) Houe V. Smith, 27 Ch. D. 
 89, 104, 105. 
 
 (/») See below, Chap. XIX. 
 §1.
 
 OBLIGATIONS AND REMEDIES, GENERALLY. 
 
 55 
 
 also sell or otherwise dispose of the land ffs cncner after an action for 
 judgment has been recovered by or against him in an ^ ^' 
 
 action for damages for breach of one of the main duties 
 arising under the contract in). 
 
 (n) See above, p. 36 ; below, Chap. XIX. ^ 2.
 
 CHAPTER III. 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Stipulations 
 usually made 
 in formal 
 contracts. 
 
 Having thus given an outline of the main duties im- 
 posed upon the pai-ties to the contract and their remedies 
 for its breach, and attempted to state the terms of an 
 open contract, we will now endeavour to complete our 
 general view of the effect of a sale of land by pointing 
 out in what particulars the rights and obligations of the 
 parties are usually expressed or modified, in formal con- 
 tracts, by special stipulation. We will first examine the 
 conditions generally made on sales by auction. 
 
 Reserving the 
 right to bid 
 at an auction. 
 
 1. As we have seen, on a sale of land by auction the 
 particulars or conditions must state whether the land 
 will be sold without reserve or subject to a reserved 
 price, or whether a right to bid is reserved ; and if the 
 sale be announced to be without reserve, it will not be 
 lawful for the vendor to bid, either in person or by 
 agent [a) . It is therefore the practice expressly to 
 reserve to the vendor the right to bid as often as he 
 may please (b) ; and it is usually stipulated that the 
 vendor and his agents may bid as often as he or they 
 may please (c), notwithstanding the doubt judicially 
 expressed as before mentioned (d) whether it be lawful 
 for a vendor of land to employ more than one puffer at 
 an auction. Where there is to be a reserve price, this 
 
 (a) Stat. 30 & 31 Vict. c. 48, 
 8. 5 ; above, p. 23. 
 {b) Above, p. 24. 
 (c) 1 Davidson, Prec. Conv. 
 
 607, 4th ed. ; 518, 519, 5th ed. ; 
 1 Key & Elphinstone, Prec. Conv. 
 258, 4th ed. ; 245, 8th ed. 
 (d) Above, p. 23.
 
 OF THE USUAL CONDITIONS OF SALE. 57 
 
 should be stated in the conditions, and the right for the 
 vendor or his agents to bid should be reserved as well. 
 It is usually stipulated that, subject to the rights so 
 reserved, the highest bidder shall be the purchaser (r) . 
 The lowest amount by which the biddings shall 
 advance is generally specified, or else it is provided that 
 the amount of the advance of each bidding shall be regu- 
 lated by the auctioneer ; and the condition is also made 
 that no bidding shall be retracted, the latter stipulation 
 being inserted for whatever it may be worth, notwith- 
 standing that it is thought to be unenforceable. And 
 it is declared that, if any dispute shall arise concerning 
 a bidding, the property shall be put up again and 
 resold ( /). 
 
 2. We have seen that no deposit of any part of the Deposit; 
 purchase-money can be lawfully demanded after an memoran- 
 open contract for sale has been concluded ; as the whole dum. 
 price is not payable until the time for completion {g). 
 
 But on sales of land by auction it is always provided 
 that a deposit of a certain proportion (as ten per cent.) 
 of the pm-chase-money shall be paid by the purchaser 
 immediately on signing the contract (/»). It is also in- 
 variably stipulated that the purchaser shall sign a 
 memorandum of the contract immediately after the 
 sale. This stipulation is absolutely necessary on ac- 
 count of the Statute of Frauds (/) : but it does not 
 appear that it can be enforced ik). 
 
 3. A day is always fixed for the completion of the Time for 
 contract. In such cases it was said that at law time was '^"'"^ 
 
 {e) See above, p. '24. (A) 1 Davidson, Prec. Conv. 
 
 (/) See above, p. 20 ; 1 David- GOT, 4th ed. ; 519, .5th ed. ; 1 
 
 son, Prec. Conv. T)!'), 607, 4th Key & Elphiustone, Prec. Conv. 
 
 ed. ; 432, 52r), oth ed. ; 1 Key & 258. 4th ed. ; 246, 8th ed. 
 
 Elphinstone, Prec. Conv. 257, / \ ai o oa n.t 
 
 258, 4th ed. : 245, 8th ed. ^') ^^°^''^> PP' ^' -^-^^- 
 
 iff) Above, pp. 26, 46. (k) See above, pp. 20-22.
 
 58 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 of the essence of the contract ; that is to say, the Courts 
 of Common Law (not unreasonably) held the parties to 
 mean what they said (/), and therefore considered that 
 a stipulation to complete the purchase on a given day 
 bound the vendor to have shown and verified a good 
 title and to be ready to convey on that day ; in default 
 of which the purchaser was entitled either to rescind the 
 contract and to recover his expenses incurred thereunder 
 (such as his deposit and his costs of investigating the 
 title) , or to sue in affirmance of the contract for damages 
 for breach of the agreement (m). In equity, however, 
 it was well established that neither party to a contract 
 for sale of land should lose his right to specific perform- 
 ance merely through failure to comply with some stipu- 
 lation as to time, if time were not of the essence of the 
 contract. Tliat is to say, the Courts of Equity, in 
 administering their own peculiar remedies, held that 
 they were not concluded by the letter of an agreement 
 to do some act within a given time, but would look to 
 what they called " the substance of the contract," and 
 ascertain whether a stipulation as to time were intended 
 to be material or merely formal. And they granted 
 specific relief, if there were no unreasonable delay, not- 
 withstanding the want of exact compliance with a 
 formal stipulation as to time, upon a principle analo- 
 gous to that on which they decreed the redemption of 
 mortgages after the day fixed for redemption was 
 past {n). The nature of this jurisdiction is thus de- 
 
 (l) Marshall v. Fotvell, 9 Q. B. v. Napper, 2 Sch. & Lef . GS-t ; 
 
 779. Eldon, C, Seton v. Slade, 7 Ves. 
 
 (w) See above, p. 36; Berry v. 265, 273-5; Radcliffew. JFarrin(/- 
 
 ToMwy, 2 Esp. 640, n. ; Wilde v. ton, 12 Ves. S26; Hearnev. Tenant, 
 
 Fort, 4 Taunt. 334 ; Handip v. 13 Ves. 287 ; Hipwell v. Knight, 
 
 PafZM;ic/L-,o Ex.615; Sug.V.& P. 1 Y. & C. Ex. 401; Parkin v. 
 
 257-9 ; Dart, V. & P. 417, 944, Thorold, 16 Beav. 59 ; Roberts v. 
 
 945, 949, 5th ed. ; 482, 1071, Berry, 3 De G. M. & G. 284 ; 
 
 1072, 1076, 6th ed. ; 495, 984, Fry, Sp. Perf. § 1072, p. 489. In 
 
 985, 990, 7th ed. recent times, equity judges seem 
 
 {n) Pincke v. Curteis, 4 Bro. C. to have thought it necessary to 
 
 C. 329 ; Redesdale, Ir. C, Lcnnon allege that, notwithstanding the
 
 OF THE USUAL CONDITIONS OF SALE. 59 
 
 scribed by Lord Cairns {o) : — " A Court of Equity will 
 relieve against and enforce specific performance, not- 
 withstanding a failure to keep the dates assigned by 
 the contract, either for completion, or for the steps 
 towards completion, if it can do justice between the 
 parties, and if (as Lord Justice Tui'ner said in RoherU 
 V. Ben- 1 I ( /;) ) there is nothing in the express stipulations 
 between the parties, the nature of the property, or the 
 surrounding circumstances, which would make it in- 
 equitable to interfere witli and modify the legal riglit. 
 This is what is meant, and all that is meant, when it is 
 said that in equity time is not of the essence of the con- 
 tract. Of the three grounds against interference men- 
 tioned by Lord Justice Turner, ' express stipulations ' 
 requires no comment. The ' natui-e of the property ' is 
 illustrated by the case of reversions, mines, or trades. 
 Tlie ' surrounding circumstances ' must depend on the 
 facts of each particular case " (</). Under the Judica- 
 ture Act, 1873 (/•), stipulations in contracts, as to time 
 or otherwise, which would not before the commence- 
 ment of the Act have been deemed to be or to become 
 of the essence of such contracts in a Com"t of Equity, 
 shall receive in all Courts the same construction and 
 etfect as they would have theretofore received in equity. 
 On an ordinary sale of land, it is not usual, in fixing tlie 
 
 exercise of this jurisdiction, the delays that have been condoned in 
 
 contract is (ionstrued in the same equity on the ground that time 
 
 manner in equity as at law ; is not of the essence of a cou- 
 
 Romilly, M.R., I'drkin w.'Thorold, tract to sell land, it appears very 
 
 IG Beav. 66; Knig-ht Bruce, L. J., questionable whether this doctrine 
 
 lluherls v. Berry, 8 De G. M. & Gr. has really conferred any benefit 
 
 29U ; Cairns, C, Tillcijw. Thomax, upon the community. 
 
 L. R. 3 Ch. 67. But there can (o) In TiUcy v. Thomas, L. R. 
 
 be no doubt that the Courts of 3 Ch. 61, 67. 
 
 Equity, in assuming a jurisdiction ( p) 3 De G. M. & G. 284, 291. 
 
 to enforce contracts which were (q) See below, Chap. XII. § 1 ; 
 
 broken at law by faihire to ob- Fry, Sp. Perf. ^ 107.)-I091, 
 
 serve a stipulation as to time, pp. 491-8. 
 
 have practically interfered with (r) Stat. 36 & 37 Vict. c. 66, 
 
 the legal effect of the contract ; s. '26 (7), amended by 38 & 39 
 
 and when one considers all the Vict. c. 77, s. 10.
 
 60 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Effect of 
 fixing a day 
 for comple- 
 tion without 
 further stipu- 
 lation. 
 
 date of completion, expressly to make time of the essence 
 of the contract. 
 
 When a day is fixed for the completion of the 
 contract, without further special stipulation, the pur- 
 chaser becomes entitled to the rents and profits and 
 liable to discharge the outgoings as from that day, the 
 vendor taking the profits and discharging the outgoings 
 up to that day (.s). And if the purchase be not com- 
 pleted on that day, and the delay be attributable to the 
 purchaser, he is bound to pay interest on the purchase- 
 money as from that day, whether he have entered into 
 possession or not. But if the delay be attributable to 
 the vendor, the purchaser is chargeable with interest 
 (and consequently entitled to the profits and liable to 
 the outgoings) only from the time when he either 
 actually took or might safely have taken possession, 
 the latter time being when a good title has been 
 shown and verified [f). The purchaser may, however, 
 discharge himself from the liability to pay interest, 
 where the delay is attributable to the vendor's and 
 not his own fault, by appropriating his money to the 
 purchase in manner before explained (if). But, as we 
 shall see, these matters and especially the payment 
 of interest are usually provided for by special stipu- 
 lation in formal contracts. 
 
 Fixtures or 
 timber to be 
 taken at a 
 valuation. 
 
 4. If it be intended that the fixtures or timber or 
 other trees upon the property sold shall be paid for at 
 a valuation in addition to the sum agreed on as the 
 price of the land, a special stipulation to that effect 
 must form part of the contract of sale : otherwise the 
 purchaser will be entitled to have the fixtures and trees. 
 
 («) Suo-. V. & P. 627 ; above, 
 pp. 49, 50. 
 
 (t) Pincke v. Cnrteis, 4 Bro. 
 C. C. 329, 333, n. ; Leach, V.-C, 
 Esdaile v. Stephenson, 1 S. & S. 
 
 122, 123 ; Jo)ies v. Mudd, 4 Russ. 
 118; Sug. V. & P. 627 sq. ; 2 
 Dart, V. & P. 627, 628, Sth ed. ; 
 708, 709, 6th ed.; 650, 651, 7th ed. 
 (m) Above, p. 51.
 
 OF THE USUAL CONDITIONS OF SALE. fil 
 
 as passing witli the land, without extra payment (./-). 
 Such a stipuUxtion is very commonly made, and the 
 mode of valuation is usually specified ; for instance, by 
 two valuers to be appointed one by either party, or an 
 umpii-e to be appointed by the valuers. But an agree- 
 ment to sell pi'operty at a price to be ascertained by 
 valuation made in a particular way does not result in 
 an enforceable contract if that way be not pursued ; 
 for if the parties agree that the price is to be fixed hy 
 A., and A. do not fix it, the price is not reduced to the 
 required certainty (?/) ; and the Court will not, as a 
 rule, provide other means of fixing the price, for that 
 would be holding the parties bound by a contract 
 different from that which they made (s). It is there- 
 fore proper to stipulate, after providing that fixtures or 
 timber shall be taken at a valuation to be made in a 
 particular manner, that failing such valuation they 
 shall be paid for at a fair valuation or at their fair 
 value. In such case, the Court will, it seems, direct a 
 reference, if necessary, to ascertain the price (^). 
 
 5. It is usiial to specify the instrument of disposition Commence- 
 with which the title shall commence, especially if it be ^"^° ^ * ^' 
 intended to confine the time, for which title is to be 
 shown, within a shorter limit than the period fixed by 
 law (h). No such stipulation is necessary if the vendor 
 propose to deliver an abstract commencing with a good 
 root of title (c) and extending over the whole period, 
 for which title can by law be required to be shown. 
 But if it be desired effectually to limit the pureliaser's 
 
 (j-) Colegrtivr v. Diax Safito.i, 2 [a) See above, p. 4, n. (in) ; 
 
 B. & C. 76. Sug. V. & P. •2S7, 288 ; 1 Dart, 
 
 (y) See above, p. 4. V. & P. 221-3, 5th ed ; 2.57-9. 
 
 [z) mines V. Genj, 14 Ves. 400 ; 6th ed. ; 242-4, 7th ed. ; 1 David- 
 
 Bluudell\. Breltnrah,\lYo».2\l\ son, Prec. Conv. 522, 523. C07, 
 
 Collins V. fol/ins/ 26 Beav. 306; 608, 4th ed. ; 435, 513, 519, 
 
 Vickers v. Vicktis, L. K. 4 Eq. 5th ed. 
 
 529; Fry. Sp. Perf. ^§ 354-367, (A) See above, p. 33. 
 
 pp. 161-7. (c) Above, pp. 41, 42.
 
 62 OF THE USUAL CONDITIONS OF SALE. 
 
 rights, as defined by law, in the matter either of the 
 time for which he may require title to be shown or of 
 the nature of the instrument with which the title is to 
 commence, a fair and explicit stipulation to the effect 
 desired must be made (d). 
 
 Limiting time (1 It is usual to provide that the purchaser's requisi- 
 requisitions tions ou or objections to the title, or anything else 
 ou title. connected with the sale, shall be sent to the vendor's 
 
 solicitors within a limited time (as twenty-one days) 
 after the delivery of the abstract of title, that in this 
 respect time shall be of the essence of the contract (r), 
 and that in default of or subject only to any such 
 requisitions and objections so made the purchaser shall 
 be taken to have accepted the title (/). And it is some- 
 times stipulated that any replies to the vendor's answers 
 to the requisitions must be made within a specified 
 time (ff). Where such stipulations are made, it is not 
 desirable, in the vendor's interest, to provide that the 
 abstract shall be delivered within a specified time ; as if 
 he should fail to deliver it within the period appointed, 
 the condition limiting the time, within which the pur- 
 chaser is to make his requisitions, will fail of effect (//). 
 It is further held with regard to such stipulations that 
 the time thereby limited only begins to run from the 
 delivery of a perfect abstract, that is, as perfect an 
 abstract as the vendor is able to furnish at the time of 
 delivery, although it may not show a complete title (/). 
 Hence it is sometimes provided in conditions of sale 
 
 [d) See Be Mar.sh and Earl 6 Ch. 436; 1 Dart, V. & P. 125, 
 Granville, 24 Ch. D. 11. 5tli ed. ; 141, 6th ed. ; 137, 138, 
 
 [e) See above, p. 58. 7th ed. 
 
 (/) 1 Davidson, Prec. Conv. (i) Hobson v. Bell, 2 Beav. 17 ; 
 
 539, 614, 4th ed. ; 449, 5th ed. ; Morlei/ v. Cook, 2 Hare, 111; 
 
 1 Key & Elphinatone. Prec. Conv. Blackburn v. Smith, 2 Ex. 789 ; 
 
 265, 4th ed. ; 253, 8th ed. Graij v. Fowler, L. R. 8 Ex. 249, 
 
 (f/) 1 Davidson, Prec. Conv. 279; Sug. V. & P. 21 ; 1 Dart, 
 
 521-2, 5th ed.; 1 Key & Elpliin- V. & P. 126. 161, 162, 281, 5th 
 
 stone, Prec. Conv. 265, 4th ed. ; ed. ; 142, 184, 321, 6th ed. ; 138, 
 
 253, 254, 8th ed. 174, 317, 7th ed. 
 
 (A) Upperton v. NickoUon, L, R.
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 that, for the purpose of any requisition or objection, 
 the abstract shall be deemed perfect, if it supply the 
 information suggesting the same, although otherwise 
 defective. Such a stipulation is sanctioned by the 
 practice of eminent conveyancers : but it has never been 
 decided how far it is efficacious ; and as regards the 
 enforcement of specific performance its operation would 
 appear to be very limited (/.•) . The stipulation, that in 
 default of requisitions or objections made within the 
 time limited, the purchaser shall be taken to have 
 accepted the title, does not bind him to take the pro- 
 perty sold, if on the face of the abstract the vendor 
 show no title at all to convey the same, even though tliis 
 objection were not taken within the time appointed (/). 
 
 As we have seen {?n), in the absence of any stipulation 
 as to time, the vendor is bound to deliver the abstract 
 within a reasonable time after the contract, and tlie 
 purchaser is bound to make his objections, if any, to 
 the title within a reasonable time after the delivery of 
 the abstract ; and if the latter make undue delay in 
 examining or accepting the title, he may lose his riglit 
 to enforce the specific performance of the contract (ii). 
 And retainer of the abstract for a long time, without 
 making any requisitions, may amount to an acceptance 
 of the title (o). In case of unreasonable delay on the 
 purchaser's part, the vendor may send him a notice 
 requiring him to accept or reject the title within a 
 definite period (which must be a rcaKOnahlc space of 
 time as from the date of the notice), on pain of the 
 
 {k) See 1 Dart, V. & P. 126, laumc and Landau, 20 Ch. D. 46"). 
 
 .5th ed.; 142. Gth ed.; 138, 7th ed.: 473. 474 ; see helow. Chap. V. 
 
 1 Davidson, Prec. Conv. 540, (/«) Above, p. 48. 
 
 4th ed. ; 450, 5th ed. ; 1 Key & («) Spurr'ur v. Hancock, 4 Ves. 
 
 Elphinstone, Prec. Conv. 265, 667; Fry, Sp. Perf. 4 1103, p. 
 
 4th ed. ; 254, 8th ed. ; above, 503. 
 
 p. 38. (o) Romillv. M. R.. 7Vy/</ v. 
 
 (/) Want V. Sfallihra-ss, L. R. TFisdrn, 1'! Beav. 239.24 4,245; 
 
 8 Ex. 175; Jte Tanqueraij Wil- Fry, Sp. Perf. § 1351, p. 601. 
 
 63
 
 64 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Purchaser 
 should ask 
 for abstract. 
 
 vendor's putting an end to the contract ; and if the 
 purchaser fail to comply with such a notice, he will lose 
 his riglit to enforce specific performance of the con- 
 tract, and the vendor will he at liberty to rescind the 
 contract or to sue upon it as broken (/>). What is a 
 reasonable time is a question of fact to be determined 
 with regard to the circumstances of each particular case. 
 If the vendor delay in sending the abstract of title, the 
 purchaser should ask for it ; if he fail to do this, he will 
 be considered to have waived the delay, and will be 
 precluded from asserting the non-delivery of the abstract 
 within the appointed time or a reasonable time, as the 
 case may be, to be a breach of contract by the vendor {q). 
 
 Reservation 
 to vendor of 
 right to 
 rescind the 
 contract. 
 
 7. The vendor generally reserves the right to rescind 
 the contract if the purchaser shall insist on any requi- 
 sition or objection which he shall be unable or unwilling 
 to remove or comply with {>'). In the absence of such 
 a stipulation, neither party is at liberty to recede from 
 the agreement without the consent of the other ; this is 
 of the very essence of contract. A right so reserved to 
 rescind the contract must be exercised reasonably and 
 in good faith, and not arbitrarily or capriciously (s) : but 
 if this limitation be observed, the present tendency of 
 the Courts is not otherwise to interfere with the effect of 
 such a condition by enforcing specific performance 
 
 {p) Taylor v. Brown, 2 Beav. 
 180, 183 ; fValker v. Jrfreys, 1 
 Hare, 341, 348 ; Sug. V. & P. 
 268, 269 ; Fry, Sp. Perf. ^ 1092 
 sq. pp. 499 sq. ; Compton v. 
 Bagleij, 1892, 1 Ch. 313 ; above, 
 pp. 36, 49. 
 
 (r/) Sug. V. & P. 260, 261 ; 1 
 Dart, V. & P. 304, 305, 5th ed. ; 
 346, 347, 6th ed. ; 341, 342, 
 7t.h ed. 
 
 (»•) This has long been usual ; 
 Falkner v. Equitable Reversionary 
 Co., 4 Drew. 352 ; Juridical Socy. 
 Papers, ii. 590 ; 1 Davidson, Prec. 
 Conv. 564, 4th ed. 
 
 (»■) Re Dames and Wood, 29 Ch. 
 D. 626 ; Re Glcnton and Saunders to 
 Haden, 53 L. T. N. S. 434 ; Re 
 Terry and White''s Contract, 32 
 Ch. b. 14 ; Re Starr Bowkett Bdg. 
 Socy. and Sibuu''s Contract, 42 Ch. 
 D. 375 ; Re Deighton and Harris's 
 Contract, 1898, 1 Ch. 458 ; Qninion 
 V. Home, 1906, 1 Ch. 596 ; see 
 Greaves v. JFilson, '2b Beav. 290 ; 
 Bowman v. Hyland, 8 Ch. D. 588 ; 
 Smith V. Wallace, 1895. 1 <Jh. 
 385 ; Re Jackson and Haden!' s Con- 
 tract, 1906, 1 Ch. 412 ; Holllwell 
 V. Seacomhe, ib. 426 ; below, 
 Chap. V.
 
 OF THE USUAL CONDITIONS OF SALE. 65 
 
 against a vendor who has availed himself of the letter 
 of a stipulation entitling him to rescind. The con- 
 dition is now very frequently framed in such a way as 
 to give the purchaser the opportunity of withdrawing 
 the requisition, with which the vendor cannot or will 
 not comply (i) ; and this certainly appears to be the 
 fair and proper course to take. 
 
 8. The pm'chaser's right to require evidence of the Ev-idence of 
 identity of the property sold with that described in the ^*^^"*'*y- 
 title-deeds (») is usually limited by a stipulation, which 
 precludes him from calling for other evidence of iden- 
 tity than is afforded by comparing the descriptions in 
 
 the title-deeds with that contained in the contract (.r) . 
 But this stipulation, in its common form, does not 
 enable the vendor to enforce specific performance, with- 
 out further evidence of identity, if such comparison 
 afford no evidence that the property sold corresponds 
 with that or ])art of that described in the deeds (y). 
 
 9. It is usually provided that errors of description Errors of 
 shall not annul the sale, and either tliat no compen- ^^^scnption ; 
 sation or that reasonable compensation shall be allowed tion. 
 therefor (s). The better opinion is that an agreement 
 allowing no compensation for errors of description ajiplies 
 
 to all errors, both great and small, so as to preclude the 
 purchaser from requiring (as otherwise he might re- 
 quire (a) ) specific performance of the contract with com- 
 pensation : but it is held that the i-endor is not thereby 
 enabled to force upon the pm-chaser a property which 
 
 (<) 1 Key ^*c Elphinstone, Prec. Sm. 129; and see Sug. V. & P. 
 
 Conv. 266, 4th ed. ; 25.'), 8th ed. 26 ; I Dart, V. & P. 153, 154, 5th 
 
 {«) Above, pp. 33, 43. ed. ; 174, 175, 6th cd. ; 170, 7th 
 
 (x) 1 Davidson, Prec. Conv. ed. 
 
 610, and n.. 4th od. ; 520, 5th ed. ; (;) I Davidson, Prec. Conv. 559, 
 
 1 Key & Elphinstone, Prec. Couv. 4th ed. ; 464, 5th ed. : 1 Key & 
 
 262, 5th ed. ; 250, 8th ed. Elphinstone, Prec. Conv. 207, 268, 
 
 (y) Flower v. Hartopp, 6 Beav. 4th ed. ; 255, 256, 8th ed. 
 
 476; Curling v. Auntin, 2 Dr. & (a) See above, pp. 43, 44. 
 
 w.
 
 66 OF THE USUAL CONDI'l'IONS OF SALE. 
 
 has been substantially misdeseribed (b). An express 
 contract to make compensation for errors of description 
 does not appear to add or subtract anything to or from 
 the purchaser's ordinary right to enforce specific per- 
 formance of the contract with compensation (c) : but it 
 gives him the right, which he would not otherwise 
 possess (rf), to recover compensation for an error inno- 
 cently made by the vendor but not discovered until 
 after the completion of the contract {e). The vendor 
 ^ cannot, by reason of a condition to allow compensation, 
 oblige the purchaser to take a property substantially 
 different from that sold (,/') ; but such a condition may 
 cover a considerable deficiency in quantity even when 
 the vendor is seeking to enforce the contract, if the 
 Court be satisfied that, substantially, the purchaser will 
 get the sort of property he contracted to buy (g). It is 
 considered that a condition precluding any right to 
 compensation is, on the whole, more advantageous to 
 the vendor (A). Where a condition for giving compen- 
 sation is made on a sale by auction, it is usual to pro- 
 vide that compensation shall be allowed on either side, 
 so that the vendor may take advantage of it as well as 
 the purchaser (i) ; and it is desirable to stipulate that it 
 shall apply only to errors of description pointed out 
 before completion [k). 
 
 Conveyance. 10. The execution of the conveyance by the vendor 
 
 {b) Nicolly. Chambers, 11 C. B. D. 351. 
 
 996 ; Cordingley v. Cheeseborough, (f) Flight v. Booth, 1 Bing. N. 
 
 4 De G. F. ife J. 379 ; Whittemore C.370 ; 4 L. J. N. S. C. P. 66 ; 
 
 V. Whitte)>iore, L. R. 8 Eq. 603 ; see below, Chap. XII. § 4. 
 
 Re T<rrii and White's Contract, 32 [g) Re Fawcett and. Holmes, 42 
 
 Ch. D." 14 ; Dart, V. & P. 740, Ch. D. 1.50. 
 
 6th ed. ; 680, 7th ed. ; Jacobs v. (/;) 1 Davidson, Prec. Conv. 
 
 RereU, 1900, 2 Ch. 8.58; see 468, 5th ed. 
 
 below. Chap. XII. ^ 4. (*) See Leslie v. Tompson, 9 
 
 (c) Dart, V. & P. 741, 6th ed. ; Hare, 268; below. Chap. XII. § 4. 
 
 681, 7th ed. ; above, pp. 43-45; (/■;) 1 Davidson, Prec. Conv. 
 
 see below, Chap. XII. § 4. 562, 611, n. {t), 4th ed. ; 467, 520, 
 
 \d) Jolife V. Baker, 11 Q. B. n. (i), 5th ed. ; 1 Key & Elph. 
 
 D. 2.55. ' Prec. Conv. 267, 268, 4th ed. ; 
 
 (c) Facmcr v, Johnson, 13 Q. B. 255, 256, 8th ed,
 
 OF THE USUAL CONDITIONS OF SALE. 67 
 
 and the pajonent of the balance of the price by the pur- 
 chaser on the clay fixed for completion are usually the 
 subjects of express provision ; and it is generally stipu- 
 lated that the purchaser shall bear the expense of any 
 assurance or act necessary for getting in or releasing any 
 outstanding estate or interest or perfecting the vendor's 
 title {/) ; and it is sometimes declared that the pm-chaser 
 shall bear the expense of the concurrence in the convey- 
 ance of all necessary parties other than the vendor (w). 
 
 11. It is usual to provide expressly that the vendor Apportion- 
 shall be entitled to possession or receipt of the rents and ^(j* out- 
 profits and liable to discharge the outgoings up to the goings. 
 day fixed for completion, and the purchaser afterwards ; 
 
 and that the rents and outgoings shall, if necessary, be 
 apportioned for this purpose («) . 
 
 12. It is usually stipulated that the purchaser shall Interest in 
 pay interest at a specified rate on his unpaid purchase- in c^ompleti\)n. 
 money, if from any cause whatever the purchase be not 
 completed on the day fixed for completion (o). If the 
 purchaser bind himself to pay interest by an express 
 stipulation in terms like these, he must pay interest in 
 
 case of delay in completion, notwithstanding that the 
 delay be attributable to the state of the title or other- 
 wise to the vendor ; and he will not be relieved from this 
 obligation unless the delay be caused by the vendor's 
 vexatious conduct, dealing in bad faith or gross negli- 
 gence {p). Nor can he, according to the better opinion, 
 
 (/) See above, p. 47 ; 1 David- ed. : 483, .522, .5th ed. 
 son, Prec. Conv. ;>70. 612, and n., {p) Skeririn v. Shakspmr, 5 De 
 
 4th ed. ; 1 Key & Elpbinstone, G. M. & G. .517, -529 ; Baiinerman 
 
 Prec. Conv. 263, 4th ed. ; 2.51, v. Clarke, 3 Drew. 632; Vickers 
 
 8th ed. V. Hand, 26 Beav. 630 ; JFilliams 
 
 (m) See above, p. 47. v. Gkufon, L. R. 1 Ch. 200 ; Su^. 
 
 («) See above, pp. 49, .50; 1 V. & P. 633-7: Dart, V. & P. 
 
 Davidson, Proc. Conv. 613, 4th 128, 63.5, 639, .5th ed. ; 144, 719. 
 
 ed. ; 1 Key & Elpbinstone. Prec. 723, 6th ed. ; 140, 661, 664. 7th 
 
 Conv. 2')9. 4th ed. : 247, 8th ed. ed. ; and -^ee Me Bayky-Worth- 
 
 (o) See above, p. .50 ; 1 David- higtoti if Cnhen\s Contract, 1909, I 
 
 80n, Prec. Conv. 576, 613, 4th Ch. 648, 6.54. 
 
 5(2)
 
 68 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Right to re- 
 sell. 
 
 discharge himself from his liability to pay interest by 
 appropriating his money to the purchase {q). Sometimes 
 the contract is so worded as to bind the purchaser to pay 
 interest in case of delay in completion arising from any 
 cause whatever ot//er than the uilful default of the vendor ; 
 and in such case the purchaser must pay interest unless 
 the vendor were in wilful default, and such default 
 were the effective cause of the delay (r). In this form 
 the stipulation has been fruitful of litigation, with the 
 result that little else has been clearly established than 
 the futility pointed out by Lord Bowen of attempting 
 a precise definition of the meaning of " wilful default " 
 in such contracts («), and the question, what conduct 
 amounts to wilful default, can only be solved by con- 
 sideration of the circumstances of each particular case [t). 
 
 i;3. In conditions of sale by auction the vendor 
 usually reserves the right to re- sell the property, if 
 
 {q) Re Riley to StreafJieM, 34 
 Ch. D. 386. 
 
 (r) See Re Mayor of London and 
 Tiibbs' Contract and Bennrtt v. 
 Stone, cited below. 
 
 (a) Default is said to mean not 
 doing what is reasonable in the 
 circumstances ; wilful to imply 
 nothing blameable, but pierely the 
 result of the spontaneous action 
 of the will ; Bowen, L. J., 31 Ch. 
 D. 174, 175; " moral delinquency, 
 inteutional delay, wilful obstruc- 
 tion on the part of a vendor may 
 be all absent, and yet there may 
 be wilful default""; C. A. 1893, 
 3 Ch. 281. 
 
 (/) See Re Yointy and Hardon^s 
 Contract, 31 Ch. D. 168, where it 
 was held wilful default for the 
 vendor to go abroad two days 
 beft)re the day fixed for com- 
 pletion ; Re Hetlnii/ and Merton^s 
 Contract, 1893, 3 Ch. 269, where 
 a mortgagee was abroad and 
 the vendor relied on a power of 
 attorney from him, which was 
 held insufficient — this was con- 
 sidered wilful default ; Re Mayor 
 of London and Tubbs' Contract, 
 
 1894, 2 Ch. 524, where the 
 vendors, having omitted to exa- 
 mine their title, misdescribed it 
 in the contract — this was con- 
 sidered by Lindley and Lopes, 
 L. JJ., not to be wilful default, 
 diss. Kay, L. J. ; Re Wilsons 
 and Stevens' Contract, 1894, 3 
 Ch. 546. where it was held wilful 
 default for a vendor of copyholds 
 not to have procured certain ad- 
 missions necessary to enable him 
 to convey the legal estate ; Re 
 Strafford^and Maplt-s, 1896, 1 Ch. 
 235, where Kekevvich, J., held it 
 wilful default for a vendor not to 
 haA'e procured the concurrence of 
 necessary parties to the convey- 
 ance ; Re Woods and Lewis's Coti- 
 tract, 1898, 1 Ch. 433, 2 Ch. 211 ; 
 North V. Pereival, 1898, 2 Ch. 128; 
 Bennett v. (Stone, 1902, 1 Ch. 226 ; 
 1903, 1 Ch. 509, where fom- 
 judges were exactly divided iu 
 opinion whether it was wilful 
 default for a vendor to insist in 
 good faith upon ati unreasonable 
 contention as to the form of the 
 conveyance,
 
 OF THE USUAL CONDITIONS OF SALE. 69 
 
 the purchaser fail to comply with the conditions, and 
 to recover from the purchaser any deficiency in pi-iee 
 occurring on the re-sale. But such a stipulation is not 
 commonly inserted in contracts of private sale. A re- 
 sale under such a condition operates as a rescission of 
 the original contract. The vendor is therefore entitled 
 to retain for his own benefit any excess over the original 
 contract price which may be realised on the re-sale {ii). 
 
 It is not the practice, in settling conditions of sale, to Stipulations 
 stipulate expressly that the vendor shall show a good implied on 
 title, or verify the title by the production of the proper sales by 
 evidence, or produce a property identical with that 
 agreed to be sold, or deliver over the title deeds on com- 
 pletion, or that the purchaser shall accept the title 
 when proved (r). All these terms of the contract (y) 
 are left to be implied therein by law. And it is also 
 the present practice to leave to implication those provi- 
 sions which are incorporated in contracts for the sale of 
 land, in the absence of an expressed intention to the 
 contrary, by the Vendor and Purchaser Act, 1874 (z), 
 and the Conveyancing Act of 1881 (a), unless it be 
 desired to make more stringent or other stipulations 
 than those so implied by statute. Thus, in respect of 
 making recitals in instruments twenty years old prima 
 facie evidence (h), barring the |>roduction of and in- 
 quiries as to the title earlier than the date fixed for 
 commencement of the title (c), providing for the 
 expense of the production of title deeds not in the 
 vendor's possession, and of the procurement and pro- 
 duction of any evidence of title not in the \'endor's 
 
 («) Ex parte Hunter, O Ves. 94; ((/) Above, pp. 32-35, 41-48. 
 
 Lamond v. Darall, 9 Q. B. 1030 ; (-) gtat. 37 & 38 Vict, c 78. 
 
 Sug. v. & P. 39: above, p. 54, ^g, j^ 2. 
 
 "'M^Q ir> -1 T> n (a) Stfvt. 44 & 45 Vic-l. c. 41, 
 
 (x) See 1 Davidson, Free. Conv. i. ' ' 
 
 607 xq., 4th ed. : 518 f-?., 5th ed. ; ^' **• 
 
 1 Key & Elph. Prec. Conv. 257 (*) Above, p. 42. 
 
 ."^y., 4th ed. ; 245 sq., 8th ed. (c) Above, pp. 42, 43.
 
 70 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 possession (d), and stipulating for the retention by the 
 vendor of title deeds relating to other land of his, and 
 for his giving a statutory acknowledgment and under- 
 taking for the production and safe custody thereof {e) , 
 the respective rights and duties of the parties are very 
 often not expressly defined in conditions of sale, but 
 left to be regulated by statute {/'). 
 
 Conditions of 
 sale by auc- 
 tion of free- 
 holds in one 
 lot. 
 
 The following is a simple form of conditions of sale 
 by auction of freeholds in one lot. They are intended 
 to be annexed to particulars of sale containing the 
 description of the property offered. Great care should 
 always be exercised in framing the particulars of sale 
 in consequence of the vendor's obligation to produce, in 
 fulfilment of the contract, a property corresponding 
 exactly with that which he has described therein (g) ; 
 and every precaution should be taken to ascertain that 
 the land described in the particulars is not in point of 
 quantity, tenure, estate, or in any other respect more 
 extensive than or different from that which the vendor 
 is able or intends to convey in performance of the 
 agreement (h). 
 
 Bidding ; 
 right to bid 
 reserved. 
 
 1. No person shall advance less than /. at a 
 
 bidding, and no bidding shall be retracted (/). There 
 will be a reserve price ; and the vendor reserves the 
 right to bid in person or by his agents as often as he or 
 they may please (/>■). Subject to the rights so reserved 
 to the vendor, the highest bidder shall be the purchaser. 
 If any dispute shall arise respecting a bidding, the pro- 
 perty shall be put up again and resold. 
 
 (d) Above, p. 45. 
 
 (e) Above, pp. 47, 48. 
 
 (/) See 1 Davidson, Prec. 
 Conv. 518 ><(/., 5th ed. ; 1 Key & 
 Elph. Prec. Conv. 252 -sq., 4th 
 ed. ; 237 sq., 8th ed. 
 
 iff) Above, pp. 33, 43, 65. 
 
 {h) See, as to the consequences 
 
 of misdescription or misrepresen- 
 tation in the particulars of sale, 
 the cases cited above, pp. 33, 43- 
 45, 65, 66, and below. Chaps. 
 XII. § 4, XIII. § 1, XIV. §1. 
 
 (i) See above, pp. 20, 57. 
 
 (/t) See above, pp. 22, 23, 56, 57.
 
 OF THE USUAL CONDITIONS OF SALK. 71 
 
 2. The purchaser shall immediately after the sale Deposit; con- 
 pay a deposit of 10/. per cent, of his pun-hase-raoney gioTied. 
 into the hands of [the auctioneer or the rendors no/icitors'] 
 and sign the subjoined agreement (/). 
 
 'i. The fixtures, timber and otlier trees, tellers, pol- Fixtures and 
 lards, saplings and underwood upon the property, down p^id for at a 
 to the value of l.s. per stick, shall be paid for by the valuation. 
 purchaser at a valuation to be made as hereinafter pro- 
 vided, or failing such valuation, at their fair value (m). 
 The valuation shall be made by two valuers to be ap- 
 pointed one by the vendor and the other by the pur- 
 chaser, or by an umpire to be apj)ointed by the valuers, 
 or if either the vendor or the purchaser shall refuse or 
 neglect to appoint a valuer or to notify his appointment 
 of a valuer to the other party in writing within seven 
 days after being requested by the other party to do so, 
 or if the valuer appointed by either party shall refuse 
 or neglect to act for seven days after receiving notice in 
 writing from the other party requiring him to proceed 
 with the valuatiou, then by the otlier party's valuer 
 alone, provided that his appointment shall. have been 
 duly notified in writing to the opposite party (ii). 
 
 4. The title shall commence with [« deed or other Commence- 
 in-strinnent of atich a date, the nature of whieh must be 
 aeeurately set out{o). Amj special conditions as to title, 
 uhich may be necessari/, may be inserted here'\. 
 
 •'). The purchaser shall send his requisitions and Time limited 
 objections (if any) in respect of the title and all matters req^^itions 
 appearing on the abstract, particulars or conditions to on title, &c. 
 
 (/) See above, pp. '26, IT. party. That is a matter which 
 
 (»?) See above, p. 60. In must be expressly provided for, 
 
 many cases it would be sufficient if desired. See Bos v. Helsham, 
 
 to say " by two valuers, or their L. R. 2 Ex. 72. 
 umpire, to be appointed in the (w) The la-st words are inserted 
 
 usual way, or otherwise at their to remind the parties of the fact, 
 
 fair value" : but this would not that the appointment of a valuer 
 
 authorize one parly's valuer, in is not cuinplctely made until it 
 
 case of the default of the other has been notified to the opposite 
 
 party or his valuer, to make a party; yVu- v. //(orw, 11 Q. B. 7- 
 valuation binding on the other {o) See above, p. 62.
 
 72 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 the office, No. 
 
 Street, 
 
 of Messrs. 
 
 Reservation 
 to vendor of 
 right to 
 rescind the 
 contract. 
 
 Identity. 
 
 the vendor's solicitors, within twenty-one days from the 
 day of the delivery of the abstract, and in this respect 
 time shall he of the essence of the contract (p). In 
 default of or subject only to any such requisitions and 
 objections so made, the purchaser shall be taken to have 
 accepted the title. 
 
 6. If the purchaser shall insist on any requisition or 
 objection as to the title, evidence of title, conveyance, 
 possession, receipt of rents or any other matter appearing 
 on the abstract, particulars or conditions or connected 
 with the sale, which the vendor shall be unable or un- 
 willing to remove or comply Avith, the vendor shall be 
 at liberty, notwithstanding any negotiation or litigation 
 in respect of such requisition or objection (q), to give to 
 the purchaser or his solicitor notice in writing of his in- 
 tention to rescind the contract for sale unless such requi- 
 sition or objection be withdrawn ; and if such notice be 
 given and the requisition or objection be not withdrawn 
 within ten days after the day on which the notice was 
 sent, the contract shall without further notice be re- 
 scinded (/•). The vendor shall thereupon return to the 
 purchaser his deposit, but without any interest, costs of 
 investigating the title, or other compensation or pay- 
 ment whatever. 
 
 7. The purchaser shall admit the identity of the pro- 
 perty purchased with that comprised in the muniments 
 offered by the vendor as the title to such property, upon 
 the evidence afforded by a comparison of the descrip- 
 tions contained in the particulars of sale and in the 
 muniments (s) . 
 
 {p} See above, p. 62. 
 
 {q) These words will not enable 
 the vendor to rescind after final 
 judgment has been given against 
 him in a proceeding for determin- 
 ing the validity of some objection 
 
 taken by the purchaser ; Ec Arbib 
 and Classes Contract, 1891, 1 Ch. 
 601. 
 
 (r) See above, p. 64. 
 
 [s) See above, p. 65.
 
 OF THE USUAL CONDITIONS OF SALE. 73 
 
 8. The property is believed, and shall be taken to be No compensa- 
 correctly described as to quantity and otherwise. The „f descrip- 
 property is sold subject to all chief and other rents, tion. 
 rights of way and water, and other easements (if 
 
 any) charged or subsisting thereon, and to all leases, 
 tenancies, and Qccupations, whether mentioned in the 
 particulars of sale or not ; and to all rights and claims 
 of lessees, tenants and occupiers (t). If any error, mis- 
 statement, or omission be discovered in the particulars of 
 sale, the same shall not annul tlie sale, nor shall any com- 
 pensation be allowed by the vendor in respect thereof. 
 
 9. The purchaser shall pay the remainder of his pur- Completion, 
 chase-money, and the value of the fixtures, timber and 
 
 other trees, tellers, pollards, saplings, and underwood, on 
 
 the day of next, at the office aforesaid of 
 
 Messrs. to the vendor or as he shall in writing or 
 
 otherwise duly authorize. Upon such payment the 
 vendor and all other necessary parties (if any) will 
 execute a proper assui'ance of the property to the pur- 
 chaser ; but sucli assurance, and every other assurance 
 and act [ii any) which shall be required by the pur- 
 chaser for getting in, surrendering, or releasing any out- 
 standing estate, right, title, or interest, or for completing 
 or perfecting the vendor's title, or for any other purpose, 
 shall be prepared, made, and done, by and at tlie 
 expense of the purchaser {ii) ; and every such assurance 
 
 («) General words like these. lirick iS,- Tile Co. v. liuthr, 16 Q. 
 
 which must of course be modified B. J). 7~S ; 1 Dart, V. X- T. loii, 
 
 according- to the nature of the .5th ed. ; 177. (ith od. ; 172. 7tli 
 
 property Hold, are inserted to ed. 
 
 protect the vendor against rents. («; "Words like the.se have been 
 
 easements, or tenants' claims of held to throw upon the purchaser 
 
 which he may be unavyare at the the costs of the concurrence iu 
 
 time of sale. They" would not the conveyance of the vendor's 
 
 enable him to enforce specific mortgagees : Jie lUllett and Ar- 
 
 performance of the contract sub- gcnti, o Times L. R. 476 ; but not 
 
 ject to any rents, easements, or the costs of deducing title to anj' 
 
 tenancies, which would be serious outstanding estate : lie Admus^ 
 
 incumbrances and were known to Trustees and Frost'.t Contract . 190", 
 
 the vendor, but not mentioned in I Ch. 69.5. But if it be intended 
 
 the particulars : Ilei/uood v. Mai- that the puicliaser shall bc-ir the 
 
 lalieu, 2.5 Ch. D. 3.37 ; Nuttiugham expense of the concurrence in the
 
 74 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Rents, out- 
 goings, &c. 
 
 Interest. 
 
 Power of 
 resale. 
 
 Memoran- 
 dum to be 
 indorsed on 
 the condi- 
 tions. 
 
 shall be left at the office aforesaid not less than ten days 
 before the said day of next. 
 
 10. The rents will be received, possession retained 
 and the outgoings discharged by the vendor up to the 
 
 said day of next. As from that day the 
 
 outgoings shall be discharged, the rents received and 
 possession taken by the purchaser. The rents and out- 
 goings shall, if necessary, be apportioned between the 
 vendor and the purchaser for the purpose of this condi- 
 tion. If from any cause whatever the purchase shall 
 
 not be completed on the said day of next, 
 
 the purchaser sliall pay interest on the remainder of his 
 purchase-money and on the aforesaid value of the 
 fixtures, timber and other trees, tellers, pollards, sap- 
 lings and underwood, at the rate of /. per cent, per 
 
 annum, from that day until the purchase shall be com- 
 pleted ; and shall not be entitled to any compensation 
 for the vendor's delay or otherwise (x) . 
 
 11. If the purchaser shall fail to comply with the 
 above conditions, his deposit shall thereupon be forfeited, 
 and the vendor shall be at liberty to resell the property 
 at such time, in such manner and subject to such condi- 
 tions, as he shall think fit ; and any deficiency in price 
 which may happen on, and all expenses, which may 
 attend the resale, shall immediately afterwards be paid 
 by the defaulter to the vendor ; and, in case of non- 
 payment, shall be recoverable by the vendor as liqui- 
 dated damages {//). 
 
 I \_insert name and de-seription^ hereby acknowledge 
 
 that on the sale by auction this day of of 
 
 the property mentioned in the foregoing particulars I 
 
 conveyance of necessary parties 
 other than the vendor, it is better 
 to make an express stipulation to 
 that effect; see above, pp. 47, 67. 
 If the vendor has a clear title 
 in himseK it is, of course, un- 
 
 necessary, and it is simply depre- 
 ciatory to stipulate that the pur- 
 chaser shall bear the expense of 
 getting in any outstanding estate. 
 
 (x) See above, p. 67. 
 
 (y) See above, pp. 51-54, 68.
 
 OP THE USUAL CONDITIONS OF SALE. 75 
 
 was the highest bidder and was declared the purchaser 
 thereof subject to the foregoing conditions at the price 
 
 of /., and that I have paid the sum of /. by way 
 
 of a deposit and in part payment of the said purchase- 
 money to [the ((uctiono(>r~\ and I hereby agree to pay the 
 remainder of the said purchase-money and complete 
 the said purchase according to the aforesaid conditions. 
 
 As witness my hand this day of . 
 
 \_Pnfclia><i'r.~\ 
 
 As agent for Mr. \_ui>ii'rt ccndor^ name and (/e-sen'j)- 
 tioit [z)'] the vendor, I ratify this sale and acknowledge 
 
 the receipt of the said deposit of /. 
 
 [Avctioneer.l 
 
 The above conditions are in common form ; but they 
 are of course drawn exclusively in the vendor's interest. 
 It is not found, however, that purchasers are deterred 
 fi'om bidding by such conditions, afall events, in London 
 sales {a). In the provinces, lands are often sold subject 
 to the common form conditions of the local law society ; 
 and some of these conditions are far more favourable to 
 purchasers than those set out above {b). 
 
 (s) See above, p. 5. dical Society Papers, ii. 589 vy. 
 
 (rt) This seems to have been the Before this, the conditions of 
 case during the latter half of the sale by auction were usually far 
 lastcentury; see 1 Davidson, Pre<;. less stringent; see 2 Sug. V. & 
 Conv. ')05, ."ioe, 4th ed. ; Juri- P. 1076. tlth ed. 
 
 (//) Thus under the common form conditions of sale of the Birming- 
 ham Law Society, the purchaser expressly contracts to pay interest 
 at 5/. per cent, on delay in completion, but is allowed, if such delay 
 shall arise from any cause other than his own neglect or default, to 
 appropriate his money to the purchase by placing it to a deposit 
 account in a bank and giving notice of such deposit, and is thence- 
 forth chargeable only witli the interest given on the deposit ; the 
 expense of perfecting the vendoi''s title or of conveyance by necessarj' 
 parties other than the vendor is left to fall on the vendor ; the 
 vendor has to bear the cost of production of any documents, which 
 are in the possession of a mortgagee, or other incumbrancer, or of a 
 person obliged to produce them at the vendor's request ; the vendor 
 is empowered to rest^iud only if he is unable or ou the ground of 
 expense unwilling to coniply with some requisition ; and corapensji- 
 tion is to be given for errors of description if jiointed out before com- 
 pletioji. The conditions of the Bristol, Liverpool aud Manchester 
 Law Societies are nearly as favourable to purchasers.
 
 76 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 General Besides the above conditions, it is usual, where the 
 
 on sale under vendor is selling under a trust for or power of sale (c), 
 
 :i trust for or to add the following stipulation (d) : — 
 power or sale. o j. 
 
 " The vendor is a trustee {e) selling under a trust 
 for ( /■) sale, and the purchaser shall not require the con- 
 currence of the persons beneficially interested in the 
 property sold or the purchase- money, and shall not be 
 entitled to any other covenant than the statutory" cove- 
 nant by the vendor that he has not incumbered, or to 
 any undertaking or covenant for safe custody of any 
 document which the vendor is entitled to retain." 
 
 The reason of this is that, though one who shows on 
 the face of the contract that he sells as a trustee, 
 cannot be called upon to give covenants for title, but 
 can only be required to covenant that he personally has 
 not incumbered (g), a trustee, who sells as apparent 
 owner under a contract in which his fiduciary capacity 
 is not disclosed, appears to undertake the duties regu- 
 larly imposed on a vendor of land {//) to give covenants 
 for title and an undertaking for safe custody of any 
 deeds retained. And where, on a sale by a trustee, the 
 purchase-money will belong to some person or persons 
 being sui Juris and absolutely entitled thereto, either 
 entirely or in shares, it has been the practice of con- 
 veyancers, unless precluded by express stipulation, to 
 require him or them to concur in the conveyance and 
 give covenants for title to the property sold or their 
 Sale by shares therein («') . A stipulation similar to that given 
 
 under M^ above is usuall}^ made on sales by a mortgagee under 
 i^ower of sale. }jig power of sale (/•) , precluding the purchaser from 
 
 (c) As to sales by trustees, see 
 below, Chap. VIII. § 2. 
 
 {d) 1 Davidson, Prec. Conv.612, 
 613, 4th ed. ; 1 Key. & Elph. 
 Prec. Conv. 264, 4th ed. ; 252, 
 8th ed. 
 
 (e) Or an executor, or an adminis- 
 trator, as the case may require. 
 
 (/) Or pouer of, as the case 
 may require. 
 
 (ff) Worley v. Frampton, 5 Hare, 
 560 ; Sug. V. & P. 69, 575 ; 
 below. Chap. XII. ^^ 3. 
 
 (/«) Above, pp. 46-48. 
 
 (j) See below. Chap. XII. ^ 3. 
 
 [k) See below, Chap. IX.
 
 OF THE USUAL CONDITIONS OF SALE. 77 
 
 requiring the concurrence of the persons entitled to the 
 equity of redemption (/). 
 
 A few words may be added here with regard to what Special con- 
 are called special conditions of sale, which are conditions ^j^ig 
 requiring the purchaser to accept a title shorter or 
 otherwise less perfect than he would be entitled to 
 demand under an open contract, or to take the property 
 sold subject to some incumbrance, easement or right in 
 favour of other persons. Such conditions, in order to 
 be completely binding on the purchaser, must be framed 
 with very great care. It is true that, at law, a pur- 
 chaser may be bound by a contract to buy a property 
 subject to some defect of title or otherwise, according 
 to the plain meaning of the words used ; and so may 
 have no right to recover his deposit if he object to 
 comply with the condition {m). But in equity a vendor 
 will not be entitled to enforce the specific performance 
 of such a contract unless he has acted in the greatest 
 good faitli. If therefore the sj^ecial condition be in any 
 way misleading, that is, if it do not fairly and explicitly 
 call the purchaser's attention to the defect to which lie 
 is to submit, or if it contain any material misrepresen- 
 tation however innocently made, as to a matter of fact, 
 the Court will not oblige the purcliaser specifically to 
 perform the contract {n). And if the condition be 
 obscurely or ambiguously expressed, it will be construed 
 in favour of the purchaser (o). But if the facts of the 
 case be honestly and clearly stated, tlie condition will 
 
 {I) See above, p. 76, n. (d). Co. v. Butler, IG Q. B. D. 778. 
 
 (w) Best V. Hainand, 12 Ch. D. As to fraudulent inisrepresenta- 
 
 1 ; Re Davis and Caveij, 40 Ch. D. tion, soe Edwards v. M'Leai/, G. 
 601,607; Rf Xatiomd rrovinciaf Coop. 308, 2 S\v. 287; Hart v. 
 lidiik of EtK/l'iud and Marsh, \ii9b, Suainr, ~ Ch. D. 42; Joliff'e v. 
 i Ch. 191);' Scoll v. Alranz, ISO-i, liahr, 11 Q. B. D. 2;Jo; below, 
 
 2 Ch. 608 ; above, p. .'SS. Chap. XIV. § 1. 
 
 (m) Rr Banister, liroad v. ,Mi<ii- [o) Si/mons v. James, 1 Y. & C. 
 
 ton, 12 Ch.D. 131 ; Rr Marsh and C. C. 487, 490 ; Seafon v. Mapp, 
 
 Earl Granville, 24 Ch. D. 11; 2 Coll. .i56. .562 ; Rhodes \. Ibbet- 
 
 Nuttingham Patent Brick % Tile son, 4 De G. M. & G. 787.
 
 78 
 
 OF THE TTSUAL CONDITIONS OF SALE. 
 
 be binding, although the legal effect of the facts be not 
 stated (p). A very common instance of a special con- 
 dition of sale is that requiring a purchaser of freeholds 
 to accept a title commencing with some instrument less 
 than forty years old ; in such cases, as we have seen, 
 the vendor cannot enforce specific performance accord- 
 ing to the letter of the contract, if this instrument be 
 not a good root of title (q). So if it be intended that 
 the purchaser shall take the land subject to covenants 
 restrictive of its user, it must be clearly indicated that 
 he is to buy subject to an incumbrance of this nature (r). 
 The construction of special conditions of sale is the same, 
 whetlier they be made on a sale by public auction, or 
 contained in a contract of private sale (s). 
 
 Other 
 
 stipulations 
 usiially made 
 in certain 
 particular 
 cases. 
 
 Insufficiently 
 stamped 
 documents 
 executed 
 before 17th 
 May, 1888. 
 
 It may also be convenient, in discussing the subject 
 of conditions of sale by auction, to point out various 
 other stijiulations in the vendor's favour, which are 
 usually made in certain particular cases. Thus, when- 
 ever it is known or apprehended that any document of 
 title executed before or on the 16th of May, 1888, is or 
 may be unstamped or insufficiently stamped (t), it is 
 provided that no objection shall be taken on that 
 account, and that if the purchaser shall require any 
 such document to be stamped or further stamped, such 
 stamping shall be effected by him and at his expense {n). 
 So, on the sale of land in Middlesex or Yorkshire, or of 
 
 {p) Smith V. Watts, 4 Drew. 
 338 ; Re Snndbach and Edmondson' s 
 Contract, 1891, 1 Ch. 99 ; Blaiherf/ 
 V. Keeves, 1906, 2 Ch. 175 ; com- 
 pare Wtfliaiiif! V. Wood, 16 W. R. 
 lOOo. 
 
 [q) Re JfarsJi and Earl GranriUe, 
 2i Ch. D. 11 ; above, pp. 41, 61. 
 
 (/■) See I'hitlips v. Culdclcugh, 
 L. R. 4 Q. B. 159; Nottinf/ham 
 Patent Brick and Tile Co. v. Bntler, 
 16 Q. B. D. 778. 
 
 (s) Rhodes v, Jbbetson, 4 De G. 
 
 M. & G. 787, 793. 
 
 (<) See above, p. 4-^. Such a 
 condition, if made as to docu- 
 ments executed after that day, is 
 void by stat. 54 & 55 Vict. c. 39, 
 s. 117, re-enacting 51 & 52 Vict, 
 c. 8, s. 20 ; see below, Chaj). IV. 
 
 {a) 1 Key & Elph. Free. Conv. 
 255, 263, 4th ed. ; 240, 251. 8th 
 ed. ; Davidson's Concise Prece- 
 dents, 115, ISth ed. 
 
 I
 
 OF THE USUAL CONDITIONS OF SALE. 79 
 
 unregistered land in the county of London (.r), it is Unregistered 
 
 usual to stipulate that no objection shall be taken or sale^^^land"" 
 
 requisition made on account of any document which *^ Aliddlesex 
 
 should or might have been registered in the county or of unregis- 
 
 register not being so registered (//). ^^^^ ^^"^ "^ 
 
 Again, whenever leasehold land is sold, it is advisable S;,ie ^f lease- 
 
 to state that the property is sold subject to the rent, holds. 
 
 covenants, conditions, and all liabilities under the lease, 
 
 whereby the same is held ; to give to intending pur- Purchaser to 
 
 chasers the opportunity of inspecting the lease at the opportunity 
 
 office of the vendor's solicitors within a limited time ^^ inspecting 
 
 before the sale ; and to pro^ide that the purchaser, to be deemed 
 
 whether he shall avail himself of this opportunity of ^'^,\^y y^*^ „ 
 
 '^ "^ full notice of 
 
 mspection or not, shall be deemed to have full notice of its contents, 
 the. contents of the lease, whether of a usual character 
 or not (s) . And it is also desirable to stipulate expressly Production of 
 that the production of a receipt for the last payment of fo^ renTto^^be 
 rent accrued due under the lease prior to completion fw;c^'««tv- 
 shall be accepted as conclusive evidence that all the performance 
 covenants and conditions in the lease have been duly °^ covenants, 
 performed and observed ; and that it shall be assumed Person giving 
 without proof that the person or persons giving such to^be'assumed 
 receipt, though not the original lessor, are the rever- *<• be rever- 
 sioner or reversioners expectant on such lease or his or ' 
 their authorized agents («). Where the lease contains Purchaser to 
 a covenant to repair, and the property is out of repaii", notice^of the 
 an opportunity of inspecting the property should (if ^^^^^^ «* repair 
 possible) be given to intending purchasers, and it should property out 
 be provided that they shall be deemed to buy with full '^^ y^^P^"' 
 notice of the actual state and condition of the property, 
 as to repair or otherwise, and ahall take the mnto as 
 
 (x) See below. Chap. X. ^ 3. 26.), 8th ed. ; see below, Chap. X. 
 
 (V) 1 Key «fc Elph. Prec. Couv. § 2. 
 
 26;i, 4th ed. ; 261, 8th ed. ; Da- {a) 1 Key & Elph. Prec. Couv. 
 
 vidson's Concise Precedents, 11/), 254, 270, 4th ed. ; 239, 266, 8th 
 
 I8th ed. ed. ; Davidson, Prec. Conv. 115, 
 
 {z) 1 Key & Elph. Prec. Conv. 18th ed. ; see below, Chap. X. 
 
 269, 270, 4th ed. ; 259, n. {e), § 2.
 
 80 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 Purchaser to 
 give the usual 
 covenant of 
 indemnity. 
 
 And execute 
 at his own 
 expense a 
 duplicate 
 of the 
 conveyance. 
 
 Sale of land 
 held by 
 underlease. 
 
 ?y/.s (h). It is also common (though not necessary (c)) to 
 stipulate expressly that the purchaser shall covenant in 
 the deed of conveyance to pay, perform and observe, 
 and to indemnify the vendor against the rent and 
 covenants of the lease ; and it is desirable further to 
 provide (what is a modification of the rule of law {d) ) 
 that for this purpose the purchaser shall, at his own 
 expense, procure to be prepared and stamped, and 
 execute and deliver to the vendor a duplicate of the 
 deed of conveyance (e). 
 
 Where the land to he sold is held by underlease, it 
 should be stated to be so held, and must not be repre- 
 sented as being held by lease (which is intended to 
 mean a lease from the freeholder) (_/') ; the property 
 should be sold subject to the rent and covenants, &c. of 
 the lease, under which it is held, and of every superior 
 leme ; and the stipulations above recommended on the 
 sale of leaseholds should be adapted to the case, pro- 
 vision being made that production of the receipt for the 
 rent last due before completion under the lease, whereby 
 the property is held, shall be conclusive evidence of the 
 
 {h) See below, Chap. X. § 2 ; 
 1 Key & Elph. Free. Couv. 259, 
 n. {e)l 8th ed. 
 
 {(■) See below, Chap. XII. 
 
 {d) It is thought that, in the 
 absence of special stipulation, a 
 vendor of leaseholds would be 
 entitled to require a duplicate of 
 the conveyance to be executed 
 and handed over to him, but 
 would have to bear the expense 
 of engrossing and stamping it. 
 The rule appears to be that any 
 party to a contract for sale of 
 land, fo whom any benefit is to 
 be assured by the conveyance, is 
 as regards that benefit a pur- 
 chaser, and is therefore entitled 
 to have a duplicate of the deed of 
 conveyance to keep as evidence of 
 his title, but must therefore him- 
 
 self bear any extra expense occa- 
 sioned by such conveyance to 
 himself ; see above, p. 46 ; Lift. 
 s. 37u ; Co. Litt. 2-9a and 
 note. This rule seems to be 
 exemplified in the case of the 
 grant of a lea.-e. when the lessor 
 has to bear the expense of the 
 counterpart; Mr JS'cffKti, 1895, 1 
 Ch. 73, 81 ; Jie Grai/, 1901, 1 Ch. 
 239, 243, 244; KcCoh-,, andCuhen, 
 1905, 1 Ch. 345, 350. And it is 
 thought that it applies in every 
 case, in which a purchaser of 
 land is bound to enter into a 
 covenant to indemnify the ven- 
 dor ; see below, Chap. XII. ^ 3. 
 
 [e) 1 Key & Elph. Tree. Conv. 
 266, 267, 8th ed. 
 
 (/) See below, Chap. IV. i 1 ; 
 Chap. XII. \ 2.
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 81 
 
 performance of all the covenants and conditions of that 
 lease and of ereri/ superior lenne (g) . 
 
 Where the property sold is subject, together with Sale of land 
 other property, to some rent (wliether rent service, rent together 
 seek, or rent-charge), it is generally provided, in order ^^*^ ^^^^'^ 
 to avoid the necesHity of the concurrence of the owner some rent, 
 of the rent, that the property is sold subject to such 
 rent, and the purchaser shall bear some specified propor- 
 tion thereof, but shall not require any legal apportion- 
 ment thereof to be made (h) ; and the vendor agrees 
 either to covenant to pay and to indemnify the pur- 
 chaser against payment of the rest of the rent, or to 
 grant to him by way of further indemnity a rent-cliarge 
 in fee of an amount equal to the remainder of the 
 rent to issue out of other lands belonging to the 
 vendor (/). And where the land sold is subject, together Sale of land 
 with other land, to a lease reserving rent, it is usual to too-etheV 
 stipulate that the purchaser shall be entitled to some "^'ith other 
 specified portion of the rent, but shall not require any lease re- 
 legal apportionment of the rent to be made (k). Also serving rent, 
 in the ease of the sale of any property, which is from perty^liable 
 its situation or condition liable to become subject to to become 
 some charge or to give rise to some liability at the some statu- 
 
 instanoe of some local authority under some Local tory charge 
 
 •^ , at the mstance 
 
 Management or Improvement Act, or the Public Health of a local 
 
 Act, 187o(/),or the Private Street Works Act, 1892 (w), ''"^^"'■'*5'- 
 
 as for the expenses of paving, sewering, or lighting an 
 
 adjoining street, or of complying with a " dangerous 
 
 structure " notice {n), it is not unusual to make a special 
 
 iff) I Key & Elph. Free. Conv. 1 Key & Elph. Free. Conv. 337 
 
 271, 4th ed. ; 260, 8th ed. ; Da- sq., 4th ed. ; 339 sq., 8th ed. 
 
 vidson's Concise Precedents, 116. (/) See below, Chap. X. ^ •'> ; 
 
 18th ed. Chap. XII. H ; 1 Davidson, Free. 
 
 (//) As to the apportionment of Conv. 691, 4th ed. ; 5.')8, oth ed. 
 
 such rents, see below, Chap. X. (/) Stat. 38 & 39 Vict. c. 55, 
 
 § 6. see .S8. 41, 150, 257, and stat. 
 
 (») See below. Chap. XII. § 4 ; 53 & 54 Vict. c. 59, s. 19. 
 
 1 Davidson, Free. Conv. 544, 684 {m) Stat. .')5 & 56 Vict. c. 57. 
 
 «^.,4thed. ; 4.")1, 551 sq., 5th ed. ; {n) See lielow. Chap. XI. ^ 1.
 
 82 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 stipulation with respect to the incidence of the charge 
 or liahility (o) ; and, of course, the stipulation most 
 favourable to the vendor is to cast the burthen of pay- 
 ment on the purchaser, whether the notice or other 
 event, which gave rise to the liability, were served or 
 occurred before or after the sale (p). 
 
 Sale of land 
 by auction 
 in lots. 
 
 Custody of 
 title-deeds to 
 several lots. 
 
 Sale of lease- 
 holds in lots. 
 
 Sale in lots 
 of freeholds 
 subject to a 
 rent. 
 
 Where land is sold by auction in lots, stipulations 
 similar to those set out and discussed above ((/), are in- 
 variably made (where appropriate), but they are, of 
 course, expressed to bind the purchaser of any lot. 
 There are, however, certain matters for which special 
 provision should be made on a sale of land in lots. 
 Thus it is proper to provide that any documents form- 
 ing part of the title to several lots shall be retained by 
 the vendor until all those lots have been sold, whether 
 at the auction immediately contemplated or some future 
 sale, and shall then be delivered to the purchaser who 
 shall then have bought the largest part in value of those 
 lots(r). Where leasehold lands held imder one lease 
 at one entire rent are sold in lots, it is usual to stipulate 
 that the purchaser of the largest part in value of those 
 lots shall take an assignment of the lease and the 
 purchasers of the other lots shall take underleases at 
 specified rents from him or from the vendor (.s) . And 
 on the sale in lots of freehold land subject to one entire 
 rent (whether rent service, rent seek, or rent-charge), it 
 
 (o) As to the incidence of such 
 charges in the absence of special 
 stipulation, see cases cited above. 
 p. r-,0, n. {/) ; below, Chap. V. ; 
 Chap. XI. § 1 ; Chap. XII. § 2. 
 A special stipulation of this kind, 
 casting the liability on the vendor 
 or the purchaser according as the 
 requirement or demand creating 
 it is made before or after the sale, 
 is contained in the common form 
 conditions of sale of the Birming- 
 ham Law Society; and the Bristol, 
 
 Liverpool, and Manchester Law 
 Societies' conditions of sale con- 
 tain a stipulation throwing these 
 expenses on the purchaser where 
 the requirement is made after the 
 sale. 
 
 (p) See the form of stipuhition 
 given in Appendix A, below. 
 
 (?) Pp. 70-75. 
 
 (r) See below, Chap. XII. ^^ 3. 
 
 (s) See below. Chap. X. § 2 at 
 end.
 
 OF THE USUAX, CONDITIONS OF SALE. 83 
 
 is commonly stipulated thnt all the purchasers shall buy 
 
 subject to the rent and shall have no right to require it 
 
 to be legally apportioned ; but provisions are made for 
 
 charging the rent, as between the purchasers, either 
 
 entirely on one or in specified proportions on more or 
 
 on all of the lots, and for granting new rent-charges to 
 
 issue out of the lot or lots so to be charged in order to 
 
 indemnify any purchaser against having to pay a greater 
 
 proportion (if any) of the rent than is so agreed to be 
 
 charged on the lot bought by him (f). ^ When land is Sale of land 
 
 put up for sale in lots, as to which it is proposed that /d restrictive 
 
 the purchasers shall enter into covenants restrictive of covenants. 
 
 the user thereof, then unless the vendor be willing that 
 
 any lots remaining on his hands unsold shall be subject 
 
 to the same restrictions, care should be taken to stipulate 
 
 that, as regards any lot or lots which shall not be sold, 
 
 the vendor shall not stand in the purchaser's place so as 
 
 to be bound by the covenants (//). According to the Purchaser of 
 
 present law, on a sale of any property in lots, a pur- entitled to 
 
 chaser of two or more lots held whollv or partly under "'^f fi-b^^ract 
 
 ^' t- -^ only 01 the 
 
 the same title has no right to more than one abstract of common title. 
 the common title, except at his own expense (x) ; so it 
 is unnecessary to make any special stipulation to this 
 effect (//). A form of conditions of sale by auction of . 
 freehold and leasehold land in lots, giving examples of 
 all the stipulations discussed above (z), and containing 
 special conditions as to the vendor's title, is given in 
 the Appendix [a) . 
 
 Having thus considered the conditions usually made Stipulations 
 on sales by auction, it remains to inquire what stipula- contracts for 
 
 private sale. 
 
 (<) See above, p. SI, n. (i). Dart, V. & P. 126, ."ith od. ; 
 
 (m) See below. Chap. X. ^ 12. 1 Davidson, Prcc. Conv. .52(5, (MO, 
 
 (x) Convcyancinfr Act, 1S81, 4th ed. 
 
 stAt. 44 & 4.^ Vict. o. 41. s. .S (7). , , p -(, 
 
 (v) Such a stipulation was "' 
 
 usual before the year 1882: 1 (a) Apprn-lix A. l«low. 
 
 iy{2)
 
 84 OF THE USUAL CONDITIONS OF SALE. 
 
 tions are generally inserted in formal agreements for 
 sale by private contract. The practice in this respect 
 has undergone remarkable fluctuation. We find that 
 down to the end of the first half of the last century 
 vendors were apparently content to undertake by ex- 
 press stipulation the obligations which the law cast 
 upon them in the case of an open contract ; notwith- 
 standing that those obligations, including the duty 
 of proving a good sixty years' title at the vendor's 
 expense, were far more onerous than they are at pre- 
 sent (/>). After this, a time of exceptional prosperity 
 brought about a brisk market for the sale of land, and 
 purchasers could be found who would agree, not only on 
 sales by auction (e), but on private sales, to stipulations 
 limiting the time for deducing title, giving the vendor 
 the right to rescind in case of a disagreeable requisition, 
 throwing upon the purchaser the expense of procuring 
 all evidence of title not in the vendor's possession and 
 even of the concurrence in the conveyance of all neces- 
 sary parties other than the vendor, and binding the 
 purchaser to pay interest on delay in completion " from 
 any cause whatever " (d). Then legislation took place, 
 entirely in vendors' favour ; and not only was the time 
 for deducing title limited to forty years on open con- 
 tracts (e), but the expense of procuring all evidence of 
 title not in the vendor's possession was thrown on the 
 purchaser in the absence of stipulation to the con- 
 trary (,/'). By this time the sale of land subject to 
 special stipulations drawn entirely in the vendor's in- 
 terest had become so much a matter of course that 
 conveyancers engaged in settling contracts for sale on 
 
 (i) See 1 Bythewood & J.innaii, Conv. vol. ii. pt. i. 1-20, 4th od. 
 
 Free. Conv. 3rd ed. by Sweet (1877). 
 
 (1841), pp. 490, 500 ; Sug. V. & > ^ ^ y. 
 
 P. 52, 1076, 11th c-d. (1846). ^ y ^^^^- '^' '^ '" ^^'^^^- ^- ''^' 
 
 (c) Above, p. 75, ii. («). 
 
 {d) See Juridical Society Pa- (/) Stat. 44 & 45 Vict. c. 41, 
 
 pers, ii. 589 sq.; Davidson, Prec. ,s. 3 (6).
 
 Ot' THE USUAL CONDITIONS OF SALE. 85 
 
 the purchaser's behalf had almost abandoned even the 
 claim to protest (g). Recently, however, a change has 
 again taken place. Judicial decisions upon the construc- 
 tion of the enactment making the purchaser pay for all 
 evidence which the vendor has not, have shown that it 
 may work most unfairly to the purchaser, who has been 
 held liable to pay the expense of the production of title- 
 deeds in the possession of tlie vendor's mortgagees {//), 
 and of searching for a leading title-deed which was 
 absent from tlie vendor's possession (/) . It has also 
 been shown that the contract to pay interest on delay 
 in completion from any cause whatever (k) and the 
 stipulation requiring the purchaser to pay the costs of 
 getting in outstanding estates (/) may work great hard- 
 ship on a purchaser. Owing to these decisions, it is 
 thought that practitioners are again becoming sensible 
 of the duties incumbent on them when acting for a pui-- 
 chaser ; and when on private sales vendors propose the 
 same stipulations as they would make on a sale by 
 auction, it is no longer a matter of course that the 
 purchaser's advisers shall receive the proposal with 
 supine acquiescence. Of coui'se bargaining about the 
 conditions of sale is like bargaining about the price. 
 The ultimate decision depends on the willingness of one 
 party to give in rather than lose the contract. But a 
 purchaser has such good reason for objecting, on a 
 private sale, to the conditions usual on sales by auction 
 that it appears foolish to agree to them without negotia- 
 tion. He is likely to succeed in some, if not all of liis 
 contentions ; and even where he finds himself reduced 
 to the alternative of withdrawing his objection or 
 abandoning the purchase, lie will often have extracted 
 
 ((/) See 1 Key & Elphinstone's (i) Jte Stuart, Ulivaut and Sru- 
 
 Prec. Conv. 283, n., 2nd ed. ; dmt's Contract, 1896, 2 Ch. 328. 
 
 348, n., 4th ed. ; 316, n., 5th ed. (A) See above, p. 67. 
 
 (A) Rf WiUett and Argenti, 5 (/) Re Willctt and Argenti, 5 
 
 Times L. R. 476. Times L. R. 470.
 
 86 
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 valuable information showing why the vendor refuses 
 to give way, and helping him materially in exercising 
 his own judgment. 
 
 Vendor's 
 reasons for 
 not desiring 
 an open 
 contract. 
 
 The main reasons why a vendor does not usually 
 desire to sign an open contract are these : — he wants to 
 obtain a deposit as a guarantee for the due performance 
 of the contract ; he probably does not want to make out 
 the whole forty years' title as required by law ; he 
 desires above all to be able to rescind if a too onerous 
 requisition be made ; and he wants the time stipula- 
 tion as to making requisitions {m) and the express 
 contract to pay interest on delay from any cause what- 
 ever (//), in order to avoid the leisurely procedure sanc- 
 tioned by the rule that time is not of the essence of 
 the contract (o). But the purchaser has only one 
 reason for avoiding an open contract, namely, the un- 
 favourable position in which the law places him as 
 regards the expenses of evidence not in the vendor's 
 possession. In all other respects an open contract is 
 decidedly advantageous to him ; he pays no deposit, can 
 insist on a good forty years' title without fear that a 
 necessary but unwelcome requisition will be met by a 
 notice to rescind, can require the vendor to get in out- 
 standing estates or incumbrances at his own expense, 
 and need pay no interest on delay in completion caused 
 by the state of the title or the vendor's fault (p). On 
 the whole, it seems advisable for an intending purchaser 
 always to offer, and if he can, to procure the signature 
 of an open contract. If the vendor be anxious to sell 
 and satisfied with the price proposed, such an offer will 
 bring home to him the advantage of binding the pur- 
 chaser definitely and at once instead of disputing over 
 special stipulations, each of which gives the buyer an 
 
 {m) Above, p. 62. 
 (w) Above, p. 67. 
 (o) Above, p. 68. 
 
 {p) See above, pp. 26, 33, 41, 
 47, 50.
 
 OF THE USUAL CONDITIONS OF SALE. 87 
 
 opportunity of retiring. And if the purchaser profess 
 his willingness to sign an open contract from the first, 
 he will occupy a favourable position for negotiating as 
 to any special stipulations. I am willing, he may point 
 out to the vendor, to buy under the conditions imposed 
 by law ; you wish to modify them. Be it so : but it is, 
 to say the least, unfair that every special stipulation 
 should be in your favour. If you expect to have the 
 great advantages of receiving a deposit and being 
 enabled to rescind on receiving an unwelcome requisi- 
 tion, advantages which you can only acquire by special 
 stijjulation, you must at least purchase them by reliev- 
 ing me from part of the expense now cast on me by 
 law, and you must not expect me to contract to pay 
 interest on delay caused by your fault. 
 
 In settling a private contract then, the object of the Points to be 
 draftsman actinar for the vendor will usually be to po'^sulered 
 
 . . . -^ m settling 
 
 obtain the insertion of the stipulations made on sales a private 
 
 by auction : while the duty of a conveyancer acting on ^°" ^^^ ' 
 
 the purchaser's behalf is to oppose such provisions in 
 
 all points where they can be shown to be unreasonable. 
 
 We will now go through the clauses in detail. 
 
 The payment of a deposit is not an unreasonable Deposit, 
 requirement, and is usually demanded, unless the pur- 
 chaser be a person of well-known solvency {q). Nor 
 can such a requirement work unfairly to the purchaser, 
 if the contract be in other respects an open contract ; 
 provided he be careful to stipulate for payment of the 
 deposit to some responsible person as stakeholder, and 
 not to the vendor himself or to his solicitor as his 
 agent (/•). But if it be proposed that the contract shall 
 contain special stipulations as to title, a purchaser 
 
 (g) Davidson, Prec. Conv. vol. ii. pt. i. p. 4, 4th ed. 
 (r) See above, p. 28.
 
 OF THE USUAL CONDITIONS OF SALE. 
 
 paying a deposit may find himself in this predicament, 
 which is by no means uncommon : — the special condition 
 may be considered in equity to be so unfairly drawn 
 that the Com-t will not enforce specific performance at 
 the vendor's suit without his complying with some 
 requirement as to title, which is prohibited by the letter 
 of the condition (.s). The vendor may decline to do 
 this ; and the purchaser cannot force him to do it, 
 because if the purchaser apply for specific performance, 
 the vendor would not be bound to prove more than a 
 good title according to the contract (t) ; and even if he 
 failed to prove this, the purchaser would be obliged 
 either to waive his objections to the title and pay the 
 costs of the inquiry into title {u), or to submit to have his 
 application dismissed without costs {x) . And if, in such 
 circumstances, the purchaser seek to recover his deposit, 
 he will fail, because that is a matter depending solely 
 on the effect of the contract at law. And the common 
 law, not recognising the unfairness which in equity 
 prevents the vendor from enforcing the contract speci- 
 fically, will regard the purchaser repudiating the letter 
 of the special condition as having broken the contract, 
 and will not therefore aid him to recover the deposit (?/) . 
 And if he complain of hardship, he will probably be told 
 that he was a fool to buy land on special conditions as 
 to title. These considerations ought to be present in the 
 mind of a purchaser's adviser, when it is demanded that 
 his client pay a deposit and yet submit to special con- 
 ditions as to title ; and he should endeavour, if he must 
 
 (*•) Above, p. 38. 347 ; Sug. V. & P. 646 : 2 Dart, 
 
 [t) Re Banister, Broad v.Munton, V. & P. 1129, 5th ed. ; 1263, 6th 
 
 12 Ch. D. 131, 145; Lawrie v. ^^■'> 991, 7th ed. In such case 
 
 Lees, 14 Ch. D. 249 ; 7 App. Gas. the purchaser could not recover 
 
 19 
 
 his own costs as damasfes at law : 
 
 , ^ -n J J T? 1 n -D Maiden v. Fyson, 11 Q. B. 292. 
 
 (m) Bennett v. Foivler, 2 Beav. " ' 
 
 ~'iQn "i A H ' ' ^y) Re National Provincial Bank 
 
 p. oyu, 6Ta ea. ^j, j^^^^j^^^^ ^„^ Marsh, 1895, 1 Ch. 
 
 {x) Lewis V. Loxhain, 3 Mer. 190 ; Ee Scott and Alvarez, 1895, 
 
 429 ; Maiden v. Fyson, 9 Beav. 2 Ch. 603 ; see above, p. 38.
 
 OF THE USUAL CONDITIONS OP SALE. 89 
 
 give in to the demand, to yield only at the price of 
 some substantial concession to himself, as that the 
 abstract shall be verified free of all expense to the 
 purchaser. 
 
 It is a matter of course to fix a day for completion. Time for 
 A time should be allowed within which it is reasonably ^"'"^ 
 likely that all things preliminary to completion will be 
 done. Too often the day for completion appears to be 
 fixed at hazard, or without any expectation that com- 
 pletion shall really then take place. 
 
 It is of course as necessary to stipulate expressly, Fixtures or 
 that fixtures or timber shall be taken at a valuation, on y^^uation "^ 
 a private sale as on a sale by auction (z). 
 
 A purchaser should, as a rule, resist the insertion in Commence- 
 a sale by private contract of any special stipulations ™^^* *^*^*^" 
 limiting the vendor's obligations in respect of showing 
 title, and should only accept such provisions on con- 
 dition of concession in other matters to himself. Thus 
 if it be proposed that the abstract commence with a 
 deed less than forty years old, and that a deposit be 
 paid, the purchaser should require the vendor to under- 
 take expressly that the deed is a good root of title. 
 This would, it is thought, save the purchaser from 
 losing his deposit in circumstances such as those, which 
 have just been discussed (a). And further concessions 
 should certainly be demanded as the price of consent to 
 any large curtailment of the time for which title is 
 required to be shown by law ; as that the vendor should 
 bear the whole expense of verifying the abstract. 
 
 It is quite proper to provide in a private contract for Limiting 
 ng in the purchaser's requisitions or ob 
 
 {z) Above, p. 60. («) Above, p. 87. 
 
 sending in the purchaser's requisitions or objections ♦i^f.^or 
 
 " ^ •' making requi-
 
 90 
 
 OF THE U81TAL CONDITIONS OF SALE. 
 
 sitioiis or 
 oLjectioDK. 
 
 within a limited time, to be of the essence of the con- 
 tract (b) . But the purchaser should take care that a 
 reasonable time is allowed for perusal of the abstract 
 by his counsel ; and he should stipulate that the abstract 
 be delivered within a specified time (c). 
 
 Reservation 
 to vendor of 
 right to 
 rescind the 
 coutract. 
 
 It is usual to reserve to the vendor the right to 
 rescind, if unable or unwilling to comply with some 
 requisition, on which the purchaser insists (d). This is 
 a stipulation which it is generall}^ essential for the 
 vendor to make. But as it is no part of an open con- 
 tract and is entirely one-sided, the purchaser ought to 
 make its acceptance a ground of securing some ad- 
 vantage for himself. And if he admit it, he should 
 stipulate that it be qualified by providing that the right 
 of rescission should only arise if the vendor have some 
 reasonable ground, as the expense, for declining to 
 comply with the requisition {e). He should also take 
 care tliat the terms of the stipulation give him the 
 alternative of withdrawing the unwelcome requisi- 
 tion (/). 
 
 Expense of 
 verification of 
 the abstract. 
 
 The purchaser ought to try to obtain some relaxation 
 of his obligation to bear the expense of procuring and 
 producing all evidence of title, which is not in the 
 vendor's possession (g). He should ask, according to 
 the vendor's eagerness to sell and the modifications of 
 the contract proposed on the vendor's behalf, that the 
 vendor shall bear either (1) the whole expense of verify- 
 ing the abstract, or (2) such expenses of the production 
 for verification of the abstract and the examination by 
 
 (h) Above, p. 62. 
 
 (c) See above, p. 62. 
 
 (d) Davidson, Free. Conv. 
 vol. ii. pt. i. p. 4, 4th ed. ; see 
 above, p. 64. 
 
 (e) See 1 Key & Elphinstone, 
 Prec. Conv. 266, n. (b), 4th ed. ; 
 
 254, n. {d), 8th ed. ; above, p. 64, 
 11. (s) ; and as to the construction 
 of a stipulation so framed, He 
 Weston and Thomas^n Contract, 
 1907, I Ch. 244, 248. 
 
 (/) See above, pp. 65, 72. 
 
 (y) Above, pp. 33, 47.
 
 OF 'I'HE TJSTTAL CONDITIONS OF SALE. 91 
 
 the purchaser's solicitors of any documents, which the 
 purchaser can require to be abstracted and which are in 
 the possession of any other person than the vendor, as 
 the vendor would be bound to pay if the said docu- 
 ments were in his own possession, or (3) the like ex- 
 penses us to documents which can be required to be 
 abstracted and are in the possession of a mortgagee or 
 other iucumbnincer. The last of these stipulations 
 ought to be proposed on the purchaser's behalf on every 
 treaty for a private sale (I/). 
 
 The purchaser should object to any stipulation limit- Evideucc 
 ing his right to require evidence of identity (/), and " ' ^n i y. 
 should certainly not agree, without good reason shown, 
 to an}^ stipulation more stringent in this respect than 
 the common-form condition on sale by auction (/r). 
 
 As we have seen (/), an express stipulation, that com- Compensa- 
 pensation shall be paid for errors of description, is more errors of 
 favourable to the purchaser than the terms of an open descriptiou. 
 contract : whilst a condition, that no compensation shall 
 be made for such errors, appears more advantageous to 
 the vendor. The stipulation fairest to both parties 
 appears to be that providing for compensation to be 
 allowed by the vendor or the purchaser, as the case 
 shall require, and not restricting the right of compensa- 
 tion to errors discovered before the completion of the 
 sale (m). 
 
 A purchaser should certainly strike out of a cbaft Conveyance, 
 contract any provision throwing upon him the expense 
 
 (h) Such :i stipulation is con- vol. ii. pt. i. pp. 4, 13- IG, 4th ed. 
 tained in the common form con- (/,.) gge above, pp. 33, 65, 72. 
 
 ditions of sale by auction of the 
 
 Bristol, Liverpool, and New- W Above, p. 65. 
 
 castle-upon-Tyne Law Societies ; (iii) A condition of this kind is 
 
 and the Birmingham Law Society usually made on sales by order of 
 
 conditions are, as we have seen, the Court; 1 Davidson, Prec. 
 
 even more favourable to the pur- Conv. 653, 663, 4th ed. ; 587, 591, 
 
 chaser. Above, p. 75, n. {/> . 5th ed. ; R. S. C. 1883, App. L. 
 
 (i) See Davidson, Prec. Couv. No. 15, j 9 ; see above, p. 66.
 
 92 
 
 OF THE UStJAL CONDITIONS OF SALfi. 
 
 of getting in any outstanding estate or perfecting the 
 vendor's title, or of the concurrence in the conveyance 
 of any necessary parties besides the vendor (>?). In 
 these respects he should stand out for the rights he 
 would have under an open contract (o). This is only 
 reasonable ; and we have seen that, under the common 
 form conditions of the Birmingham and other law 
 societies, purchasers on sales by auction are not deprived 
 of these rights ( p) . 
 
 The same provision is made on a private sale for 
 
 Apportiou- 
 
 rents and apportionment of the rents and outgoings as on a sale 
 outgoings. ly auction (</). 
 
 Interest in 
 case of delay- 
 in completion. 
 
 It is invariably asked that the purchaser shall ex- 
 pressly agree to pay interest on his purchase in case of 
 delay in completion (r). But purchasers are ad\i8ed to 
 object to a stipulation binding them to pay interest on 
 delay in completion arising " from any cause whatever " 
 or " from any cause whatever other than the wilful 
 default of the vendor " (s) ; not to agree to an excessive 
 rate of interest, as 5/. per cent, under the present con- 
 ditions of the money market ; and to stipulate that, if 
 delay in completion shall arise from the state of the title 
 or any other cause except the purchaser's own fault, he 
 may discharge himself of his liability to pay interest by 
 duly appropriating his money to the purchase. Such a 
 stipulation is, as we have seen (/), contained in the 
 common form conditions of sale by auction of the 
 Birmingham, Bristol, Liverpool, and Manchester Law 
 Societies. 
 
 Re-sale. A stipulation reserving to the vendor the right of 
 
 re-sale on any breach of contract by the purchaser 
 
 (n) Above, pp. 67, 73. 
 
 (o) Above, p. 47. 
 
 Ip) Above, p. 7-5, n. {b). 
 
 (q) Above, pp. 67, 74. 
 
 (r) Davidson, Free. Conv. vol. ii. 
 
 pt. i. p. 4, 4th ed. ; 1 Key & 
 Elphiustone, Free. Conv. 259, 
 351, 4th ed. ; 247, 351, 8th ed. 
 
 (.s) See above, p. 68. 
 
 (t) Above, p. 75, n. (*).
 
 OF THE USUAL CONDITIONS OF SALE. 93 
 
 appears in well-known books of conveyancing prece- 
 dents among the provisions usual in private sales (/^). 
 But there is certainly no settled practice to include such 
 a condition in a private contract ; and if it be inserted 
 on the vendor's behalf, the purchaser's advisers are 
 recommended to strike it out (.r). 
 
 A form of private contract for sale will be found in 
 the Appendix (y). 
 
 (ii) Davidson, Free. Conv. 2o6, 8th ed. 
 
 vol. ii. pt. i. p. 4. 4th cd. ; 1 Key .r) See Davidson's Conciso 
 
 & Elphinstone, Free. Conv. 268. Freoedents, 112, n. {a), 18th cd. 
 
 3il. 4th ed. ; 242, 319, oth ed. : ((/) See Appendix B, below.
 
 94 
 
 CHAPTER IV. 
 
 OF THE vendor's OBLIGATION TO SHOW A GOOD 
 TITLE AND ITS DISCHARGE. 
 
 Origin of the 
 rule, that the 
 vendor must 
 show a good 
 title. 
 
 § 1. Of the general nature of the proof required. 
 
 § 2. Of the abstract. 
 
 § -3. Of the verification of the abstract. 
 
 ^ 1. — Of ilie vendor^ s ohligafion to s/wiv a good fitJe 
 and its dkcharge. 
 
 We have seen [a) that every vendor of land is bound 
 to show a good title to the property sold by him. This 
 rule would appear to be of equitable origin. The Courts 
 of Equity, in granting to a vendor the extraordinary 
 relief of enforcing specific performance of the contract, 
 considered that it was only fair to impose the condition, 
 that he on his side should prove that he could actually 
 convey what he professed to sell {b). And the obliga- 
 tion so established in equity was afterwards held to be 
 equally incident to the contract at law {c). What the 
 vendor has to prove, in order to fulfil this obligation, is 
 that he can convey that which he contracted to sell ; 
 that is to say, if he engaged to sell a freehold or copy- 
 hold in fee (r/) , the fee simple free from incumbrances, or 
 
 («) Ante, p. 32. 
 
 [b) Jenkins v. Hiles, 6 Ves. 616, 
 6.53; White v. Fu/jambe, 11 Ves. 
 337 ; Deverel/ v. lioliuii, 18 Ves. 
 508; FiMcs v. Hooker, 2 Mer. 
 424 ; Purvis v. L'ai/er, 9 Price, 
 488, 518, h\<d. 
 
 {(■) Flurenu v. ThvnihiU, 2 W. 
 Bl. 1078 ; Huuttr V. Drake, 5 B. & 
 
 Ad. 992 ; Loe d. Gray v. Stanton, 
 1 M. & W. 695, 701. This rule 
 had no place in the mediaeval 
 coiimiou law, when feofl'ees looked 
 mainly to their feoffors' warranty 
 for their security ; see Wnis. Real 
 Prop. 444-6, 13th ed. ; 588-590, 
 21st cd. 
 
 [d) As we have seen, a contract
 
 VENDOR TO SHOW GOOD TITLE AND DISCHARGE. 95 
 
 if the property sold were leasehold, then the term for 
 which he described it as held. But the nature and ex- Proof of sixty 
 tent of the proof required was defined by a general rule »)^f,^^/^,> 
 of equity and law, adopted from the practice of con- proof of a 
 veyancers, whereby proof of title for not less than sixty 
 years before the contract was held to be proof of a good 
 title, if nothing appeared to the contrary (e). It is im- 
 portant to bear in mind, however, that this was merely 
 a subordinate rule limiting the amount of evidence 
 which the purchaser could require. It simply bound 
 the purchaser to accept, as proof of a good title, evidence 
 of sixty years' ownership ending in the vendor or in 
 some person or persons whom the vendor would have 
 the right to direct to convey ; provided, however, that 
 nothing appeared to show that the ownership so proved 
 was not full or complete (,/'). But it was of no avail to 
 show sixty years' title, if the result of the evidence pro- 
 duced were not to discharge the vendor's main obliga- 
 tion, that is, to prove that he could actually convey 
 what he sold (r/). Thus on the sale of a freehold in fee, 
 if it were proved that the vendor and his predecessors 
 had had possession and exercised acts of ownership for 
 sixty years back, that would no doubt be prima facie 
 evidence of a seisin in fee, and the purchaser would be 
 bound to accept the title {It). But supposing it ap- 
 peared from the vendor's evidence, or the purchaser 
 could prove from other sources that such possession 
 and ownership were enjoyed under a demise for a long 
 
 to .sell a piece of laud, without F. & J. 246; Suif-V. &P.;5(i.),407. 
 specifying wliat e.state therein is ( /') See not*' to I'an- v Low- 
 to be conveyed, is construed as a f/rovr, 4 Drew. 18.3. 
 contract to sell the whole estate {g) See Sug. V. & P. ;{(>() ; 
 therein, that is, in the absence of Frond v. Bueldfij. L. H. -5 Q. B.. 
 any limiting expressions, the uu- 2 IS. 
 
 incumbered freehold in fee; above, {/<) See Prossfr v. Jfatli, (j 
 
 p. 41. Madd. .if); Cottrel/ v. U'ntkiiis, 
 
 ie) Bamwefl V. Harris, I Tiixint. 1 Beav. :}61, 36.5, 3tit> ; Parr v. 
 
 4.30. 4.32; (Jonperv. Emeri/. I Ph. Lovrtjroro,4 Drew. 170, 177. 17S; 
 
 388; Hodidinson v.('oop''r.9 Hesiv. Mo>if'/>ti v. K'hnfnuh. I D-' G. V, 
 
 304 ; Mouliuii v. EilinuiuLi, 1 De G. & J. 2*6,
 
 96 OF THE vendor's OBLIGATION TO SHOW 
 
 term of years, it is obvious that the evidence of sixty 
 years' title would not prove that the vendor could 
 convey the fee simple which he sold. The purchaser 
 therefore could require further evidence of the vendor's 
 title to the fee simple, and if this were not forthcoming, 
 would have the right to rescind the contract. It seems 
 worth while to insist on this apparently simple distinc- 
 tion between the main rule imposing the duty of show- 
 ing a good title, that is, a title to convey what was 
 sold (i), and the subordinate rule defining the manner 
 of proof. As a matter of fact, omission to remember 
 this distinction has been a fruitful source of error, 
 especially in cases where the time for which title can be 
 required to be shown has been limited by special stipu- 
 lation. In some such cases, the vendors, or their 
 advisers, would appear to have forgotten that such a 
 stipulation merely limits the evidence of title that can 
 be asked of them in the first instance, and does not 
 exempt them from the general duty of proving tliat 
 they have the right to convey what they have sold {k) . 
 
 Sixty years' A good title then is shown by proving such ownership 
 
 title^had^to ^^ ^^ promised by the contract ; and the evidence re- 
 a rule, in all quii'ed is evidence of the exercise of acts of ownership 
 for a period of time which, in the absence of special 
 stipulation, was fixed at not less than sixty years. The 
 rule requiring evidence of sixty years' ownership in 
 proof of title applied equally to a sale of freeholds, 
 whether of inheritance or for lives, copyholds and lease- 
 holds for years (/). In the case of leaseholds, if the 
 
 (i) Lmvric v. Lees, 7 App. Gas. and Ncve'^s Contract, 1891. 2 Ch. 
 
 19. 109. 
 
 [k) See Phillips v. Caldclni(/h, (l) Barnwell y. Harris, \Ta,\xat. 
 
 L. R. 4 Q. B. 159; Waddell 430; Cooper sr. Emery, \ 'Ph. Z9,^\ 
 
 V. Wolfe, L. R. 9 Q. B. 515 ; Hodgkimou v. Cooper, 9 Beav. 
 
 Nottinqhani Patent Brick and Tile 304 ; Moiiltoii v. luhiioiids, 1 De G. 
 
 Co. V.' Butler, 15 Q. B. D. 261, F. & .T. 246; Su?. V. & P. 365, 
 
 271 ; J6 Q. B. D. 778 ; Re Cox 407. 
 
 cases.
 
 A GOOD TITLE AND ITS DISCHARGE. 97 
 
 lease were less than sixty years old, the vendor might 
 be required to show the title to the freehold for such a 
 period as, with the time expired since the grant of the 
 
 lease, would make up sixty years (w). There were, When earlier 
 
 hi. • • t,' T, i-u 1 ij n title could be 
 
 owever, certam oases in which the purchaser could call required 
 
 for earlier title than that of the last sixty years. These 
 
 were the following : — 
 
 (1.) Not less than one hundred years' title must have i- Advowson. 
 been shown to an advowson («). 
 
 (2.) Upon a sale of a long term of years, the lease 2. Long term, 
 must have been produced, although more than 
 sixty years old. But after the date of the 
 lease the title during the sixty years next 
 before the date of the contract for sale was 
 all that could be required (o) . 
 
 (•3.) Upon a sale of tithes or other propert}^ held 3. Tithes or 
 under a grant from the Crown, the original by'crown''^ ' 
 grant must have been shown, although more g^ant. 
 than sixty years old. After the date of the 
 grant, only sixty years' title prior to the con- 
 tract need have been shown . The intermediate 
 title could not be required (p). 
 
 (4.) Upon the sale of a reversionary interest, its 4. Reversion- 
 
 i • i. 1, V T- 1 i. "i ary interest. 
 
 creation must have been shown, whatever its 
 
 antiquity {q). 
 
 {m) Furvis v. liatjer, 9 Price, (o) Sug. V. & P. 370; Frend 
 
 488 ; Souterv. Drolr, .5 B. & Ad. v. Bitckki/, L. R. 5 Q. B. 213; 
 99-i. The rule also applied to a 1 Dart, V. & P. 294, hth ed. ; Contract to 
 contract to grant a lease, whether 335, 6th ed. ; 330, 7th ed. ; Wms. grant a lease, 
 for lives or years, such a con- Real Prop. 450, 1 3th ed. ; 592, 
 tract being regarded as equiva- 21st ed. 
 lent to a sale for the time the ( /i) Pickrritui v. Lord Sherborne, 
 
 1 Craw. & Dix, 251; 1 Prest. 
 
 Abst. 30, 2nd ed. ; 1 Jiirm. Conv. 
 
 by Sweet, 68 ; Su?. V. & P. 367 ; 
 
 1 Dart, V. & P. "^295. oth ed. ; 
 
 336, 6th ed. ; 331, 7th ed. 
 
 (7) 1 Pre.st. Abst. 19, 2nd ed. ; 
 
 1 Jann. Conv. by Sweet, 61 ; 
 
 1 Dart, V. & P. 294. 5th ed. : 
 Prop. 449, 13th ed. ; 592, 2l8t ed. 335, Gth ed. ; 32y, 330, 7th ed. 
 
 W. 7 
 
 lease 
 
 was to 
 
 run 
 
 ; 
 
 Roper V. 
 
 Coomhes, 
 
 6 B. 
 
 & C 
 
 
 
 34 ; Sug. 
 
 V. & 
 
 1'. 
 
 367. 
 
 n.(l) 
 
 ; 
 
 Strankn v. 
 
 St. John, 
 
 L. R 
 
 2 C. 
 
 p 
 
 376 ; see 
 
 below 
 
 . P- 
 
 101. 
 
 
 
 
 («) 
 
 Sug. V. 
 
 & P. 367 
 
 ; 1 Dart, 
 
 V. & 
 
 P. 
 
 293, 
 
 5th I 
 
 d. 
 
 : 334. 6th 
 
 ed.; 
 
 329 
 
 , 7th 
 
 ed. ; 
 
 A\ 
 
 ai.H. Real
 
 98 OF THE vendor's OBLIGATION TO SHOW 
 
 All these instances do but illustrate the point on 
 which we have been insisting, that the vendor's obliga- 
 tion is to show that he has the right to convey what he 
 sold, and unless the evidence offered in support of the 
 title prove this, it is insufficient, though it were evidence 
 of sixty years' ownership. The case of a sale of lease- 
 holds is particularly instructive. On the ground that a 
 purchaser of leaseholds was entitled equally with a pur- 
 chaser of freeholds to the assurance that he should have 
 the very thing he bought, it was held that the vendor 
 was bound to produce the freeholder's title to grant the 
 lease, if the lease were less than sixty years old (r). 
 But if the lease had been granted more than sixty years 
 before the sale, proof of sixty years' enjoyment under 
 the lease would establish the presumption that it had 
 been well granted, and in such case the freeholder's 
 title could not be called for ; although the lease itself 
 must have been produced, in order to prove that the 
 vendor could assign the very interest which he had 
 sold («). The other cases will be found to depend on 
 similar principles. 
 
 Vendor and The law being as above stated, it was enacted in the 
 
 aT m"*! Vendor and Purchaser Act, 1 874 (0 , as follows :— In the 
 completionof any contract of sale of land [k) made after the 
 31st day of December, 1874, and subject to any stipu- 
 Forty years' lation to the contrary in the contract, forty years shall 
 required. ^^ substituted as the period of commencement of title 
 
 which a purchaser may require in place of sixty years, 
 the present period of such commencement ; never- 
 theless earlier title than forty years may be requii-ed in 
 
 (>•) See cases cited ante, p. 97, s. 4), in every Act passed after 
 
 n. (w/). the year 1850 the expression 
 
 («) Ante, p. 97. " land " shall, unless the contrary 
 
 (f) Stat. 37 & 38 Vict. c. 78, s. 1. intention appears, include mes- 
 
 [u) By the Interpretation Act, suages, tenements, hereditaments, 
 
 1889 (Stat. 52 & 53 Vict. c. 63, houses and buildings of any 
 
 B. 3, replacing 13 & 14 Vict. c. 21, tenure,
 
 A GOOD TITLE AND ITS DISCHARGE. 99 
 
 cases similar to those in which earlier title than sixty 
 
 years may now be required. This enactment in no way 
 
 detracts from the main rule that the vendor must show 
 
 a good title ; it merely reduces the time, for which title 
 
 must, as a rule, be proved, from sixty to forty years. 
 
 By the same Act (x) , the purchaser of a term of years Title on 
 
 was deprived of the right to call for the title to the free- feaseliold8° 
 
 hold, in the absence of stipulation to the contrary ; and *'^^ years— 
 
 by the Conveyancing Act of 1881 (i/) the purchaser of a 
 
 term granted by underlease was deprived of the right 
 
 (unless expressly reserved) to call for the title to the 
 
 leasehold reversion. Thelatter Act also took away from of enfran- 
 
 the purchaser of land, once of copyhold or customary holds. ^^^^' 
 
 tenure but converted into freehold by enfranchisement, 
 
 the right (except by express agreement) to call for the 
 
 title to make the enfranchisement (s). We have seen 
 
 that a purchaser of leaseholds was entitled to call for 
 
 the production of the lessor's title on the ground that 
 
 the validity of a lease depends on the lessor's power to 
 
 grant it {a). And where enfranchisement has been 
 
 effected by the lord's conveyance of the freehold to the 
 
 tenant, it is obviously material to prove the title to 
 
 make the enfranchisement in order to establish a good 
 
 right to the land (b). But before the above-mentioned 
 
 enactments were passed purchasers frequently submitted 
 
 in practice to special stipulations of the like nature (c), 
 
 which seems to be the reason why these statutory 
 
 provisions were made. 
 
 (x) Stat. 37 & 38 Vict. c. 78, cannot be inquired into on a sale Enfranchisc- 
 
 s. 2, r. 1. of the land after such enfran- ment under 
 
 (y) Stat. 44 & 45 Vict. c. 41, chisement ; see Stat. 4 & 6 Vict, the Copyhold 
 
 8. 3 (1), (9). c. 36, 8. 64 ; Kerr v. Fousoii, lio Acts 
 
 (;) Sect. 3 (2), (9). Beav. 394 ; 1 Dart, V. & P. 166, 
 
 {a) Ante, p. 98. 290, .5th ed. ; 189, 330, 6th ed. ; 
 
 (b) Sug. V. & r. 372 ; 1 Dart, 183, 326, 7th ed. ; Stat. 57 & 58 
 
 V. & P. 289, 5th ed. Enfran- Vict. c. 46, ss. 21, 26 (3), (4), 
 
 chisement under the Copyhold 38, 61. 
 
 Acts, 1841, 1852, or IS94, makes (c) 1 Dav. Prec. Conv. 531, 
 
 the land freehold, irrespectively 623, n. (y), 4th ed. ; 1 Dart. V. & 
 
 of the validity of the lord's title ; P. 166-68, 5th ed. ; Wms. Real 
 
 which is therefore immaterial and Prop. 452, 13th ed. 
 
 7(2)
 
 100 
 
 OF THE VENDOR S OBLIGATfON TO SHOW 
 
 The present 
 law. 
 
 1. Freeholds 
 or copyholds. 
 
 2. Enfran- 
 chised copy- 
 holds. 
 
 3. Leaseholds 
 for years. 
 
 The present law therefore is this : — The vendor is 
 bound to show a good title, that is, he must prove that 
 he has the right to convey what he sold. In some ex- 
 ceptional cases he may be able to offer summary and 
 complete proof of this, as where a title, good against all 
 the world, is vested in him by Act of Parliament {d). 
 But, as a rule, he will have no alternative but to give 
 evidence of the ownership of himself and his predeces- 
 sors for a certain time back. This time, in the absence 
 of special stipulation, must be not less than forty years, 
 but this general rule is modified by the considerations 
 and enactments already stated (f'). A purchaser under 
 an open contract is therefore entitled to call for the title 
 mentioned below in the following cases of sale : — 
 
 1. Of freeholds of inheritance or for lives, or copy- 
 holds, title for forty years next before the contract (/'). 
 In the ease of freeholds for lives, the lease for the lives 
 must be produced, though more than forty years old. 
 
 2. Of freeholds, formerly copyhold but enfranchised 
 within forty years of the sale, the freehold title back to 
 and including the enfranchisement, and beyond that the 
 copyhold title back to forty years before the contract {g) , 
 but not the title to make the enfranchisement (/?) . 
 
 3. Of leaseholds for years, production of the lease 
 under which the property is held in all eases ; and, if 
 the lease be more than forty years old, the title under 
 the lease for the forty years next before the contract, 
 otherwise the whole title subsequent to the lease : but 
 not in any case the title to the freehold, nor, in the case 
 
 [d) This might be by special 
 Act of Parliament, and appears 
 to be the case with persons regis- 
 tered as owners with an inde- 
 feasible title under the Land 
 Registry Act, 1862 (Stat. 25 & 26 
 Vict. c. 52, s. 20), or with an 
 absolute title under the Land 
 Transfer Act, 1875 (Stat. 38 & 39 
 Vict, c, 87, s. 7) ; see 1 Uart, 
 
 V. & P. 305, 306, 5th ed. ; 347, 
 6th ed. ; 342, 7th ed. ; Land 
 Transfer Act, 1897 (Stat. 60 & 61 
 Vict. c. 65, s. 16) ; below, Chap. 
 XX. 
 
 (e) Ante, pp. 95 — 99. 
 
 (/) Ante, pp. 95, 98. 
 
 (y) Sug. V. & P. 372 ; 1 Dart, 
 V. & P. 289, 6th ed. 
 
 (h) Ante, p. 99, and n. (*),
 
 A GOOD TITLE AND ITS DISCHARGE. 101 
 
 of the sale of property held by underlease (i), the title 
 
 to any leasehold reversion (k) . Here we may remark Contract to 
 
 that the same law applies on a contract to grant a lease f^j. years. 
 
 for years (/), the intended lessee being precluded, in the 
 
 absence of stipulation to the contrary, by the Vendor 
 
 and Purchaser Act, 1874 (/w), from calling for the title 
 
 to the freehold, and by the Conveyancing Act of 
 
 1881 (n) from calling for the title to any leasehold 
 
 reversion to the intending lessor's interest. But on a Contract to 
 
 contract to grunt an underlease, the intending lessor underlease. 
 
 still remains liable to produce the lease under which he 
 
 holds, and to show the subsequent title thereunder, if it 
 
 be less than forty years old, otherwise the last forty 
 
 years' title thereunder. 
 
 4. Of an advowson, title for at least one hundred 4. Advowson. 
 years before the contract (o). 
 
 5. Of tithes or other property held under a grant o. Tithes, or 
 from the Crown, production of the original grant in all by'crown ^ 
 cases, and title thereunder for the forty years next grant. 
 before the contract {p). 
 
 6. Of a reversionarj' interest, production of the 6. Reversion- 
 instrument which created it, in all cases ; and in ^^^ '° ^^^ ' 
 addition proof that possession of the land has been in 
 accordance with the instrument so produced (^/). If 
 
 the reversionary interest were created less than forty 
 
 (t) Ante, pp. 07, 99. Here it {l) Above, p. 97, u. (tii). Property held 
 
 may be noted that, ou the wale of (w) Stat. 37 & 38 Vict. c. 78, by underlease 
 
 a term granted V)y an underlease, s. 2, r. 1 ; Jones v. Watts, 43 Ch. must be so 
 
 the property must be described as D. 574. described, 
 
 held by under/ease. For if pro- («) Stat. 44 & 45 Vict. c. 41, 
 
 perty sold be described as held s. 13. 
 
 by lease, that is intended to mean (o) 1 Dart, V. & P. 293, 5th 
 
 a lease from the freeholder, so ed. ; 334, Gth ed. ; 329, 7th ed. ; 
 
 that if the vendor be possessed "Wras. Real Prop. 451, 13th ed. ; 
 
 only of a terra granted by under- 592, 21st ed. 
 lease, he is not in a positicm to (jo) 1 Dart, V. & P. 295, 5th 
 
 fulfil the contract ; lie Bci/fiisatid ed. ; 336, Gth ed. ; 331, 7th ed. 
 Ma-stem's Contract, Z9 Ch.t). 110; {q) 1 Jarm. Conv. 3rd ed. by 
 
 see above, p. 80. Sweet, 61, 62; 1 Dart, V. & P. 
 
 [k) Goslinfi v. Woolf, 1893, 1 294, .'ith ed. ; 335,6th ed. ; 329, 
 
 Q. B. 39. ' 330, 7th ed.
 
 102 OF THE vendor's OBLIGATION TO SHOW 
 
 years before the contract, of course the whole title 
 subsequeut to its creation must be shown. In other 
 cases it would appear to depend on the nature of the 
 interest sold what title ought to be shown subsequently 
 to its creation. If the proj)erty sold were a reversion or 
 remainder to which any rent is incident, then the pur- 
 chaser could call for production of the last forty years' 
 title, but not the intermediate title. For in such a case 
 there is a perception of tangible profits by receipt of 
 rent, and this affords evidence of title as against not 
 only the rent-payer but others as well. If however 
 what was sold were a bare right, the apparent devo- 
 lution thereof to particular persons for the last forty 
 years can raise no presumption of the establishment of a 
 right superior to the claims of others. In this case 
 therefore there seems to be no good reason for putting 
 any time-limit to the required proof that the vendor has 
 the right to convey what he sold ; and it is thought that 
 the whole title, from the creation of the reversionary 
 interest to the contract for sale, can be called for. 
 
 The best and At the present time then, the vendor, in order to 
 evidence of show a good title to the property sold, has, as a rule, to 
 title is pro- giye evidence of the last forty years' ownership thereof, 
 title-deeds. and to make out that such ownership ends either in 
 himself or in some person or persons whom he is en- 
 titled, either unconditionally or upon certain conditions 
 of which the performance rests with himself alone (such 
 as the payment off of mortgages), to direct to conve3\ 
 Now, as some of the best evidence of ownership is proof 
 of the power of disposition incident to ownership, espe- 
 cially for valuable consideration (r), and as proof that 
 the vendor has the right to convey what he sold must 
 necessarily be made out by showing the devolution of 
 the ownership of the land, it usually happens that the 
 
 (r) See Burt. Comp. pi. 418-427.
 
 A GOOD TITLE AND ITS DISCHARGE. 103 
 
 main evidence offered in support of the vendor's title is 
 the deeds, by which the land sold has been conveyed on 
 former sales or mortgages thereof, and any mil, by 
 which the land may have been devised. Thus the chief 
 evidence of title given on sales is almost entirely docu- 
 mentary. This results of course from the fact that ever 
 since the end of the mediieval period of law, the usual 
 method of making a conveyance of land has been by 
 the execution of deeds or a deed («). If then, on the 
 sale of a freehold in fee, the vendor produce the title- 
 deeds for the last forty years, and these show that the 
 fee simple in the land sold has been conveyed to him, 
 free from incumbrances, and if there be satisfactory 
 evidence that the deeds produced relate to the land sold, 
 and the vendor be in possession of the land and of the 
 deeds, he has shown a good title to the land. But Other evi- 
 although title deeds are the most common, and, owing 
 to the long prevailing custom of conveyance by 
 deed, the best evidence of title, it must not be sup- 
 posed that they are the only evidence which the pur- 
 chaser is bound to accept. This will appear clearly if 
 we bear in mind oui" main rule, that what the vendor 
 has to show is that he has the right to convey what he 
 sold, and our subordinate rule, that, if nothing appear 
 to the contrary, this shall be taken to be shown on proof 
 of forty years' ownership, that is, in the case of free- 
 holds, forty years' seisin in fee, ending in the vendor. 
 Now forty years' seisin in fee may be proved without 
 deed ; as by evidence of the seisin of some ancestor of 
 the vendor forty years ago, and of devolution of the title 
 to the vendor by descent. And if the facts of posses- 
 sion and kinship on which such a title must depend, 
 were fully proved, the purchaser would be bound to 
 accept it [f). But to illustrate the above rules further, 
 
 (s) See Wms. Real Prop. Ho, 361,365,366; Dorlinpy. Ciai/dot,, 
 
 200 sq., 2l8t ed. 1 H. & M. 402 ; Sug. V. & T. 
 
 (t) Cottnll V. JVatkins, 1 Beav. 410, 421 ; 2 Prest. Abst. 23, 2nd
 
 104 OF THE vendor's OBLIGATION TO SHOW 
 
 it may be observed that the vendor of a freehold in fee 
 would scarcely discharge his obligation to show a good 
 title by simply proving that he himself had been in 
 possession of the land sold for forty years. For although 
 the rule applicable in actions for the recovery of land is 
 that possession is prima facie evidence of a seisin in 
 fee (?/), it is considered that, on sales, the purchaser is 
 entitled to better proof, that the vendor has the right to 
 convey what he sold, than is afforded by facts equally 
 consistent with his being entitled for life or years only 
 as with his having the entire fee simple (.r). In such a 
 case therefore it is thought that the purchaser could 
 require the vendor to show the origin of his possession, 
 and to establish that he entered as tenant in fee, for in- 
 stance, under a conveyance on sale to him, or as heir, or 
 upon a wrongful entry [y] . 
 
 Title de- Here it may be noticed that the Court will compel a 
 
 pending on purchaser to take a title depending on the Statute of 
 Limitations. Limitations, that is to say, depending on the ex- 
 tinguishment under that Statute (s) of the right and 
 title of some person or persons who are shown to have 
 been rightfully entitled {a) . But it must not be sup- 
 posed that this doctrine enables a vendor, who has been 
 in possession for twelve or even thirty years to escape 
 the common obligation of showing forty years' title as 
 proof of a good title. Possession for these periods does 
 not give a good title under the Statute as against all 
 the world ; it does not bar the rights of remaindermen 
 
 ed. ; 1 Dart, V. & P. 298, 336, 1 Dart, V. & P. 334, 5th ed. ; 
 
 6th ed. ; 340, 380, 381, 6th ed. ; 379, 6th ed. ; 372, 373, 7th ed. 
 334, 376, 377, 7th ed ^ . g ^^ ^^.^^ ^ ^ 
 
 {h) Doc di.. HaU v. Penfold, 8 0. WJ. r i, t n m, t-» ^^ 
 
 & P. 536 , Cole on Ejectment, ^- <') ^ ^'""^ ^- •^'^^' ^ ^^- ^- ^^■ 
 ■in. (2) Stat. 3 & 4 Will. IV^. c. 27, 
 
 {ic) See Hiern v. Mill, 13 Ves. s. 34. 
 114, 122; Eyton v. Uicken, 4 Fri. (a) Scott v. Mxon, 3 Dru. & 
 
 303 ; Cottrcl'l v. Watkins, 1 Beav. War. 388 ; Games y. Bonnor, 54 
 
 361, 365, 366 ; Sug. V. & P. 461 ; L. J. Ch. 517 ; 33 W. K. 64.
 
 A GOOD TITLE AND ITS DISCHARGE. 105 
 
 or reversioners not entitled to possession until the deter- 
 mination of some particular estate (b) . It does not appear 
 therefore that a vendor's obligation of showing a good 
 title can be discharged by proof of thirty or even forty 
 years' possession by himself alone, without showing, if 
 the Statute of Limitations be relied on, who were right- 
 fully entitled and that the vendor's possession has 
 effectually barred their claims (c). 
 
 A good title then may be shown without deed. But Vendor must 
 the deeds are the best evidence of title ; and if the land SSe.deeds "" 
 sold has been conveyed by deed within the period for if he can. 
 which title has to be shown, it is not open to the vendor 
 to prove forty years' seisin in fee by other means. He 
 must j)roduce the deeds, or if they be lost or destroyed, 
 give proper secondary evidence of theii' contents (d). 
 
 § 2. or the Ahstrad of Title. 
 
 Evidence of title on sales being for the most part Vendor bound 
 documentary [e), and such as can be weighed only by ^°,™**^'^ ^^^ 
 skilled legal advisers, it became usual to facilitate the abstract of 
 task of judging of the effect of the title-deeds by ^^^ ^' 
 making an abstract of their contents for the perusal of 
 the pm'chaser's counsel. It appears that formerly the 
 deeds were handed over to the purchaser for examina- 
 tion, and any abstract of them which he might require 
 was made at his expense. But afterwards it became 
 established that the vendor was bound to make at his 
 own expense and deliver to the purchaser an abstract of 
 
 {b) Stat. 37 & .'i8 Vict. c. 57, the dictum here cited is uuexcep- 
 
 88. 1-5 ; I'eddvr v. Uitnt, 18 Q. B. tionable : but the decision in this 
 
 D. 565 ; lie Euii of Jjevon's Hcttlcd case is criticisetl by the writer iu 
 
 Estates, 1S9G, 2 Ch. 562. 51 Sol. J. 141, 155. 
 
 (c) Jacobs v. licvcll, 1900, 2 Ch. / .< j, ^ » , , t> 
 
 858 Farwell, J., £' .Visbet and .Z*^ /'"^'^''l.J- ^'J*^- •* R"««- 1 : 
 
 rotl> Cmnact, 1905, 1 Ch. 391, f 7";';/- ^'^"«>«'^. 1 ^^ «• F. 
 
 401, affirmed, 11)0(3, 1 Ch. 386. «J--*o- 
 
 It is respectfully submitted that (<) Ante, p. 103.
 
 106 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 the title to the property sold (_/' 
 remains (g). 
 
 and so the law still 
 
 What the 
 abstract ought 
 to contain. 
 
 The abstract 
 should com- 
 mence with a 
 good root of 
 title. 
 
 General 
 devise. 
 
 Conveyance 
 of an equity 
 of redemp- 
 tion. 
 
 Speaking generally, the abstract of title ought to 
 contain a statement of the material parts of every 
 deed, will or other instrument, by which any dis- 
 position of the property was made during the time for 
 which title has to be shown ; it ought also to contain a 
 statement of every birth, death, marriage, bankruptcy 
 or other event material to the devolution during the 
 same period of the estate contracted to be sold {h). If 
 the earliest piece of evidence stated on the abstract be 
 an instrument of disposition, and this be offered in un- 
 supported proof of the commencement of the vendor's 
 title, it must be what is called a good root of title ; that 
 is to say, it must be an instrument of disposition deal- 
 ing with or proving on the face of it (without the aid 
 of extrinsic evidence) the ownership of the whole legal 
 and equitable estate in tlie property sold, containing a 
 description by which the property can be identified, and 
 showing nothing to cast any doubt on the title of the 
 disposing parties. If the instrument be deficient in any 
 of these particulars, the purchaser may require further 
 evidence to supply the deficiency (i). For example, if 
 the abstract commence with a will containing a general 
 devise of the testator's real estate, under which the pro- 
 perty sold is alleged to have passed, the purchaser will 
 be entitled to require evidence of the testator's seisin (k) . 
 And if the first abstracted deed be a conveyance of an 
 equity of redemption, that is, of laud subject to a 
 mortgage either in fee or for a term of years, it is 
 
 (/) Sug. V. & P. 406. 
 
 {(/) It has not been altered by 
 sect. 3 (6) of the Conveyancing 
 Act of 1881 ; lie Johnson and 
 Tustin, 30 Ch. D. 42. 
 
 (h) Sug. V. & P. 405 sq.; 1 
 Dart, V. & P. 279 sq., 5th ed. ; 
 319 sq., 6th ed. ; 315 s^., 7th ed. ; 
 
 Ee Wallis ^- Grout'' s Contract, 1906, 
 2 Ch. 206. 
 
 [i) 1 Dart, V. & P. 295 sq., 
 5th ed. ; 337 sq., 6th ed. ; 331 sq., 
 7th ed. ; Re Cox ^ Neve's Contract, 
 1891, 2 Ch. 109, 118. 
 
 (A) Parr v. Lovegrove, 4 Drew. 
 170.
 
 A GOOD TITLE AND ITS DISCHARGE. 107 
 
 thought that the purchaser is entitled to require the 
 mortgage deed (however old) to be abstracted and pro- 
 duced (/). But a conveyance in fee on a sale or by way 
 of mortgage is a good root of title. So a transfer of a Transfer of 
 mortgage in fee appears to be a good root of title, ^^^ °^^^' 
 where it is made with the concurrence of all parties in- 
 terested in the equity of redemption, and a new equity 
 of redemption is reserved. But unless a new equity 
 of redemption be reserved, a transfer of a mortgage 
 appears to be no more a good root of title than a con- 
 veyance of the equity of redemption is. 
 
 The necessity for a good root of title is explained by Reason of the 
 referring to the rule that a g-nod title is shown by proof ^"^^ requiring 
 
 *-' , . " . "^ *^ a good root 
 
 of forty years' title This means forty years' title to tlie of title. 
 
 whole estate sold ; so tliat if the fee be sold, what the ven- 
 dor has to prove is forty years' seisin in fee. He must 
 therefore begin by proving a seisin in fee by himself or 
 his predecessor of the property sold forty years before the 
 contract, and end by sliowing a like seisin at the present 
 time in himself or some person whose conveyance of 
 the property he has a right to procure («?). It is 
 accordingly equally incumbent on him to produce good 
 evidence of the possession of tlie whole estate contracted 
 for at the time of the commencement of title as to show 
 that this estate is now his to convey. This is the reason 
 why further evidence may be required by the purchaser, 
 if the first document on the abstract be insufficient of Convevance 
 itself to prove the ownership of the whole estate. Con- "^ equity of 
 sidered with regard to this principle, the conveyance of 
 an equity of redemption {n) and a lease for years, even 
 though it be a demise by way of mortgage for a long 
 term, obviously fall short of the requirements of a good 
 
 (/) This follows from the prin- (w) Ante, p. 102 ; and consider 
 
 ciples laid down in P/ii/lipn v. the cases cited above, p. 106, 
 
 Caldvkuyh, L. R. 4 Q. B. 159 ; lie notes (A), (*)• 
 Cox ^Neve's Contract, 1891, 2 Ch. 
 
 109, 117, 118. («) Above, p. 106.
 
 108 
 
 OF THE VENDOR S OBLIGATION TO SHOW 
 
 Deed exer- 
 cising a 
 power. 
 
 Disentailing 
 assurance. 
 
 root of title. So a deed appointing an estate under a 
 power of appointment is not of itself a good root of title ; 
 as to have a power of appointment over an estate is nol 
 the same as to be the owner of it, and what a vendor 
 has to prove is the full ownership, at the time of com- 
 mencement of title, of the estate he is selling. For 
 evidence of such ownership he must go back to the 
 deed, which created the power (o). On the same prin- 
 ciple, a disentailing assurance is not a good root of title ; 
 as it only shows the ownership of an estate tail at the 
 time of commencement of title, and this, like a power of 
 appointment, is merely a derivative interest and not full 
 ownership, which is fee simple. In such cases, the deed 
 creating the estate tail should be abstracted (jj) . 
 
 Whether the 
 abstract must 
 commence 
 with a con- 
 veyance for 
 valuable con- 
 sideration. 
 
 It is of course advisable for a vendor to commence 
 his abstract with a conveyance for valuable considera- 
 tion, as that affords the strongest evidence of ownership, 
 not only because it shows that someone was willing to 
 give money for the property, but also on account of the 
 presumption that on a sale or mortgage the prior title 
 was investigated in the usual way and was approved. It 
 does not appear however that a purchaser can object to 
 an instrument of disposition forty years old as a root of 
 
 (o) 1 Jarm. Conv. 3rd ed. by- 
 Sweet, 67 ; 1 Dart, V. & P. 297, 
 5th ed. : 339, 6th" ed. ; 333, 7th 
 ed. By the Conveyancing Act, 
 1881 (Stat. 44 & 45 Vict. c. 41, 
 s. 3 (3) ), a purchaser of any pro- 
 perty shall not require the pro- 
 duction or any abstract or copy 
 of any document dated or made 
 before the time prescribed by law 
 or stipulated for commencement 
 of the title, even though the same 
 creates a power subsequently 
 exercised by an instriiment ab- 
 stracted in the abstract furnished 
 to the purchaser. But as, by 
 sect. 3 (11), this provision is to 
 be treated, for the purpose of 
 
 the specific performance of the 
 contract, like an express stipu- 
 lation to the same effect, it 
 follows, according to the prin- 
 ciple laid down in lie Marsk and 
 Earl Granville, 24 Ch. D. 11, 
 that, unless a vendor fairly and 
 explicitly stipulates that the ab- 
 stract shall commence with a 
 deed exercising a power, he can- 
 not take advantage of this en- 
 actment in enforcing specific 
 performance against the pur- 
 chaser. 
 
 {p) 1 Brest. Abst. 5-7 ; Sug. 
 V. & P. 366 ; 1 Dart, V. & P. 
 297, 5th ed. ; 339, 6th ed. ; 333, 
 7th ed.
 
 A GOOD TITLK AND ITS DISCHARGE. 
 
 109 
 
 title on the ground that the disposition was not made 
 
 for valuable consideration or was made on an occasion 
 
 on which it is not usual to investigate the title. Thus Voluntary 
 
 it seems that a voluntary conveyance (7), or a family 
 
 settlement would be an unob]ecti"nable root of title, if ment. 
 
 made by deed forty years old, and that a will contain- Specific 
 
 ing a specific devise would be a sufficient root of title, 
 
 if the testator died at least forty years before the sale ; 
 
 although in such cases the most prudent course for the 
 
 vendor would undoubtedly be to specify in the contract 
 
 or conditions of sale the nature of the instrumeut with 
 
 which the title was to commence. But if the vendor Root of title 
 
 make a special stipulation limiting the time for which time for 
 
 title shall be shown to a shorter period than is given by fliowing title 
 
 Tfo • T • 1 CI 1 • 1 • ^^ curtailed 
 
 law, dmerent considerations apply, ouch a stipulation by special 
 
 must be fair and explicit, or the vendor, in seeking st^P'^atioii- 
 specific performance, Avill not be allowed to insist on it. 
 If therefore a stipulation be made that the title shall 
 commence with a particular deed less than forty years 
 old, the purchaser is entitled to assume that the deed 
 was made on an occasion on which the title would be 
 investigated ; and should this not be the case, as if the 
 deed were voluntary, the vendor cannot force him, in an 
 action for specific performance, to accept the title as 
 limited by the condition (r). Such conditions, to be 
 effectual as regards the specific performance of the con- 
 tract, must state clearly the natui'e of the instrument, 
 with which the title is to commence. 
 
 After the document forming the root or commence- What docu- 
 ment of title, there should be abstracted every subse- h^'^abstracted 
 
 (q) Cotton, L. J., lie Marsh and sion goes no further than is .«tated 
 
 Earl Granville, 'M Ch. D. 11, 21. below, and has no application, 
 
 The contrary '\h stated by the where the purchaser's rights are 
 
 editors of Dart, 1 V. A: P. 38'J, not curtailed by special stipida- 
 
 6th ed. ; 33;i. 7th ed., rehiiifr on tion. 
 
 the decision iu tlie above case : (/•) Re Marsh and Earl Gran- 
 
 but it is submitted that this deci- villr, 24 Ch. D. 11.
 
 110 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 after the root quent document, whether deed or will, which deals with 
 of title. |.|^g legal estate in the property sold, except expired 
 
 leases (s) ; and all facts whereon the title depends, such 
 as hirths, marriages, deaths or hankruptcies, should he 
 stated in their proper order. With regard to documents 
 affecting the equitable but not the legal estate in the 
 property sold, if they be documents on which the pur- 
 chaser's title will necessarily depend, they certainly 
 ought to be placed on the abstract (t). But as a 
 purchaser for value, who takes a conveyance of the legal 
 estate in any property, is not bound by any equitable 
 interests theiein, of which he has no notice, it is obvious 
 that there may be many documents creating equitable 
 interests only which are not necessary to the purchaser's 
 title, so long as he obtains the legal estate without notice 
 of them. For instance, the vendor may be possessed of 
 documents showing that some former owner who ap- 
 peared on the face of a conveyance to be entitled for his 
 own benefit, was in fact a trustee, or that persons who 
 had advanced money on mortgage were trustees of the 
 mortgage money. In such cases it would be unusual to 
 allow notice of the trust to appear on the abstract (k). 
 This, Mr. Dart points out, is no doubt a departure from 
 the general principle that it is for the purchaser's soli- 
 citor, and not the vendor's, to judge of the materiality 
 of the muniments of title ; but it is sanctioned by con- 
 venience and universal practice (rr). Again, if a charge 
 should have been created on the property by a docu- 
 ment which could only create an equitable interest 
 therein, and the charge should afterwards have been 
 paid off, it is not the practice to let these facts 
 
 (s) And except as mentioued 
 above, pp. 100—102; 1 Dart, V. 
 & P. 299, 5th ed. ; 340, 6th ed. ; 
 335, 7th ed. ; andcons-ider TFhit- 
 ing to Loonies, 14 Ch. D. 822 ; 17 
 Ch. D. 10 ; Re TFallis 4- Grout's 
 Contract, 1906, 2 Ch. 206. 
 
 {t) 1 Dart, V. & P. 299, 5th 
 ed. ; 341, 6th ed. ; 335, 7th ed. 
 
 (m) 1 Dart, V. & P. 299, 300. 
 5th ed.; 341,342, 6th ed. ; 335, 
 336, 7th ed. 
 
 (.r) See Ee Harman and JJxbridge, 
 ^c. £1/. Co., 24 Ch. D. 720.
 
 A GOOD TITLE AND ITS DISCHARGE. HI 
 
 appear on the abstract (ij) . This is contrary to the 
 rule laid down by Wood, V.-C, in Dnonmond v, 
 Tracy (s), who stated that he had no doubt that 
 such charges ought to be communicated to the pur- 
 chaser. It was observed however by Mr. Dart [a), 
 that the strict rule so laid Hown may be theoretically 
 correct : but its practical inconvenience, as much to 
 purchasers as vendors, is so great, that in practice it 
 had previously been all but universally ignored : nor 
 has the practice, it is believed, been materially, if at all, 
 affected by that decision. 
 
 'The general rule then as to what documents ought 
 to be abstracted is that laid down by Lord St. 
 Leonards {h) : — " The solicitor should abstract every 
 document upon which the title depends, or upon which 
 any difficulty has arisen. Wherever he begins the root 
 of title, he ought to abstract every subsequent deed." 
 This general rule is however qualified, as we have 
 seen, by the practice of not disclosing trusts such as the 
 trusts of money advanced by trustees on mortgage, or 
 of purchases where the trustee appears on the face of 
 the conveyance to be entitled for his own benefit ; and 
 by the practice of not abstracting merely equitable 
 charges which have been paid off. There is a difference 
 however between equitable charges which may and 
 those which cannot affect the legal estate. A mortgage 
 of an equity of redemption, or second mortgage, made 
 by deed, with a proviso for redemption in the same form 
 as a legal mortgage, could operate to convey the legal 
 estate if it should not have passed by the prior mort- 
 gage. Such a charge, Mr, Dart pointed out (c), should 
 rarely or never be suppressed. Equitable charges created 
 
 (y) 1 Dart, V. & P. 
 
 ed. ; .34 3, 6th ed. ; :^37, 
 
 301, 5th 
 7th ed. 
 
 {h) Sug. V. & P. 407. 
 
 {z) John. GOJS, Qll. 
 {a) Ibid. 
 
 
 (c) 1 Dart, V. & P. 300, .5th 
 ed. : 342, Gth ed. ; 336, 7th ed.
 
 112 OF THE vendor's OBLIGATION TO SHOW 
 
 by a mere memorandum in writing or by deposit of title- 
 deeds stand on a different footing ; for without a deed 
 the legal estate in lands cannot be affected by such 
 charges. In spite of the rule to the contrary laid down 
 in Drummond v. Tracy (d), it is the practice to make no 
 mention of such charges in the abstract after they have 
 been paid off ; nor are they generally disclosed, even 
 when still subsisting [e] . 
 
 The manner Some few words should be said about the manner in 
 an abstract, wliich deeds or other documents should be abstracted. 
 At the present day, the work of making an abstract of 
 title is often so indifferently performed that it seems 
 necessary to point out that the vendor is bound to 
 furnish such an abstract of the contents of the deeds as 
 shall enable the purchaser's counsel to judge of their 
 effect. The purchaser cannot therefore be required to 
 accept as a proper abstract any mere statement of the 
 effect of any operative clause, which is material to the 
 title ; he is entitled to be informed of the exact words 
 used in every material part of any document abstracted. 
 For the w^hole object of requiring an abstract of title 
 is to enable the purchaser's conveyancing counsel to 
 examine the title in a convenient way (_/) ; the abstract 
 is all he sees ; and if the very words used are not placed 
 before him, it is impossible for him to exercise his judg- 
 ment on the title. And counsel should not accept a 
 mere statement of the effect of a material clause provi- 
 sionally, subject to the statement proving to be correct ; 
 for this is to delegate the determination of a matter, to 
 which he ought to apply his own judgment, to the dis- 
 cretion of the gentleman, who examines the abstract 
 with the deeds (g). The general rule then is that the 
 
 (d) John. 608. (f) Ante, p. 105. 
 
 {e) 1 Dart, V. & P. .S()0-a02, 
 
 ■5th ed. ; 342-344, 6th ed. ; 336- (</) See 1 Prest. Abst. 116, 117, 
 
 338, 7th ed, 2nd ed.
 
 A GOOD TITLE AND ITS DISCHARGE. 113 
 
 exact words of all material clauses should appear in the 
 abstract. The material clauses are those which have What are 
 taken effect upon the estate, to which the title is being clauses, 
 shown. Thus in deeds of conveyance, the names and 
 descriptions of the parties, the recitals, which show their 
 intention, the testatum with its statement of the con- 
 sideration and operative words, the parcels, the haben- 
 dum, and the declaration of uses or of trusts, if any, are 
 all material to the conveyance of the estate and should 
 be fully abstracted. Of covenants for title, however, it Covenants 
 is, as a rule, sufficient to know that they were entered 
 into in the usual way. If therefore such covenants have 
 been given at large in the common forms in use before 
 the year 1882, it is enough to state their effect. When 
 covenants for title have been incorporated in deeds under 
 the Conveyancing Act of 1881 by the use of the proper 
 statutory expressions, these expressions should of course 
 be abstracted verbatim. So all powers which are exer- Powers, 
 cised by any abstracted document should be fully ab- 
 stracted : but it is sufficient simply to refer to powers 
 which have not been exercised. The same considerations 
 apply to the abstracting of any provisoes which may 
 abridge or affect the estate limited. Shifting clauses. Shifting 
 for instance, should be fully abstracted, if they have 
 come into operation ; if not, they need only be men- 
 tioned with a statement of the events in which they 
 were intended to operate. Joint account clauses ought Joint account 
 
 to be fully abstracted, if they have taken effect. And a ,. . ^" 
 
 p 1 1 T 1 1 1 Provisoes for 
 
 proviso for reconveyance should always be so abstracted redemption. 
 
 as to show the charge created, the terms of redemption, 
 and to whom the reconveyance is to be made ; for in a 
 mortgage the proviso for reconveyance, being a qualifi- 
 cation of the conveyance to the mortgagee, is just as 
 much an operative part of the deed as the conveyance 
 itself (A) . All documents material to the title should 
 
 (A) See 1 Prest. Abst. HT-l.'iS; Sug. V. & P. 407-410; and see 
 Chap, v., below. 
 
 w. 8
 
 114 
 
 OF THE VENDOR S OBLIGATION TO SHOW 
 
 Documents 
 incorporated 
 by reference. 
 
 be abstracted in chief, notwithstanding that they may 
 be fully recited in some subsequent instrument (/) : but 
 if this be done, the subsequent recital need not of course 
 be set out at large ; it will be sufficient to refer to the 
 recited document as " hereinbefore abstracted." And 
 all documents should be abstracted whicli are incorpo- 
 rated in the title by reference — as where land is assured 
 to the uses of some settlement — even though the docu- 
 ment be of an earlier date than the time of commence- 
 ment of title. 
 
 Execution of 
 deeds, &c. 
 should be 
 stated. 
 
 The abstract should always state what j)arties to any 
 title-deed executed the same and whether such execution 
 was attested ; and in the case of documents which are 
 invalid unless attested by some particular number of^ 
 witnesses or executed with some other special formality, 
 such as wills (k), or deeds exercising powers required to 
 be exercised with some special formality (/), the number 
 of attesting witnesses or other circumstances attending 
 the execution of the document in question should always 
 be mentioned ; so that the conveyancer may be satisfied 
 that every requisite formality has been duly observed. 
 The receipts usually endorsed on purchase and mort- 
 gage deeds before the year 1882 (m) should be men- 
 tioned, as their absence was accounted an informality (>?). 
 And any formality necessary to give complete effect to 
 any abstracted document should be stated ; as probate 
 of a will of personal estate (o), the registration of deeds 
 or wills of lands in Middlesex or Yorkshire (p), the 
 
 (v) 1 Dart, V. & P. 299, 5th 
 ed. ; 341, 6th ed. ; 335, 7th ed. ; 
 Ee Stamford, ^-c. Co. and Knight'' ti 
 Contract, 1900, 1 Ch. 287; Rv 
 Wallis and Grouf s Contract, 1906, 
 2 Ch. 206. 
 
 (A-) See WiUiams, Real Prop. 
 206, 13th ed. ; 245, 2l8t ed. 
 
 (;) Ibid. 298-302, 13th ed. ; 
 384-387, 2l8t ed. 
 
 [m) "Williams, Real. Prop, 193- 
 4, 13th ed. ; 627, 628, 2l8t ed. ; 
 Williams, Conv. Stat. 227, 229. 
 
 (m) RomiUy, M. R., Greenalade 
 V. Dare, 20 Beav. 284, 292 ; 3 
 Prest. Abst. 15, 2nd ed. 
 
 (o) Williams, Pers. Prop. 385, 
 11th ed. ; 447, 16th ed. 
 
 (_?;) Williams, Real Prop. 196, 
 223, 13th ed. ; 212, 262, 2l8t ed.
 
 A GOOD TITLE AND ITS DISCHARGE. 115 
 
 enrolment of a disentailing deed [q), or the acknow- 
 ledgment (when necessary) of a deed of conveyance by 
 a married woman (r). 
 
 It has been considered that a map or plan is no Tracings of 
 necessary part of an abstract (-s) . But the correctness ^^ns ^^ 
 of this opinion may be doubted ; as the verification of 
 the parcels is part of a conveyancing counsel's duty {t), 
 and he cannot efficiently discharge it without seeing the 
 ]ilans referred to in the various title-deeds. And when, 
 as is now very frequently the case, a conveyance is 
 made identifying the parcels by reference to a plan, 
 without any separate and independent description of 
 them, it is obvious that the plan is really a material 
 part of the deed, and ought as such to be included in 
 the abstract. It is thought therefore that tracings of 
 any plans referred to in the title-deeds should in all 
 cases be inserted at their places in the abstract ; and 
 that, at least wherever a plan is a material part of a 
 title-deed, the purchaser can require to be furnished 
 with a copy thereof as part of the abstract {n). 
 
 § 3. Of the verification of the abstract. 
 
 Besides delivering an abstract of title, the vendor is Vendor bomul 
 further bound, in order to discharge his obligation of abstoct^ ^ 
 showing a good title, to verify the abstract by producing 
 all the evidence which is necessary and proper to prove 
 the statements made therein. The vendor must there- 
 fore produce, for the examination of the purchaser or 
 his solicitor, all the abstracted deeds, both those which 
 he has in his own possession and those of which lie has 
 
 (q) Williams' Real Prop. 49, Sug. V. & P. 408. 
 13th ed. ; 99, 21st ed. ,,. „ ^r r t> ^m 
 
 (r) Ibid. 233, 13th ed. : 310, (') ^"S^" ^- ^ ^- ^l"^" 
 
 311, Sl/S, 319-321, 2l8ted. (m) 1 Dart, V. & P. 303, 304, 
 
 (s) Blackburn v. fimith, 2 Ex. 5th ed. ; 34.5, 346, 6th ed. ; 339, 
 
 783, 792, 18 L. J. N. S. Ex. 187 ; 340, 7th ed. 
 
 8 (2)
 
 116 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 Expense of 
 evidence not 
 in vendor's 
 possession. 
 
 Evidence 
 required is 
 
 (1) of docu- 
 ments, 
 
 (2) of facts. 
 
 Proof on sales 
 differs from 
 proof in 
 litioration. 
 
 Documents 
 thirty years 
 old prove 
 themselves. 
 
 a right to procure the production, and proper evidence 
 of other documents, on wliich the title depends, such as 
 wills, inclosure awards, Acts of Parliament or orders of 
 the Court ; and he must adduce proper evidence of all 
 facts material to the title, as births, marriages, deaths or 
 intestacies {.r) . At common law all such proof had to 
 be made at the vendor's expense (^) : but now under 
 the Conveyancing Act of 1881, the purchaser, in the 
 absence of stipulation to the contrary, has to bear the 
 expense of obtaining and producing all evidence of 
 title, which is not in the vendor's possession {z). 
 
 The proof, which a vendor may be required to fur- 
 nish of his title, is of two kinds; (1) proof of the 
 abstracted documents, and (2) proof of the facts stated 
 in the abstract. In both of these respects the evidence 
 accepted on sales is not quite the same as what would 
 be required to be given in a court of justice. Thus 
 where it is sought to prove in Court that any person 
 has altered his legal position by some writing, it must 
 be shown, fii'st, that there is or was such a writing as 
 alleged ; this is proved primarily by production of the 
 original ; and secondly, that the writing is his writing ; 
 that is to say, if the writing be a deed, that it is his 
 deed, that is, executed by him, or, if the writing be 
 unsealed, that it was signed or written by him or by his 
 authority so as to bind him (a) . At common law, the 
 second requisite was only dispensed with in the case of 
 documents thirty years old coming from the proper 
 custody ; these, whether deeds, wills, letters or similar 
 writings, were and are presumed to have been executed 
 or signed as they purport to be (/>). In other cases, the 
 
 {x) Sng. V. &P. 414, 415, 417, 
 420, 429, 431 ; 1 Dart, V. & P. 
 310 sq., 5th ed. ; 350 .sq., 6th ed. ; 
 345 sq., 7th ed. ; Southhij v. Hutt, 
 1 My. fcCr. 207,212, 213. 
 
 {y) Sug. V. & P. 417,420,431. 
 
 (-) Stat. 44 k 45 Vict. c. 41, 
 s. 3(6), (9). 
 
 {a I Zet/ifield's Case, 10 Rep. 88a, 
 92b, 93a. 
 
 (J) Taylor, Evidence, §§ 74, 
 75, 593-601, oth ed. ; Stephen, 
 Evidence, Art. 88.
 
 A GOOU TITLE AND ITS DISCflARGi!. 117 
 
 execution of any document produced must as a rule have 
 been proved, if the document were attested, by the evi- 
 dence of an attesting witness, and otherwise by the best 
 evidence, such as the testimony, given in Court at the 
 trial, of the party who executed the document, or some 
 other person present at its execution, or an admission 
 by or on behalf of such party of the fact of execution (c). 
 
 The common law rule as to proving the execution of Proof of 
 
 . . attested 
 
 attested documents was so stringent that such execution documents. 
 
 could not be proved by the admission of the executing 
 party, unless made for the purposes of the cause {d) . 
 This rule was abolished by the Common Law Pro- 
 cediu-e Act, 1854, with regard to any instrument, to 
 the validity of which attestation is not requisite ; and 
 such instruments may be proved by admission or other- 
 wise, as if there had been no attesting witness thereto {e). 
 Under the present practice, the execution of any deed 
 or writing adduced in evidence in an action is generally 
 established by admission made pursuant to a notice in 
 that behalf, which either party may serve on the 
 other (/) : but of course where there is any contest as 
 to the fact of execution, it must be proved by the best 
 evidence according to the ordinary rule {jj). And on 
 unopposed applications and in non-contentious cases the 
 rule still is that the execution of a deed must be proved 
 by an attesting witness (//). Upon sales of land, how- No evidence 
 ever, it is not the practice to require evidence of the tjon of any 
 execution of any of the documents of title, however document 
 
 '' required on 
 
 recent, if found in the proper custody (/) ; unless there sales. 
 
 (c) Taylor, Evidence, §^ 1637 455, 457, 458. 
 
 Av/., 16G0, oth ed. ; Stephen, Evi- (A) Re Reay^ Estate, 1 Jur. 
 
 dence, Arts. 15.sry., 63-b!). N. S. 222 ; lie Rice, 32 Ch. D. 
 
 {d) Callv. Dioinhiff, i Edat, 53; 35; 1 Seton on Judgments, 156, 
 
 Doe V. Buniford, 2 M. & S. 62. 6th ed. 
 
 (c) Stats. 17 & 18 Vict. c. 125, (t) That is, the custody in 
 
 8. 26; 28 & 29 Vict. c. 18, which they may reasonably be 
 
 88. 1, 7. expected to be found ; Croicihtoii- 
 
 (/) R.S.C. 1883, Ord. XXXII. v. lilake, 12 M. & \V. 205, "208 ; 
 
 rr. 2, 3, and Appendix B. No. 11. Ihv d. Jiuobf: v. rhiUips, .s Q. B, 
 
 (g) Leigh v. Lloyd, 35 Beav. 158.
 
 118 OF THE VENDOR^ S OBLIGATION TO SHOW 
 
 be reason to suspect that some particular document was 
 not in fact executed as it purports to be. In the 
 absence of any cause for suspicion, it is presumed by 
 conveyancers that every deed, will or other document of 
 title was executed or signed as appears on the face of 
 the document (/•). Conveyancers act, in this respect, 
 on the presumption that everything is rightly done, 
 until the contrary be shown (/) ; a presumption which 
 is of course greatly strengthened by the fact of the title- 
 deeds being in the custody of the possessors of the land, 
 to which the deeds relate. 
 
 What is the The strict right of a purchaser of land in the matter 
 
 a purchaser °as ^^ requiring proof of the execution of the title-deeds 
 to proof of has never been exactly defined. Under the old common 
 title-deeds? law practice requiring strict proof of attested docu- 
 ments (m), there were conflicting decisions at Nisi Prius 
 upon the question Avhether a vendor suing the purchaser 
 at law for damages for breach of contract must prove 
 the execution of the title-deeds as part of his title (n) . 
 It was pointed out, however, that such actions are 
 usually brought in consequence of a dispute raised as to 
 the vendor's title — that is, as to the efi'ecf of the deeds — 
 after the delivery of an abstract and communications 
 thereon, in the coiu'se of which the autJicntiviii/ of the 
 deeds has been admitted ; and that in such circum- 
 stances the purchaser would not be permitted to turn 
 round at the trial and require proof of the genuineness 
 
 (/.) Coventry, Conveyancers' Trustees, 1904, A. C. 64, 69 ; 
 
 Evidence, 13-16; 1 Sug. V. & P. Heath v. Bcane, 1905, 2 Ch. 
 
 418, 438; 1 Dart, V. & P. 312, 86, 93. 
 
 5th ed.; 353, 6th ed. ; 348,7th , , .i 
 
 ed. See Jaredy. Clements, 1902, ^'"^ ^^°^'^' P" ^^'• 
 
 2 Ch. 399, 402 ; 1903, 1 Ch. 428, («) That he need not, Thoimon 
 
 431. v. Miles, Kenyon, C. J., 1 Esp. 
 
 [l) Litt. sect. 377; Co. Litt. 184; that he must, Crosby v. 
 
 232 b; Clarke v. Imperial Gas Percy, Mansfield, C. J., 1 Camp. 
 
 Liyht and Coke Co., 4 B. & Ad. 303. Lord St. Leonards evi- 
 
 315 ; B'Arcy v. Tamar, ^-c. Ry. dently thought the former the 
 
 Co., L. R. 2 Ex. 158, 162 ; Clip- right decision ; Sug. V. & P. 
 
 pois Oil Co. v. Edinburgh, ^-c. 439.
 
 A GOOD TITLE AND ITS DISCHARGE. 119 
 
 of the deeds themselves (o) . Under the present prac- 
 tice — first introduced by the Common Law Procedm'e 
 Act, 1852 — any litigant may call upon his adversary to 
 admit any document, saving all just exceptions, on pain, 
 in case of unreasonable refusal, of being ordered to pay 
 the costs of proof (^:)). It is thought, considering the 
 long-established practice of conveyancers not to require 
 proof of the execution of title-deeds and the above- 
 mentioned alterations in the law {q) and practice as to 
 the proof of documents in an action, that the Court 
 would certainly not uphold a requisition, that the 
 vendor must prove the execution of any document of 
 title less than thirty years old, if made without showing 
 any reason for suspecting the authenticity of the docu- 
 ment (/•) . 
 
 Here it should be mentioned that, whenever any title- Title-deeds 
 deed has been executed by attorney, the deed (s) creat- attorney. ^ 
 ing the power of attorney so acted upon ought to be 
 
 (o) Tindal, C. J., Laythonrp v. 200, 214, 216; Powell v. London ^• 
 
 linimit, 1 Bing. N. C. 421, Provincial Bank, \^^Z, 2 Ch. aorj, 
 
 427. The decision there was, 558, 563, 565. At common law 
 
 that in the absence of any such an attorney authorised to execute 
 
 communications as might esta- a deed was bound to execute it in 
 
 blish the admission of the authen- the name of his principal, and 
 
 ticity of the deeds, a vendor not in his own name ; otherwise 
 
 suing to recover under special the execution would be void ; 
 
 stipulation in the contract the Combes^ s Cane, S Rep. 75 a, 70 b ; 
 
 amount of the loss on a re-sale Fronfin v. Small, 2 Ld. Raym. 
 
 of leasehold property rejected 141S ; White v. Ciojler, 6 T. R. 
 
 by the original purchaser, and 176; JFilks \. Back, 2 T^&^i, W'l; 
 
 alleging himself to have been Laxvrie v. Lees, 14 Ch. D. 249, 
 
 in poxsexsion of the property under 7 App. Gas. 19. But in deeds 
 
 the lease, must prove this allega- executed by attorney after the 
 
 tion by showing the execution of year 1881 the attorney might and 
 
 the leiuse in the usual way. still m.iy (whatever were the date 
 
 (p) Stat. 15 & 16 Vict. c. 76, of the instrument creating the 
 
 ». 117 ; R. S. C. Ord. XXX. r. 2. power) execute the deed either in 
 
 {q) Above, p. 117. his principal's name according to 
 
 (f) See 1 Dart, V. & P. 312, the common law rule or in liis 
 
 5th ed. ; 353, 6th ed. ; 348, 7th ed. own name and with his own 
 
 (•<) A power of attorney autho- signature and seal under the 
 
 rising one to execute a deed on authority of the Conveyancing 
 
 behalf of another is required by Act of 1881, Stat. 44 & 45 Vict, 
 
 law to be given by deed ; Hibhle- c. 41, s. 46 ; 1 Davidson, Preo. 
 
 white v. McMorine, 6 M. & W. Conv. 101, 5th ed.
 
 120 OF THE vendor's OBLIGATION TO SHOW 
 
 abstracted and produced ; and either it should be 
 handed over to the purchaser on completion, or (if 
 the vendor or any other person be entitled to retain 
 it) a statutory acknowledgment and undertaking should 
 be given for its production and safe custody {f). 
 Besides this, evidence should be furnished, if necessary, 
 that the power was not revoked by the donor's death 
 or otherwise before it was so acted upon (u). Such 
 evidence is not necessary ( I ) where the power was given 
 before the year 1883 for valuable consideration, and 
 was made exercisable in the names of the principal's 
 representatives after his death (,r) ; or (2) where the 
 power was given by an instrument executed after the 
 year 1882 for valuable consideration (//) ; or (3) where 
 the power was given by an instrument executed after 
 that year (whether for valuable consideration or not) 
 and expressing that the power should be irrevocable for 
 a fixed time, therein specified, not exceeding one year 
 from the date of the instrument (z), and the power was 
 acted upon within that time. But where the power 
 was given otherwise than for valuable consideration by 
 an instrument, wherein the power was not so expressed 
 to be irrevocable, the purchaser may, and should, 
 require evidence to be furnished that the power was not 
 revoked by the donor's death or otherwise before it was 
 acted upon {a). 
 
 {t) See Eaton v. Sanxter, 6 Sim. principal was alive at the time 
 
 517, 519 ; above, pp. 34, 47, 48. when the power was acted upon 
 
 [h) Sug. V. & P. 417; 1 Dart, by the attorney, in order to be 
 
 V. & P. 311, 312, 5th ed. ; 352, satisfied that no person could set 
 
 353, 6th ed. ; 348, 7th ed. up a legal estate acquired for 
 
 [x) See below, Chap. XII. ^ 5. value without notice of the power 
 Such a jjower, if not expressed to in opposition to the estate pur- 
 be exercisable in the names of the ported to be assured by the 
 principal's representatives after exercise of the power, 
 his death, was revoked at com- (y) gee Stat. 45 & 46 Vict, 
 mon law by the principal's death ; c. 39, s. 8 ; below, Chap. XII. 6 5. 
 
 but relief would be L>-iven in eq uity i \ a ui. i. .« p ,,? Tr- i. 
 
 . . , °,. T i.t,- (2) Seebtat. 45 &46 Vict. c. 39, 
 
 aeramst such revocation, in this ^ i i ni, vtt r - 
 
 ° .■• t -i. • i,i. u s. 9 ; below, Chap. XII. 6 0. 
 case therefore it might be neces- ' > 1 x 
 
 sary to require evidence that the («) ^^e note {x), above.
 
 A GOOD TITLE AND ITS DISCHARGE. 121 
 
 The documentary evidence in support of a title may Documents of 
 be of two kinds. First, private writings which are kept j^ pr™ate or 
 in the custody of the parties interested, and which the official cus- 
 purchaser can require to be handed over to him on 
 completion ; of this kind are the ordinary deeds of 
 conveyance. And secondly, documents which are kept 
 in public or official custody and to the possession of 
 which the purchaser can have no right. Such are Acts 
 of Parliament public or private, records, orders of 
 proceedings of the Courts of justice, the court rolls of a 
 manor, and wills, if proved. With regard to the latter 
 kind of evidence, the vendor cannot require the pm-- 
 chaser to go and verify the abstract for himself by 
 inspection of the original document ; he is bound to Vendor must 
 produce, at the proper place for verification of the dence of 
 abstract, such evidence of any document in public or l^ocuments 
 official custody as it is the practice for conveyancers to custody. 
 accept; and the purchaser \vill be entitled jjiinid facie 
 to have this evidence delivered over to him on com- 
 pletion (b). At common law, the vendor had to bear all 
 the expense of procui'ing any such evidence (c) . But Expense of 
 under the Conveyancing Act, 1881 (d), the purchaser, mentTnot'hr' 
 in the absence of stipulation to the contrary, must bear vendor's pos- 
 
 • n 1 • 1 •(« -1 session. 
 
 the expense or procm-ing all such evidence, it not m trie 
 vendor's possession. The vendor, however, is not re- 
 leased from the obligation of procuring such evidence ; 
 he is merely exonerated from the expense of dis- 
 charging it. 
 
 Here it may be mentioned that, in litigation, the Evidence of 
 contents of any public document may be proved, at ment. 
 common law, either by production of the original 
 document or its equivalent, or by an examined copy, 
 
 (b) Unlketl V. Diidlnj, 1907, 6th ed. ; 482, 7th ed. ; 1 David- 
 1 Ch. ")90, 608, 604. son, Prec. Conv. 550, 55.'), 4th ed. 
 
 (c) Sug. V. Ac P. 431, 448; 1 {d) Stat. 44 & 45 Vict. c. 41, 
 Dart, V. & P. 408, 5th ed. ; 472, s. 3 (6), (9).
 
 122 
 
 OF THE VENDOe's OBLIGATION TO SHOW 
 
 Examined 
 copj'. 
 
 Exemplifica- 
 tion. 
 
 Office copies. 
 
 Cei-tified 
 copies. 
 
 that is, a copy proved by oral evidence to have been 
 examined with the original and to correspond there- 
 with (e). An exemplification, which is a copy of a 
 record set out either under the great seal or the seal 
 of a Court, is equivalent to the original document 
 exemplified (./') ; and a copy made by an ofiicer of the 
 Court, who is hound by law to make it, is equivalent 
 to an exemplification {g). Office copies, or copies made 
 by an officer of the Coui-t, who is authorised by rule 
 of Court hut not required hy law to make them, are 
 not at common law equivalent to an exemplification, 
 save in the same Court and cause, in which the pro- 
 ceeding recorded occurred {h). But many documents 
 of a public nature are provable under particular Acts 
 of Parliament by copies certified as authentic under 
 some official seal or signature or otherwise (?') ; and in 
 such cases the certified copies are admissible in evidence 
 if they purport to be authenticated as prescribed by 
 law, without proof of the official stamp, seal or sig- 
 nature required or of the official character of the 
 certifier (/.•). And by the Evidence Act, 1851 (/), 
 whenever any book or document is of such a public 
 nature as to be admissible in evidence on its mere 
 production from the proper custody, and no Statute 
 
 (e) I)oe d. Gilbert v. Ross, 7 M. 
 & W. 102, 106. 124 ; Taylor, 
 Evidence, §§ 1333, 1368, 1389 sy., 
 .jth ed. ; Stephen, Evidence, Arts. 
 73 aq. The rule extends to any 
 dt)cument or book which is of 
 such a public nature as to be 
 admissible in evidence on its mere 
 production from the proper cus- 
 tody ; It. V. Hain.s, Comb. 337 ; 
 Lynch v. Clerke, 3 Salk. 154 ; li. 
 v. Gordon, 2 Doug. 590, 593 
 and note ; Taylor, Evidence, 
 ^ 1436, 1437, 5th ed. 
 
 ( f) Bac. Abr. Evidence (F) ; 
 Taylor, Evidence, §^ 1378—1381, 
 5th ed. ; Stephen, Evidence, 
 Ai-t. 77. 
 
 (g) Appleton v. Lord Braybrook, 
 
 6 M. & S. 34, 36—39; Doe v. 
 Lloijd, 1 Man. & Gr. 671, 684-6; 
 Bac. Abr. Evidence (F) ; Taylor, 
 Evidence, § 1384, 5th ed. ; Ste- 
 phen, Evidence, Art. 77. 
 
 [h) Taylor, Evidence, ^ 1378— 
 1391, 5th ed. ; Stephen, Evidence, 
 Art. 78. 
 
 (i) Taylor, Evidence, ^^ 1440, 
 5th ed. 
 
 (/.■) Stat. 8 & 9 Vict. c. 113, s. 1 ; 
 Taylor, Evidence, §§ 7, 1441, 
 5th ed. ; Stephen, Evidence, 
 Art. 79. 
 
 {I) Stat. 14 & 15 Vict. c. 99, 
 ■s. 14 ; Taylor, Evidence, ^ 1437, 
 5th ed. ; Stephen, Evidence, 
 Art. 79.
 
 A GOOD TITLE AND ITS DISCHARGE. 
 
 123 
 
 exists which renders its contents provable by means of 
 a copy, any copy thereof or extract therefrom shall be 
 admissible in evidence if it purport to be signed and 
 certified as a true copy or extract by the ofiicer to 
 whose custody the original is entrusted. On sales, 
 however, it has always been the practice to receive 
 office copies and extracts in evidence, whether the 
 same would be admissible as evidence in litigation or 
 not (m). 
 
 The proper place for verification of the abstract is Prop^'i'.pla^e 
 either at the vendor's residence, or near the land sold, tion of the 
 or in London {u). If the title-deeds be produced at '^^^^t^''^^*- 
 any one of these places, the purchaser must, at common 
 law, bear the expense of his solicitor's examination of 
 them and of any journey for this purpose (o). The 
 vendor may however discharge his obligation by pro- 
 duction of all or some of the title-deeds at some other 
 place or places : but in that case he would at common 
 law be bound to pay any additional expense incurred Expeuso of 
 by the purchaser in the examination of the deeds, titie™eeds 
 
 (m) Sug. V. & P. 414, 417 ; 1 
 Dart, V. & P. :U8, oth ed. ; 361, 
 6th ed. ; 1 Davidson, Prec. Conv. 
 .5,)0-2, 4th ed. ; Halkettx. Dudhi/, 
 1907, 1 Ch. o90, 603, 604. It 
 should be noted that proof of a 
 public document by what is called 
 an examined copy is iKjt available 
 on sales, ;us the admissibility in 
 evidence of such a copy depends 
 on the statements made on oath 
 in Court of the person who exam- 
 ined the copy with the orif?inal ; 
 (Jraivford Feerngv, 'I H. L. C. 544- 
 5 ; Taylor, Evidence, ^v i:$89, ')th 
 ed. And an attested copy, that 
 is a copy endorsed with a written 
 and signed declarutii m that it is a 
 true copy, is of no more use to a 
 purchaser than an office copy, the 
 declaration not being evidence 
 admissible in subsetiuent litiga- 
 tion ; see above, p. 122. 
 
 (w) If the deeds are to be ex- 
 amined in London, a country 
 solicitor must employ a London 
 agent for the purpose ; and he 
 cannot charge his client with the 
 expense of a jouiney, even though 
 undertaken at his client's re- 
 quest, in order to examine the 
 deeds personally, unless he first 
 explain to his client what is the 
 regular practice. But a London 
 solicitor need not employ a 
 country solicitor as his agent to 
 examine deeds, but may send his 
 own clerk. See Ahop v. Oxford, 
 1 My.&K. .)64'; Uiighcsx. Wynne, 
 8 Sim. So ; Re Tn/mi, 7 Beav. 
 496; Sug. V. A: P. "430; 1 Dart, 
 V. ^ P. 407, 408, 5th ed. ; 470. 
 471, 6th ed. ; 481, 482, 7th ed. 
 
 (o) Sug. V. & P. 429 ; 1 Dart. 
 V. ic P. 407, 5th ed. ; 470, 6th 
 ed. ; 481, 7th ed. ; I Davidson, 
 Prec. Conv. 554, 4th ed.
 
 124 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 not. iu ven- 
 dor's posses- 
 sion. 
 
 Deeds iu pos- 
 session of 
 vendor's 
 mortgagees — 
 
 or other per- 
 sons than the 
 vendor. 
 
 beyond what would have been incurred if the deeds 
 had been produced at the proper place (p). But under 
 the Conveyancing Act, 1881 (q), the purchaser, in the 
 absence of stipulation to the contrary, must bear the 
 expenses of the production and inspection of all docu- 
 ments, which are not in the vendor's possession, and of 
 all journeys incidental thereto. The vendor therefore 
 must still produce all documents of title, which are in 
 his own possession, at the proper place for verification 
 of the abstract ; or pay the extra expense incurred by 
 their examination elsewhere (r). But in the absence of 
 stipulation to the contrary, he can produce any docu- 
 ments of title, which are not in his possession, at what- 
 ever place they may happen to be, without being called 
 upon to bear any extra expense so caused. It has been 
 held that, under the last-mentioned enactment, a pur- 
 chaser must pay all the expense of the examination on 
 his behalf of title-deeds, which are in the possession 
 of the vendor's mortgagees, and are in consequence 
 produced at the office of the mortgagees' solicitors ; 
 including the mortgagees' solicitors' costs of such pro- 
 duction and examination (.s). The purchaser must 
 equally bear all the expense of the production and 
 examination of any title-deeds, which are produced at 
 the office of the solicitors to some person, by whom the 
 vendor is entitled to requii'e production of the deeds 
 under some statutory acknowledgment or covenant. 
 
 Here it may be mentioned that by the Conveyancing 
 
 Mortgagor's 
 
 ac'cess to Act of 1881, where a mortgage has been made after 
 
 title-deeds ^^^ ^jg^ December, 1881, the mortffas:or. as long as his 
 in possession o o - f 
 
 (jj) Sharp V. Page, Sug. V. & P. 
 430; Hughes v. Wynne, 8 Sim. 
 85 ; 1 Dai-t, V. & P. 408, 5th ed. ; 
 471, 6th ed. ; 482, 7th ed. ; 1 
 Davidson, Prec. Conv. 554, 4th 
 ed. 
 
 [q) Stat. 44 k 45 Vict. c. 41, 
 s. 3 (6), (9). 
 
 (/•) See 1 Davidson, Prec. Conv. 
 461, 5th ed. 
 
 («) Re Willett and Argenti, 5 
 Times L. R. 476 ; 60 L. T. N. S. 
 735.
 
 A GOOD TITLE AND ITS DISCHARGE. 125 
 
 right to redeem subsists, is entitled from time to time, of amortga- 
 at reasonable times, on his request, and at his own costs, ^^^r^Je ^ 
 and on payment of the mortgagee's costs and expenses made after 
 in this behalf, to inspect and make copies or abstracts 
 of or extracts from the documents of title relating to 
 the mortgaged property in the custody or power of the 
 mortgagee ; and this enactment is to have effect, not- 
 withstanding any stipulation to the contrary {t). A 
 vendor of land, which is subject to a mortgage made 
 after the year 1<S81, thus enjoys the right of access to 
 tlie title-deeds for the purpose of preparing and verify- 
 ing the abstract. But where the mortgage was made Mortgagee's 
 before the year 1882, the old rule remains in force that th^ mcTrtgao-e 
 the mortgagee in possession of the title-deeds of the ^'^^ ™ade 
 mortgaged property cannot be compelled to produce 
 them for the inspection of the mortgagor or any one 
 claiming through him, without being paid off (/^). In 
 such case therefore the vendor must arrange with the 
 mortgagee for production of the title-deeds (x) . With 
 
 {t) Stat. 44 & 4o Vict. c. 41, contrary in J'atch v. Ward, L. R. 
 8. 16; see also sects. 1, 2. 1 Eq. 436, appears to be incon-ect. 
 
 (m) Setihome v. Earl, 2 Ves. sen. Where the mortgage was made 
 450; rosththuaitc v. Bhjlhe, 2 before the year 1882, the old rule 
 Swanst. 256, 257 ; Brown v. Lock- applies to documents modifying 
 hurt, 10 Sim. 420 ; Greenwood v. the terms of but not entirely 
 liothinll, 1 Beav. 291 ; ChicJuHter superseding and discharging the 
 V. Bonegal, L. R. 5 Ch. 497, 502. contract of mortgage and exe- 
 Accordiug to these cases the rule cuted after the year 1881 ; Burn 
 extends to the mortgage deed v. London if- South TJ'a/cs Coal Co., 
 itseU ; and the decision to the 1890, W. N. 209. 
 
 {x) With respect to the concurrence of any mortgagee (whatever be 
 the date of his mortgage) in a sale by the mortgagor of the mortgagetl 
 property (see above, p. 47), the mortgagnr's right, where the mort- 
 gage is in the usual form, evidencing an intention to confer a per- 
 manent security, and the day for redemption at law is past, and the 
 mortgagee has made no express or implied demand for npaymeut of 
 the mortgage money, is to redeem on payment of the whole amount 
 due on the mortgage for principal, interest and costs {National L'roiin- 
 cial Bank of Etiyland v. Games, ',il Ch. D. 682), and either after giving 
 six calendar months' previous notice of liis intention to redeem, or on 
 payment instead of .>ix calendar months' interest in advance ; 
 SItarpnell v. Blakf, 2 Eq. Ca. Abr. 603, pi. 34; Johnxon v. Erans, 
 1889, W. N. 95. 01 L. T. 18 ; Smith v. Smith, 1891, 3 Ch. 550, .562 ; 
 FitziivraUV s Tru.stic v. Mclltr.sh, 1892, 1 Ch. 385, 388, 389. Where the 
 mortgagee has demanded, or has taken tiny legal proceedings to
 
 126 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 Deeds, of 
 wliich the 
 vendor has ;i 
 mere right to 
 production. 
 
 Right to pro- 
 duction under 
 statutory 
 aeknowledg'- 
 ment. 
 
 regard to any title-deeds, of wliicli a vendor of land 
 has a mere right to production (the right to posfiession 
 of the deeds going with other land held under the same 
 title {>/), or otherwise not accompanying the land sold), 
 the question, whether he can be prejudiced by the 
 possessor of the deeds depositing them with a mortgagee, 
 depends on the nature of his right to production of 
 the deeds. If the right to production arise under a 
 statutory acknowledgment taking effect by virtue of the 
 Conveyancing Act of 1881 (z), the duty of production 
 is incumbent on and may be enforced against not only 
 the giver of the acknowledgment, but also every other 
 person having possession or control of the deeds from 
 
 enforce repayment of the mortgage money, or has sold or taken 
 possession of the mortgaged property, the mortgagor is absolved from 
 the obligation of giving notice to pay off or paying interest in lieu of 
 notice: Sharpndl v. Blake, ubi sup.; Letts v. jfutchi/is, L. R. 13 
 Eq. 176; Uminer v. Berridge, 18 Ch. D. 254, 279; Re Alcock, 23 
 Ch. D. 372; Bovillv. Endle, 1896, 1 Ch. 648. Where the just in- 
 ference from the mortgage transaction is that it was intended to be 
 temporary, as in the case of a mortgage to bankers by deposit of title- 
 deeds, the mortgage is redeemable at any time without giving notice 
 to pay off or paying interest in advance instead ; FitzgcraUr s Trustee 
 V. Mellersh, 1892, 1 Ch. 385. A mortgage is not redeemable before 
 the day fixed for redemption at law has arrived, not even on tender of 
 the whole principal money with interest up to that date ; Brown v. 
 Cole, 14 Sim. 427 ; unless the mortgagee has taken steps (as by entry 
 into possession) to enforce repayment of the mortgage money ; Bovill 
 V. Endle, iibi sup. And this rule applies where a mortgage is made 
 with a proviso that the security shall remain for a certain term of 
 years of reasonable length ; Biggs v. Hoddinott, 1898, 2 Ch. 307, 311. 
 As to mortgages i-edeemable at law on payment by instalments, see 
 Cummins v. ^Fletcher, 14 Ch. D. 699, 702, 713, 714. A vendor of land 
 in mortgage is of course entitled, on redemption in strict accordance 
 with his right, to require the mortgagee to convey the mortgaged 
 property to the purchaser : but if he desire the mortgagee to 
 acquiesce in any arrangement, which he is not strictly entitled to 
 enforce, with respect to the sale, as if he wish the mortgagee to 
 release part of the mortgaged property from his security, either on 
 payment of part of the mortgage money or without payment, or to 
 waive the right (where given) to have the security to remain for a 
 certain term, he must come to an agreement with the mortgagee, or 
 he will be unable to enforce the contract of sale ; see below, Chap. V. ; 
 Chap. XII. § 3. 
 
 (</) See above, p. 47. 
 
 iz) Stat. 44 & 45 Vict. c. 41, 
 s. 9 ; see sub-ss. 1, 2. The statu- 
 tory undertaking for safe custody 
 
 is equally enforceable against the 
 undertaker and every person 
 having possession or control of 
 the documents from time to time ; 
 sub-s. 9.
 
 A GOOD TITLE AND ITS DISCHAEGE. 127 
 
 time to time. Production of the deeds may therefore 
 be enforced when they are in the custody of mortgagees 
 or pui'chasers from the giver of tlie acknowledgment ; 
 and it is immaterial whether tlie mortgagee or purchaser 
 had notice of the acknowledgment or not. If however Where the 
 the vendor have only an equitable right to production ^^f^e equit-'^ 
 of the deeds, such as appears to arise without express able right of 
 agreement when land held under one title or the estate 
 therein is severed, and the right to the custody of the 
 deeds goes with some particular part of the land or 
 estate (n), it seems that he may lose the benefit of such 
 right in case the land or estate, to which the possession 
 of the deeds is incident, be conveyed (together "vvith 
 the deeds) to a piux-haser or mortgagee, who had no 
 notice of the equitable obligation to produce the deeds (b) . "Where the 
 And it seems that this is equally the case, where the covenant^for 
 vendor has the benefit of a covenant to produce the production of 
 deeds, but the landowner in possession of them has 
 conveyed his land with the deeds to a purchaser or 
 mortgagee having no notice of the covenant ; for it is 
 now considered that the burthen of a covenant to pro- 
 duce title-deeds does not run at law with the land, to 
 the ownership of whieli the possession of the deeds is 
 incident. But where a mortgagee or purchaser has 
 taken the land with notice of an equitable right to pro- 
 duction of the title-deeds, it is thought that he would 
 be bound to give effect to it (r) . 
 
 {a) See below, Chap. XII. \ 3. the pre.seut law where a liffal 
 
 \b) See below, Chap. XII. § 3 ; right to the possfs.sion of deeds 
 
 WalUnjn v. Lvv, 9 Ves. 24 ; /,«»«- i.s sought to lx> enferced in the 
 
 hcrt V. Rogi'rx, 2 Mer. 489 ; Heath Chancery Division ; Re Cooper, 
 
 V. Crealock, L. R. 10 Ch. 22, 32, 20 Ch. D. 611 ; ]{e Iuf,hain, 1893, 
 
 33, 3.'). With respect to the rule 1 Ch. 352, .161. 
 affirmed in the la.st (;asc that a (c) See below, Chap. XII. ^^ 3. 
 
 Court of Equity will not interfere In any case in which the liability 
 
 to deprive a purcliascr for value to produce a title-deed is really 
 
 of the possession of title-deeds incident to the legal estate in 
 
 acquired in good faith and with- some land, a purchaser or mort- 
 
 out notice of a superior right gagee is of course affected by it. 
 
 (whether legal or equitable, Thus the a.ssignee of a lease, 
 
 thereto, note the difference under whether by way of sale, mort-
 
 128 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 Solicitor's 
 lien. 
 
 Solicitor, 
 having a lien 
 on a vendor's 
 deeds, in- 
 structed to 
 act for him 
 in the sale. 
 
 When a man's title-deeds are in the custody of his 
 solicitor, who has the regular solicitor's lien thereon for 
 the general balance owing of his account (d), the solicitor 
 has the right to refuse inspection or production of the 
 deeds, as well as to keep them in his possession until 
 his account is paid ; and he can assert this right as 
 against all persons who may subsequently become pur- 
 chasers or mortgagees of the land to which the deeds 
 relate (<?). But where a solicitor, who has a lien on his 
 client's title-deeds, is instructed to act for the client in 
 the matter of a sale proposed or agreed upon of the 
 land, to which the deeds relate, it is his duty, if he 
 intend to assert his lien as a bar to the production or 
 delivery of the deeds to the purchaser, to call his client's 
 attention thereto (,/'); and it is thought that if he should 
 omit to do this, he would be taken to have waived his 
 right to obstruct the sale by refusing to allow the pur- 
 chaser to inspect the deeds (g) . But it does not appear 
 that the mere omission of the solicitor to call his client's 
 attention to his lien before undertaking the business of 
 the sale, would prevent him from asserting his lien as a 
 bar to the delivery of the title-deeds to the purchaser 
 on completion (g) ; and if he should hand over the 
 
 gage or otherwise, is bound to 
 produce the lease in aid of the 
 lessor suing him on some cove- 
 nant contained therein ; Balls v. 
 Musgrave, 3 Beav. 448, 4 Beav. 
 119. 
 
 {d) Expte. Sterling, 16 Ves. 258 ; 
 Stevenson v. Blachlock, 1 M. & S. 
 535; Re Morris, 1908, 1 K. B. 
 473. 
 
 {e) Lord v. JFormleightoi/, Jac. 
 580, 582 ; Cottenham, C, Bozon 
 V. Bolland, 4 My. & Cr. 354, 358 ; 
 Sugden, Ir. C, Blundenv. Desart, 
 •I Dru. & War. 405, 418, 420, 
 421, 425-431 ; Frlh/ v. Wathm, 
 1 De G. M. & G. 16, 23; Re 
 FaUhfiill, L. R. 6 Eq. 325 ; Re 
 Biggs and Roche (1897), 41 Sol. J. 
 277; Vaughan Williams, L. J., 
 
 Re Hawkes, 1898, 2 Ch. 1, 24, 25 ; 
 Neville, J., Re Rapid Road Transit 
 Co., 1909, 1 Ch. 96,99 sq. 
 
 {/) Re Safety Explosives, Ltd., 
 19o4, 1 Ch.' 226, 231, 234, 235, 
 237, 238. 
 
 {g) This appears to follow from 
 the principles laid down in the 
 cases deciding that, where a soli- 
 citor, who has undertaken to act 
 for his client in some action or 
 proceeding, discharges himself 
 before it is completed, he must 
 give up all documents received 
 from his client in the course of 
 the proceedings to the new soli- 
 citor chosen by his client to be 
 inspected or produced for the 
 purposes of the proceedings, but 
 to be held by the new solicitor
 
 A GOOD TITLE AND ITS DISCHARGE. 129 
 
 deeds to the purchaser, without making any arrange- 
 ment with his client for satisfaction of what is due to 
 him out of the purchase money or otherwise, he would 
 lose all the benefit of his lien (/i). If a solicitor having Where the 
 a lien on the vendor's title-deeds agree to act for the f^^ both ^^^^ 
 purchaser as well as for the vendor in the matter of the vendor and 
 sale, it is thought that, unless he expressly reserve his 
 lien by agreement with the purchaser, he cannot assert 
 it in opposition to the duty, which he has undertaken on 
 the purchaser's behalf, of procuring inspection of the 
 deeds for verification of the abstract and delivery 
 thereof to the purchaser on completion (/). A solicitor's Solicitor's 
 lien cannot be asserted against any right to production ^'gngur^""' 
 or delivery up of the deeds which is paramount to his with his 
 client's right to withhold or retain them (/.•) . Thus if to withhold 
 title-deeds be in the possession of a mortgagee, whose *^^ deeds, 
 solicitors have them in their custody and so acquire a 
 lien thereon, they cannot withhold the deeds fi"om the 
 mortgagor claiming either to have the deeds delivered 
 up to him on payment of all moneys due under the 
 mortgage (/), or to inspect the deeds by vu'tue of his 
 right under the Conveyancing Act of 1881 (/«). So 
 where a mortgagor is allowed, to keep the title-deeds for 
 a while and his solicitor so acquires (since the mortgage) 
 a lien thereon, the solicitor cannot resist the mortgagee's 
 
 subject to the old solicitor's lien and Taylor, 10 Ch. D. 729 ; Mac- 
 
 thereon; Colegravr v. Mtaiki/, T. farlanc v. Lister, ST Ch.T). H8, 94; 
 
 & 11. 400 ; Ucslop V. Metcalfe, 8 Brunton v. Electrical Eiiginrcring 
 
 Sim. (522, 3 My. & Cr. 183, "iS'J ; Corpn., 1892, 1 Ch. 434, 439; all 
 
 (irijfil/is V. Griffiths, 2 Hare, 587, ca.see of solicitors acting both for 
 
 o9(t, o92 ; Rubins v. Goldinghain, mortgagor and mortgagee. 
 L. R 13 Eq. 442; lie Ilawkes, n\ i^i ^ n / .i r» <> 
 
 1898, 1 Ch. 1, 18-20, 20, 26 ; Re J^^ ^S'-"""' ^ ^Z ' P,^- ^ 
 
 RapU Road Transit Co., 1909, ^^i ^^'\^ ^^\^^l'^ /fJl' 
 
 1 A\ (>,• nn 1 i.-J Tt allien, 1 Do G. M. & G. 16, 
 
 1 Ch. 9l>, 99 see also the cases .,„ .,< » it ? lono .i f<\. 
 
 .. J • .V„ / „„„• ,,.^ t^^ 23, 24 ; Re Ilawkes, 1898, 2 Ch. 
 
 cited in the two previous notes. i 7 t? 
 
 (A) Re Safety Explosives, Ltd., ' ' ' ' 
 
 ubi sup. (0 Wakefield v. Neubon, 6 Q. B. 
 
 (i) Sec Hicks v. Keat, 3 Jur. 276; Re Lkwellin, 1891, 3 Ch. 
 
 1024 ; Re Moscli/, 1 ') W. R. 975 ; l^S, 
 Rfi Snell, 6 Ch. D. 105 ; Re Mason (m) Above, p. 125. 
 
 W. 9
 
 130 OF THE VENDOe's OBLIGATION TO SHOW 
 
 paramount right to recover possession of the deeds (n). 
 And the solicitor of a tenant for life in possession of 
 title-deeds cannot assert his lien thereon after his client's 
 death against the remaindernian claiming to have the 
 deeds delivered up to him (o). Also, if a solicitor have 
 a lien on his client's title-deeds, and the client subse- 
 quently make some sale or mortgage of the land with- 
 out disturbing the lien (the deeds remaining in the 
 solicitor's possession by virtue thereof ), the lien can only 
 be asserted as a security for costs incurred before the 
 date of the sale or mortgage, and not for any costs 
 afterwards incurred against the vendor or mortgagor (p). 
 
 Stamps. In connection with the production of the abstracted 
 
 documents, we may mention that the purchaser is 
 entitled to require that every document, on which the 
 proof of the title to the lands sold depends, shall be 
 so stamped, if necessary, as to be available as evidence 
 in a court of justice ; insufficiently stamped documents 
 not being, as a rule, receivable in e\idence except 
 on payment of a penalty {q). If therefore any such 
 document, which is required by law to be stamped, be 
 unstamped or insufficiently stamped, the vendor is 
 bound to procure it to be properly stamped at his own 
 expense ; and the pm-chaser should require him to do 
 so {r). In consequence of this liability, vendors often 
 specially stipulated, where necessary, that it should be 
 no objection to the title that any abstracted document 
 appeared to be unstamped or insufficiently stamped, and 
 that the purchaser should bear the expense of procm-ing 
 
 («) Smith V. Chichester, 2 Dru. c. 97, ss. 15 — 17, and 17 & 18 Vict. 
 
 & War. 393 ; Felly v. TFathen, 1 c. 125, ss. 28, 29 ; Sug. V. & P. 
 
 De G. M. & G. It). 566. 
 
 (o) Jjavies V. Vernon, 6 Q. B. (/•) Whiting to Loonies, 14 Ch. 
 
 443, 447. D. 822 ; 17 Cb. D. 10 ; lie Lovell 
 
 [p) Blunden v. Lesart, 2 Dru. and Collard''s Contract, 1907, 1 Ch. 
 
 & War. 405, 420, 421, 427-431. 249 ; above, p. 45 ; for a dis- 
 
 {q) See Stat. 54 & 55 Vict. c. 39, tinction, see Expte. Birkbeck Free- 
 
 88, 14, 15, replacing 33 & 34 Vict, hold Land Society, 24 Ch. P. 119.
 
 A GOOD TITLE AND ITS DISCHARGE. 131 
 
 any such document to be duly stamped. But it is now 
 enacted {s) that every condition of sale framed with the 
 view of precluding objection or requisition upon the 
 ground of absence or insufficiency of stamp upon any 
 instrument executed after the 16th day of May, 1888, 
 and every contract, an-angement, or undertaking for 
 assuming the liability on account of absence or insuffi- 
 ciency of stamp upon any such instrument or indemni- 
 fying against such liability, absence, or insufficiency, 
 shall be void. So that if any such special stipulation 
 be now made, it must be limited to instruments executed 
 before or on that day {t). Such stipulations should not 
 of course be made unless there be reason to suppose that 
 some document of title is insufficiently stamped. 
 
 With regard to tlie evidence necessary to prove the Evidence of 
 facts as distinct from the documents stated in an qq ^jeg 
 abstract, what a purchaser requires is testimony reduced 
 to writing so that it may be preserved as a muniment 
 of title. So far as the facts may be proved by written 
 evidence admissible in a court of justice, a purchaser is 
 entitled to call for such evidence, if it can be obtained. 
 But if none such can be procured, he must accept other 
 evidence such as it is the established practice to receive 
 on sales. For example, in the matters of pedigree, to 
 prove the facts of birth, marriage and death the pur- 
 chaser is in the first instance entitled to require certifi- 
 cates of baptism or birth, of marriage and of burial : 
 but if these cannot be found, the vendor may not only 
 have recourse to other evidence admissible in litigation, 
 as statements of deceased members of the family or 
 entries in a family Bible or register, but in default of 
 such testimony he may proffer statutory declarations of 
 living members of the family or even of strangers. 
 
 (») Stat. .')4 & .=>5 Viot. c. 39, (<) 1 Key & Elphinstone, Free. 
 
 8. 117, replaciug 51 & 52 Vict. Conv. 255, 263, 4th ed. ; 240, 
 c. 8, 8. 20. 251, Sth ed. ; see above, p. 78. 
 
 9(2)
 
 132 OF THE vendor's OBLIGATION TO SHOW 
 
 The written declaration of a living member of the 
 family as to a matter of pedigree may become good 
 evidence after his death, but is inadmissible in court in 
 his lifetime ; whilst the like declaration of a stranger 
 can never be evidence admissible in litigation (w) : but 
 on sales such declarations are nevertheless received (x). 
 
 Evidence that The purchaser is entitled, pursuant to his right to 
 whiclTwoiad^' I'sq^iii'e proof of all facts material to the title, to call 
 certainly have for evidence, not only that the events stated in the 
 title, did not abstract took place, but also that other events, of which 
 happen. . ^]^g occurrence must necessarily have affected the title, 
 I did not happen. That an event did not happen is in 
 many cases a matter of inference rather than of positive 
 proof : but if the event be such that its occurrence must 
 necessarily have rendered the title different from that 
 stated, the purchaser is entitled to require some evidence 
 from which its absence may reasonably be inferred. 
 For example, if it were stated in the abstract that A., 
 a former owner, died leaving B., his only sister, his 
 heiress-at-law, evidence must be given, not only that A. 
 died on the date specified, that his father died before 
 him, and that B. was the child of the same parents as 
 A., but also that A. died intestate, that he left no issue, 
 that he left no brother or any issue of any brother 
 surviving him and that he had no other sister. The 
 production of letters of administration is the evidence 
 usually required on sales in proof of intestacy ; facts 
 like the want of issue or the number of children born of 
 a marriage can only be inferred, after the death of the 
 husband and wife, from a declaration by some member 
 of the family or familiar friend that he never knew or 
 heard of there being any issue, or more than certain 
 specified children of the marriage ; and such declarations 
 
 («<) See Stephen, Evidence, (.r) Sug. V. & P. 418 ; 1 Dart, 
 
 Arts. 25, 31. V. & P. 347, 5th ed. ; 393, 6th 
 
 ed. ; 388, 7th ed.
 
 %» 
 
 A GOOD TITLE AND ITS DISCHARGE. 133 
 
 are the evidence usually obtained (//). So where title 
 was made under a voluntary settlement executed in 1845 
 on trust for the settlor for life and afterwards on trust 
 for sale, but with a power of revocation, and under a 
 conveyance after the settlor's death in execution of the 
 trust for sale, it was admitted that the purchaser was 
 entitled to proof, first, that the voluntary settlement 
 had not been avoided by a subsequent conveyance for 
 value, and secondly, that the power of revocation had 
 never been exercised. But it was held that, there 
 having been long possession in accordance with the 
 alleged title, sufficient evidence was afforded by a 
 declaration of the settlor's solicitor that he believed 
 that the property remained in the settlor's possession 
 till his death, and that he (the solicitor) had never 
 heard of an}' sale of the property or of any exercise of 
 the power of revocation (s). And it was further con- 
 sidered that, apart from this declaration, the necessary 
 evidence was afforded by a recital in the conveyance 
 made after the settlor's death that the property had 
 been sold by auction pursuant to the trust for sale ; the 
 truth of which the purchaser was bound to assume 
 under the stipulation making recitals in deeds twenty 
 years old prifnd facie evidence of the facts recited (rt^). 
 This case appears to show that, whenever a power of 
 appointment has been created, and title is deduced as 
 in default of appointment, the purchaser is entitled to 
 require evidence from which it may reasonably be 
 inferred that the power was never exercised. But 
 where the cesser of a power, as by the death of the 
 donee thereof, is clearly shown, long possession and 
 conveyance for value under the title in default of 
 
 {v) Sec Doe d.Bauiiiiiffv.GriJiti, (s) lie Marsh and Eurl Gran- 
 
 \h East, 293, 294, n. ; Greaves v. ville, 24 Ch. D. 11, 19. 
 Gremwond, 2 Ex. D. 289 ; Re (a) Re Marxh and Earl Gran- 
 
 Jackson, 1907, 2 Ch 354. rif/>, 24 Ch. D. 11, 19 : see below, 
 
 p. 136.
 
 134 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 appointment are of themselves facts raising a presump- 
 tion that the power was never exercised ; and it seems 
 that, in such circumstances, the purchaser must allow 
 due weight to this presumption, and cannot require 
 other evidence beyond what is in the vendor's posses- 
 sion or power or is afforded hy his statutory declara- 
 tion {b) . 
 
 Rule as to 
 presiimption.s 
 of fact. 
 
 Here we may state the general rule with respect to 
 presumptions of matters of fact on sales ; which is, that 
 the purchaser is bound to presume whatever a judge 
 would at law direct the jury to presume, but not 
 matters which the judge would leave to the jury to 
 pronounce on the effect of the evidence (c) . For 
 example, a pm'chaser may be required to presume, 
 after long possession of lands in accordance with the 
 beneficial title, that some bare legal estate, which was 
 previously outstanding and ought to have been assured 
 to the beneficiaries, was duly conveyed to them, although 
 no such conveyance can be found {d). But the Coui't 
 will not oblige a purchaser, who has notice of some 
 equitable incumbrance affecting the property sold, to 
 take a title depending on the fact that the vendor 
 bought without notice of such incumbrance (e). 
 
 Events of 
 which, the 
 happening 
 may or may 
 not have 
 affected the 
 title. 
 
 Besides events, which would certainly affect the 
 title, if they occurred, there are other events, the hap- 
 pening of which might or might not affect the title. 
 
 [b) 1 Dart, V. & P. 328, 329, 
 5th ed. ; 372, 373, 6th ed. ; 366, 
 367, 7th od. 
 
 (c) mihtry V. Walhr, 12 Ves. 
 239, 254, 270; Emery v. Grocock, 
 6 Madd. 54, 57 ; Sug. V. & P. 
 399 ; 1 Dart, V. & P. 327, 333, 
 5th ed. ; 371, 377, 6th ed. ; 365, 
 371, 7th ed. ; Fry, Sp. Perf. 
 §§ 890, 891. 
 
 {d) See England d. Syburn v. 
 Slade, 4 T. R. 682 ; Boe d. Bowcr- 
 
 vian V. Sybou)-),, 7 T. R. 2 ; Wihon 
 \. Allen, 1 J. & W. 611, 620; 
 Co-'ke V. Soltau, 2 S. & S. 15i ; 
 Clippens Oil Co. v. Edinburgh, ^-c. 
 Trustees, 1904, A. C. 64 ; and 
 cases cited in previous note ; 
 Taylor on Evidence, \\ 113-121, 
 5th ed. 
 
 {e) Freer v. Hesse, 4 De G. M. 
 <&: G. 495 ; Nottingham Patent 
 Brick and Tile Co. v. Butler, 16 
 Q. B. D. 778, 787, 789, 790.
 
 A GOOD TITLE AND ITS DISCHARGE. 135 
 
 An instance of this is the marriage of a vendor since 
 the convejance of the property to him or her, when a 
 marriage settlement may or may not have heen made, 
 and, if made, may or may not have affected tlie pro- 
 perty sold. It is conceived that the vendor is, as a 
 rule, bound to answer all questions relevant to the 
 abstracted title, that is, the title he is offering for 
 the purchaser's acceptance (,/') ; and he must therefore 
 answer the question whether a particular event, which 
 might or might not have affected the title, has hap- 
 pened. If the answer be that the event has not 
 happened, it does not appear that the purchaser can in 
 general require any further evidence : though it seems 
 he may call upon the vendor to make (at the pur- 
 chaser's expense, according to the present rule {[/) ) a 
 statutory declaration of the fact. If the vendor reply 
 that the event happened but did not affect the pro- 
 perty sold, the purchaser may require this statement to 
 be confirmed by the production of any evidence in the 
 vendor's possession or power, as well as to be embodied 
 in a statutory declaration : but he cannot, it seems, 
 insist on the production of other evidence (h). If the 
 
 (/) Sug-. V. & P. 415, 416; (above, pp. 110-112), it seems 
 1 Dart. V. & P. 328, 329, 5th ed. ; obvious that this is a coiTect 
 372, 373, 6th ed. ; 366, 36", 7th view. The vendor in delivering 
 ed. It is submitted that the case an abstract offers the abstracted 
 of He Ford and Hill, 10 Ch. D. title as a good title; and if it 
 365, contains nothing contrary to appears so to the piu'chaser's 
 this proposition. It was there advisers, it seeuLs not unreason- 
 held that a vendor is not bound able to preclude them from 
 to answer the requisition : Is requiring the vendor to set forth 
 there to the knowledge of the generally whatever else he may 
 vendor or his solicitor Huy settle- know about the title. But to 
 ment, deed, fact, oiiiissit)n or any require him to answer all ques- 
 immmbrance affecting the pi"o- tions relevant to the abstracted 
 perty not disclosed by the ab- title is an entirely different thing; 
 stract ? The Court considered that does not go beyond requiring 
 that such a requisition is in fact him to prove the title which he 
 an interrogatory searching into offers. 
 
 matters bovond the vendor's duty , % »i ,,,. 
 
 f n . , •• , •.. ■ •' {(i) Above, p. 116. 
 
 ot tunnshmg and verityiug an ^•" ^ 
 
 abstract of title. Considering the (//) 1 Dart, V. & P. 328, 329, 
 
 established practice of not ab- 5th ed. ; 372, 373, 6th ed. ; 366, 
 
 stracting purely equitable charges 367, 7th ed.
 
 136 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 purchaser be informed of the existence of a document, 
 such as a vendor's marriage settlement, which may or 
 may not affect the property sold, and is also told that it 
 did not affect the property sold, he is not fixed with 
 notice of any equitable interest created by the document 
 in the property sold («'). But as this is no protection 
 to the purchaser against any legal estate or interest 
 limited by such document in the property purchased, 
 he should of course require the document, if in the 
 vendor's possession or power, to be produced for his 
 solicitor's examination (k). 
 
 Expense of At common law the vendor was bound to procm'e at 
 
 facts ° ^i^ °^^ expense the evidence necessary to prove all the 
 
 facts stated in the abstract (/) : but under the Convey- 
 ancing Act, 1881 (m), the purchaser, in the absence of 
 stipulation to the contrary, has to bear the expenses of 
 searching for and procuring all such evidence, which is 
 not in the vendor's possession. As has been previously 
 remarked (><), this enactment does not discharge the 
 vendor from his obligation of procuring proper evidence 
 of the facts, if he have not any evidence in his possession ; 
 it merely exonerates him from the expense of so doing. 
 
 Recitals and There are, however, certain facts, of which a purchaser 
 doCTimentr^ is not entitled (except by special stipulation) to require 
 twenty years proof, unless he can show ground for discrediting the 
 statements in the abstract. Under the Vendor and 
 Purchaser Act, 1874 (o), it is a term of every contract 
 
 old. 
 
 (i) Jones v. Smith, 1 Ph. 244, 
 253 ; English and Scottish Mercan- 
 tile Investment Co. v. Brunton, 
 1892, 2 Q. B. 1, 700. 
 
 {k) 2 Dart, V. & P. 876, 6t.li 
 ed. ; 986, 6th ed. ; 895, 7th ed. 
 The purchaser cannot require an)' 
 
 abstract or copy of such document 
 to be made. 
 
 (0 Sug.V. A: P. 417, 420, 431. 
 
 {m) Stat. 44 & 45 Vict. c. 41, 
 s. 3 (6, 9). 
 
 {n) Above, p. 124. 
 
 (o) Stat. 37 & 38 Vict. c. 78, s. 2 (rule 2). It had been usual for 
 several years previously for vendors to make special stipulations to 
 the same effect: Juridical Society Papers, ii. 589 sq. ; 1 Davidson, 
 Prec. Couv. 556, 609, 4th ed. ; 1 Dart, V. & P. 147, 148, 5th ed. ;
 
 A GOOD TITLE AND ITS DISCHARGE. 137 
 
 of sale of land, in the absence of stipulation to the con- 
 trary, that recitals, statements and descriptions of facts, 
 matters and parties contained in deeds, instruments, 
 Acts of Parliament or statutory declarations twenty 
 years old at the date of the contract, shall, unless and 
 except so far as they shall be proved to be inaccurate, 
 be taken to be sufficient e\'idence of the truth of such 
 facts, matters and descriptions (p) . And by the Cuu- Recitals of 
 veyancing Act of 1881 {q), the purchaser is requii-ed to for'Sg part 
 
 Williams, Real Prop. 451, 13th ed. The old practice of conveyancers, 
 in the absence of special stipulation, was to dispense with evidence of 
 facts recited iu deeds upwards of thirty years old, when there had 
 been uninterrupted possession in accordance with the recitals, and 
 under the deeds containing them, and where there were corroborative 
 circumstances streugtheniug the presumption that the facts agreed 
 with the recitals: 1 Jarm. Couv. 3rd ed. by Sweet, 121 ; Coventry, 
 Conv. Ev. 317 ; see Fort v. Clarke, I Russ. (501. 
 
 {p) In Bolto)i V. London School Board, 7 Ch. D. 760, Malins, V.-C, 
 decided that a recital that ->'. Il'alker, a former owner of land con- 
 tracted to be Bold, was seised thereof in fee simple, contained iu a 
 deed dated twenty- five years before the contract, was by the above 
 enactment rendered evidence that .S'. U'ullar was so seised until the 
 contrary were shown by the purchii.-er, and that the vendors were 
 therefore discharged from the obligation of showing a forty years' 
 title. It is submitted that this decision is clearly wrong. First, the 
 law, as we have seen, allows a vendor to discharge his obligation of 
 showing a good title by proof of forty yeai-s' title, that is, of forty 
 years' seinin in fee by himself and his predecessors in title ; above, 
 p. 107. How can this obligation be possibly discharged by proof that 
 one of such predecessors was seised in fee twenty-five years before the 
 contract? Secondly, assuuiing that the recital must be accepted as 
 evidence of the fact stated, it apparently alleged nothing but a seisin 
 in fee and made no assertion that the land was free from incumbrances 
 (see Nott v. liiccurd, '22 Beav. 307). Mere seisin in fee is perfectly 
 compatible with the existence of a long term of years granted to other 
 persons at a nominal rent to secure either their beneficial occupation 
 or money advanced : and it seems that on this ground tlie purchaser 
 was plainly entitled to forty years' title, the very object of allowing 
 the investigation of title for forty years past being to enable the 
 purchaser to ascertain, on an inspection of all the transactions during 
 that period, that no incumbrances have been created which hinder the 
 vendor from conveying what he contracted to sell. Besides, no one 
 would contend that a vendor ehows a forty years' title if he begin the 
 abstract with a deed of conveyance, twenty-five years old, expressly 
 limiting the land to one of his predecessors iu fee ; and it seems utterly 
 absurd, if this be so, that a mere recital, iu the same deed, of the 
 grantor's seisin in fee should avail to deprive the purchaser of his 
 right to investigate the earlier title. In Itv U'alli.s and Grout' » Contract, 
 190(i, 2 Ch. 20G, 210, the reasons here given (as stated in the first 
 edition of this book, p. 109) were approved of by Swinfen Eady, J., 
 who expressed his concurrence iu the writer's conclusion. 
 
 ifj) Stat. 14 & 4j Vict. c. 41, s. 3 (3).
 
 138 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 of the title 
 prior to the 
 time for com- 
 menciug the 
 abstract. 
 
 assume, unless the contrary appear, that the recitals 
 contained in the abstracted instruments of any deed, 
 will or other document forming part of the title prior to 
 the time prescribed by law or stipulated for commence- 
 ment of title, are correct and give all the material 
 contents of the deed, will or other documents so recited, 
 and that every document so recited was duly executed 
 by all necessary parties and perfected, if and as re- 
 quired, by fine, recovery, acknowledgment, enrolment 
 or otherwise. 
 
 Recitals no 
 evidence as a 
 rule. 
 
 As a rule, recitals and other statements in deeds are 
 no evidence at all of the facts recited (r), and are only 
 available as evidence in courts of justice either by way 
 of estoppel at law (s) or as admissions (t) of a party (u) 
 who executed the deed (v). They may therefore be 
 evidence against but not for a party to the deed (,r). 
 But owing to the exceptional rule regarding the admis- 
 sion in evidence of statements made ante litem motam 
 by a deceased member of a family on matters of pedi- 
 gree, statements on such matters so made by way of 
 recital in a deed executed by such a person may be 
 Recital in a received in evidence after his death (i/) . The only 
 public statute i^gtance of a recital affording good evidence for all 
 purposes is a recital in a public (s) Act of Parliament. 
 
 (r) Bristow v. Cormican, 3 App. 
 Gas. 641, 653, 662. 
 
 (,s) Baker v. Dewei/, 1 B. & G. 
 704 ; Hardimj v. Amh/er, 3 M. & 
 W. 279 : and see 8 M. & W. 212. 
 This kind of estoppel by deed 
 has become comparatively unim- 
 portant since law and equity have 
 been administered in the same 
 Gourts under the Judicature Acts 
 of 1873-5, as there was no such 
 estoppel in Courts of Equity ; 
 Coppifi V. Coppin, 2 P. W. 291 ; 
 Wilxon V. KeatiiKj, 28 L. J. Ch. 
 895. 
 
 (t) Carpenter v. Bidler, S M. & 
 W. 209 ; Taylor, Evidence, §§ 84, 
 
 So, 653 sq., 5th ed. ; Stephen, 
 Evidence, Arts. 15 sq. 
 
 (h) Fort V. Clarke, 1 Russ. 601. 
 
 (y) Tall V. Owen, 4 T. & C. 192. 
 
 [x] Doe d. Pritchard v. Dodd, 2 
 Nev. & Man. 838, 845 ; Ee Hol- 
 land, I'dQ-l, 2 Gh. 360, 379, 380. 
 
 [y) Welcome v. Upton, 6 M. & 
 W. 536, 539 ; Doe d. Jenkins v. 
 navies, 10 Q. B. 314. 
 
 [z) A recital in a private Act 
 of Parliament is not, as a rule, 
 evidence of the fact recited : Brett 
 V. Beales, M. & M. 421 ; Beaufort 
 V. Smith, 4 Ex. 450 ; The Shrews- 
 bury Peerage, 7 H. L. G. 1 ; Cowell 
 V. Chambers, 21 Beav. 619.
 
 A GOOD TITLE AND ITS DISCHARGE. 139 
 
 This is held to be admissible, though not conclusive (a) 
 proof of the facts recited, on the ground that it is not 
 to be supposed that a statute, which is made by the 
 sovereign authority of the realm, would coutain an 
 untrue statement {b) . Statements of fact contained in Statements of 
 what are called public documents are admissible as documents, 
 evidence of the facts so stated ; and for this purpose 
 public documents are those made by some public officer 
 in pursuance of a judicial or (/«rt.s/- judicial duty to 
 inquire as to the facts and either for the purpose of the 
 public {(■) making use of and having access to the docu- 
 ments, or for the information of the Crown in some 
 matter which affects the property or revenues of the 
 Crown, and is thus a matter of public interest (d). 
 
 (a) jU. v. Greene, 6 A. & E, 548. not be made for the infurmation 
 
 (*) Co. Litt. \^ h, R. \. De of all the King's hubjccts, but 
 
 Berenger, 3 M. & S. 67, 69 ; It. v. may be public if made for the 
 
 Sutton, 4 M. A: S. -I'i'l, 542. use of some class of them ; see 
 
 (c) It appears that the officer Blackburn, L. A., 6Vm»7« v. F/we/rt, 
 need not be au officer of the 5 App. Cas. 623, 643, 644: Taylor, 
 Crown, and the ducument need E\-idence, jj 1429-1433, 5th ed. 
 
 [d) Roue V. Brenton, 8 B. i: C. 732, 743, 744 (caption of seisin to 
 the use of the Duke of Cornwall by persons assigned by fiim to do so 
 admitted on the ground of the interest of the Crown and therefore of 
 the public in the Duchy and its revenues) ; Evans v. Taijlur, 7 A. & E. 
 617 (statements contained in a survey, which was made under statu- 
 tory authority, but relating to matters outside the scope of the duty 
 of inquiry, rejected) ; Irish Society v. Bishop of Lerrrj, 12 CI. & Fin. 
 641, 668, 66y (entry in one of the books of the First Fruits Office 
 received) : Shrew-hiinj ricrage Case, 7 H. L. C. 1, 20, 21, 24, 25 (books 
 from the Heralds' College admissible, if containing information 
 obtained on the Heralds' visitations, but otherwise not ; see 5 App. 
 Cas. 644, 645) ; Queen's Proetor v. Fry, 4 P. D. 230 (records of mar- 
 riages and baptisms kept by order of the Government of India 
 receivable) ; Manchester Coijioralion v. Lyons, 22 Ch. D. 287, 299 
 (inquisition as to manorial rights directed to justices of the Duke of 
 Lancaster at a time when he had sovereign rights in the Duchy, 
 admitted) ; Sturla v. I-'reccia, .') App. Cas. 623, 643, 644 (statements as 
 to the place of birtli and the age of one Mangini contained in the 
 repoit of a committee of a public department ot a foreign state, 
 directed to inquire as to his fitness for a diplomatic post, rejected, 
 and a general rule laid down by Lord Blackbui-n) ; ^V<i7/ v. iJtvon- 
 shire, 8 App. Cas. 135, 183-186 (inquicitions on attainder and post 
 tnorti ni admitted, also the decree in a possessory suit in the Irish Court 
 of Chancery); Eians v. Merthyr Tydfil, ijr. Cuitncil, 1899, 1 Ch. 241, 
 25U, 252 (survey of Crown lands made in pursuance of a statutory 
 duty, admitted); Ly,ll v. Kmiady, 14 App. Cas. 437 (extracts from 
 parish registers kept under public authority in Scotland, received) ;
 
 140 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 Statutory- 
 declarations. 
 
 Recitals in 
 deeds of other 
 documents — 
 
 Statutory declarations of a member of the family as to 
 matters of pedigree are admissible in evidence after the 
 deponent's death, if they were made before any con- 
 troversy had arisen as to the facts deposed to (e). But 
 with this exception, statutorj^ declarations as to matters 
 of title are not admissible as evidence in litigation (./'), 
 unless against the deponent, or his privies in estate, 
 blood or law as an admission by liiin {;/), or after the 
 deponent's death as a statement (if so made) either 
 against his pecuniary or proprietary interest, or in 
 the course of his business or professional duty, or as 
 to public or general rights {//). A recital of a docu- 
 ment in a deed operates as an admission of the 
 existence and due execution of the recited document by 
 a party to the deed containing the recital, who has 
 executed and taken some benefit under the deed (i) : but 
 such a recital is not, generally speaking, any evidence 
 of the existence or executi(m of the recited document, 
 or of its contents, as against other persons (/.•) . And 
 
 Ite Goodiich, 1904, P. 138 (entry in a register of births made under 
 Stat. 6 & 7 Will. 4, c. 86, admitted as evidence uf the actual date of 
 birth); Mercer y. Borne, 1904, 2 Oh. 534, .511, 644-546; ISoo, 2 Ch. 
 538, 555-558, 561, 564, .,68 (reports made in 1610 by a surveyor by 
 order of the Lord Warden of the Cinque Ports as to repairs made 
 necessary to Walmer Castle by encroachments of the sea, and an 
 e.'-timate nuyle by King's engineer for reparation ol Walmer Castle, 
 all produced from the Record Office, and maps and plans prepared by 
 direciiuu oi the Board of Ordnance in 1641, lo44 and 1647 and pro- 
 duced from the War Office, rejected as having been made for private 
 information and temporary purposes ; cbart made bj^ a private person, 
 but in po^session of the Admiralty, rejected ; charts made by direction 
 of the Admiralty for the use of the navy aLd merchants, admitted ; 
 and Lord Blackburn's rule iu Sturla v. Freceia discussed) ; and see 
 Taylor, Evidence, §^ 1429-1433, oth ed ; Stephen, Evidence, Art. 34. 
 [e) Berkeley Peerage Case, 4 Evidence, Arts. 15, 16 
 
 Camp. 401 ; Reilly v. Fitzgerald, 
 Dru. 122 ; Gee v. Ward, 7 E. & B. 
 509 ; Shedden v. Patrtek, 2 Swa. 
 & Tr. 187 ; Sug. V. & P. 418 ; 
 Hubback, Ev. Succ. 68, 69 ; 
 Taylor, Evidence, ^§ 571 sq.,bth. 
 ed. : Stephen, Evidence, Art. 31. 
 
 (/) Hubback, Ev. Succ. 66, 
 67. 
 
 (g) Taylor, Evidence, §§ 653 
 *v/. ; 712 ><q., 5th ed. ; Stephen, 
 
 [h] Taylor, Evidence, !^\ 543 
 sq. ; 602 sq. ; 630 sq., 5th ed. ; 
 Stephen, Evidence, Arts. 25, 27, 
 28, 30. 
 
 (t) Burnett v. Lynch, 5 B. & C. 
 589, 601 ; Brvngloe v. Goodnon. 5 
 Bing. N. C. 738. 
 
 (k) Jlo/tltoii V. Edmonds, 1 De 
 O. E. & J. 246, 251 ; Burton, 
 Comp. pi. 480 ; lie Waiiis and 
 GrouCti Cuntract, 1906, 2 Ch. 206.
 
 A GOOD TITLE AND ITS DISCHARGE. 141 
 
 even against parties to tlie deed, the recital is not 
 evidence of any part of the contents of the recited 
 documents, beyond what is recited (/). But if it has Maybeevi- 
 been proved that a document recited in a deed has been document be 
 lost, the recital may be good secondary evidence of the ^''^'"• 
 lost document, when there has been long uninterrupted 
 possession in accordance therewith (ni). 
 
 Apart from the stipulation now incorporated in con- Recitals of 
 
 tracts as above mentioned (/<) by the Vendor and Pur- ^'^"ts do not 
 
 ^ -^ excuse vendor 
 
 chaser Act, 1874, and except so far as recitals or fiom proof, 
 statements are evidence admissible in litigation, the 
 vendor's obligation to furnish evidence of all facts 
 material to the title (o) is in no way discharged by 
 reason of any such facts being stated or recited in deeds 
 or other instruments appearing on the abstract (p). But 
 conveyancers can generall}' accept statutory declarations 
 made on some previous sale and produced by the vendor 
 from among the muniments of title as eWdence of the 
 facts deposed to therein ; as, if there be no reason to 
 suspect the authenticity of the declaration and the 
 facts asserted are such as are usually proved on sales 
 by statutory declaration, a new statutory declaration 
 would seldom afford better evidence than an old one. 
 And, as we have seen, in some eases an old statutory 
 declaration may have become good evidence through 
 the death of the deponent. 
 
 Now that the purchaser is, as a rule, boimd to pay Acceptance of 
 the expense of procuring all evidence necessary to verify evid^uce^ 
 the abstract but not in the vendor's possession (</', his 
 
 Sweet, 120 ; I Dart, V. & P. 328, 
 3th ed. ; 372, 6th ed. : 366, 7th 
 ed. ; Williams, Real Prop. 451, 
 13th ed. 
 
 {q) For mauj' years before the 
 comnieucoment oi the Convey- 
 ancing Act, 1881, it was usual 
 
 (^ 
 
 Gillett V. 
 
 Abbott 
 
 7 A. 
 
 & E. 
 
 783. 
 
 
 
 
 
 ("«) 
 
 Moid tun 
 
 V. Kdi 
 
 lOHli-s, 
 
 1 De 
 
 G. F. 
 
 k J. 246 
 
 •lirl. 
 
 
 
 {>>) 
 
 Above, p 
 
 136. 
 
 
 
 (0) 
 
 Above, p 
 
 11.3. 
 
 
 
 {P) 
 
 1 Jarm. 
 
 Couv. 
 
 3rd ed. by
 
 142 OF THE vendor's OBLIGATION TO SHOW 
 
 natural endeavour is to obtain satisfactory proof at the 
 least cost to himself. Hence it frequently happens in 
 practice that a purchaser accepts irregular evidence — 
 evidence which he could not be required to accept — to 
 save himself the expense of the regular mode of proof. 
 Grreat caution should always be observed in admitting 
 such proof. It is true that if any fact on which title 
 depends be established, the purchaser may suffer no 
 inconvenience from not having the regular convey- 
 ancing evidence in his possession. If he sell, the pur- 
 chaser from him will by the rule be at the cost of 
 procuring it. But if a fact admitted on irregular 
 evidence be not verifiable by regular evidence, the 
 purchaser may obviously find himself at serious dis- 
 advantage on a re-sale. As an example of the reception 
 of irregular evidence, where a man's death is the fact 
 to be proved, a purchaser may, it is conceived, usually 
 rest satisfied with production of the probate of his will 
 or of letters of administration to his effects (r), or even 
 of the receipts for succession duty paid as on his death. 
 Indirect evidence of this kind is often to be found in 
 the vendor's possession, and may save the expense of 
 getting a certificate. In this case it will be observed 
 that the fact of death is inferred, not only from the 
 presumption that things are rightly done (.s), biit also 
 from the fact that the survivors have done an act 
 against their own interest in paying death duty ; and 
 such payment and the granting of probate or admini- 
 stration are acts extraneous to the title. Again, the 
 presumption that things are rightly done is greatly 
 strengthened whenever valuable consideration has been 
 given on the faith of certain events having taken place. 
 
 for vendors to stipulate specially (/•) Coventry, Conveyancers' 
 
 that the purchaser should bear Evidence, 278, 279 ; Sug. V. & 
 
 this expense; Juridical Society P. 418. 
 
 Papers, ii. 589, o90 ; 1 Davidson, 
 
 Prec. Conv. o06, 555, 609, 4th ed. (*) Above, p. 118.
 
 A GOOD TITLE AND IT.S DISCHARGE. 143 
 
 Thus if the deatli of a joint mortgagee be stated, and it 
 appear that, on a subsequent transfer or purchase, a 
 conveyance has been accejited from tlie surviving mort- 
 gagees as having become entitled in consequence of his 
 death, it is hardly a rash assumption that the death 
 took place as alleged. But it would not be advisable 
 to dispense with proof of the alleged recent death of a 
 trustee merely because in a subsequent deed a new 
 trustee is appointed as upon his death. In this case no 
 act extraneous to the title has been done on the faith 
 of the event in question having occurred. 
 
 The extreme importance of the proper verification of Great import- 
 the abstract is too often overlooked. The abstract being verHicatiou of 
 the chief document delivered and the only document the abstract, 
 laid before and commented on by counsel, there is 
 always a certain danger of losing sight of the fact, that 
 the most perfect abstract is no evidence at all of title. It 
 is only when we turn away from the abstract to the 
 verification of it that the real proof of title begins. 
 The most severe scrutiny o f the abstract may be utterly 
 useless if the purchaser's advisers are lax in exacting 
 or examining the evidence in support of it. Extreme 
 care should therefore be observed in dispensing with 
 any of the evidence regularly necessary to verify the 
 abstract ; and if it be proposed to accept any irregular 
 or indirect evidence, the conveyancer should weigh well 
 the reasons why the same may be regarded as affording 
 substantial proof. 
 
 It seems needless but is really very necessary to point importance of 
 out that no part of the verification of the abstract is naliou"S\"he 
 more important than the examination of the title-deeds, title-deeds 
 This is especially the case at the present day, when abstract, 
 abstracts are constantly delivered, which have been 
 di-awn in the most slovenly and unskilled manner. 
 This fact enhances the necessity of Lord St. Leonards'
 
 144 
 
 OF THE VENDOE's OBLIGATION TO SHOW 
 
 emphatic warning, that the examination of the title- 
 deeds with the abstract should never be left to an in- 
 competent person (/). As Mr. Dart pointed out, it is 
 a duty requiring the most scrupulous care, the object 
 of the examination being four-fold : to ascertain, first, 
 that what has been abstracted is correctly abstracted ; 
 secondly, that what is omitted is clearly immaterial ; 
 thirdly, that all the documents are perfect as respects 
 execution, attestation, endorsed receipts, registration, 
 stamps, &c. ; and fourthly, that there are uo endorsed 
 notices, nor any circumstances attending the mode of exe- 
 cution or attestation, &c., which are calculated to excite 
 suspicion (ii). Every part of every document, especially 
 of a will, should be read through {.r) . And very par- 
 ticular attention should be given to the execution of 
 the documents ; for, as we have seen (//) , it is not 
 the practice on sales to require any other evidence of 
 the execution of the documents of title than is apparent 
 on the documents themselves. 
 
 Proof of 
 identity of 
 property. 
 
 Besides verifying the documents and facts stated in 
 the abstract, the vendor is bound, in the absence of 
 special stipulation, to prove the identity of the property 
 described in the contract for sale with that specified in 
 the title-deeds (s). The requisite evidence of iden- 
 tity is usually obtained from ancient plans, leases, ex- 
 tracts from parish and land-tax books, and statutory 
 declarations of old people (r^). It is, however, a com- 
 mon stipulation in contracts for sale of land that the 
 purchaser shall admit the identity of the property 
 purchased with that comprised in the muniments offered 
 by the vendor as the title to such property upon the 
 evidence afforded by a comparison of the descriptions 
 
 {t) Sug. V. &P. 411. 
 (m) 1 Dart, V. & P. 415, 5th ed. ; 
 480, 6th ed. ; 493, 7th ed. 
 {x) Ibid.; Sug. V. &P. 411. 
 
 (y) Above, p. 117. 
 (:) Above, p. 33. 
 (ffl) 1 Davidson, Prec. Conv. 
 557, 4th ed. ; 463, 5th ed.
 
 A GOOD TITLE AND ITS DISCHARGE. 145 
 
 contained in the particulars of sale and in the muni- 
 ments (6). This condition deprives the purchaser of 
 his right to require independent e\idence of identity : 
 but it does not exonerate the vendor from proving 
 identity as part of liis obligation to show a good title. 
 If therefore a comparison of the descriptions in the 
 title deeds with the description in the contract afford 
 no evidence that the property purchased is the same as 
 or is part of the property to which the deeds relate, the 
 vendor cannot force the title on the purchaser without 
 giving further evidence of identity (c). 
 
 It may be convenient to consider the various matters, Evidence of 
 of which proof is generally required on sales, in alpha- matters.*'' 
 betical order as follows : — 
 
 Achioidedgment of a deed by a married woman under Acknowledg- 
 stat. 3 & 4 Will. IV. c. 74 :— proved, if the deed °'^"*' 
 were executed before the 1st of January, 1883, by the 
 memorandum of acknowledgment in the proper form 
 endorsed on or written at the foot or in the margin of 
 the deed, and an office copy of the certificate of acknow- 
 ledgment {d), the filing of which was essential {e) ; if 
 the deed were executed on or after the 1st of January, 
 1883, by a memorandum only in the proper form en- 
 dorsed on or written at the foot of or in the margin of 
 the deed and purporting to bo signed by a person 
 authorized to take the acknowledgment ( /") . 
 
 (6)1 Davidson. Prec. Conv. (rf) Stats. 3 & 4\Vill. IV. c. 74, 
 
 610 and n., 4th ed. : 520, oth ed. ; as. 84—88 ; 4 & 5 Will. IV. c. 92. 
 
 1 Key & Elphinstone, Prec. Conv. as. 75 — 79, as to Ireland ; 45 & 46 
 
 262, 4th ed. ; 2-50. 8th ed. ; above Vict. c. 39, s. 7 (8). 
 
 ^^[c) ' Flower V. Hartopp, 6 Beav. . (/) "^""i^ ^- ^^'^''dcock, 7 Ex. 
 
 476; Curlififf V. Justin, 2 Dr. & ^'^*- 
 
 Sm. 129 ; and see Sug. V. & P. (/) Stat. 45 & 46 Vict. c. 39, 
 
 26; 1 Dart, V. & P. 153, 154, s. 7, and Rules thereunder; see 
 
 5th ed. ; 174, 175, 6th ed. ; 170, Williams'.s Conveyancing' Sta- 
 
 7th ed., and Chap. VI., below. tntes, 281, 477. 
 
 w. 10
 
 146 
 
 OF THE VENDOR S OBLIGATION TO SHOW 
 
 Act of Parlia- 
 ment. 
 
 Acf of Parh'nment. A public Act needs no proof, 
 the Court taking judicial notice of public Statutes {(j). 
 A private Act is proved by a copy thereof purporting 
 to be printed by the King's printers (//), or by a copy 
 thereof proved to have been examined with the Parlia- 
 ment Roll ii). 
 
 Award of 
 enfranchise- 
 ment. 
 
 Award of enfranchisement. If made under the Copy- 
 hold Act, 1858, proved by a copy thereof purporting to 
 be sealed or stamped with the seal of tlie Copyhold 
 Commissioners {h). If made under the Copyhold Act, 
 1887, proved in the same way or by a copy of the entry 
 directed to be made of the award in the court rolls of the 
 manor {!). The Copyhold Act, 1894 (m), repealed, with- 
 out re-enacting, the section of the Act of 1852 {n) which 
 made awards provable by such evidence in courts of 
 justice. But similar evidence of awards of enfranchise- 
 ment made under the Act of 1894 (o) would appear to 
 be receivable by conveyancers on a sale. 
 
 (g) R. V. Sutton, 4M.. & S. 532, 
 .542. 
 
 (A) Stat. 8 &9 Vict. c. 113, s. 3. 
 
 (i) Taylor on Evidence, § 1368, 
 vol. ii. p. 1315, 6th ed. ; and see 
 Coventry, Convevancers' Evi- 
 dence, 81 ; Burt. Comp. pi. 482 ; 
 above, p. 122. 
 
 (/.-) After the year 1882, the 
 Copyhold Commissioners were 
 stvled the Land Commissioners, 
 and on the 12th Aug-ust, 1889, 
 their powers and duties were 
 transferred to the Board of Agri- 
 culture ; stats. 45 & 46 Vict. 
 c. 38, s. 48 ; 52 & 53 Vict. c. 30, 
 s. 2. 
 
 (?) See stats. 15 & 16 Vict. 
 c. 51, s. 49 ; 21 & 22 Vict. c. 94, 
 s. 10 ; 50 & 51 Vict. c. 73, s. 22. 
 
 {m) Stat. 57 & 58 Vict. c. 46, 
 8. 100. 
 
 (w) Stat. 15 & 16 Vict. c. 51, 
 8. 49. 
 ' (o) Under this Act, 57 & 58 Vict. 
 c. 46, 8. 10 (1), (5), enfranchise- 
 ment is made by an award con- 
 
 firmed by the Board of Agricul- 
 ture, who are to send a copy of 
 the confirmed award sealed or 
 stamped with the seal of the 
 Board to the lord, and the lord is 
 to " cause the ^ opy to be entered 
 in the court rolls of the manor." 
 Under stat. 52 & 53 Vict. c. 30, 
 s. 7, every document piu-port- 
 ing to be an order, licence, or 
 other instrument issued by the 
 Board of Agriculture, and to be 
 sealed with the seal of the Board, 
 authenticated by the signature of 
 the president or some member of 
 the Board, or tlie secretary or 
 some person authorized by the 
 president to act on behalf of the 
 secretary, or purporting to be 
 signed by a secretary, or any 
 person authorized by the presi- 
 dent to act on behalf of the 
 secretary, shall be received in 
 evidence and be deemed to be 
 such order, licence or instru- 
 ment, vrithout further proof un- 
 less the contrary is shown.
 
 A GOOD TI'l'LE AND ITS DISCHARGE. 1*7 
 
 Award as to the inclosure of common lands made Awaxd of 
 under an Act incorporating the Inclosure Consolidation 
 Act, 1801, or other special Inclosure Act. Proved by a 
 copy or extract signed by the proper officer of the Court, 
 if the Award were enrolled in one of the Courts of 
 "Westminster, or, if the Award were enrolled with the 
 clerk of the peace for the county in which the lands lie, 
 by the clerk or his deputy, and purporting to be a true 
 copy(;j). 
 
 Award as to inclosure of common lands made under Award under 
 the General Inclosure Act, 1845. Proved by a copy inclosure Act. 
 purjDorting to be sealed with the seal of the Board of i'**'^- 
 Commissioners under the Act {q), or by a copy or extract 
 signed by the clerk of the peace of the county in which 
 the lands lie, or his deputy, purporting the same to be a 
 true copy (r). 
 
 Bankruptcy, proceedings in. Provable in litigation in Bankruptcy, 
 the same manner as other proceedings in Courts (q.r.), 
 and also by copies certified as required by the various 
 Bankruptcy Acts {s). Under the present Bankruptcy Act, 
 a receiving order or an adjudication of bankruptcy is 
 also conclusively proved by production of a copy of the 
 Loudon Gazette containing a notice thereof (/) ; the ap- 
 pointment of a trustee is proved by the certificate of 
 appointment {u) ; and the proceedings at a statutory 
 meeting of creditors are proved by a minute signed at 
 
 (p) Stata. 41 Geo. III. c. 109, note {k) to p. 146, above. 
 
 s. 35; 3 & 4 "Will. IV. c. 87, s. 2. (>) Stat. S & 9 Vict. c. 118. 
 
 [q) These Commissioners were ss. 2, 146. 
 
 first styled the Inclosure Com- (.«) Stats. 46 & 47 Vict. c. 52, 
 
 rais-sioners for England and ss. 134, 137 ; 32 & 33 Vict. c. 71, 
 
 Wales; after 1882 they were ss. 107—109; 24 & 25 Vict, 
 
 styled the Lund Commissioners; c. 134, ss. 203 sq. ; 12 & 13 Vict. 
 
 and on the 12th Aujfust, 1889, c. 106, ss. 232 sq.; 1 &- 2 Will, 
 
 their powers and duties were IV. c. 56, s. 29 ; 6 Geo. IV. c. 16, 
 
 transferred to the Board of Agri- a. 97. 
 
 culture; stats. 8 & 9 Vict. c. 118, [t) Stat. 46 & 47 Vict. c. 52. 
 
 8. 2 ; 45 & 46 Vict. c. 38, s. 48 ; s. 132. 
 
 52 & 53 Vict. c. 30, s. 2. See (m) Sect. 54 (4). 
 
 10(2)
 
 148 OF THE vendor's OBLIGATION TO SHOW 
 
 the same or the next meeting by a person describing 
 himself as or appearing to be the chairman of the meet- 
 ing at which the minute is signed (^). On sales, office 
 copies are accepted as evidence, whether receivable as 
 evidence in Coui't, or not {y). 
 
 Copyholds. Copi/hoMs, assurances of. The law regards the coui't 
 
 rolls of a manor as a public document (s), and so permits 
 entries therein to be proved either by production of the 
 rolls {a), by examined copies {h) or by copies signed by 
 the steward (c) , such as are always delivered to the 
 tenants on the completion of a transaction acknow- 
 ledging their title {d) . According to the strict rule of 
 the common law, the last-mentioned mode of proof was 
 incomplete without evidence of the steward's hand- 
 • writing, unless the copy were thirty years old at 
 
 least {e) and came fi-om the proper custody (_/'). But 
 entries in court rolls are provable under the Evidence 
 Act, 1851 {g), by copies purporting to be signed and 
 certified as true copies by the officer to whose custody 
 the originals are entrusted, that is, as a rule, the 
 steward. On sales of copyholds, the assurances entered 
 on the court rolls are usually proved by copies thereof 
 signed by the steward, and it is not the practice to 
 require any proof of the steward's handwriting {//), 
 copies purporting to be signed by the steward being 
 accepted as genuine, unless there be some reason for 
 
 (x) Stat. 46 & 47 Vict. c. 52, (d) WilHams, Real Prop. 375, 
 
 8. 133. 13th ed. ; 484, 21st ed. 
 
 {y) Sug. V. & P. 417 ; 1 Dart, (e) Above, p. 116. 
 
 V. & P. 318, 5th ed. ; 361, 6th (/) 1 Scriv. Cop. 591, 3rd ed. ; 
 
 ed. 2 Wat. Cop. 39, n., 4th ed. ; 
 
 (z) Taylor, Evidence, §§ 1433, TFi/nm' v. Tyrwhitt, 4 B. & Aid. 
 
 1438, 5th ed. 376. 
 
 {a) Doed. Bennington v. Hall, [g) Stat. 14 & 15 Vict. c. 99, 
 
 16 East, 208. s. 14 ; Taylor, Evidence, ^ 1437, 
 
 {b) Doe d. Caivthorn v. Mee, 4 1438, 5th ed. ; above, p. 122. 
 
 B. & Ad. 617 ; Doe d. Burrows v. [h) Su?. V. & P. 417 ; 1 Dart, 
 
 Freeman, 12M. &W. 844; Breeze V. & P. 310, 311, 5th ed. ; 351, 
 
 V. Hawker, 14 Sim. 350. 6th ed. ; 346, 347, 7th ed. 
 
 (c) 1 Scriv. Cop. 590, 3rd ed.
 
 A GOOD TITLE AND ITS DISCHAKGH. 149 
 
 suspecting their authenticity (/). A vendor of copy- 
 holds is as a rule bound to procure proper copies of 
 court roll signed by the steward for verification of the 
 abstract ; he cannot require the vendor to go and com- 
 pare the abstract with the original rolls (/r) : but, under 
 the Conveyancing Act, 1881 (/), the purchaser will be 
 obliged to pay the expense of obtaining such copies, if 
 not in the vendor's possession. 
 
 Coiiru of jHsticp, records and procpedinr/s of. As a Courts, pro- 
 rule, these are provable in litigation (1) by production ^^^ ^gso . 
 of the original, which is usually inconvenient ; or (2) 
 by an exemplification, or its equivalent ; or (3) by an 
 examined copy (m). As we have seen (m), a copy made 
 by an officer of the Court bound hy law to mahe it is 
 equivalent to an exemplification : whilst office copies, or Office copies, 
 copies made by an officer of the Court who is autho- 
 rised by rule of Court hut not required hy law to make 
 them, are not at common law equivalent to an exem- 
 plification, save in the same Court and cause, in which 
 the proceeding occm-red («). But office copies of all 
 writs, records, pleadings and documents filed in the 
 High Court of Justice are admissible in evidence to the 
 same extent as the original (o). Besides the above 
 modes of proof, there are various particular cases in 
 which the proceedings of Courts are by Statute provable 
 in litigation by copies certified as required by the 
 Act (p). For example, proceedings in bankruptcy (q) 
 
 (»■) See above, p. 118. (/) Stat. 44 & 45 Vict. c. 41, 
 
 8. 3 (6). 
 
 (^•j Sug. V. & P. 431 ; 1 Dart, (w) Above, p. 122. 
 
 V. & P. 311, oth ed. ; 3.52, 6th (n) Taylor, Evidence, ^i 1378— 
 
 ed. ; 347, 7th ed., where it is sub- 1391, othed.; Stephen, Evidence, 
 
 mitted that the vendor will dis- Art. 78 
 
 charge his oblifjation, if he can (o) R. S. C. 1883, Order 37, 
 
 pntduce the original rolls at the rule 4. 
 
 proper place for verification of [p, Taylor, Evidence, §5 1391 
 
 the abstract, and satisfactorily sq , 1440, oth ed. ; Stephen, Evi- 
 
 account for the absence of the dence, Art. 79 ; above, p. 122. 
 
 copies of court roll from time to {q) Stat. 46 & 47 Vict. c. 52, 
 
 time delivered to the tenants. s. 134.
 
 150 OF THE VENDOe's OBLIGATION TO SHOW 
 
 and orders in lunacy (r) are now provable in this 
 way. And under the Evidence Act, 1851 (.s), the pro- 
 ceedings of courts of justice not provable by copies 
 under any other Statute appear to be provable by certi- 
 fied copies (f). The records of the Courts deposited in 
 the Record Office are also provable as records under the 
 charge of the Master of the Rolls {u) . On sales, how- 
 ever, the practice is to accept office copies as evidence, 
 whether the same would be receivable in evidence on 
 litigation or not (x) . 
 
 Crown grauts. Croicti grants are proved by production of the original 
 under the great seal, the privy seal or the roj^al feign 
 manual ; but as they are matters of public record, they 
 are also provable by exemplifications or examined 
 copies {i/), or under the Evidence Act, 1851, by certified 
 copies (z). But on sales, if the original be not forth- 
 coming, it seems that the purchaser cannot require the 
 vendor to furnish him with a copy in accordance with 
 the general rule {a), but must examine the enrolment at 
 his own expense {b). 
 
 Deeds. Deeds and private writings are, as we have seen {c), 
 
 primarily proved on sales by production of the originals, 
 and proof of execution or signature is not usually re- 
 Missing quired. If any such document, which ought to be 
 produced, be missing, its destruction or loss must be 
 proved, either by evidence of actual destruction, or by 
 
 {r) Stat. .53 Vict. c. 5, s. 144. lor, Evideuce, § 1371, p. 1316, 
 
 (s) Stat. 14 & lo Vict. c. 99, 5th ed. ; above, p. 122. 
 
 s. 14 ; above, p. 122. (;) i Dart, V. & P. 315, 5th ed. ; 
 
 {t) Reeve v. Hodson, 10 Hare, 361,6th ed. ; 357, 7th ed.; above, 
 
 App. xix. p. 122. 
 
 (u) See below; Taylor, Evi- , \ \u di 
 
 deuce, §§ 1337, 1338, 1377, 5th ed. (") ^^^"'^^ P" ^-^■ 
 
 {x) Sug. V. & P. 417 ; 1 Dart, (*) Sug. V. .Sc P. 431 ; 1 Dart, 
 
 V. & P. 318, 5th ed. ; 361, 6th ^- & P. 316, 5th ed. ; 359, 6th 
 
 ed. ; 1 Davidson, Prec. Con v. ed. ; 354, 7th ed. ; 1 Davidson, 
 
 652, 4th ed. ; 459, 5th ed. Prec. Conv. 531, 4th ed. 
 
 (y) 2 Black. Comm. 346 ; Tay- [c) Above, p. 116.
 
 A GOOD TITLE AND ITS DISCHARGE. 161 
 
 showing that search has heen made for it without result 
 in all places where it is reasonably likely to have been 
 deposited. If its destruction or loss be so established, 
 secondary evidence may be given of its contents (d), 
 such as a counterpart, draft, copy or abstract thereof 
 proved to be correct (e), or a recital thereof in a subse- 
 quent instrument (_/') : but in such case the execution of 
 the missing document must be duly proved (g). A 
 missing document will be presumed to have been duly 
 stamped, in the absence of anything to show the con- 
 trary (h) . 
 
 Enrobnp)it. The proper evidence of the enrolment of Enrolment, 
 any document required by Statute to be enrolled, as 
 deeds of bargain and sale of any estate of inheritance 
 in lands (/), conveyances to charitable uses {!:) and 
 disentailing assurances (/), depends generally on the 
 terms of the particular Act. But where it is the 
 practice to deliver back the original deed to the parties 
 from the enrolment office with a memorandum of the 
 enrolment endorsed thereon, and purporting to be made 
 by the proper officer, and it is his duty to make the 
 memorandum, such memorandum is at common law 
 
 {d) Hart v. Hart, 1 Hare. 1 ; Ross, 7 M. & W. 102 ; Taylor, 
 
 Fitzwalter Peerage, 10 CI. & Fin. Evidence, § 495, 5th ed. ; Stephen, 
 
 94f>, 952-3 ; Green v. Bailey, 15 Evidence, Art. 70. 
 
 Sim. 542; Iticfiardti v. Lewis, 11 (J) Above, p. 141; Alexander 
 
 C. B. 1035 ; R. v. Safron Hi!/, 1 v. Crosby, 1 J. & L. 066. 
 
 E. & B. 93 ; Moiilton v. Eflnioiids, {g) Bryant v. Busk, 4 Russ. 1 ; 
 
 1 De G. F. & J. 24G, 251 ; Tay- see also the authorities cited in 
 
 lor. Evidence, §§ 398, 399, 5th ed. ; note (rf), above. Execution may 
 
 Sujr. V. & P. 437, 438 ; 1 Dart, be presumed after along lapse of 
 
 V. & P. 142. 312, 5th ed. ; 159, time ; MohHoh v. Edmonds, 1 De 
 
 353, 6th ed. ; 155, 349, 7th ed. ; G. F. & J. 246. 
 
 I Davidson, Prec. Conv. 551, (/,) ji^rt v. Hart, 1 Hare, 1 ; 
 
 4th ed. Taylor, Evidence, \ 127, 5th ed. 
 
 (r) In litigation, when secondary i\ a*, t. .>7 xj xryrr ic 
 
 •J e .\ i i. r J («) Stat. 27 Hen. VIII. c. 16. 
 
 evidence of the contents of a docu- ^' 
 
 mentis admitted, there is no qucs- (^'O Stat. 51 & 52 Vict. c. 42, 
 
 tion whether any particular kind s- 4, replaciDg: 9 Geo. II. c. 36, 
 
 of secondarj' evidence is better an<l amended by 54 & 55 Vict, 
 
 than another, and recourse may c. 73. 
 
 be had at once to oral evidence (/) Stat. 3 «S: 4 Will. IV. c. 74, 
 
 of the contents : Loe d. Gilbert v. a. 41.
 
 152 OF THE vendor's ohligation to show 
 
 sufficient evidence of the enrolment, without proof of 
 the officer's signature or official character (m). This is 
 the case with respect both to deeds of bargain and sale 
 enrolled (n) and conveyances to charitable uses (o). And 
 by a Statute of 1849 {p) it was provided that all deeds 
 enrolled in the Petty Bag Office or in the Enrolment 
 Office in Chancery (which include conveyances to 
 charitable uses and disentailing assurances) should be 
 endorsed with a certificate of enrolment under the seal 
 of the office, and that such certificate should be suffi- 
 cient prima facie evidence of the enrolment, and the 
 time thereof. Since the 6th of April, 1880, the Enrol- 
 ment Department of the Central Office has been the 
 place of enrolment of all deeds which by any statute or 
 statutory rule are directed or permitted to be enrolled 
 in any of the Courts whose jurisdiction has been trans- 
 ferred to the High Court of Justice ; and certificates 
 appearing to be sealed with a seal of the Central Office 
 shall be presumed to have issued from the Central 
 Office, and may be received in evidence without fiu-ther 
 proof of authenticity (q) . 
 
 Exchange or Exchange or partition, order qf\ under the luclosure 
 
 order of°' -^^^j 1845, and amending Acts (;•), proved by a copy 
 
 of the order under the seal of the Commissioners or the 
 
 Board of Agriculture, according to the date of the 
 
 order (s). 
 
 (ot) Boc v. Lloyd, 1 Man. & Gr. rr. 45, 46. 
 
 671, 684-5; Taylor, Evidence, (r) See stats. 8 & 9 Vict. o. US, 
 
 § 1462, 5th ed. ss. 147, 150; 9 & 10 Vict. c. 70, 
 
 {n) Taylor, Evidence. § 1462, ss. 9—11 : 10 & 11 Vict. c. Ill, 
 
 othed. 88. 4, 6; 11 & 12 Vict. c. 99, 
 
 (o) Doe V. Lloyd, ubi sup. ss. 13, 14 (partition) ; 12 & 13 
 
 [p] Stat. 12 & 13 Vict. c. 109, Vict. c. 83, ss 7, 11 ; 15 & 16 
 
 ss. 12, 18, repealed with exten- Vict. c. 79, ss. 31, 32; 17 & 18 
 
 give savings (see Sayer.s v. Collycr, Vict. c. 97, s. 5 ; 20 & 21 Vict. 
 
 28 Ch. D. 103, 107 ; Re B., 1906. c. 31, ss. 4—11 ; 22 & 23 Vict. 
 
 1 Ch. 730) by 56 & ^7 Vict. c. 54. c. 43, ss. 10, 11 ; 39 & 40 Vict. 
 
 [q] R. S. C. 1883, rr. 7, 9, c. 56, s. 33. 
 
 replacing R. S. C. AprU, 1880, (s) See above, p. 147, n. {q).
 
 A GOOD TITLE AND ITS DISCHARGE. 153 
 
 Fine : — proved (1) by the chirograph, that is, the in- Fine, 
 dentures which were made recording the transaction 
 and which it was the duty of the proper officer to 
 deliver to the parties (f) ; (2) by an exemplification ; 
 (3) by an examined copy {u) ; (4) as a record under the 
 charge of the Master of the Rolls (.r) . Conveyancers 
 usually received office extracts as evidence (//). 
 
 Lease for a year made for giving effect to a release Lease for 
 executed before the 15th of May, 1841 :— proved, ^y^^'"- 
 without giving any evidence of loss, by the recital or 
 mention thereof in the release (s) . 
 
 Pedigree^ matters of. The regular conveyancing evi- Pedigree ; 
 dence that a child was bom of certain parents is a 
 certificate of baptism {n), that is, a certified extract 
 fi'om the parochial register {h). But a certificate of 
 birth, which is a certified extract from the general 
 register of births {<•), is equally good (r/). A certificate Age. 
 of baptism affords no exact evidence of a child's age, 
 beyond that the child was bom before the date of the 
 certificate : but the Coui't, in pedigree cases, may look 
 at the statements contained in such certificates, and 
 weigh them in connection with other evidence {e). A 
 
 {t) Black. Conuu. '296, 351; oth ed. ; iiob, 6th ed. 
 
 Taylor, Evidence, § 1384, 5th ed. ; [a) Coventry, Conveyancers' 
 
 Appleton V. lirayhrook, G M. ic S. Evidence, 278 ; Sug. V. & P. 
 
 34, 37, 38. 415; 1 Dart, V. & P. 346, 347, 
 
 (it) Burt. Comp. pi. 487. 5th ed. ; 392, 6th ed. ; 386, 7th 
 
 [x) See below : Taylor, Evi- ed. 
 
 dence, ^§ 1338, 1377, 5th ed. [b) See Taylor, Evidence, §^ 
 
 (y) Burt. Comp. pi. 489 ; Sug. 1436-8, pp. 1369-71, oth ed. 
 
 V. & P. 414; 1 Dart, V. & P. {c) Established by stat. 6 A: 7 
 
 315, 5th ed. ; 356, 6th od. ; 352, Will. IV. c. 86, amended by 
 
 7th ed. 7 Will. IV. & 1 Vict. c. 22. 
 
 (s) Stat. 4 & 5 Vict. e. 21, s. 2. and 37 & 38 Vict. c. 88. 
 
 This Act was repealed by stat. ,rf) Above, pp. 139, u. {d), and 
 
 37 & 38 Vict. c. 96. but with such 154,n.(/). below: 1 Dart. V. A: P. 
 
 extensive .savings that the rule 346, 347, 5th ed. ; 392, 6th ed. ; 
 
 enacted by s. 2 seems to be pre- 386, 7th ed. 
 
 served, see Hat/rrs v. Collyr, 28 ^r) Re Ttirmr, 29 Ch. D. 985, 
 
 Ch. D. 103, 107: Re R.', 1906, 991-2; Taylor, Evidence, ^s 1577, 
 
 1 Ch. 730; Dart, V. & P. 314, 5th ed.
 
 154 OF THE vendor's OBLIGATION TO SHOW 
 
 certificate of birth, however, is evidence of the date as 
 stated therein as well as of the fact of birth (/). 
 
 Marriage. Marriage is regularly proved by a certificate of marriage 
 extracted from the parochial or general register ; and 
 
 Death. death by a certificate of burial (r/). And it is doubtful 
 
 whether a purchaser would be compelled to accept a 
 certificate of death as evidence of that fact, unless good 
 reason were given for not producing a certificate of 
 burial (A). Here we may observe that when the facts 
 of birth, marriage or death have to be proved to the 
 Court on such occasions as the payment of money out 
 of Court, the necessary certificates must be accompanied 
 by affidavits as to the identity of the parties named in 
 the certificates (/) : but it is not the practice to require 
 similar evidence of identity on sales, unless the identity 
 be not apparent on the face of the certificate (/.•) . 
 Extracts from non-parochial registers of birth, baptism, 
 marriage or death, as those kept in dissenting commu- 
 nities, have long been received by conveyancers as 
 evidence (/) ; and extracts from certain non-parochial 
 registers deposited with the Registrar- General are now 
 
 (/) iJ. V. Weaver, L.Ti. 2 C.G. («) Dan. Ch. Pr. 591, u. (y), 
 
 R. 85; Re Goodrich, 1904, P. 6th ed. ; Seton on Judgments, 154, 
 
 138. 6th ed. But at law such certifi- 
 
 (ff) Coventry, Conveyancer.s' cates may be put iu evidence 
 
 Evidence, 278 ; Sug. V. & P. without proof of identity, the 
 
 415; 1 Dart, V. & P. 346, 347, question of identity being for the 
 
 5th ed. ; 392, 6th ed. ; 386, 7th jury ; Hubbard v. Lees, L. R. I 
 
 ed. ; 1 Davidson, Prec. Conv. Ex. 255, 257. 
 
 553, 4th ed. [k) Coventry, Conveyancers' 
 
 (A) 1 Dart, V. & P. 347, oth Evidence, 278 ; and see Sug. 
 
 ed. ; 392, 6th ed. ; 386, 7th ed. V. & P. 417. From what is said 
 
 In proceedings to obtain payment in 1 Dart, V. & P. 346, 5th ed. ; 
 
 of money out of Court, if it bo 392, 6th ed. ; 386, 7th ed., and 1 
 
 sought to prove death by a certi- Davidson. Prec. Conv. 553, 4th 
 
 ficate of death and affidavit of ed., 460, 5th ed., one would 
 
 identity, the Court will I'equirj gather that evidence of identity 
 
 proof of burial as well ; JUielci/ v. was usually required : bat it is 
 
 Shephard, W. N. 1873, p. 150 ; submitted that on sales the prac- 
 
 21 W. R. 782. There are pre- tice is as above stated, 
 
 vious conflicting decisions; Leach (!) Sug. V. & P. 418 ; 1 Dart, 
 
 V. Leach, 8 Jur. 211; contra, V. & P. 346, 347, 5th ed. ; 392, 
 
 FarkinsoH v. Francis, 15 Sim. 160. 6th ed. ; 386, 7th ed.
 
 A GOOD TITLE AND ITS DISCHARGE. * 1^5 
 
 available as evidence in litigation (m). As we have 
 seen («), in the absence of the regular formal evidence 
 of these facts, recourse is had to other means of proof ; 
 preferably, of course, to evidence admissible in litiga- 
 tion, such as the declarations of deceased members of 
 the family (o), but in defaidt thereof, to statutory 
 declarations of living members of the family and even 
 of strangers. 
 
 Where no evidence at all can be furnished in some Presumptiou 
 
 , , n 1 • i_ 1 J i. SIS between 
 
 matter or pedigree, recourse may be had to presump- vendor and 
 tion, but the conveyancer must bear in mind that the purchaser. 
 rules which govern the presumption of marriage, legiti- 
 macy or death as between adverse litigants claiming 
 some property by title of inheritance or otherwise, do 
 not strictly apply as between vendor andpm"chaser {p). 
 In litigation of this kind the contest is whether of the 
 two parties can show the better right, and if the plaintiff 
 can show a better title than the defendant (or vice vcr.'su), 
 he may be entitled to succeed, notwithstanding that 
 there may be some third pai'ty entitled to take in priority 
 to both of them. But the title which a vendor of laud 
 is bound to show, at least under an open contract, is a 
 title good against all other persons (q) . The purchaser 
 is therefore always entitled to proof of all matters of 
 fact, which are part of or affect the title (/•) ; and the 
 vendor cannot absolve himself from the obligation of 
 producing such evidence on the plea that, if the parties 
 were engaged in litigation to obtain possession of the 
 propeity sold, there would be a presumption dispensing 
 
 {m) See stat. 3 & 4 Vict. c. 92, 6th ed. ; 376-386, 7th ed. 
 
 amended by '11 & 22 Vict. c. 25 ; {p) Seo Siig. V. & P. 418, 421, 
 
 Taylor, Evidence. ^ 1354, 5th ed. also 404; I Dart, V. & P. 336, 
 
 (n) Above, p. 131. 338, 340, 343, 5th ed. ; 381, 383, 
 
 (o) As to the evidence admis- 385, 389, 6th ed. ; 376, 378, 380, 
 
 sible in matters of pedigree, ser 383, 7th ed. 
 
 Taylor. Evidence, j^^ 571 v/., (y) See previous note. 
 
 pp. 569 sq., 5th ed. ; Stephen, (>) I Dart, V. & P. 328, 5th 
 
 Evidence. Art. 31 ; 1 Dart, V. & ed. ; 372, 6th ed. ; 368, 7th ed. 
 
 P. 336-351, 5th ed. ; 381-397,
 
 156 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 No presump- 
 tion of death 
 as between 
 vendor and 
 purchaser. 
 
 the vendor from proving the point at issue affirmatively. 
 Besides, the rule of equity is that the vendor cannot en- 
 force specific performance of the contract where the title 
 shown is too doubtful in respect of some fact on which 
 its validity depends (.s). And even by the rule of law, 
 where the title depends on some fact, the fact must be 
 proved with reasonable certainty {f). No doubt it is 
 true that in some cases a purchaser is obliged to accept 
 what are called presumptions of fact : but these pre- 
 sumptions are really inferences or conclusions to be 
 drawn from certain evidence produced (?/), and not such 
 presumptions as absolve one party to an action from 
 giving any proof at all. And it is thought that the 
 only rule which binds a purchaser as to these so-called 
 presumptions of fact is that already stated, namely, 
 that he must presume whatever a judge would at law 
 direct a jury to presume, but cannot be required to 
 presume any matter which the judge would leave to the 
 jury to pronounce on the effect of the evidence (.r). As 
 regards death especially, where the title to land sold 
 depends upon the fact of a death having occurred, and 
 no evidence of the death can be procured, no legal pre- 
 sumption arises, in favour of the vendor and as against 
 the purchaser, from the fact that the person, whose 
 death is required to be established, has not been heard 
 of for the last seven years or longer by those with whom 
 he would naturally have communicated if alive {//). 
 
 (.«) See below, Chap. XIX. § 3. L. R. 7 Ex. 313 ; Sug. V. & P. 
 
 (/) See Jeakes v. TFhitc, 6 Ex. 400, 405. 
 873 ; Simmons V. Heseltine, 5 C. B. («) See note {y), at end. 
 
 N. S. 554, 571 ; Olarkev. Willott, [x) Above, p. 134. 
 
 ((/) Coventry, Conveyancers' Evidence, 286; Sug. V. & P. 418; 
 1 i)art, V. & P. 340, 5th ed. ; 385, 6th ed. ; 380, 7th ed. As 
 between adverse litigants for the possession of property or in respect 
 of other matters, there is a presumption of law that a person is dead 
 when he has not been heard of for seven 3'^ears by those with whom 
 he would naturally have communicated, if alive, unless the circum- 
 stances be such as to account for the absence of communication 
 without presuming death : but no presumption of law arises with 
 respect to the time of such death [i.e., that he died at any particular
 
 A GOOD TITLE AND ITS DISCHARGE. 157 
 
 As between adverse litigants, the presumptions as to Presumption 
 marriage and legitimacy are these : —When a man and ° ™arnage. 
 a woman have lived together as and with the reputation 
 of being man and wife, it is presumed (unless the con- 
 trary be shown) that they were lawfully married and 
 not living in a state of concubinage {z) . And where it 
 is established that a marriage ceremony took place, the 
 like presumption arises in favour of the existence of 
 every circumstance necessary to its validity {//). There Presumption 
 is also a presumption that every child born in wedlock — or patemity. 
 that is, at any time during the continuance of the 
 marriage between its parents, no matter how soon after 
 the marriage ceremony (h) — is the child of the husband: 
 
 moment of time during those years) ; and where a person has disap- 
 peared and has not been heard of for less than seven years, no 
 presumption of law arises that he has since continued to live : Nepean v. 
 Doe, 2 M. & W. 894 : R. v. Lumley. L. R. 1 C. C. R. 196 ; Rr PhenPs 
 Trmt, L. R. 5 Ch. 139 ; Re Lewes' Trusts, L. R. 6 Ch. 356 ; Rr Rhodes, 
 36 Ch. D. 586 ; Re Aldersey, 1905, 2 Ch. 181 ; Stephen, Evidence, 
 Art. 99 : see also Prudential Assurance Co. v. Edmonds, 2 App. Cas. 487. 
 Also, when two or more persons meet their death in some common 
 calamity (such as a shipwreck or a massacre) , there is no presumption 
 of law arising from age or sex that any one of them survived the other 
 or others, neither is there any presiunptiou of law that they died at the 
 same time : Underwood v. Wing, 4 De G. M. & G. 633 ; Wing v. 
 Angrave, 8 H. L. C. 183 ; Re Alston, 1892, P. 142 ; Re Beynon, 1901, 
 P. 141. And there is no presumption of law that a person, who is 
 dead, left no issue : Re Jackmn, 1907. 2 Ch. 354. XSS. the above- 
 mentioned matters, as to which no presumption of law arises, must be 
 proved positively : but the jury or other proper tribunal, to determine 
 questions of fact, may draw an inference (often stN'led a presumption) 
 of fact in respect thereof, if evidence sufficient to warrant such 
 inference be submitted ; see the cases above cited. So also where a 
 man has disappeared in circumstances which make it likely that he 
 has met his death, an inference of fact may be drawn that he is dead, 
 notwithstanding that a far shorter .space of time than seven years has 
 elapsed since his disappearance : Sillick v. Booth, 1 Y. & C. C. C. 117; 
 Re Beiisney's Trusts, L. R. 7 Eq. 498 ; Hickman v. Upsall, L. R. 20 Eq. 
 136 ; Re Alston, ubi sup. ; lii Matthews, 1898, P. 17 ; cf. Ommaney v. 
 Stilwell, 23 Beav. 328. As to the difference between presiimptions of 
 law and of fact, see Taylor. Evidence. §§61, 62, 94-97, 169-171, 
 oth ed. ; Stephen, Evidence, Art. 1 and note 1. 
 
 (z) Piers v. Piers, 2 H. L. C. note : Harrison v. Southampton 
 331, 362-364, 370, 371, 379, 380; Corim., 4 De G. M. & G. 137; 
 Brcadalbane Case, L. R. 1 Sc. Wastry Vthiidcr Aroncgary v. 
 App. 182, 199, 200 ; Lyle v. Setnbecntty Vaigalie, 6 App. Ca**. 
 EUwood, L. R. 19 Eq. 98, 107 ; 364. 
 Re Shephard, 1904, 1 Ch. 466. (A) Co. Litt. 244 a ; PouUtt 
 
 (a) See cases cited in previous Peerage, 1903, A. C. 395, 398.
 
 158 OF THE vendor's OBLIGATION TO SHOW 
 
 but this presumption may be rebutted by evidence that 
 the husband and wife have not had sexual intercourse 
 within such period previous to the child's birth as would 
 be necessar}^ to produce the gestation in question {c). 
 
 (c) Morris v. Davicx, T) CI. & Fin. 163, 21o, 229, n., 251, 252, 260, 
 262, 265 ; H. v. Mansfield, 1 Q. B. 444 ; Saije ^- Srh- Bnrony, 1 H. L. C. 
 507, 511, 512; Maives v. Draeger, 23 Gh. D. 173, 178; Aylesford Peerage, 
 11 App. Gas. 3, 17 ; Bo-svUc v.A.-G., 12 P. D. 177 (appeal abandoned, 
 1887, W. N. 181) ; Burnabg v. Baillie, 42 Ch. D. 282, 297, 298. The 
 question, whether such intercourse did take place, is one of fact to be 
 proved in the ordinary way and to be decided by the jury or other 
 proper tribunal for pronouncing on questions of fact : but clear 
 evidence is required to rebut the presumption of legitimacy ; the 
 matter is not to be decided on a mere balance of probalailities. And 
 after evidence tending to establish such intercourse (as that the 
 husband aud wife occupied the same bedroom) has been given, then 
 no other evidence is admissible than such as tends to disprove the 
 inference of the intercourse having taken place ; see the cases above 
 cited The fact of non-intercourse may be inferred from the conduct 
 of the husband or wife, and their statements made at the time or 
 afterwards are admissible in evidence as part of the res gestce and in 
 proof of their conduct ; Aylesford Peerage, 11 App. Gas. 3 ; Btirnahy v. 
 Baillie, 42 Ch. D. 282, 291. But neither of them is admissible as a 
 witness, at the trial of the issue of the legitimacy of the child, to state 
 whether the required intercourse took place or not ; nor is any state- 
 ment or declaration of either of them with regard to this matter 
 admissible as direct evidence thereof; R. v. Sourton, 5 A. & E. 180; 
 Nottingham Gaardiatis v. Tomkinson, 4 C. P. D. 343 ; Hatres v. Draeger, 
 23 Gh. D. 173, 178 ; Burnabg v. Baillie, 42 Ch. D. 282, 293. In 'the 
 second and fourth of these cases the Court declined to follow a con- 
 trary decision in Re Yearwood\s Trusts, 5 Ch. D. 545. This rule 
 however relates only to the proof or disproof of sexual intercourse 
 between husband and wife during their marriage ; it does not prevent 
 either of them, on the trial of the legitimacy of a child born so soon 
 after marriage that it must necessarily have been begotten before the 
 marriage, from being admitted to give evidence whether such inter- 
 course took place between them before their marriage ; Poulctt Peerage, 
 1903, A. G. 395, overruhng Ano)i. v. Anon., 22 Beav. 481, 23 Beav. 
 273. Evidence of the husband or wife is also admissible in any pro- 
 ceeding instituted in consequence of adultery with regard to the issue, 
 whether adviltery has taken place or not ; but not, it appears, on the 
 issue of the legitimacy of any child of the wife's ; Stat. 32 & 33 Vict. 
 c. 68, s. 3 ; Hetherington v. Hetherington, 12 P. D. 112, 114 ; Evans v. 
 Evans, 1904, P. 378. Questions of the legitimacy of any natural-bom 
 British subject domiciled in England or Ireland or claiming any real 
 or personal estate situate in England or of the validity of his marriage 
 or that of his parents or grandparents may be detemuned in proceed- 
 ings instituted in the Probate Division under the Legitimacy Declara- 
 tion Act, 1858 (stat. 21 & 22 Vict. c. 93) : but any decree so obtained 
 does not prejudice any person unless he has been cited or made a 
 party to the proceedings, or is the heir-at-law or next of kin, or other 
 real or personal representative of or derives title under or through a 
 person so cited or made a party, and such decree will not prejudice 
 any person if subsequently proved to have been obtained by fraud or
 
 A GOOD TITLE AND ITS DISCHARGE. 159 
 
 This presumption arises, although the husband and wife 
 be separated by mutual consent, and even when the 
 wife is living in adultery with another man {(/) ; and it 
 extends to all children born within due time after the 
 liusband's death {e) or the dissolution of the marriage (/). 
 But when the husband and wife have been separated by 
 a decree of divorce a nienm ct thoro, a sentence of judicial 
 separation or a separation order (^), the presumption 
 ceases with respect to children born after the expiration 
 of such time subsequent to the decree, sentence or order 
 as is equal to the usual period of gestation [h). 
 
 Record under the charge and superintendence of the Record in 
 Master of the Rolls for tlie time being (/). Proved by ^^"""'^ ^*^^- 
 a copy certified as true and authentic by the deputy 
 keeper of the records, or one of the assistant record 
 
 oollusion : s. 8. The Court lias uo jurisdiction to determine in such 
 proceeding's any question of the heirship of real estate ; Manuel v. 
 A.-G., 2 P. D. 26o. It may be noted here that uo child born out of 
 wedlock can in any circumstances inherit any real estate in England 
 as heir to and upon the death and intestacy of any person ; Doe d. 
 liirtivhistle v. Vurdill, o B. & C. 438 ; 2 CI. & Fin. 571 ; liirtwhisllc 
 V. Vardtll, 7 CI. & Fin. 895 ; F.scallier v. E^callier, 10 App. Cas. 
 312, 317. But where a gift is made by will, or (as it .seems) by an 
 instrument operating inter viro", of any real or personal estiite situate 
 in Etigland to the child or children of any person domiciled in some 
 country where the law admits of legitimation per subseqiu-iin matrimonimn, 
 a child so legitimated may take thereunder as a lawfxil child of such 
 per-son ; Skoftoirc v. Yoxiif/, L. R. 11 Eq. 474 ; AV Andron, 24 Ch. D. 
 (537 ; Re Gren's Trusts, 1892, 3 Ch. 88. It has also been held tliat 
 children so legitimated may as children or next of kin succeed on 
 intestacy to personal chattels under the Statute of Distributions 
 (stat. 22" & 23 Car. II. c. 10) ; Re Goodman's Trusts, 17 Ch. D. 266, 
 James & Cotton, L. •!., diss. Lush, L. J., reversing Jessel, M. R. 14 
 Ch. D. 619. Qitrrr, whether this decision applies in the case of 
 chattels real situate in England ; .see hancnti v. Lawso)/. 41 Ch. D. 
 394 ; Pepin v. Jlnn/hr, 1902, 1 Ch. 24. 
 
 (rf) See cases cited in previous dence. Art. 98. 
 note and in n. {//), below ; Jfar- (</) Under Stat. 58 & 59 Vict. 
 
 (/rave v. Hargrnie, 9 Beav. 552. o. 39, s. 5, replacing 41 & 42 Vict. 
 
 [e) See Co. Litt. 123 b and c. 19, s. 4. 
 n. (1, 2); Bac. Abr. Bastardy (A) ; (A) St. George's Parish v. St. 
 
 1 Black. Comm. 456, 457. Margaret's, 1 Salk. 123; Uether- 
 
 (/) See cases cited in note (/<), ington v. Hetherington, 12 P. D. 
 below; Bac. Abr. Ba.stardy (A), 112, 114. 
 
 ed. 1832; Evans v. Evans, 1904, (i) See Taylor, Evidence, 
 
 P. 274, 378, 381 ; Stephen, Evi- \\ 1337, 1338, 5th ed.
 
 160 
 
 OF THE vendor's OBLIGATION TO SHOW 
 
 keepers, and purporting to be sealed or stamped with 
 the seal of the Record Office (k). 
 
 Recovery. Recovery, conrmo)) : — proved by an exemplification or 
 
 an examined copy (/) or as a record under the charge 
 of the Master of the Rolls {m). Conveyancers accepted 
 office extracts (w) . 
 
 Registration. Regidration of assurances in Middlesex or Yorkshire : 
 — proved by the certificate of registration which it is 
 the registrar's duty to indorse and sign on the regis- 
 tered assurance (o). Under the Yorkshire Registries 
 Act, 1884, the registrar is also required to seal the 
 certificate with the seal of the registry ( p) . 
 
 Seisin. Seisin : — provable on sales by extracts from the land 
 
 tax or poor rate assessments showing who were the 
 landlords and tenants of the property assessed, or by 
 evidence of acts of ownership, as the grant of a lease 
 under which possession was had, or any letting followed 
 by payment of rent and a fortiori a sale or mort- 
 
 [k) Stat. 1 & 2 Vict. c. 94, 
 ss. 1, 12, 13. 
 
 (?) Coventry, Conveyancers' 
 Evidence, 77 ; Biirt. Comp. pi. 
 490 ; 1 Dart, V. & P. 315, 5th 
 ed. ; 356, 6th ed. ; 352, 7th ed. 
 
 {in) See above. 
 
 (w) Sug. V. & P. 414. By 
 Stat. 14 Geo. II. c. 20, ss. 4, 5, 
 repealed with extensive savings 
 (see 28 Ch. D. 107) by 30 & 31 
 Vict. c. 59, where an estate had 
 been purchased and held for 
 twenty years under a title which 
 a recovery was necessary to com- 
 plete, the purchaser and all 
 claiming under him might prove 
 a recovery, of which no record 
 could be found or which appeared 
 not to be regularly entered on 
 record, by production of a deed 
 making a tenant to the Praecipe 
 
 and declaring the uses of the re- 
 covery and executed by a person 
 having a sufficient estate for the 
 purpose ; and every recovery 
 twenty years old, to which the 
 persons having power to bar the 
 entail were parties, was made 
 valid, if it appeared on the face 
 thereof that there was a tenant 
 to the writ, notwithstanding that 
 the deed for making such tenant 
 were lost or did not appear ; see 
 Burt. Comp. pi. 682-694. 
 
 (o) Stats. 7 Anne, c. 20, s. 6 
 as to Middlesex ; 47 & 48 Vict 
 c 54, s. 9, as to Yorkshire, re- 
 placing 2 &• 3 Anne, c. 4, s. 
 <i Anne, c. 62 (c. 35, s. 11, in 
 Ruflthead); 8 Geo. II. c. 6, s. 12 
 Taylor, Evidence. § 1464, 5th ed 
 
 {p) Stat. 47 & 48 Vict. c. .54. 
 s. 9.
 
 A GOOD TITLE AND ITS DISCHARGE. 
 
 161 
 
 gage (q). Declarations of deceased occupiers that they 
 held as tenants of another, being against their pro- 
 prietary interest (>•), are admissible as evidence of that 
 other's seisin (.s) ; and on this ground receipts for rent 
 paid by a deceased person as tenant are evidence of the 
 landlord's seisin, when produced from the proper cus- 
 tody (t). Proof of personal occupation only, though 
 prima facie evidence in ejectment of a seisin in fee, is 
 not acceptable as sufficient evidence of seisin on a 
 sale (u). 
 
 Will : — proved on a sale by production of the pro- Will, 
 bate or an office copy, whether the will relate to per- 
 sonal estate only or to real and personal estate, or, where 
 the testator died on or after the 1st of January, 1898, 
 to real estate only (.r) . If the will should not have 
 been proved — and a will of real estate, as such, does 
 not require to be proved {p) — the original must of 
 
 [q) Burt. Comp. pi. 418-436 : 
 Coventry, Conveyancers' Evi- 
 dence, 27o, 276; Wehomex. Upton, 
 
 6 M. & W. 0.36. .^40, 542 ; Mo>ilto,i 
 v. Edmonds, 1 De G. F. & J. 246, 
 248 ; Brintow v. Cormican, 3 App. 
 Cas. 641, 653, 668-670; Van 
 Dieman's Zand Cu. v. Tahle Cape 
 Marinr Board, 1906, A. C. 92, 99. 
 The production from the proper 
 custody, that is, the landlord's, of 
 a lease expired at a time beyond 
 living memory is sufficient evi- 
 dence of seisin, witliout proof of 
 enjoyment thereunder ; Clarksnu 
 V. Woodhoiise, .5 T. R. 412. n. 
 
 (r) Above, p. 140. 
 
 («) Doe d. Ihtniel v. Coullhred, 
 
 7 A. & E. 23.i. 239 ; Ihe d. W^hh 
 V. Langfield, 16 M. & W. 497, 
 .')14 ; tavl(»r. Evidence, \ 618, 
 .')th ed. 
 
 (/) Burt. Coinp. pi. 429. 
 
 (m) Hubbark, Evidence, 131 ; 
 1 Dart, V. & P. 334, 5th ed. ; 
 379, 6th ed. ; 383. 7th ed. ; above, 
 p. 104. 
 
 {x) Coventry, Convevancers' 
 Evidence, 91, 93; Sug. V. & P. 
 
 W. 
 
 414; 1 Dart,V. &P. 319,5thed.; 
 362, 6th ed. ; 358, 7th ed. At 
 common law, the probate copy of 
 a will of personalty was conclu- 
 sive evidence of the contents of 
 the will ; Allen v. Ditndas, 3 T. R. 
 125 ; but to prove a devise of real 
 estate, production of the original 
 will (whether proved or not) was 
 required. The probate of a will 
 is now admissible as eWdence of 
 a devise of real estate under the 
 conditions specified in stat. 20 & 
 21 Vict. c. 77, ss. 62, 64, 65; 
 Taylor, Evidence, §§ 1565a, b, 
 and C, 5th ed. ; Barroclongh v. 
 Greenhough, L. R. 2 Q. B. 612. 
 
 (v) Originally there was no 
 jurisdiction to grant probate of a 
 will dealing only with real estate; 
 1 Wms. Exors. pt. i. bk. iv. ch. ii. 
 \ 9, p. 389, 7th ed. ; In the Goods 
 of Tomlinmn, 6 P. D. 209 ; In the 
 ijoodsof Hunihuckle, 15 P. D. 149. 
 But by the Land Transfer Act, 
 1897, stat. 60 & 61 Vict. c. 65, 
 8. 1, probate may be grants in 
 respect of real estate only where 
 the testator has died on or after 
 the 1st January, 1898. 
 
 11
 
 162 VENDOR TO SHOW GOOD TITLE AND DISCHARGE. 
 
 course be produced (;:). As in the case of deeds (a), it 
 was not the practice on sales to require proof of the 
 due signature and attestation of any will of real estate 
 forming part of the title : but wills purporting to have 
 been signed and attested as required by law (b) were 
 presumed to have been made with the proper for- 
 malities (c). Since the Wills Act required all wills, 
 whether of real or personal estate, to be executed in the 
 same manner (d) , the fact that a will has been proved 
 strengthens the presumption that it was duly signed 
 and attested (e). 
 
 (s) Sug. V. & P. 414. (d) Stat. 7 Will. IV. & 1 Vict. 
 
 (a) Above, pp. 116 — 119. c. 26, s. 9 ; see Wins. Pers. Prop. 
 
 {b) See Wms. Real Prop. 245, 438, IGth ed. 
 
 2l8t ed. {e) As to th« evidence required 
 
 (c) Coventry, Conveyancers' on probate, see 1 Wms. Exors. 
 
 Evidence, 91, 93-95. pt. i. bk. iv. ch. ii. § 3; Wms. 
 
 Pers. Prop. 449, 450, 16th ed.
 
 163 
 
 CHAPTER V. 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 In the preceding chapter we endeavoui'ed to give a 
 general view of the vendor's obligation to show a good 
 titlp and its discharge. We will now consider the same 
 subject from the point of view of a conveyancer in- 
 structed to advise the purchaser whether the title shown 
 by the vendor can be accepted. 
 
 The first duty of a conveyancer so instructed is of Duty of con- 
 course to read the contract for sale, and then to peruse adv^sin^^the 
 the abstract of title with reference to the contract. And purchaser 
 his task is to ascertain whether the vendor has shown a 
 good title according to tlie contract, that is, such a title 
 as the contract binds the purchaser to accept, taking into 
 account in the case of a contract other than an open 
 contract the limitations or restrictions thereby imposed 
 on the purchaser's riglits as defined by law. He has to 
 satisfy himself that on all points, save those on which 
 tlie right to call for proof is precluded by the contract, 
 the vendor has shown that he has the right to convey 
 what he contracted to sell (a) . If a freehold in fee were 
 sold, the conveyancer must see that the purchaser will 
 get both the legal and equitable estate in fee simple, 
 free from all incumbrances, save those, if any, subject to 
 winch he contracted to take the land. If copyholds 
 were bought, the purchaser's adviser must ascertain that 
 his client will be duly admitted tenant on the rolls of 
 such an estate as was sold. If the land sold were lease- 
 
 (fl) Above, p. 94. 
 
 11(2)
 
 164 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 hold, the conveyancer must take care that the lease or 
 term offered by the abstract corresponds at all points 
 with that promised by the contract ; the purchaser, as 
 we have seen (b), being entitled to require a lease from 
 the freeholder unless the contract distinctly specified an 
 underlease as the subject of the sale, and not being 
 obliged to accept a lease at covenants more stringent 
 than those usually inserted in the kind of lease pur- 
 chased, unless the existence of such covenants were 
 brought to his notice by the contract (c) . 
 
 What should 
 be the general 
 scope and 
 result of the 
 abstract. 
 
 Vendor need 
 not show the 
 whole estate 
 to be vested 
 in himself, if 
 he have the 
 right to pro- 
 cure its con- 
 veyance. 
 
 Before discussing any of the details of an abstract 
 examined on behalf of a purchaser, let us consider what 
 should be its general scope and result. It should show 
 title for the time prescribed by law or settled by special 
 stipulation as sufficient to prove a good title, according 
 to the nature of the property sold [d] ; it should com- 
 mence with a good root of title and continue to deal 
 with the whole legal and equitable estate in the land 
 purchased (e) ; and it should end in showing that the 
 vendor can convey or cause to be conveyed to the pur- 
 chaser the whole estate contracted for in the land sold. 
 But it is important to observe that it is not necessary 
 for the vendor to show upon the abstract that the whole 
 estate sold is vested in himself. It is sufficient if it 
 appear that he has, or may obtain by acts of which the 
 performance rests with himself alone ( /"), the right to 
 convey or cause others to convey to the purchaser 
 the estate sold ; and if such a right be established, 
 the abstract is complete, and it is considered a matter 
 to be dealt with on the preparation of the convey- 
 ance rather than on the investigation of title for the 
 vendor to obtain the concurrence of all other persons 
 
 (b) Above, p. 101, n. (i). 
 
 (c) Reeve v. Berridge, 20 Q. B. 
 D. 523 ; Re TFJiite ami Smith's 
 Contract, 1896, 1 Ch. 637. 
 
 [cI) Above, pp. 100 sq. 
 (e) Above, pp. 106 sq. 
 (/) Bretver v. Brondwood, 22 
 Ch. D. 105, 109.
 
 OP ADVISING ON TITLE GENERALLY. 165 
 
 necessary to vest in the purchaser the whole legal and 
 equitable estate which lie contracted to buy {g) . Thus 
 it is of course sufficient if the abstract show that the 
 vendor has a power of appointment or other power which 
 will enable him to convey the estate sold. So if the 
 land sold be vested in trustees holding on trust for the 
 vendor absolutely, a good title is shown on the abstract ; 
 for the vendor is entitled in equity to dii-ect them to 
 convey as he will (h). And if the land sold be subject 
 to mortgages, the vendor has none the less shown a good 
 title on the abstract, provided that the mortgages be 
 immediately redeemable by him. And this is the case 
 even though the amount secured by the mortgages 
 exceed that of the purchase money, or the mortgages 
 affect other lands than those purchased ; as it appears to 
 be considered that, so long as the vendor has the right of 
 redemption, it merely rests with him to exercise it, the 
 mortgagees being bound to take the money secured, if 
 all that is due be tendered, and to re-convey on such 
 payment (/) . Here we may notice that the general rule 
 of equity, that a mortgagor must give six months' 
 notice of his intention to pay off the mortgage {k), is no 
 bar to the immediate exercise of the right of redemption ; 
 for the mortgagor is entitled to pay to the mortgagee 
 six months' interest in advance in lieu of such notice (/) . 
 Any mortgage redeemable in accordance Avith this 
 general rule may therefore be considered as immediately 
 redeemable for the purposes of a sale of the mortgaged 
 land. But it is of course quite a different thing if the 
 
 ((/) See 8 Ves. 436 ; Towiixeiid (i) Townscnd v. Champernoivn, 
 
 V. C/itiiiiperiioicn, 1 Y. ic J. 449 ; 1 Y. & J. 449 ; Savory v. Und/'r- 
 
 Sug. V. & P. 217, 218, 349, 423- wood, 23 L. T. O. S. 141 ; Sug. 
 
 425; Dart, V. & P. 281-286, 5th V. & P. 425 ; 1 Dart, V. & P. 
 
 ed. ; 321-326, 1177 sq., 6th ed. ; 283, 284, 5th ed. ; 323, 324, 6th 
 
 317-322, 7th ed. cd. ; 319, 320, 7th ed. 
 
 (X) Wms. Real Prop. 561, 
 
 (A) "Wma. Real Prop. 181. 2l8t 2l8t ed. 
 
 ed. ; Kitchen v. Pfi/nur, 46 L. J. (l) Johnson v. Evans, W. N. 
 
 Ch. 611. 1889, p. 95.
 
 166 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 Distinction 
 between 
 showing a 
 good title on 
 the abstract 
 and pi'oving 
 it. 
 
 land sold be subject to a mortgage, which is not to be 
 called in or paid off during a certain term. In such 
 case the discharge of the incumbrance is not a matter 
 resting with the mortgagor alone ; as the mortgagee 
 cannot be obliged to receive back his money during the 
 term (w). 
 
 The reader must bear in mind the distinction between 
 showing a good title on the abstract and showing a 
 good title in the sense of completely discharging the 
 vendor's obligati6nto show or make a good title. That 
 is a matter depending on proof, not mere statement of 
 title, and is not accomplished until an abstract showing 
 a good title has been duly verified by production of the 
 proper evidence («) . Thus, although a good title is 
 shown on the abstract, notwithstanding the existence 
 of mortgages exceeding the amount of the purchase- 
 money, the vendor cannot of course make a good title 
 if he be unable to pay off such mortgages or procure 
 the mortgagees to release their charges. 
 
 A good title then is shown on the abstract, if it 
 appear that the vendor has an equitable right in the 
 land sold, by virtue of which he is, or may by doing 
 acts which are independent of others' consent, imme- 
 diately become entitled to direct the conveyance to the 
 
 (m) See Esdaile v. Stephenson, 
 6 Madd. 366 ; Leicin v. Guest, 
 1 Russ. 325 ; Sug. V. & P. 425 ; 
 1 Dart, V. & P. '284, 5th ed. ; 
 324, 6th ed. ; 320, 7th ed. 
 
 (h) See Southby v. mut, 1 My. 
 & Cr. 207, 212, 213 ; above, 
 pp. 115 sq. In actions for specific 
 performance of contracts for sale 
 of land the usual inquiry directed 
 us to title is whether a good title 
 can be made to the property sold, 
 and if so, when it was fii'st shown 
 that such good title could be 
 made ; Seton on Judgments, 
 
 2226, 6th ed. The inquiry when 
 a good title was hrst shown re- 
 lates to the time when it was 
 first shown upon the face of the 
 abstract ; but the inquiry, whe- 
 ther a good title can be made, 
 means whether the vendor can 
 prove a good title by the usual 
 evidence ; Parr v. Lovcqruve, 4 
 Drew. 170; 4 Jui-. N. S. 600; 
 Sug. V. & P. 424, 426 ; see how- 
 ever Hdlkett V. Dudley, 1907, 
 1 Ch. 590, 606, where Farr v. 
 Loveyrove was not cited, and 
 Parker, J., appears to have over- 
 looked this distinction.
 
 OF ADVISING ON TITLE GENERALLY. 167 
 
 purchaser of all the estate sold {u) . And where a 
 future day is fixed for completion of the contract, a 
 good title is sufficiently shown on the abstract if it 
 appear that the vendor will certainly have such an 
 equitable right as above mentioned before the time 
 fixed for completion, although he have not and can- 
 not immediately procure such right (js). But it is Good title not 
 otherwise if any part of the estate contracted for estate out^°^ 
 be outstanding in some person, whom the vendor has sttrndingin 
 
 , . , , , one, whom 
 
 no right to direct to convey, and the vendor cannot the vendor 
 
 procure such right without the other's consent. In ^0^°^"!^* 
 such case a good title in the vendor is not shown, convey. 
 This may be illustrated, not only by the example 
 already given of land subject to a mortgage not to 
 be paid off during a certain term, but also by the 
 instances of lands subject to dower, or a jointure rent- 
 charge [q) or restrictive covenants (r), or of lands, under 
 which the mines and minerals are not the vendor's (-s), 
 or of land sold as held for a term of a certain number 
 of years, which is in fact determinable earlier at the 
 lessor's option (t). A fortiori, the purchaser can object 
 to the title, where it appears that the whole title is in 
 some third person whose conveyance the vendor has no 
 ri(jht, legal or equitable, to dii-ect. Nor is the case 
 altered by the fact that the vendor offers to procure the 
 concun-ence of such third person, and the latter is 
 willing to give it ; so long as the latter is under no 
 obligation enforceable in a coui't of justice to convey 
 
 (o) See note {y} to p. 16o, perty sold was subject to a re- 
 above, strict! ve stipulation sis to light, 
 
 (jo) Dart, V. k, P. 284, 5th ed. ; and a drain, which was a sewer 
 
 324, 6th ed. ; 320, 7th ed. ; see vested in the local authority, ran 
 
 Xoble v. Eduardc.i, 6 Ch. D. 378 ; under the land. 
 
 Betlamu v. Drbeii/iiini, 1891, 1 Ch. , \ u n i. i i ,or., 
 
 ..,-*' (s) liellamy v. Debenhnm, 1891, 
 
 i\ ... ■, ... , [. I Ch. il2 ; lie Jackson and Ifddfn'x 
 
 Madd. 366. Co,itraci, 1906, 1 Ch. 412, 424, 
 
 (>•) rhillips V. Caldcleiigh, L. R. 
 
 4 Q. B. lo'J ; Pemsrl v. Tucker, {() Weston v. 'Savage, 10 Ch. D. 
 
 1907, 2 Ch. 191, where the pro- 736.
 
 168 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 according to the vendor s direction (?/). On this point a 
 Re Bryant and recent casc {x) is very instructive. Two persons sold 
 
 Barniiiffham'.s t j , , n ^ t^ 
 
 Contract. land as trustees lor sale. It appeared from the abstract 
 
 that the trust for sale did not arise until after the death 
 of a tenant for life, who was still living : but the vendors, 
 on this objection being pointed out, offered to procure a 
 conveyance from the tenant for life under the Settled 
 Land Acts. This the purchaser declined ; and the ven- 
 dors endeavouring to oblige him to take this title in a 
 vendor and purchaser summons, it was held that he was 
 justified in his objection thereto. The court pointed 
 out that the vendors themselves could make no title, 
 having no immediate right to convey, and that the 
 proposed conveyance could only be effectually secured 
 by a new contract made with the tenant for life ; an 
 arrangement, into which the vendors had no right to 
 require the purchaser to enter. 
 
 Purchaser It appears however that if the purchaser propose to 
 
 repudiate the object to the title shown on the ground that the whole 
 contract if he qj. gome part of the estate contracted for in the land 
 
 wish to insist . ^ 
 
 on the objec- sold is Outstanding in some person, whom the vendor 
 ^^'^' has no right to direct to convey, he must insist on such 
 
 objection at once, and must immediately repudiate the 
 contract (y). If he require the vendor to remove the 
 objection by obtaining the concurrence of the other person 
 or persons entitled, or if he entertain (except without 
 
 («) Lewin v. Guest, 1 Russ. 325 ; 
 Forrerv. Nash, 35 Beav. 167, 171 ; 
 Brewer v. Broaduood, '2'2 Ch. D. 
 105; Lee v. Soames, 36 W. R. 
 884 ; cf . Re Baker and Schiio)i''s 
 Contract, 1907, 1 Ch. 238, where 
 a trustee sold as the authorised 
 agent of the beneficiaries. 
 
 {x) Re Bryant and Barmnghani\ 
 Contract, 44 Ch. D. 218 ; see also 
 Me Sead^s Trustees and Macdonald, 
 45 Ch. D. 310. 
 
 (y) Halkett v. Dudley, 1907, 
 
 1 Ch. 590, 597. The purchaser 
 is entitled, in such circumstances, 
 to repudiate the contract at once, 
 and need not wait till the day 
 fixed for completion ; Hoqgart v. 
 ^cott, 1 Russ. & My. 293, 295; 
 Forrer v. Nash, 35 Beav. 167, 
 171 ; Weston v. Savage, 10 Ch. D. 
 736 ; Brewer v. Broadwood, 22 
 Ch. D. 105, 109: Lee v. Soames, 
 36 W. R. S84 ; Ualkctt v. Dudley, 
 1907, 1 Ch. 590, 596; and see 
 below, p. 185, n. [l).
 
 OP ADVISING ON TITLE GENERALLY. 1<59 
 
 prejudice to his right to repudiate the contract) (2) any 
 proposal made by the vendor so to remove the objec- 
 tion, he may lose his right to insist on the objection 
 and may find himself obliged to perform the contract. 
 For if the pui'chaser show himself willing to go on with 
 the contract, the vendor may get in the outstanding 
 interests, though they should amount to the whole 
 title, and he will then be in a position to enforce the 
 specific performance of the contract. And if in such 
 case the vendor bring an action for that purpose, it will 
 be no defence to allege that he could make no title by 
 the time fixed for completion. For if the purchaser 
 has continued to recognise the contract as binding, 
 it will be sufficient to enable the vendor to enforce 
 specific performance, if he can make a good title at the 
 hearing {a) or even when the result of the usual in- 
 quiry as to title is certified (b). Besides this, if the 
 contract contain the usual stipulation enabling the 
 vendor to rescind in case of insistence on an un- 
 welcome requisition, and the piu'chaser negotiate with 
 the view of obtaining the removal of an objection, 
 which would have justified him in repudiating the 
 contract at once, the purchaser runs the risk of the 
 vendor's exercising his power to rescind and so escaping 
 the liability of paying the purchaser's expenses as 
 damages ((*)• 
 
 We have already considered what documents of title RtHiuisitious 
 the abstract should contain and the manner in which eontents^and 
 they oiight to be abstracted ((/) . Any defects in these nianner of 
 
 making the 
 
 (z) See Morlei/ v. Cook, 2 Hare, 580, 581, 4th ed. ; 2 Dart, V. & abstract. 
 
 106, 115; 7 Jm-. 79, 80; Sout/i- P. 1058-1060, 5th cd. ; 1178-llSO, 
 
 coiiil) V. Bp. of Kxetcr, 6 Hare, 6th od. ; 1065- 1068, 7th ed. ; and 
 
 213, 216, 219,"220. .see Miinr/l v. Goodi/cn; 1 De G. 
 
 (ff) Hogtjiut V. Scott, 1 Ru8s. & F. & J. 432 ; Hallrtt v. Dudley, 
 
 My. 298 ; Salisbur!/ v. Hatcher, 1907, 1 Ch. 590, 597-600. 
 2 Y. & C. C. C. 54. I \ ^ 1, n ■ K, ^ u ■ 
 
 (A) E,,ston V. Simond., 1 Y. & .J^l S^'oJleBeiffhtonandHarn., 
 
 C. C. C. 608 ; Fry, 8p. Perf. ^^^^' ^ ^^- ^^^ ' ^^1°^' P" ^^'^■ 
 ^ 1366-9, pp. 607, 608, 3rd ed. ; (rf) Above, pp. 106-113.
 
 i^O OF ADVISING ON TITLE GENERALLY. 
 
 respects should of course be the subject of requisition. 
 The purchaser's adviser must insist on being furnislied 
 with an abstract showing a complete chain of the 
 conveyances or other documents dealing with the legal 
 estate in the property purchased from the time of 
 commencement of title down to that of the contract for 
 sale. And whenever the abstract gives him notice of 
 any equitable estate or interest in the premises, he 
 must requii'e the title to such estate or interest to be 
 abstracted ((^), and must see that the same has been 
 ultimately got in or released or will be conveyed to the 
 purchaser : unless, of course, the circumstances are such 
 that the concurrence of the beneficiaries is unnecessary, 
 as upon an ordinary trust for sale. It is his further 
 duty to ascertain that each of the abstracted conveyances 
 is at all points complete, so that it really has in law the 
 effect which it purports to have. Thus he must consider 
 whether the conveying parties have due capacity to 
 convey the estate assured ; if so, whether they have used 
 an instrument proper and words apt to carry out their 
 intention ; and then whether the instrument is duly 
 executed or perfected as required by law. And if he 
 observe any deficiency, he should call for its rectification. 
 If a document be abstracted in an improper manner (as 
 constantly happens) conveyancing counsel ought to 
 require the vendor to furnish a proper abstract sufficient 
 to enable him to exercise his own judgment as to the 
 effect of the words actually used. He ought not to 
 rest satisfied with a mere statement of the effect of any 
 material clause or document ; for the very purpose of 
 laying the abstract before him is that he should give his 
 opinion on the effect of the deeds. And if he accept 
 statements of the effect of clauses where he ought to be 
 informed of the exact words used and judge of their 
 effect himself, he is really laying a duty, which he ought 
 
 (tf) See above, pp. 110-112.
 
 OF ADVISING ON TITLE GENERALLY. 171 
 
 to perform in person, on the gentleman wlio examines 
 the abstract with the deeds. Owing to the unskilled 
 and slovenly way in which abstracts are now too often 
 prepared, counsel have to bear this constantly in mind. 
 What clauses ought to be abstracted in full and what 
 may be proj^erly passed over with a mere statement has 
 been considered above (,/'). We will merely give one 
 constantly recurring example of the duty we have been 
 pointing out. A proviso for reconveyance in a mortgage 
 deed is now often abstracted in these words — proviso 
 for redemption. And such abstracting is constantly 
 allowed to pass either without comment or with the 
 remark that it is presumed that this proviso is in the 
 usual form. That however is exactly the point on 
 which counsel's opinion is desired. A proviso for 
 reconveyance is the only clause in a mortgage deed 
 which effectively shows what charge on the property is 
 thereby created, and on what terms that charge is 
 redeemable, and it is also a limitation of the equitable 
 estate in the property subject to the charge. All these 
 matters are material to the title, even though a sub- 
 sequent reconveyance from mortgagee to mortgagor 
 appear on the abstract (g) . The proviso therefore 
 
 (/) Pp. 112-114. to A. ill fee on payment by A. to 
 
 ((/) Of course mortgages are B., a purchaser acquiriug title 
 
 usually redeemable ou pnymeut under these deeds would take 
 
 of principal and interest by tlie with notice of the equities both 
 
 original mortgagor to the original of C. and D. This example is of 
 
 mortgagee, when reconveyance course an extreme case ; and the 
 
 is to bf made to the mortgagor rule no doubt is that a mort- 
 
 according to his former estate. gagor's equitable estate in the 
 
 But, since jiersons Tiot named as mortgaged lands shall not be 
 
 parties to indentures liave been altered by the tenns of a proviso 
 
 allowed to take benefits there- for redemption without a clear 
 
 under (see Wms. Real I'rop. loG, expression of an intention in that 
 
 "ilst ed.), there is nothmg to behalf [Iiiiie.s v. Juck.wn, Ki Vcs. 
 
 prevent :i pioviso in a deed of l{.5() ; Co. Litt. 208 a, n. (1); 
 
 mortgage between A. borrower stdnsfield v. HoUion, ii Jur. N. S. 
 
 and B. lender that ou iwyment 1334; Jlastiiiyisy: Ast/ti/ZMBnAV. 
 
 of principal and interest by A. to 260; Jte Betton's Trust Estates^ 
 
 C, B. shall reconvey to D. in L. R. 12 Eq. 553; Re ]ii/ion\i 
 
 fee. In such case, if there were SettU'inoit, 1891, 3 Ch. 474) : but 
 
 a subsequent reconveyance by B. such an intention may be clearly
 
 172 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 should always be so abstracted as to enable the pur- 
 chaser's counsel to judge for himself, from the exact 
 words used, of its effect in these respects (/^). And 
 unless counsel insist on being furnished with such an 
 abstract, he does not discharge his duty to his client. 
 
 Estate of 
 grantee to 
 uses. 
 
 Here the reader may be warned of a pitfall, which 
 the writer has several times encountered in practice ; 
 namely, the omission, since the Conveyancing Act of 
 1881 took effect (/), to limit an estate in fee simple to a 
 grantee to uses in deeds intended to take effect under 
 the Statute of Uses. The consequence of this omission 
 is that such grantee takes an estate for life only (/.•), 
 and the uses declared are executed by the statute or 
 turned into legal estates (/) only during the life of the 
 grantee to uses and no longer (iii) . Uses declared of 
 the inheritance in such circumstances are of course, 
 generally speaking, valid in equity and enforceable as 
 trusts : but the legal fee remains in the grantor ; and 
 
 expressed in the proviso (see 16 
 Ves. 370, 371), and any variation 
 in the limitation thereby made 
 from the mortgagor's former 
 estate raises a //ucstion, whether 
 any alteration was intended ; 
 Davidson, Prec. Conv. vol. ii. 
 pt. ii. pp. 38-43, 4th ed. An 
 unusual proviso for redemption 
 occurred in Williams v. Moryan, 
 1906, 1 Ch. 804. 
 
 {h) See 1 Prest. Abst. 149, 
 '2nd ed., where note that the 
 author appears to be speaking of 
 a proviso for redemption in the 
 old form making void the con- 
 veyance to the mortgagee on 
 repayment (see Davidson, Prec. 
 Conv. vol. ii. pt. ii. p. 31, 4th ed. ; 
 5 Bythewood & Jarm. Prec. Conv. 
 3rd ed. by Sweet, 544, 555), and 
 that, according to the principles 
 there laid down, it should always 
 be shown, in abstracting a pro- 
 viso for reconveyance, to whom 
 
 the reconveyance is limited to be 
 made. 
 
 (i) Such an omission was not 
 previously common, as it was the 
 regular practice to limit estates 
 to all grantees and their fieira. 
 The mistake has generally arisen 
 where use has been made of the 
 statutory limitation to a grantee 
 in fee simple ; and the draftsman 
 has forgotten that it is equally 
 necessary to limit the lands to 
 the grantee to uses in fee simple 
 as to assure by apt words an 
 estate of inheritance to cestui que 
 use intended to take the benefit 
 of the conveyance. 
 
 (A) Wms. Real Prop. 112, 
 21st ed. 
 
 [1) Ibid. 173-176, 21st ed. 
 
 {m) Dyer, 186 a ; Jenkins v. 
 Young, Cro. Car. 230 ; Meredith 
 V. Joans, ibid. 244 ; Sug. Pow. 
 149, 8th ed. : Williams on Settle- 
 ments, 7 ; Re Hunter and Hew- 
 lett's Contract, 1907, 1 Ch. 46.
 
 OF ADVISING ON TITLE GENERALLY. 173 
 
 on a subsequent sale of the land by persons entitled 
 under the uses, the purchaser must require the legal 
 estate of inheritance to be conveyed to him by the 
 original grantor, his heirs, executors, administrators or 
 assigns. 
 
 It is the duty of a conveyancer perusing an abstract I'V'ntitv. 
 on the purchaser's belialf to see that the vendor 
 discharges his obligation of proving the identity of 
 the property sold with that described in the various 
 documents abstracted {a). The conveyancer must 
 therefore carefully compare the abstracted parcels as he 
 proceeds, and ascertain that the descriptions in the title 
 deeds agree with each other and with the description in 
 the contract. Where the abstracted descriptions wholly 
 or partially fail to show the identity of the property 
 comprised in the title deeds with that sold, further 
 e\'idence of identity should be required, notwithstanding 
 that the purchaser may have bought subject to the 
 usual condition as to such evidence (o). The identity 
 of the property sold with that comprised in the title 
 deeds is the most important link in the Avhole chain of 
 proof of the vendor's title ; without evidence of such 
 identity, the most perfect title shown by the deeds 
 proves nothing. Purchasers cannot therefore be advised 
 to dispense with such evidence (where they are entitled 
 to require it), on the ground that they must bear the 
 expense of it, if not in the vendor's possession ( p) . 
 
 It is the duty of the purchaser's counsel or solicitor, Calling for 
 besides seeing that the documents which ought to be facts, 
 abstracted are abstracted and are properly abstracted, to 
 note all facts material to the title stated on or apjiear- 
 ing from the abstract, and to require them to be proved 
 
 (»/) Ahovp, pp. 33, fi5 : Sns:. («) See above, pp. f).5, 72. 
 
 V. & P. 413. ^ [p] See ab«ve, pp. 45, 136.
 
 174 OF ADVISING ON TITLE GENERALLY. 
 
 by tlie usual conveyancing evidence. What this is has 
 been already sufficiently considered (5^) . But we may 
 remark that, owing to the rule which now throws upon 
 the purchaser the expense of procuring all evidence of 
 title not in the vendor's possession (r) , it is a convenient 
 plan to frame requisitions calling for evidence of facts 
 in the following form : — " Has the vendor any evidence 
 of any kind in his possession of {the death, mart'iage, or 
 other fact required to he proved) ? If so, he is required 
 to produce such evidence. If not, purchaser reserves 
 his right to call for the usual formal evidence of such 
 ( fact) at his own expense." As we have ak-eady 
 pointed out («), it is often material to a title to prove 
 that some event has not happened. This should not be 
 forgotten upon the perusal of the abstract ; and the 
 conveyancer should, in these eases, call for such evi- 
 dence as he can require. 
 
 Death duties. Another matter to be attended to on the perusal of 
 the abstract is the incidence of the death duties. When- 
 ever the death is stated of a person interested in the 
 lands sold, it must be considered whether this death 
 gave rise to a claim for legacy, succession, estate or 
 settlement estate duty in such a manner that the duty 
 will, if unpaid, remain a charge on the land ; and if so, 
 the receipts for duty payable must be required to be 
 produced or the claim discharged. The subject of the 
 death duties is more fully considered below (/). 
 
 stamps. It is not the practice for vendors to mark on the 
 
 abstract what stamps are impressed on the various title 
 deeds : but the purchaser's solicitor must ascertain this 
 on the examination of the abstract with the deeds (?«), 
 and he should note in tlie margin of the abstract what 
 
 {q) Above, pp. V-M v/. [t) See the chapter on the Death 
 
 (r) Above, pp. 45, 136. Duties in the second volume. 
 
 [s) Above, p. 132. (m) Above, p. 143.
 
 OF ADVISING ON TITLE GENERALLY. 175 
 
 stamps each abstracted document bears, or their absence, 
 where a document required by law to be stamped is 
 unstamped. If the abstract come to counsel after it 
 has been compared with the deeds, lie must of course 
 consider whether all the abstracted documents appear 
 to be rightly stamped. If he receive the abstract before 
 the examination of the deeds, he should remind his 
 client, in advising on the title, that it must be ascer- 
 tained whether the abstracted documents are duly 
 stamped. If any document, which ought to be stamped, 
 be unstamped or insufficiently stamped, the vendor 
 should be requii'ed to procure it to be properly stamped ; 
 which, as we have seen, he is bound to do at his own 
 expense (.r) . 
 
 Besides the requisitions, properly so called, demanding Inquiries 
 the production of some particular piece of evidence to propTrtv^ol/ 
 complete the title, it is generally desii'able for the pur- 
 chaser's advisers to make certain inquiries of the vendor 
 respecting the property sold (//) . Thus if an estate be sold 
 under the usual condition that it is sold subject to all 
 subsisting chief rents, easements, tenancies and tenants' 
 claims, whether mentioned in the particulars of sale or 
 not (2), inquiry should be made of the vendor whether 
 there are any such rents, easements, tenancies or claims. 
 Tliis is a very pertinent question ; for if it be omitted, 
 the purchaser will have notice of any rights which he 
 might have discovered by the inquiry (a) ; and, as we 
 have seen, it is held that this general condition does not 
 enable the vendor to enforce the contract specifically, 
 if the property be subject to any rents, easements, 
 tenancies or claims, which are serious incumbrances and 
 were known to the vendor but omitted from the par- 
 
 {z) Above, p. 130. mental to the requisitions on titlo. 
 
 (y) See Appendix (C), below, (z) Above, p. 73. 
 
 for 11 fonii of the inquiries wliicli (a) Re Alms Corn C/iariti/, I'.IOl, 
 
 may usefully be made as supple- 2 Ch. 7''>0.
 
 176 OF ADVISING ON TITLE GENERALLY. 
 
 ticulars(^). And in every case it should be asked 
 whether the property sold is subject to any easement or 
 other right (e), or to any rentcharge, or to any quit- 
 rent or other incident of tenure {(/) , and what outgoings 
 there are in respect of the property sold. Land tax and 
 tithe rentcharge, being general liabilities to which all 
 lands are regularly subject, need not be expressly 
 mentioned on a contract to sell land ; it is understood 
 that the purchaser will take subject to these liabilities, 
 which are not regarded as incumbrances (e) . And it is 
 of course unnecessary to mention that the purchaser will 
 have to pay the usual local rates, or property tax. If 
 there be no other outgoings than these, the purchaser 
 has no cause for objection : but the existence of rents 
 or rentcharges (other than tithe rentcharge) not disclosed 
 by the contract is a different matter. Quit rents, being 
 incidents of tenure, are regarded in equity as a proper 
 subject for compensation, not as a ground for resisting 
 specific performance ; and so are rentcharges of trifling 
 amount (./'). But the existence of a rentcharge of 
 substantial amount is an objection to the title (r/) ; as 
 is the existence of a considerable ground rent not 
 mentioned in the particulars on the sale of houses held 
 for a long term of years {//). Another inquiry useful 
 to be made is whether the property sold is subject to 
 
 {b) Ifei/wood V. Mallalicu, 'lb tithe rentcharge, the case is of 
 
 Ch. D. 357 ; Nottingham Patrnt course different ; as the vendor 
 
 Brick and Tile Co. v. Butler, 16 must then prove that the land is, 
 
 Q. B. D. 778 ; above, p. 73, n. (if). as alleged, free from such lia- 
 
 (f) See Fcmne/ v. Tucker, 1907, bility ; see ibid. 
 
 2 Ch. 191 ; above, p. 167, n. (/). (/) Esdailr v. Stephenson, 1 S. 
 
 [d) Onerous incidents, such as & S. 122; Sug. V. & P. 312; 2 
 heriots, are sometimes attached Dart, V. & P. 1078, 5th ed. ; 
 to the tenure of fieeholds; see 1205, 6th ed. ; 1093, 7th ed. ; see 
 Copeniake v. Hoper, 1907, 1 Ch. above, p. 43. 
 
 366, reversed, 1908, 2 Ch. 10; {(/) I'ortnmn v. Mill, 1 Russ. & 
 
 Wms. Real Prop. 58, and n. {/>), My. C96 ; Be Great Northern Bail. 
 
 478, n. (i), 21st ed. Co. and Sanderson, 25 Ch. D. 
 
 (e) Sug. V. &P. 322; 1 Dart, 788; Sug. V. & P. 313; above, 
 V. & P. 352, 5th ed. ; 398, 399. p. 167. 
 
 6th ed. : 393, 394, 7th ed. If (h) Jones v. Biinmer, 14 Ch. D. 
 
 land be sold tree of l^nd tax or 588,
 
 OF ADVISING ON TITLE GENERALLY. 177 
 
 any drainage or land improvement or other statutory 
 charge. Drainage and land improvement charges of 
 course principally affect agricultural land : but it must 
 be remembered that land once occupied for cultivation 
 is often built over, and that such charges may subsist 
 after the agricultural aspect of the property has quite 
 disappeared. And rentcharges may now be created 
 under the Improvement of Land Act, 1864, and its 
 amending Acts (/) for a ver}' wide range of improve- 
 ments, not exclusively affecting agricultural land. 
 Agricultural land may also be liable to charges created 
 under the Agricultural Holdings Act, 1x8-3 or 190S (A-). 
 In the case of tovsm property or building land, charges 
 may arise under Local Management or Improvement 
 Acts, the Public Health Act, 1875 (/), or the Private 
 Street Works Act, 1892 {m), for the expenses of paving, 
 sewering, or lighting the adjoining streets or for other 
 works ordered to be done by the proper authority (y?). 
 House property in London may be affected by a party 
 wall notice under the London Building Act, 1894 (o) ; 
 or the owner thereof may incur liability owing to a 
 " dangerous structure " notice and an order consequent 
 thereon under the same Act and the London Building 
 Act, 1898 {])), or through being required to abate a 
 nuisance under the Public Health (London) Act, 
 1891 {q). And similar liability may be incurred else- 
 where under the Public Health Act, 1875 (r). In all 
 
 (t) See Chap. XII. § 2, below. 1910, 1 K. B. 424. 
 
 (k) Stat. 4(5 & 47 Vict. c. 61, (o) Carlhh v. Sa!(, 1906, 1 Oh. 
 
 88. 29-32, repealed and replaced 335, a.s to which sen the writer's 
 
 by 8 Edw. VII. c. 28, sx. lo-19, criticiism iu 50 Sol. J. 611. 
 49. (p) lie Highett and Bird's Con- 
 
 (l) Stat. 38 & 39 Vict. c. 55, tract, 1902, 2 Ch. 214: C. A., 
 
 866 88.150,257. 1903, 1 Ch. 287; explaibed in 
 
 (m) Stat. 55 & 56 Vict. c. 57. Re Alien and DriscolVs Contract, 
 
 (m) Midgley v. Coppock, 4 Ex. D. 1904, 2 Ch. 231. 
 309; Re liettesHinth ami Richrr, [q) Bars/it v. Tagg, 1900, 1 Ch. 
 
 37 Ch. D. 535; Stock v. Meakin, 231. 
 
 1900, 1 Ch. 683 ; Re Allen and [r) Stat. 38 & 39 Vict. c. 55, 
 
 Driscoir.s Contract, 1904, 2 Ch. s.s. 94-104, IfiO, incorporating 10 & 
 
 226 ; Camberucll Corpn. v. Dixon, 11 Vict. c. 34, ss. 75-78. 
 
 w. 12
 
 178 OF ADVISING ON TITLE GENERALLY. 
 
 these cases, therefore, inquiry should be made whether 
 any demand has been made, notice given, resolution 
 passed, or order made, which may subject the property 
 sold or its owner to any such charge or liability (s) . 
 Such charges or liabilities, if attaching on the property 
 sold or becoming payable before the time for completion, 
 come under the head of outgoings which the vendor 
 ought to discharge (;^) . And with regard .to charges, 
 generally, the rule of course applies that the purchaser 
 is entitled to have the property sold free from all 
 incumbrances, except those, if any, subject to which he 
 agreed to buy («) . It is also useful to ask, on buying a 
 house not detached, if the walls are party walls, and as 
 to any suburban property, if any adjoining street or 
 road has been taken over by the local authority. 
 
 Vendor bound The general rule applicable to inquiries of the above 
 relevant^^ ^ nature is that the vendor is bound to answer all relevant 
 questions. questions with respect to the property sold {x) : but the 
 Re Ford mid limits of inquiry are shown in the case of Re Ford and 
 lli/l{'//) already mentioned. It was there held that a 
 vendor need not answer the inquiry, Is there, to the 
 knowledge of the vendor or his solicitor, any settlement, 
 deed, fact, omission, or any incumbrance affecting the 
 property not disclosed by the abstract ? This question 
 the Court of Appeal held to be not so much a requisi- 
 tion as a searching interrogatory. As we have already 
 pointed out (z), there is a clear distinction between 
 putting questions to ascertain that the title shown on 
 the abstract is fully proved and at all points complete, 
 and interrogating the vendor whether he knows of any 
 matter of title besides those stated on the abstract. 
 
 (s) See He Zealand and Taylor'' s Ch. XI. Sect. 1. 
 Contract, 1900, 2 Ch. 625; below, {u) Above, pp. 41, 94. 
 
 Ch. XII. Sect. 2. {x) Above, p. 135. 
 
 (t) See cases cited in notes [l), [y) 10 Ch. D. 365. 
 
 p. 50, («), p; 177, above; below, (z) Above, p. 135, n. (/).
 
 OF ADVISINQ ON TITLE GENERALLY. 179 
 
 Having regard to the practice already stated (a) of not 
 disclosing purely equitable charges or interests on the 
 abstract, where the purchaser may acquire a good title 
 without notice of them, it seems obvious that such an 
 interrogatory is objectionable. But it is thought that 
 the decision in Up Ford mid Hill does not go further 
 than this, and does not e.xonerate the vendor from the 
 obligation of- answering questions relevant to the issue 
 between tlie parties, which is, has the vendor proved the 
 title, which he has s/ioini on the ahsfracf ?{b). 
 
 Wlien the abstract is laid before counsel to advise Counsel 
 thereon, he settles the necessary requisitions, and writes on title 
 his opinion on the title according to the circumstances 
 of the ease ; as that, if the requisitions be satisfactorily 
 answered, a good title according to the contract will 
 liave been shown, or that some irremovable objection to 
 the title appears. At the same time he usually advises 
 what searches ought to be made. The subject of Searches, 
 searches is reserved for subsequent consideration (p). 
 
 As we have seen [d) , it is usually stipulated that the Time for 
 
 makino: 
 reqiusition.-i 
 
 purchaser's requisitions on or objections to the title ™^''" 
 
 shall be sent in within a specified time after the delivery 
 of the abstract, that in this respect time shall be of the 
 essence of the contract, and that in default of any 
 requisitions or objections so made, the purchaser shall be 
 taken to have accepted the title. The time so limited 
 only begins to run from the delivery of a perfect 
 abstract (f) . But if the abstract delivered be in 
 accordance with the contract, the purchaser must be 
 careful to send in his requisitions or objections within 
 the time appointed, or he will lose his right to insist 
 
 (n) Above, p. 110. (li) Above, p. 62. 
 
 (A) See above, p. 16G. 
 
 (c) See below, Ch. XII. Sect. 2. (e) Above, p. 63. 
 
 12(2)
 
 180 OF ADVISING ON TITLE GENERALLY. 
 
 upon tliem(/). If, however, the abstract delivered 
 show no title at all on the face of it, the purchaser 
 may take this objection at any time, notwithstanding 
 any such stipulation as the above, and although the day 
 Wa»t\. fixed for sending in requisition she past. Thus in Want 
 
 V. Stallihrassig), two persons entered into a contract to 
 sell land, stipulating that all objections and requisitions 
 not sent in within fourteen days after the delivery of 
 the abstract should be considered as waived. The}^ 
 then delivered an abstract from which it appeared that 
 they were trustees of the property sold for a third 
 person for life and after his death for sale ; and they 
 offered the concurrence of the tenant for life, apparently 
 supposing that this would enable them to make a good 
 title. The purchaser, after the fourteen days had 
 expired, took the objection that, as the trust for sale 
 did not arise until the death of the tenant for life, it 
 was not presently exercisable, even with the tenant-for- 
 life's concurrence (A). And it was held by the Court 
 of Exchequer that the purchaser was entitled to recover 
 his deposit, as the above-mentioned stipulation did not 
 exonerate the vendors from their obligation of showing 
 a good title, and it was apparent on the face of tlie 
 abstract delivered by them that they liad failed to 
 Ite Tanqneray- perform tliis obligation. So in Re Tanqneran-WiUaumv 
 ^L^ZT"''^ and Landau («), two persons sold land under the usual 
 condition limiting the time for sending in requisitions 
 or objections, and offered to make title as executors and 
 trustees of a will selling under the power of sale 
 implied by the testator's debts being charged on liis 
 real estate (/>) . After the time so limited had expired 
 the purchaser took the objection that the words of the 
 
 (/) See Oakden v. Fihe, 34 L. J. (/;) Above, p. 168. 
 
 S-^'z ^^C?\ ^\ko Jiosenherff v. ,.^ 20 Ch. D. 465. 
 
 Cook, 8 Q. B. D. 162 ; Fryce- Jones ^ ' 
 
 V. Willuuns, 1902, 2 Ch. 517. (/>■) Wm.s. Real Prop. 2G0, 21st 
 
 [g) L. R. 8 Ex. 175. ed.
 
 OF ADVISING ON TITLE GENERALLY. 181 
 
 will did not create such a charge of debts. And it was 
 lield both by Kay, J., and the Court of Appeal that it 
 was not too late to raise this objection, because (as they 
 said) it "went to the root of the title." In other words, 
 it was an objection that the vendors had failed on the 
 face of their own abstract to show any title at all. It also 
 appears that objection to anything, which is a matter 
 of conveyance rather than of title (/), may well be 
 made after the time limited for sending in requisitions 
 on title has expirnd. Thus where the abstract shows a 
 title in the vendor, subject to mortgages, the piu-chaser 
 can of course require the mortgagees to concur in the 
 conveyance, although he may not have sent in any 
 requisition to that effect within the appointed time. 
 For, as we have seen {/>i), a vendor is considered to have 
 shown an acceptable title, if it appear from the abstract 
 that on doing certain acts, which he can perform 
 immediately and independently of others' consent, he 
 will have the right to direct the conveyance of the 
 whole estate contracted for. But by his own showing 
 he has no good title except he do such acts. It is 
 therefore a matter of com^se that he shall perform 
 them ; and it is unnecessary for the purchaser to 
 address any requisition to this point (^/). But it is of 
 course the better plan to take any objection to the 
 title in the manner and within the time prescribed by 
 the contract, even though the objection be an absolute 
 failure to show title on the face of the abstract (o). 
 And it is also desirable to include in the requisitions to 
 be sent in within the time limited a demand for the 
 concim-ence in the conveyance of any mortgagees or 
 other incumbrancers whose charges are redeemable {p). 
 
 J) See above, p. 164 ; Deuut/ tract, 23 Ch. D. 320, 327. 
 
 V. Hancock, L. R. 6 Ch. 1, 8, 9, (o) See above, p. 168, as to the 
 
 13 ; 1 Dart, V. & P. 429, .'ith ed. ; danger of waiting before taking 
 
 494, 6th ed. ; 508, 7th ed. objection to the title. 
 
 (m) Above, pp. 164-1()G. \p) 1 Dart, V. & P. 429. 5th 
 
 (h) Re Gloag and Miller's Von- ed. ; 494, 6th ed. ; 50S, 7th ed.
 
 182 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 If the abstract show a good holding title, the purchaser 
 cannot insist, after the time limited for sending in 
 requisitions is gone by, on any objection thereto, which 
 he might otherwise have taken (q). 
 
 What requi- 
 sitions should 
 be made and 
 insisted on. 
 
 "Where the 
 vendor may 
 rescind. 
 
 The conveyancer should, as a rule, be guided, in 
 making requisitions on title, by the countenance he 
 would expect his contention to receive from the Court in 
 proceedings either to enforce specific performance or to 
 recover the deposit (/•). He should therefore make no 
 frivolous or unnecessary requisitions (.s) , and he should 
 be chary of asking for anything which he considers the 
 other party not bound to concede. There are, of course, 
 occasions when such requests may be properly made, 
 and will be answered out of courtesy ; and on making 
 requisitions in the first instance it is legitimate to ask 
 for what it is desirable that the purchaser should have 
 (unless the requisition be plainly prohibited by the con- • 
 tract), although the vendor be not in strictness bound 
 to comply. But if any requisition be met with a 
 refusal, then the purchaser should not insist upon it, if 
 he does not expect that his contention will be upheld 
 by the Court. 
 
 If the contract contain the common stipulation allow- 
 ing the vendor to rescind the contract incase the purchaser 
 insists on any requisition which the former is unwilling 
 to remove or comply with (t), extra care must be 
 exercised in selecting the requisitions which are to be 
 pressed ; and a conveyancer acting on behalf of a 
 willing purchaser should only maintain his objections 
 on points essential to the title. This is especially the 
 
 See above, p. 168, as to requiring 
 the concurrence of any person, 
 whose interest is not redeemable 
 without his consent. 
 
 (q) rryce-Jones v. Willinmx, 
 1902, 2 Ch. 517. As to the limits 
 
 of the rule in JFant v. Stallibrass, 
 see L. Q. R. xix. 161. 
 
 (r) Above, p. 36. 
 
 (,v) 1 Dart, V. & P. 428, 5th 
 ed. ; 493, 6th ed. ; 506, 7th ed. 
 
 [l] Above, p. 64.
 
 OF ADVISING ON TITLE GENERALLY. 183 
 
 case, where the stipulation is in the old common form 
 giving the vendor the right to rescind, when the 
 purchaser has insisted on an unwelcome requisition, 
 without allowing to the latter any opportunity of with- 
 drawing the requisition («). For,, as we have seen (x), 
 the Courts are now inclined to allow a vendor to 
 exercise a right of rescission according to the letter of 
 the stipulation reserving it, provided only that he do so 
 reasonably and in good faith and not arbitrarily or 
 caprieiousl}'^ ; and so long as the vendor has a good reason 
 for rescinding (//), he is not obliged to inform the 
 purchaser, in the notice to rescind, what that reason 
 is (s). And if the condition do not give the purchaser 
 the option of withdrawing the objection, on which 
 he has insisted, the vendor may rescind without 
 ofPering the purchaser any opportunity of retracting, 
 and the latter cannot recover his rights under the con- 
 tract by abandoning the objection after he has received 
 the notice to rescind {((). Where the condition gives 
 the right of rescission on an unwelcome requisition being 
 made (not i mis fed on), the purchaser is in an even worse 
 plight, as this gives the vendor the opportunity of 
 rescinding on the first delivery of such a requisition (b) ; 
 which he would not have if the condition of rescinding 
 were that the purchaser should insist on the requisi- 
 tion {('). As we have seen {d), such conditions are now 
 frequently drawn so as to allow the piu'chaser to with- 
 draw the requisition within a limited time after he has 
 received notice of intention to rescind ; and when this 
 
 (m) 1 Davidsim, Prec. Couv. (a) Duddell v. Simpson, L. R. 
 
 564. 614, 4th ed. ; 469. 522, oth 2 Ch. 102, 107, 108 ; Re Dames ^■ 
 
 ed. : I Ke)' & Elphinstone, Prcc. Wood, 29 Ch. D. 626. 
 
 Couv. 233, 234, 2iid ed. (j,^ j^^, Sf„,.,. j^owkeft Bdg. Socy. 
 
 (a:) See above, p. 64, aud cases „„a Sibun\s Contract, 42 Ch. D. 
 
 cited in note (■«) thereto. 375 
 
 (y) See lie Jackson and Hadeti's / , /-, n^i .,,: t. 
 
 Contract, 1906, 1 Ch. 412, 420. .,ol''\,?'"""'''7- ^'''"•I'J -"^T- 
 
 (.-) Re Starr lioukett Bdr,. Soc„. f «' 29o, and cases cited in the 
 
 and Sibun\. Contract, 42 Ch. 6. two previous notes. 
 
 375. {d) Above, pp. 64, 72.
 
 184 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 is the case, there is no reason why requisitions, which 
 are thought needful, should not be pressed, so long 
 as notice to rescind is not given. Where the stipulation 
 is that the vendor may rescind, if the purchaser shall 
 insist on any requisition, which the vendor is, on the 
 ground of expense or any other reasonable ground, un- 
 willing to comply with, the vendor is not entitled to 
 rescind unless there is some such ground for his refusal' 
 to comply with the requisition [e). In any case, a 
 notice to rescind expressed to be given " without preju- 
 dice " is null and void ( /). 
 
 Where the 
 vendor has 
 no title. 
 
 It has been held that a vendor, who has no title 
 at all, cannot take advantage of a stipulation in the 
 usual form enabling him to rescind, so as to escape 
 the liability of paying the purchaser's expenses as 
 damages (g). But this doctrine was not applied where 
 a vendor having a beneficial interest, but not the entire 
 legal title, sold in good faith, and a troublesome requisi- 
 tion to get in the outstanding legal estate was insisted 
 on ; notwithstanding that the defect of title appears to 
 have been such as would have justified the purchaser in 
 repudiating the contract at once on the ground that the 
 vendor had failed to show a good title on the face of 
 his own abstract {//). And where a purchaser claimed 
 to repudiate the contract unless the vendor removed an 
 objection, which the Court afterwards held to be un- 
 
 {e) lie Weston and Thomas's Con- 
 tract, 1897, 1 Ch. 244 ; see above, 
 p. 90. 
 
 (/) S. C. 
 
 (</) Boivman v. Hyland, 8 Ch. 
 D. 588, commented upon in Re 
 Deiffhton and Man-is'x Contract, 
 1898, 1 Ch. 458, and Me Jackson 
 and H.aden'' s Contract, 1905, 1 Ch. 
 603,607; 1906, 1 Ch. 412,419, 
 423, 425 ; see above, p. 169. 
 
 (li) Re Beicjhton and Harris's 
 Contract, 1898, 1 Ch. 458. The 
 vendor had sold a lease, and the 
 
 abstract only showed title to an 
 equitable interest in an underlease 
 (see above, pp. 101, n. (i), 164). 
 It should be noted that the pur- 
 chaser did not at once repudiate 
 the contract on this ground ; he 
 negotiated, requiring the objec- 
 tion to be removed and so treated 
 the contract as still subsisting ; 
 see above, pp. 168, 169. The 
 Court moreover treated the objec- 
 tion as relating to a matter of 
 conveyance, not of title. See also 
 HcppemtaU v. Hose, 33 W. R. 30.
 
 OF ADVISING ON TITLE GENERALLY. 
 
 tenable, it • was considered that the vendor was en- 
 titled to rescind the contract on the objection being 
 pressed (/) . But if the vendor fail to show a good 
 title on the face of his own abstract and the piu-- 
 chaser at once repudiate the contract on this ground, 
 it is thought that the vendor cannot then take 
 advantage of a clause in the contract reserving the 
 right to rescind, and so save his liability to pay the 
 purchaser's expenses as damages. For when the vendor 
 has so failed to perform his contract, and the purchaser 
 has at once elected to treat the contract as broken, how 
 can the former au}' longer claim to exercise a right given 
 by the contract itself ? It is held that, where a vendor 
 of land fails to show a good title thereto, he commits 
 such a breach of contract as discharges the purchaser 
 from the duty of performing his part of the agreement 
 and precludes the vendor himself from enforcing any 
 stipulation in his own favour therein contained. The 
 purchaser, on such a breach, is entitled to rescind the 
 whole contract, and every part of it is annulled as 
 against him (/«•). The proper time, moreover, for the 
 vendor to perform his obligation of showing a good 
 title is upon the delivery of the abstract ; and it is sub- 
 mitted that when the vendor has definitely assumed to 
 perform this obligation by sending in the abstract, then 
 if a good title be not shown on the face of it, the pur- 
 chaser is entitled both at law and in equity at once to 
 rescind the contract, and need not wait for the day fixed 
 for completion (/). Besides, it may be doubted whether 
 
 ((■) haacK V. Towell, 1898, 2 CL. see above, pp. 32, n. {b), 180, 181 ; 
 285. L. Q. R. xix. 168-171 : HoUhnl/ 
 
 [k) Dnke uf St. Albans \. Shore, v. Seacombr, 1906, 1 Ch. 426, 
 1 H. Bl. 270, 278 ; Seaward v. 434 ; below. Chap. XVIII. § 2 ; 
 Willock, h East, 198, 202; SonU^ XIX. § 1. 
 V. Drake, b B. & Ad. 992 ; and 
 
 (/) Westmi V. Sarage, 10 Ch. D. 736, which wa.s an action by a 
 purcha.ser as plaintiff to enforce actively his right of reseinsion and to 
 recover his deposit, and was expressly decided from a common law 
 point of view (see 10 Ch. D. 741) ; Brewery. Broad tvood, 22 Ch. D. 
 105, 109, where the purchaser's right of roscissiou was allowed as a 
 
 185
 
 186 OF ADVISING ON TITLE GENERALLY. 
 
 a case like this, in which the purchaser does not insist 
 that the vendor shall remove any objection or comply 
 
 good defence to the vendor's aotion for damages for breach of the 
 contract, and it was laid down that the purchaser's right of immediate 
 repudiation is not confined to cases where the time fixed for completion 
 is of the essence of the contract ; Lee v. Huaincs, 156 W. R. 884, where 
 the purchaser sought, as plaintiff, to enforce his right to rescind and 
 recover his deposit and expenses. The vendor's obligation to show a 
 good title at the time of the delivery of tlie abstract is also illustrated 
 by the case of Want v. StalUbrasx, L. R. 8 Ex. 175, above, p. 180, 
 where the vendor's utter failure to show any title at all upon the face 
 of the abstract was held to be such a breach of contract as discharged 
 the purchaser from the whole agreement, including a stipulation that 
 he must send in his requisitions or objections within a specified time ; 
 see L. Q. R. xix. 172. It is respectfully submitted that the theory 
 put forward by Parker, J., in Ealkett v. 'jJiidky, 1907, 1 Ch. ofiQ, 596 
 (in which none of the above cases was cited), is erroneous. The learned 
 judge there maintained that the purchaser's right to repudiate the 
 contract at once upon the vendor's failure to show a good title, without 
 waiting for the day fixed for completion, is merely an equitable right 
 affecting the equitable remedy by way of specific performance and is 
 solely attributable to the doctrine of want of mutuality. If that were 
 so, the purchaser could not plead his right so to rescind the contract 
 as a defence to the vendor's action for damages for breach of the 
 contract ; for the doctrine of want of mutuality has no place in 
 English law, except as a defence to an action for specific performance ; 
 see below, Ciiap. XIX. \^ 3. Besides, to take active proceedings as 
 plaintiff in su(^h a case, a purchaser must have a leyal right of rescis- 
 sion, though the proceedings in which he can so assert this right owe 
 their origin to the Court of Chancery's concurrent equitable jurisdic- 
 tion ; see below. Chap. XIX. ^ 1. Parker, J., also said (1907, 1 Ch. 
 596) that he did not see why, in principle, a vendor, who has sold 
 land, which does not belong to him, but to which he acquires a title 
 before the day fixed for completion, should not be able to recover 
 damages from the purchaser then refusing to complete. But it is 
 respectfully submitted that the learned judge altogether failed to 
 appreciate the true nature of the vendor's obligation to show a good 
 title. We have seen that in the same case he overlooked the difference 
 between ahoivuiy title upon the face of the abstract delivered and 
 proving title by production of the proper evidence; above, p. 166, n. («). 
 Both of these obligations ought properly to be perf oi jued by the vendor 
 well before the day fixed for completion ; as it is not until the title is 
 proved that the purchaser can safely accept it, and before such accept- 
 ance he cannot safely prepare the draft conveyance ; see below, 
 Chap. XII. § 1 ; XIX. § 2. At common laAv too time was of the essence 
 of the contract in all respects ; so that it cannot be correct that at law 
 the vendor performs the contract, though he shows no title on delivery 
 of the abstract, if he can get it in just before the day fixed for com- 
 pletion. On the contrary, at common law the vendor was bound to 
 have shown and verified a good title and to be ready to convey on that 
 day ; above, pp. 58, 59. It is submitted that the authorities above 
 cited prove that the vendor's failure to show a good title on the face 
 of his own abstract at the time of its delivery is at law such a breach 
 of contract as discharges the purchaser from the duty of performing 
 his part of the agreement for sale. It is not of course suggested that 
 a purchaser claiming to rescind the contract at once for a breach of
 
 OF ADVISING ON TITLE GENERALLY. 187 
 
 with any requisition, but merely claims to repudiate 
 
 the contract at once without further discussion, falls 
 
 within the terms of the usual stipidation allowing the 
 
 vendor to rescind (/«). It has been definitely decided WTiere the 
 
 that, where the vendor has knowingly or recklessly knowino-w 
 
 (though without intention to defraud) made some "^' recklessly 
 
 . 1 . I • • ^ made a 
 
 material misrepresentation with respect to the property material 
 
 sold, so that he is unable to convey a property answer- "'"^i*'?'"®- 
 
 ' _ J I r J sentation. 
 
 ing to that which he contracted to sell, he is not entitled 
 to rescind the contract, under the common stipulation 
 allowing him to rescind in case of his unwillingness to 
 comply with some requisition, so as to deprive the pur- 
 chaser of /lis rights either to rescind the contract for 
 misrepresentation or to enforce its specific performance 
 with compensation (w). 
 
 If the stipulation gives the right to rescind in case of Objection 
 insistence on a requisition or objection as to title only, 
 the vendor mil not be enabled to rescind if the pur- 
 
 to matter of 
 conveyance. 
 
 this kind uaimot plead want uf mutuality as a defence to the vendor's 
 action for specific performance. All that is maintained is that the 
 purchaser's right to rescind in such a case really rests on the common 
 law principle that the vendor's obligation to show a good title at the 
 time of the delivery of the abstract is a stipulation of which the 
 performance is a condition precedent to the purchaser's liability under 
 , the contract ; see below, Chap. XIV. § 1 ; XVIII. j 2. The vendor 
 cannot successfully sue on the contract at law because of his default 
 in performing this condition ; and he will not be relieved in equity by 
 being idlowed to pursue the equitable remedy of specific performance, 
 except where the vendor's breach is so trifling that the case is con- 
 sidered in equity to be a proper subject for specific performance with 
 compensation at the vendor's suit (see above, p. 4;J, and below, 
 Chap. XII. \ 4), or unlrs.i the purchaser by his conduct in continuing 
 negotiations for removing the objection he ha.s taken elects to treat 
 the contract as still subsisting ; above, pp. 16<S, 169. 
 
 (/«) See liowinati v. llylaud, 8 the vendors had in fact made 
 
 Ch. I). 588. what amounted in law to a wrong- 
 
 («) Re J (ickxon (Did Madefies Con- ful misrepresentation; Hollmell 
 
 tract, 1906, 1 Ch. 412, of which v. Scacombc ib. 426, 432 sq. As 
 
 1 — case it is submitted that the state- to wrongful misrepresentation, 
 
 /t.^^^/Uv ment in the text, rather than the see below, Chap. XIV. j I ; and 
 
 headnote in the Law Reports, as to the purchaser's right to 
 
 ^ ^~] eiCi\..%H^ gives the exact point; see the specific performance with com- 
 
 V ■ remarks made in the judgments pensation, see above, pp. 43, 44, 
 
 (pp. 421, 423,425), showing that 65, 66; below, Chap. XII. <f 4.
 
 188 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 chaser insist on some requirement, which is a matter of 
 conveyance, as the discharge of a mortgage (o) . But it 
 has long been usual expressly to extend the right to 
 rescind to the case of objections as to matters of con- 
 veyance, and generally to objection in regard to any 
 matter relating to the sale ( p) ; and where the contract 
 is so expressed, the Court will give effect to it {q). 
 The usual condition expressly empowers the vendor to 
 rescind, notwithstanding any negotiation or litigation 
 in respect of the objection or requisition insisted on (r). 
 Such negotiation on the vendor's part is therefore no 
 waiver of his right to rescind {s). And the vendor is 
 enabled to rescind, although the condition contain no 
 reference to pending litigation, during the continuance 
 of any proceedings by the purchaser either for specific 
 performance or to enforce the contract at law, and 
 whether by action or vendor and purchaser summons {t) : 
 but not after final judgment has been given in any 
 such proceedings [ti). If the vendor take proceedings 
 to enforce the contract at law or in equity, he waives 
 his right to rescind : though he may revert to it, if he 
 procure his proceedings to be effectually discontinued at 
 his own cost before they come on to be heard {x). 
 
 Waiver of 
 objections or 
 requisitions. 
 
 A purchaser may of course waive any objection or 
 requisitiou which he has taken or made as to title or 
 
 (o) lie Jackson and Oakshott, 14 
 Oh. D. 851 ; see above, pp. 164, 
 165. 
 
 {l}) 1 Dart. V. & P. 160, 5th 
 ed. ; 1 Davidson, Prec. Conv. 564, 
 614, 4th ed. 
 
 ((/) lie Deujhton and Harris'' s 
 Contract, 1898, 1 Oh. 458. 
 
 (r) Above, p. 72. 
 
 (»■) Duddell v. SiiHpso)i, L. R. 
 '1 Ch. 102 ; 1 Davidson, Prec. 
 Conv. 564, 4th ed. ; 470, 5th ed. ; 
 1 Dart, V. & P. 161, oth ed. ; 
 183, 184, 6th ed. ; 177, 7th ed. 
 
 [t) Hay V. Smithies, 22 Beav. 
 510 ;' Buddell v. Simpson, L. R. 
 
 2 Ch. 102 ; Isaacs Y. Toicell, 1898, 
 2 Ch. 285. But the condition 
 does not oust the jurisdiction of 
 the Court to order the vendor to 
 pay the costs of any such pro- 
 ceedings ; lie Spindler and Mcar'' s 
 Contract, 1901, 1 Ch. 908. 
 
 (m) ReArhih and Class's Contract, 
 1891, 1 Ch. 601. 
 
 [x) Warde v. Dickson, 5 Jur. 
 N. S. 698 ; Graij v. FowUr, L. R. 
 8 Ex. 249 ; and see the case cited 
 in the previous note, where the 
 original summons was taken out 
 by the vendor.
 
 OF ADVISING ON TITLE GENERALLY. 1^9 
 
 otherwise. Such waiver may be either express or 
 implied from any acts or conduct inconsistent with the 
 maintenance of the objection (//). The express waiver 
 of an objection or requisition needs no comment : though 
 it may be observed tliat the acceptance of the title shown 
 b}'- the abstract is no waiver of the right to require the 
 verification of the abstract {z), or of any objection not 
 disclosed by the abstract {a). Whether the waiver of 
 any objection is to be implied from the purchaser's acts 
 is a question of fact to be determined by the considera- 
 ti'^tn of all the circumstances of the case (h). The 
 evidence usually offered to establish an implied waiver 
 is the performance, without raising any objection, of 
 acts which the purchaser is not bound to perform, or 
 which a prudent purchaser does not usually perform 
 until a good title has been duly proved (r) ; like entry 
 into possession, or payment of the whole or part of the 
 purchase money (d). With regard to taking possession, 
 if the contract for sale expressly or impliedly provide 
 that the purchaser shall be let into possession before 
 completion, no waiver can be implied from the fact of 
 the purchaser so taking possession (c) . And so it is if 
 after the contract the parties agree that the ])urchaser 
 shall go into possession without prejudice to his right 
 to require a good title (,/). But if tlie purchaser take 
 possession, otherwise than under an (^x])ress provision in 
 the contract, after an abstract of title has been delivered, 
 but before completion, that is prima, facie a waiver of 
 
 (y) See Simpson v. Sudd, 1 De c) Abi)ve, p. 46. 
 
 G. M. & a. (J6.i : Sujr. V. & T. 
 
 342 sq. ; 1 Dart, V. & P. 430 xq., {d} See the cases cited in the 
 
 .')th ed. ; 49.5.sy/., 6th ed. ; 60S«(/., following notes ; Ilai/don v. Hell. 
 
 7th ed. I Beav. 337. 
 
 [z) SoKthhii V. Hutt, •> My. <k /in- ^ ^/ . nr 
 
 Qj. ;,Q- ■ ■' (<?) Buon V. Astle'j, I Mer. 
 
 {a) Blackluu- v. Laws, 2 Hare, ^^^^ \IV .f^'t u' ^'T'\ '^ 
 
 40 47 : Aldcrson. B.. Att-Gn,. ^I^^^", \' '■ i^Vn?''^^^" J:^'""'''" 
 
 V. SUwell, I Y. \- C. .570. *''''""'' "'""'^^ ^ ^h. D. 766. 
 
 (A) Jitiiroiif/hs V. Oaklfii, 3 (/) See liinroughs v. Oakley, 3 
 
 Swanst. 169, 1(58. Swanst. 159, 169.
 
 190 
 
 OF ADVISING ON TITLE GENERALLY. 
 
 Purchaser 
 desiring to 
 go on where 
 the abstract 
 shows an 
 objection to 
 the title. 
 
 all objections to title {g) appearing on the abstract (A), 
 though not of other objections ( i). Waiver of objection 
 may also be implied from the purchaser's conduct, 
 though he were in possession when he bought, or took 
 possession before completion under an express provision 
 in the contract or without prejudice to his right to a 
 good title ; as if he remain a long time without raising 
 any objection as to title, and exercise decisive acts of 
 ownership over the lands sold, like letting them, making- 
 alterations in buildings or cutting timber, or accept 
 time in regard to payment of the purchase money {k), 
 or remain in possession after having had notice of an 
 irremovable objection to the title (/). But as has been 
 observed, in each case the whole of the circumstances 
 must be considered, so that entry into possession or 
 exercise of acts of ownership is by no means conclusive 
 evidence of waiver. The question is, whether the pur- 
 chaser intended to waive the particular objection. Such 
 acts therefore are no evidence of waiver if accompanied 
 by insistence on the objection. Thus where negotiations 
 as to title were continued after the purchaser had both 
 taken possession and acted as owner it was held that no 
 waiver of objections to title could be implied {ni). Long 
 delay in raising objections may also be evidence of 
 waiver {n). 
 
 Where the abstract shows an objection to the title 
 which would justify the purchaser in rescinding the 
 contract, but he desires to complete the sale, if possible. 
 
 [g) But not of objections,, 
 which are matter of conveyance 
 (above, p. 16i), as that the vendor 
 shall release the property from 
 mortgages ; Re Gloaq and MiU<r''s 
 Contract, 23 Ch. D. 320, 327. 
 
 [h) Burnell v. Brown, 1 J. & W. 
 168 : Bown v. Stenson, 24 Beav. 
 631, 637. 
 
 («) Turquand v. Rhodes, 37 L. 
 J. Ch. 830. 
 
 {k) See Fleetwood v. Green, 15 
 Ves. 594 ; Dixon v. Astley, 1 Mer. 
 133; Margravine of Anxpaeh v. 
 Xoel, 1 Madd. 310." 
 
 (l) Re Gloag and Miller^n Con- 
 tract, 23 Ch. D. 320. 
 
 \m) Burroughs v. Oakley, 3 
 Swanst. 159, 169, 171. 
 
 (m) Pegg v. TVixdeii, 16 Beav. 
 239.
 
 OF ADVISING ON TITLE GENERALLY. 191 
 
 it is frequently advisable for him to claim at once that 
 he is entitled to treat the contract as broken and recover 
 his deposit and expenses, but to statn that, subject and 
 without prejudice to bis strict rights in this respect, he 
 is willing to buy the property described in the contract 
 at the price therein mentioned, if the objection can be 
 removed, and to make ])ro visional requisitions accord- 
 ingly. It is thought that if he so reserve his rights, 
 the vendor cannot rescind under the common condition, 
 if any requisition so made prove im welcome (o). The 
 purchaser must, however, bear in mind that in taking 
 this course he gives the vendor the opportunity of 
 retiring from the bargain, thougli only on the terms of 
 returning the deposit, if any, and paying the purchaser's 
 expenses of investigating the title down to the date of 
 the claim to repudiate the agreement (^j), and he pre- 
 cludes himself from enforcing the specific performance 
 of the contract. But in most cases the vendor's desire 
 to obtain the contract price for his land, and his anxiety 
 to avoid pa^yiug the purcliaser's expenses, are sufficiently 
 great to make the course suggested effective. 
 
 (o) See above, pp. 37, 1G8, 1(>9, agreement to complete tlie sule, 
 
 184 — 187. the purchaser cauuot of coui-ae 
 
 (ju) See below, Chap. XIX. § 2. recover his exjjonses of sucli .sub- 
 It" after thi.s date the parties .sequent uegotiiition. 
 iiesfotiate but fail to arrive at au
 
 192 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 limitations. 
 
 CHAPTER VI. 
 
 OF STIPULATIONS LIMITING THE OBLIGATION TO 
 SHOW A GOOD TITLE. 
 
 We will now turn oiu' attention to various particular 
 points, which constantly arise in advising on title. And 
 first, as to the effect of stipulations limiting the vendor's 
 The statiitory obligation to sliow a good title. We will begin by 
 remarking that the enactment substituting forty years 
 for sixty, in the absence of stipulation to the contrary, 
 as the time of commencement of title {a) appears to 
 alter the rule of law on this point rather than to intro- 
 duce into open contracts a new term depending for its 
 efficacy on the contracting parties' consent. So that 
 where a vendor shows forty years' title, he is considered 
 to show title for the full period required by law, and 
 the purchaser's rights are not regarded as being limited 
 by special stipulation (A). But the other statutory 
 limitations of the purchaser's right to require a good 
 title do not appear to have the like effect. Thus the 
 enactment in the Vendor and Purchaser Act, 1874 (r), 
 removing the necessity of showing the freeholder's title 
 on the grant or assignment of a lease, has been held to 
 have no greater force than a special stipulation in the 
 contract to the same effect, and so not to exempt the 
 grantee or assignee of the lease from receiving construc- 
 tive notice of the lessor's title (''/). And, as we shall see, 
 
 (a) Stat. 37 & 38 Vict. c. 78, tract, 1891, 2 Ch. 109, 117, 118. 
 s. 1 ; above, pp. 100. 101. (r) Stat. 37 Sc 38 Vict. c. 78, 
 
 {b) See lie Marsh and Earl s. 2 (rule 1) ; above, pp. 100— 102^ 
 Granville, 24 Ch. D. 11 ; above, (rf) Tatman v. Harland, 17 Ch. 
 
 p. 101 ; Re Cox and Neve's Con- D. 353, 359.
 
 TO SHOW A GOOD TITLE. 193 
 
 the provisions of the Conveyancing Act of 1881 {e), 
 exonerating the vendor of hinds hekl by underlease less 
 than forty years old from the obligation of showing the 
 title to any leasehold reversion, and relieving a vendor 
 of enfranchised coi\yholds of the necessity of showing 
 the title to make the enfranchisement, receive the same 
 construction as special stipulations in similar terms. 
 The rule fixing forty years before the date of the con- 
 tract as the time of commencement of title is, as we 
 liave seen (/), very frequently superseded in practice by 
 a special stipulation that the title shall commence with 
 some instrument of more recent date. But whether the 
 period for which title has to be shown be defined by the 
 general rule or by special stipulation, the vendor's obli- 
 gation is subject to the further limitation introduced 
 into contracts for sale by sect. 3, sub-sect. 3 of the Con- 
 veyancing Act, 1881 {(/). This enactment, the exact 
 effect of which it is of the first importance to under- 
 stand, runs as follows : — 
 
 " A purchaser of any property shall not require the Sect. 3 (3) of 
 production, or any abstract, or coj)y, of any deed, will, Act^i88i!'^°^ 
 or other document dated or made before the time pre- 
 scribed by law, or stipulated, for commencement of the 
 title, even though the same creates a power subsequently 
 exercised by an instrument abstracted in the abstract 
 furnished to the purchaser ; nor shall he require any 
 information, or make any requisition, objection, or 
 inquiry, with respect to any such deed, will, or docu- 
 ment, or the title prior to that time, notwithstanding 
 that any such deed, mil, or other document, or that 
 prior title, is recited, covenanted to be produced, or 
 noticed ; and lie shall assume, unless the contrary 
 a]ipears, that the recitals, contained in tlio abstracted 
 instruments, of any deed, will, or other document, 
 
 (e) Stat. 44 & 45 Vict. c. 41, (/) Above, pp. 17, 84. 
 
 8. 3 (1, 2) ; abovp, pp. 100, 101. (y) Stat. 44 A: 45 Vict. c. 41. 
 
 w. 13
 
 1^4 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 forming part of tliat prior title, are correct, and give 
 all the material contents of the deed, will, or other 
 document so recited, and that every document so recited 
 was duly executed hy all necessary parties, and per- 
 fected, if and as required, hy fine, recovery, acknow- 
 ledgment, inrolment or otherwise." 
 
 The incorporation or exclusion of these provisions in 
 or from the contract is, however, a matter depending 
 on the expression of the intention of the parties (h) . 
 And it is enacted (/) that nothing in this section shall 
 be construed as binding a purchaser to complete his 
 purchase in any case where, on a contract made inde- 
 pendently of this section, and containing stipulations 
 similar to the provisions of this section or any of them, 
 specific performance of the contract would not be 
 enforced against him by the 'Court. The statutory 
 provisions therefore have no greater force than express 
 stipulations to the same effect, and will receive the same 
 construction as such stipulations (_/). We have already 
 noticed the manner in which special conditions of sale 
 are construed in actions for specific performance (/>•). 
 We will now show particularly in what manner the 
 effect of the above provisions is practically limited, 
 notwithstanding the sweeping character of the expres- 
 sions used therein. 
 
 The effect of The first observation to be made is that this enactment 
 the above -g j^q qualification of the main rule that the vendor 
 
 enactment. ^ _ _ 
 
 must show a good title, that is, that he must prove his 
 right to convey what he sold. It refers entirely to the 
 subordinate rule that the title for the last forty years, 
 or whatever less period may be agreed upon, shall piu'/j/d 
 facie be evidence of a good title (/). If therefore the 
 
 (/() Sect. 3, sub-s. 9. 261, 272 ; 16 Q. B. D. 778. 
 
 (i) Sect. 3, sub-s. 11. ,,, ., „„ „„ 
 
 Ij) NoifAngham Patent Brick and ^ ' ' PP* » 
 
 Tile Co. V. Butler, 15 Q,. B. D. (/) Above, pp. 95, 96.
 
 TO SHOW A GOOD TITLE. 195 
 
 title shown in accordance with the agreement be defec- 
 tive, as where it discloses incumbrances irremovable 
 without otlier persons' consent (in), the purchaser is not 
 precluded by the above enactment from objecting to the 
 title, notwithstanding that the incitmbrances were created 
 before the time fixed for the commencement of title. 
 The leading authority for this is PhillipH v. Cald- l^inUips v. 
 cleugh (n). In that case, the plaintiff contracted to 
 pm-chase of the defendants a house described as a 
 freehold residence, subject to certain conditions of sale, 
 and paid a deposit. The 5th condition provided that 
 the abstract of title to the property should commence 
 with a conveyance dated the 17th of April, 18H0, and 
 no purchaser should investigate or take objection in 
 respect of the title prior to the commencement of the 
 abstract. By the deed of the 17th of April, 1860, 
 as abstracted, the premises were conveyed to Matthews 
 and Beckett in fee subject to the covenants and con- 
 ditions contained in an indenture of the 2nd of March, 
 1850, recited therein. The plaintiff made this requi- 
 sition — " The vendors must show, notwithstanding any 
 of the conditions of sale, that the covenants and con- 
 ditions contained in the indenture of the 2nd of March, 
 1850, referred to in the first abstracted deed, do not in 
 any manner affect the property, and that the purchaser 
 incurs no liability in respect of them." To which the 
 defendants made answer, " The purchaser's solicitors are 
 referred to the 5tli condition of sale." After some 
 fruitless negotiations the purchaser brouglit an action 
 to recover his deposit. And it was held that he was 
 entitled to recover it. For the plaintiff had contracted 
 to pm-chase a freehold house, which must mean a free- 
 hold free from all incumbrances ; and the abstract 
 delivered only showed a title to a freehold house 
 incumbered by certain covenants. And it was held 
 
 (w) Above, p. le.i. (w) L. R. 4 Q. B. I;i9. 
 
 13 (2)
 
 196 
 
 \ 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 tliat the 5tli condition of sale did not prevent the 
 purchaser from taking this objection : for it merely 
 restricted the length of time for which the purchaser 
 could require a title to be shown ; and did not absolve 
 the vendor from the obligation of showing a good title 
 to the freehold of the property sold, free from incum- 
 brances, from the time at which it had been agreed that 
 the title should commence. It should be noted that 
 this case was an action at law brought before the Judi- 
 cature Acts, and in no way depended upon any of the 
 equitable doctrines peculiar to the granting or refusing 
 Nottingham the specific performance of a contract (o). Again, in 
 and Tile Co. NottingJtam Patent Brick and Tile Co. v. Butter {p), 
 7. Butler. land was bought under a contract providing that the 
 title should commence with an indenture dated the 20th 
 of May, 1868, and incorporating the above enactment, 
 and further providing that the property was sold subject 
 to any matter or thing affecting the same, whether 
 disclosed at the time of sale or not. The vendor's 
 solicitor represented to the purchaser, before the contract 
 was signed, that the property was not subject to re- 
 strictive covenants : but the purchaser, after having 
 signed the contract, discovered from other sources than 
 the vendor that there were restrictive covenants affecting 
 the property and created by a title deed of earlier date 
 than the 20th of May, 1868. He thereupon refused to 
 complete, and brought an action to recover his deposit. 
 The vendor counterclaimed the specific performance of 
 the contract, and alleged in the Court of Appeal that 
 he himself had bought without notice of the restrictive 
 covenants, and so could give the purchaser an unincum- 
 bered title. The vendor was, however, aware of the 
 existence of the covenants, having discovered them, as 
 he said, by looking, after his purchase, at the deed 
 creating them. It was held both by Wills, J. and the 
 
 [o) Above, pp. 37, 38. {j)) 15 Q. B. D. 261 ; 16 Q. B. D. 778.
 
 TO SHOW A GOOD TITLE. 197 
 
 Coui't of Appeal that the purchaser was not prechided 
 by the above provisions of the Conveyancing Act from 
 insisting on his right to an unincumbered freehold title. 
 The vendor's claim for specific performance was rejected, 
 not only on the ground of his solicitor's misrepresenta- 
 tion, but also because the vendor, knowing of the defect 
 in the title, did not call the purchaser's attention thereto 
 in the contract, and so could not avail himself of tlie 
 special condition that the property was sold subject to 
 anything affecting the same (q). His claim to oblige 
 the purchaser to take a title from him as a bond fide 
 purchaser for value without notice of the covenants was 
 dismissed for the reason that the fact, that he was such 
 a purchaser, was disputable, and Courts of Equity 
 regard titles depending on proof of facts, which may 
 be immediately disputed and so land the purchaser in 
 litigation, as too doubtful to force upon an unwilling 
 purchaser. The return of the deposit was also ordered 
 in both Courts : but the Court of Appeal rested the 
 purchaser's right to this relief entirely upon the mis- 
 representation by whicli he was induced to enter into 
 the contract ; without which the Court considered that 
 he would have been bound at law by the contract. 
 Another case illustrating the effect of the above enact- 
 ment and depending on the same principle as the case 
 last cited is Re Marsh and Earl Granvilh' [r). It was Re Marsh and 
 there stipulated tliat the title to a certain freehold estate ^?r^ ^''''"' 
 should commence with a deed less than forty years old. 
 This deed turned out to be a voluntary conveyance : 
 but no mention of this fact had appeared in the con- 
 ditions of sale. It was lield in a vendor and purchaser 
 summons taken out by the vendor that thd piu-chaser 
 was justified in refusing to complete the contract, unless 
 title were shown for the fidl period of forty years ; 
 notwithstanding that the conditions of sale provided 
 
 {q) See above, pp. 73, n. {t), IT-'i, 170. (») 24 Ch. D. 11.
 
 198 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 that the title earlier than the date of the voluntary 
 conveyance should not be investigated or objected to. 
 This was so decided on the ground that conditions 
 curtailing a purchaser's right to require a good title as 
 defined by law must be fair and explicit, or the vendor 
 shall not enforce the specific performance of the contract 
 according to the limiting conditions. And the Court 
 further considered that, on a stipulation for the com- 
 mencement of title with a deed lesH than forty years 
 old, the purchaser is entitled to assume that the agreed 
 root of title is a conveyance for valuable consideration. 
 As we have seen (s), this judgment does not appear to 
 oblige a vendor to put forward such a conveyance as 
 the root of title when he agrees to show title for the 
 full period required by law. In all other respects, 
 however, the principles of Phillips v. Caldclengh and 
 Re Marsh and Earl Granville are constantly applicable 
 whenever it is stipulated that title shall commence with 
 an instrument of a particular date, whether that date 
 be or be not less than forty years before the contract. 
 And whenever such a deed fails in any of the requisites 
 of a good root of title {t), the purchaser is entitled to 
 call for further evidence to supply the defect ; and he 
 is not precluded by the above enactment from insisting 
 on this right to further evidence, even though proof 
 can only be supplied by tlie investigation of the earlier 
 title. For as we have seen [a), the vendor's obligation 
 is to show title to the whole estate contracted to be 
 conveyed in the lands sold throughout the entire period 
 of forty years or such less time as may be agreed on. 
 He must therefore prove title to the whole of such 
 estate at the beginning and thenceforward until the end 
 of such period. Thus on the sale of freeholds he must 
 prove a seisin in fee free from incumbrances at the 
 commencement of and thi'oughout the number of years 
 
 (.v) Above, p. 109. [t) Above, p. 106. [x) Above, p. 107.
 
 TO SHOW A GOOD TITLE. 199 
 
 for which he has bound himself to show title ; and he 
 incurs a similar obligation on the sale of copyholds (r) 
 or leaseholds (?<'). 
 
 If a vendor of his own accord allow the purchaser to Vendor dis- 
 inspect title deeds of earlier date than the time agreed de^fg^fof title, 
 on for commencement of title, and the purchaser so 
 discover a defect in the title, the latter may insist on 
 such defect as a bar to specific performance, notwith- 
 standing the provisions of the above enactment (a?). 
 
 Any misrepresentation as to facts, however innocently Misrepresen- 
 made, will preclude the vendor from enforcing the * '°°' 
 specific perf(jrmauee of the contract with the limitations 
 imposed by the above enactment. On this point the lead- 
 ing case is now Re Banister, Brotid v. Miinfou (.y), where, Re Banister, 
 upon the sale of a farm by order of the Court, a condition ^'*"f ^' 
 was made requiring the purchaser to assume that E. B. 
 was seised of and entitled to the entire property sold in 
 fee simple in possession, free from incumbrances, in 
 1835 and up to and at her death, stating that it was 
 not known and could not be explained how E. B. 
 acquired the property, and expressly stipulating that no 
 other title than as above should be required or inquired 
 into. It was shown that it was within the knowledge 
 of the vendor that E. B. was not seised of the property 
 free fi'om incumbrances in 1835, and how E. B. 
 acquired the property. The vendor was held to have 
 acted in perfect good faith, inasmuch as he had 
 furnished a statement of the facts known to him, upon 
 which the condition had been drawn by one of the con- 
 veyancing counsel of the Court. But it was held that, 
 the statement which the piu'chaser was required to 
 
 (t) Sellick V. Trevor. 11 M. & \-^) Smith v. Robuison, 13 Ch. 
 
 W. 722. D. 148. 
 
 (y) 12 Ch. D. 131 ; see also 
 
 {«•) WndiUn V. Jlolft; L. R. 9 Earmtt v. Baker. L. R. 20 Eq. 
 Q. B. 515. 50. ^
 
 200 
 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 assume as correct being untrue to the knowledge of the 
 vendor, the former had been induced to make the con- 
 tract by a misrepresentation ; for he was entitled to 
 presume that what was so stated was true. It was con- 
 sidered therefore that the vendor could not oblige the 
 purchaser to take a title as limited by the condition, 
 and the purchaser might decline specific performance 
 unless the vendor would show a good title irrespective 
 of the condition. But it was declared that the purchaser, 
 having bought under such a condition, was entitled to 
 require a good holding title only and not a good 
 marketable title. 
 
 Construction 
 of express 
 stipulations 
 before the 
 Conveyancing 
 Act, 1881. 
 
 The reader will observe that, as the above enactment 
 has no greater force in binding either party than an 
 express stipulation to the same effect, it is construed 
 with the aid of decisions given before the Act upon 
 the construction of contracts containing similar express 
 provisions. In arriving at such decisions, the question 
 generally considered was whether the terms of the con- 
 tract simply exonerated the vendor from the obligation 
 of showing or answering any requisition as to the title 
 prior to some specified time(s), or whether they bound 
 the purchaser to refrain altogether from investigating 
 such prior title and so obliged him to accept the title 
 shown without objection, even though a ground of 
 objection were ascertained from other sources than the 
 vendor (r/). It appears from the above-mentioned case 
 of Noitingliam Patent Brick and Tile Co. v. Butler {b) 
 that the stipulation made by sect. 3, sub-sect 3, of the 
 Conveyancing Act (c) does not bind the j)urchaser to 
 refrain from investigating the earlier title in other 
 
 (s) Shepherd v. Keatky, 1 C. 
 M. & R. 117 ; iJarliuriton v. 
 Hamilton, Kay, 550 : Waddell v. 
 Wolfe, L. R. 9 Q. B. 515. 
 
 («) Hume V. Bentley, 5 De G. 
 & Sm. 520; Waddell v. Wolfe, 
 
 L. R. 9 Q. B. 515, 519 ; Jones v. 
 Clifford, 3 Ch. D. 779, 790. 
 
 {h) It) Q. B. D. 778; above, 
 p. 196. 
 
 (c) Above, p. 193.
 
 TO SHOW A GOOD TITLE. 201 
 
 sources than the vendor ; and special stipulation must 
 be made, if such inquiry by the purchaser is intended 
 to be prechided. The reader will have noticed, how- 
 ever, that this enactment expressly precludes objection 
 as well as inquiry by the purchaser with regard to the 
 earKer title ; and it may be asked whether these expres- 
 sions are absolutely without effect. They certainly do 
 not preclude the purchaser from resisting specific per- 
 formance on account of any objection to the title, which 
 was known to the vendor when he made the contract, 
 but not disclosed thereby {d). And, as we have seen (r), 
 they do not, even at law, preclude a purchaser from 
 objecting to a title subject to a present defect, which is 
 apparent on the face of the abstract, though arising out 
 of the earlier title. But if a good title were shown by 
 the abstract for the time for which title was agreed to 
 be shown, and there were no active misrepresentation 
 on the vendor's part (./"), it appears that a purchaser 
 would not be allowed to rely upon an objection barred 
 by the letter of the above enactment in proceedings to 
 recover his deposit (</). And if the objection arising 
 out of the earlier title were unknown to the vendor 
 when he sold, the case is altogetlier different and is 
 not covered by any of the autliorities cited ; and it 
 must not be assumed, without argument, that in such 
 circumstances the purchaser would not be precluded 
 by the above enactment from resisting specific per- 
 formance, if he discovered the objection elsewhere (//). 
 
 (rf) Nottinghiiiii Patent Brick and Xottingliam. S;c. Co. v. liutlty. The 
 
 Tilr (Jo. \. Butler, 16 Q. B. D. positiou there taken by the writer 
 
 778, 786, 789. with regard to defects known to 
 
 ie) Above i). I'.io. *^^ vendor (p. i)8o, last sentence) 
 
 in Spo ahoJe r> l')7 '" J"«tifi<?d by the judgment of 
 
 {J) bet abo\e. p. 1J7. the C. A. in this case : 16Q.B. D. 
 
 0/) See above, pp. 37, 8S, and 786, 789. As to the position of a 
 
 ca.sesstatedbeh)W, pp. 204— 207. vendor selling honestly and in 
 
 (/() On this point see the good faith without knowledge <if 
 
 writer's argument in his Convey- a defect in his title, see Re Tf^oods 
 
 ancing Statutes, Appendix A.. and Leu-is\s Contract, 1898, 1 Ch. 
 
 p. T):}!, written before the case of 433, 2 Ch. 211.
 
 '^'2 OF STIPULATIONS LIMITINO THE OBLIGATION 
 
 Special stipu- It IS of course open to any vendor by special .stipu- 
 tftle*^ ^^ " lation either to exonerate himself altogether from the 
 obligation of showing title or to bind the purchaser 
 to accept any partial or defective title ; and if such 
 stipulations be fair and explicit, so that the purchaser 
 cannot reasonably be misled with regard to the title he 
 is contracting to take, they will be enforced by the 
 Court in granting specific performance at the vendor's 
 suit (/). Thus purchasers have been ordered to perform 
 S[)ecifically contracts obliging them to take such title as 
 the vendors had [k). Such a stipulation precludes 
 objection to the vendor's title, but does not relieve him 
 of the obligation of abstracting and verifying it (k). 
 But a stipulation that the vendor shall not be required 
 to show any title, whether to the whole or to any part 
 of the lands sold, is undoubtedly valid, and exempts 
 him from the necessity of abstracting or otherwise 
 proving his title (/). As we have seen {/n), however, 
 the last-mentioned stipulation alone would not preclude 
 objection to the title on account of a defect discovered 
 from other sources ; but if words were added obliging 
 the purchaser to refrain from any independent investi- 
 gation of the title, he would certainly be bound thereby, 
 both at law and as regards the specific performance of 
 the contract. On this point the leading authority is 
 Jiunic V. Hu))U' V. Bcntlei/ {ii), where leaseholds were sold under a 
 
 ^^' condition that the lessor's title would not be shown and 
 
 should not be inquired into (o). The vendor sued for 
 specific performance, and on the usual reference {p) as 
 
 (i) Above, p. 62 ; see -Re Hasdicke 6th ed. ; 163-165, Tth ed. ; 1 Da- 
 
 and Lipski'x Contract, 1901, 2 Ch. vidson, Prec. Conv. 544, 4tli ed. ; 
 
 666. Fry, Sp. Perf. ^S 1323, p. 591, 
 
 {k) Freme v. Wright, 4 Madd. 3rd ed. ; p. 565, 4th ed. 
 
 364 ; Keysc v. Haydeu, 20 L. T. (/) See Soiithby v. Hutt, 2 My. 
 
 O. S. 244 ; Hume v. Pocock, L. R. & Cr. 207, 212, 213. 
 
 1 Ch. 379, 385. See also WUmot {m) Above, p. 200. 
 
 V. Wilkinson, 6 B. & C. 506; («) 5 De G. & Sm. 520; 16 
 
 Tweed v. Mills, L. R. 1 C. P. 39 ; Jur. 1 109. 
 
 Sug. V. & P. 337 ; 1 Dart. V. & (o) See above, p. 200. 
 
 P. 150, 151, 5th ed. ; 168-170, (/>) Above, p. 166, n. («).
 
 TO snow A GOOD TITLE. 203 
 
 to title, the purchaser took the objection that the lease, 
 which had been granted by a canal company, was \oid, 
 as it appeared from the Acts of Parliament incorporating 
 the company that the company had no power to acquire 
 land or grant leases. It was held however that a vendor 
 may lawfully stipulate that the purchaser shall accept 
 the title shown without objection or inquiry ; and that 
 the words used amounted to such a stipulation and 
 precluded the purchaser from looking into the lessor's 
 title for any purpose. And the purchaser's objection 
 was disallowed. As we have already noted (</) , when it is 
 intended that the purchaser shall take lands sold subject 
 to some particular defect of title known to the vendor, 
 such as an easement, restrictive covenants, a mortgage 
 or a rentcharge, the stipulation obliging him to do so 
 must clearly call his attention to the incumbrance, to 
 which he is to submit : otherwise he will not be bound 
 to specific performance according to tlie letter of the 
 contract. The cases to which we have referred upon 
 considering the effect of sect. 8 (-i) of the Conveyancing 
 Act of LS81 (/•) also illustrate the effect given at law and 
 in equity to special stipulations as to title. 
 
 Here we ma}^ notice a case in which a purchaser may a purchaser 
 be obliged to take lands subject to some defect of title ^?*^ notice 
 
 ^ _ _•• _ ^ that a good 
 
 or particular incumbrance, without any written stipula- title cannot 
 tion to that effect. Wliere the vendor's obligation to '' "^'' 
 show a good title is not an express term of the contract, 
 but is merely implied, as in the case of an open con- 
 tract (.s), it is open to him to prove tliat the purchaser 
 bought with notice (though given by word of mouth 
 only) that a good title could not be made, either wholly 
 or partially ; and the vendor will then be exonerated 
 from showing title to the extent indicated by such 
 
 (q) Above, pp. 73. u. (/), 176, (r) Above, pp. 196 .«(/. 
 197. (.-i) Above, p. 3'J.
 
 204 
 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 notice (f). But where the vendor has expressly con- 
 tracted to show a good title, he is not permitted to 
 modify the terms of his written agreement by giving 
 oral evidence of any such notice {u). 
 
 Difference in 
 purchaser's 
 position when 
 resisting 
 specific per- 
 formanoe, and 
 when seeking 
 to recover 
 deposit. 
 
 Sest V. 
 Hamand. 
 
 We will now consider the authorities establishing the 
 difference, to which we have before referred (.r), in the 
 position of a purchaser under a special contract as to 
 title when he is resisting specific performance in equity 
 and when he is seeking to recover his deposit at law. In 
 Bed v. Hamand {}/), a railway company sold land as 
 superfluous land under conditions that the purchasers 
 should assume (without proof) that everything had 
 been done by the company to enable them to sell the 
 land as surplus land, and that the deposit should be 
 forfeited if the purchasers failed to comply with the 
 terms of the agreement. The purchaser discovered 
 from other sources that some of the adjoining owners 
 had not waived their right of pre-emption ; and insisted 
 on this objection to the title (s). The vendors thereupon 
 claimed the deposit as forfeited ; and it was held by the 
 Court of Appeal, reversing the decision of Hall, V.-C, 
 that the purchasers were not entitled to recover it, as 
 they had in effect contracted to take the vendor's title 
 without objection on this point, and had not therefore 
 abided by the terms of the contract. But if in this 
 case the vendors had sued for specific performance, it 
 
 {t) Ogilvie v. Foljdinbe, 3 Mer. 
 53, 64 ; Me Glomj and Miller'' s 
 Contract, 23 Ch. D. 320, 327 ; 
 ElllH V. Rogers, 29 Ch. D. 661, 
 666, 671, 672; Fry, Sp. Perf. 
 § 377, p. 172, 3rd ed. ; pp. 161, 
 162, 4th ed. It appears that the 
 case of Re Highett and JSird's (!on- 
 travt, 1903, 1 Ch. 287 (as to which 
 see below, Chap. X. ^S 2), is not 
 to he taken as conflicting with 
 this rule ; see Romer, L. J., Re 
 Allen and DriscoW s Contract, 1904, 
 2 Oh. 226, 231. 
 
 (It) Caio V. Thuiiipnun, 9 Q. B. 
 D. 616. 
 
 [x) Above, pp. 38, 88. 
 (y) 12 Ch. D. 1. 
 
 {z) Under sect. 128 of the Lands 
 Clauses Act, 1845 (Stat. 8 & 9 
 Vict. c. 18), before superfluous 
 land can be sold by a railway 
 company, it must be offered to 
 the ortnerof the lands from which 
 it was originally severed, and in 
 default of this, to the owners of 
 the adjoining lands.
 
 TO SHOW A GOOD TITLE. 205 
 
 appears that the pm-chasers might have resisted their 
 claim, except on condition of the vendors showing tliat 
 they could give at least a good holding title ; for the 
 vendors, having required the purchasers to assume the 
 truth of a statement which the vendors knew to be false, 
 had made a misrepresentation sufficient to preclude 
 them from enforcing specific performance according 
 to the letter of the contract {a). So in Nottingham 
 Pafriif Uriel; and Tile Co. v. Bidler {li), we have seen 
 that land was bouglit subject to the condition that it 
 was sold subject to any matter or thing affecting the 
 same, whether disclosed at the time of sale or not, and 
 it was held that, the land being subject to restrictive 
 covenants known to the vendor but not disclosed at the 
 time of sale, the vendor could not enforce specific per- 
 formance : but it was intimated that the purchaser 
 would not have been able to recover his deposit, if he 
 had not bought on the faith of the vendor's solicitor's 
 representation that the land was free from such cove- 
 nants. Again, in Re Dan's to Caret/ (c) property was Re Davis to 
 sold as " leasehold business premises " under conditions "'^'^' 
 that the title should commence with the conveyance to 
 the vendors, and that no objection should be made in 
 respect of anything contained in tlie lease. No in- 
 formation as to the contents of the lease was given 
 and no opportunity of inspecting it. The purchaser 
 discovered after the sale that the lease contained 
 covenants prohibiting the tenant from carrying on 
 any trade or business on the premises. Stirling, J., 
 in a vendor and purchaser summons taken out by 
 the purchaser, held that, regard being had to the 
 sale of the property as business premises, the pur- 
 chaser was entitled to have an assignment of property 
 where he could carry on any business (d), and so the 
 
 (a) Be Banister, Broad v. Midi- p. 196. 
 ton, 12 Ch. D. 131 ; above, p. 199. (c) 40 Ch. D. GOl. 
 
 (A) 16 Q. B. D. 778; above, (rf) See above, p. 43.
 
 206 
 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 Re National 
 Prorinciaf 
 Bank of Eve/ ■ 
 land and 
 
 Marf<h. 
 
 Re Scott and 
 
 Alvarezes 
 
 Contract. 
 
 vendor had not shown such a title as the purchaser 
 was compelled to accept. But he declined to order the 
 return of the deposit, pointing out that Best v. 
 Human d {e) showed that the right to recover a deposit 
 at law was not governed by the same considerations as 
 the right to resist specific performance in equity. He 
 therefore left the purchaser to bring an action at law, if 
 so advised, for the return of his deposit. In Re National 
 Proriucial Bank of England and Mamh {/), land was 
 sold under the condition that the title should commence 
 with a conveyance dated in 1869, and the prior title 
 should not be required, investigated or objected to. The 
 purchaser discovered from other sources that the grantor 
 in the conveyance of 1869 derived title under a will 
 which, the purchaser was advised, conferred a life estate 
 only. The purchaser insisted on this objection, and 
 took out a vendor and purchaser summons for the return 
 of his deposit. North, J., admitted that the vendors 
 might have a difficulty in enforcing specific perform- 
 ance, but held that the purchaser had no right to the 
 return of his deposit, as the stipulation plainly barred 
 independent investigation of and all objection to the 
 earlier title (g) , and the purchaser had not therefore 
 observed the terms of the contract. Finally, in Be Scott 
 and Atvarezh Contract {//), land held by underlease was 
 sold under a condition that the purchaser should make 
 no objection or requisition in respect of the intermediate 
 title between the underlease and an assignment thereof 
 in 1891, but should assume that such assignment vested 
 in the assignees a good title for the residue of the term. 
 The purchaser's solicitor nevertheless asked questions as 
 to this intermediate title of the vendor's solicitor, who 
 gave him certain information tending to cast suspicion 
 on such title. The vendor's solicitor asserted that this 
 
 {e) Above, p. 204. 
 (/) 1895, I Ch. 190. 
 
 {g) Above, p. 202. 
 
 (h) 1895, 1 Oh. 596 ; 2 Ch. 603.
 
 TO SHOW A GOOD TITLE. 207 
 
 was done without prejudice to the special condition. 
 The purchaser maintained that, as the vendor had given 
 information as to the intermediate title, he could not 
 oblige the purchaser to accept the title shown without 
 clearing up the suspicions raised (i). The purchaser 
 took out a vendor and purchaser summons in support of 
 this contention, which prevailed with Kekewicli, J., but 
 was disallowed in the Court of Appeal. The Lords 
 Justices held that, to enable the purchaser to escape 
 from the stringent condition into which he had entered, 
 it was not enough to show that the title was suspicious, 
 but he must prove it to be bad ; and as it was made to 
 appear to them that the purchaser's main objection was 
 removed by the Statute of Limitations, they held that 
 he bad failed in such proof. After this, the purchaser 
 discovered that gross frauds had been committed with 
 respect to the intermediate title, and that several docu- 
 ments, on which the vendor's title depended, were for- 
 geries ; and he declined to complete the purchase. The 
 vendor, who was not in any way implicated in the 
 frauds, then brought an action for specific performance, 
 to which the purchaser by leave counterclairaed to review 
 the order of the Court of Appeal made in the summons, 
 on the ground of the subsequent discovery of fresh 
 material facts. Kekewicli, J., not only dismissed the 
 vendor's action for specific performance, but ordered him 
 to return the deposit. But, on the case being again 
 taken to the Cf)urt of Appeal, it was considered that at 
 law the purchaser was strictly bound by the contract 
 into which he had chosen to enter, and could not there- 
 fore recover bis deposit, as there had been no breach of 
 contract by the vendor. But it was declared that the 
 specific performance of the contract in equity depended 
 on different considerations; and on this point the judg- 
 ment was affirmed for the reason that, as the vendor 
 
 (i) See above, p. 19'.».
 
 208 
 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 Recovery of 
 deposit under 
 agreement 
 that title shall 
 commence 
 with some 
 specified 
 instrument, 
 which turns 
 out not to be 
 a good root 
 of title. 
 
 had no holding title at all, but was liable to instant 
 ejectment, his title was not such as the Court would 
 oblige an unwilling purcliaser to take. 
 
 The abo%'e decisions raise a question as to the pur- 
 chaser's right to recover his deposit, where he has 
 entered into a contract that the title shall commence 
 with a particular instrument less than forty years 
 old (/r), and it turns out that this is not a good root of 
 title. What is the effect at law of an agreement that 
 the title shall commence with an instrument, of which 
 the nature is not specified ? Take the case of a sale of 
 freeholds in fee subject to a condition that the title shall 
 commence with a particular deed dated twenty years 
 before the contract, and without any stipulation pre- 
 cluding investigation of the earlier title other than is 
 contained in the Conveyancing Act of 1881 (/). Have 
 the parties agreed that that deed, whatever it may be, 
 shall be the root of title, or have they merely stipulated 
 that proof of title as from the date of that deed shall be 
 accepted, instead of proof of forty years' title, as proof 
 of a good title ? {ni) It is submitted that the latter is 
 the true meaning of the condition, and that it does not 
 exonerate the vendor from the obligation of proving 
 title to the whole estate contracted to be sold at the 
 beginning as well as at the end of the period for which 
 title is to be shown (>?). Thus if the deed mentioned in 
 the condition should turn out to be merely a lease for 
 years, or the conveyance of an equity of redemption, 
 the purchaser would be entitled to call for further 
 evidence of title (o). And it is submitted that in re- 
 quiring such evidence he would not commit any breach 
 either of the express condition or of the stipulation incor- 
 porated in the contract by the Conveyancing Act. For 
 
 (fc) Above, p. 61. 
 (?) Stat. 44 & 45 Vict. c. 41, 
 s. 3 (3) ; above, p. 193. 
 
 (m) See above, pp. 95 — 98. 
 («) See above, pp. 108, 109. 
 (o) Above, pp. 198, 199.
 
 TO SHOW A GOOD TITLE. 209 
 
 he would not be asking for production of evidence of 
 the title prior to the time stipulated for commencement 
 of title ; which the statutory stipulation precludes him 
 from demanding {p). What he would really be requir- 
 ing is proof of the title at the date of the specified deed to 
 such part of the estate contracted to be sold as was not 
 dealt with by that deed. It is submitted that a more 
 stringent stipulation than the supposed condition would 
 be necessary to exonerate the vendor from the obliga- 
 tion of producing such proof ; and further that the 
 vendor cannot be discharged from this obligation merely 
 because the only available evidence happened to be the 
 production of the earlier title {q). If this view be 
 correct, the vendor would not be entitled to retain the 
 deposit if he refused to furnish the evidence required. 
 A distinction however must be drawn between the in- 
 stance given above and a case where the nature of the 
 instrument, with which the title is to commence, is plainly 
 described. Thus if it were agreed that the title should 
 commence with an Indenture of such a date, "beins' a 
 settlement on marriage of the property sold, subject to 
 certain mortgages therein recited," there would be good 
 ground to contend tliat the purchaser agreed to accept 
 that deed as the root of title. Again, a difference is to 
 be observed in cases like Re Marsh and Earl GranviUe (r), 
 where it is agreed tliat the title shall commence with a 
 specified deed, and that deed does show title to the 
 whole estate contracted for, but it is objected to for 
 some other reason, as because it is a voluntary convey- 
 ance. In that case the purchaser did not abide by the 
 contract in requiring evidence of the earlier title ; and 
 it does not appear that he could have recovered his 
 deposit. The proceedings were throughout treated as a 
 vendor's action for .specific performance. And the 
 
 {p) Above, p. 193. above, p. 19.5. 
 
 [q) See Phi/lipt v. Caldcleugh, (r) 24Ch.D. 11 ; above, p. 197. 
 
 w. 14
 
 210 
 
 OF STIPULATIONS LIMITING THE OBLIGATION 
 
 doctrine there laid down, that a purchaser agreeing that 
 the title shall commence with a deed less than forty 
 years old is entitled to assume that the deed is a convey- 
 ance for valuable consideration (.s), is applicable only in 
 proceedings for specific performance and not in an 
 action on the contract at law. As previously recom- 
 mended (t), purchasers buying by private contract 
 should avoid raising any question as to the retainer of 
 the deposit by requiring the vendor to guarantee the 
 instrument, with which the contract is to commence, to 
 be a good root of title. 
 
 Purchaser 
 under usual 
 condition as 
 to identity 
 requiring 
 further evi- 
 dence. 
 
 Again, it may be asked whether a purchaser will be 
 entitled to recover his deposit, if, having bought under 
 the usual condition as to evidence of identity (?/\ he 
 require further evidence of identity on the ground that 
 the descriptions in the title deeds fail, either wholly or 
 partially, to prove the identity of the property bought 
 with that to which the deeds relate. It appears how- 
 ever that the usual condition (n) as to evidence of 
 identity does not altogether discharge the vendor from 
 the obligation of proving identity ; it merely saves him 
 from the necessity of giving evidence of identity in- 
 dependent of the title-deeds. And if the deeds them- 
 selves fail to show identity, it does not appear that the 
 vendor performs his contract at law (r). If so, he 
 cannot claim to retain the deposit. 
 
 Course to 
 adopt in 
 making 
 requisitions. 
 
 The proper course for the purchaser's counsel to 
 adopt in matters of this kind appears to be to require 
 the vendor, in the first instance, to show such a title 
 and furnish all such evidence as he would be obliged to 
 show or produce in an action for specific performance 
 at his own suit. And the pm-chaser's advisers should 
 
 (*) See above, pp. 109, 198. 
 {() Above, p. S9. 
 
 («) Above, pp. 65, 72. 
 {v) See the authorities cited in 
 note (b) to -p. 66, above.
 
 TO SHOW A GOOD TITLE. 211 
 
 endeavour to secure compliance with such requisitions 
 by their diplomatic conduct of the negotiations. If 
 this fails to attain its object, the purchaser should be 
 careful to insist only on such requisitions as the vendor 
 is obliged to comply with at law. And he should with- 
 draw all requisitions for any evidence of title, which 
 the vendor would have to produce to obtain specific 
 performance at his own suit, but need not show in order 
 to discharge his contract at law. As we have seen (r) , 
 unless the vendor seek actively to enforce the specific 
 performance of the contract, the purchaser has no means 
 of obliging him to furnish such evidence. 
 
 It has been shown (//) that a condition of sale, re- Conditions 
 quiring the purchaser to assume without proof tlie truth assum^^t^ 
 of some fact or facts stated, is not binding, as regards of fact. 
 the specific performance of the contract, if the vendor 
 know the statement made to be untrue. But if the 
 vendor believe the statement made to be true and have 
 no reason to suppose that it is incon-ect, the condition 
 is fully binding on the purchaser, although it do not 
 appear from the contract what defect of title the 
 assumption required is intended to cover (s) . 
 
 If a purchaser buy under conditions limiting his Position of 
 right to inquire into the vendor's title, he will of course buyinff'^imd 
 have no protection against any lecjal estates or rights, special con- 
 adverse to the vendor's interest, which might have been against 
 discovered by a complete investigation of the title. Persons 
 
 . . ^ claiming' 
 
 But this liability arises from the fact that h-yal estates adversely to 
 or interests in land are rights directly enforceable vendor, 
 against the land into whosesoever hands it may come («) ; 
 and it is no defence against persons seeking to enforce 
 
 [x) Above, p. 88. 175. 
 
 (y) Above, pp. 199, 200. [a) See Wms. Real Prop. 2, 3, 
 
 iz) Re Snndbach nnd Edmnnd- 65, 181, .'571, 2l8t ed. ; below, 
 
 Mw'jt Contract, 1891, 1 Ch. 99; Chap. XI. ^ 2 (Assignment by 
 
 Blaiberg v. Keevm, IPOfi, 2 Ch. Party to the Contract). 
 
 14(2)
 
 212 OF STIPULATIONS TO SHOW A GOOD TITLE. 
 
 such rights that the purchaser made the fullest investi- 
 gation of the vendor's title. With regard to equifahJo 
 estates or interests adverse to the vendor's title, the case 
 is different ; and if the purchaser obtain the legal estate 
 from the vendor without notice of such estates or 
 Purchaser not interests he will not he hound thereby [a). But a 
 title has con^ purchaser, who buys under conditions limiting his right 
 
 structive ^^ investigate the title, has constructive notice of all 
 
 notice 01 _ f 
 
 equities which equitable incumbrances, which he would have discovered 
 dLTvSd b7 if te had inquired into the vendor's title for ihe period 
 inquiry. during which the title is required to be shown by law {h) . 
 
 For it is considered that a purchaser is bound to inquire 
 into his vendor's title ; and he is not allowed to escape 
 the consequences of such inquiry, as regards notice of 
 equities apparent on the face of the title, by contracting 
 not to investigate the title. The reason of this is 
 obvious. If a purchaser under restrictive conditions 
 were able to plead purchase of the legal estate without 
 notice against a prior equitable incumbrancer, it would 
 always be in the power of any one who held land 
 subject to an equitable incumbrance, to deprive the 
 incumbrancer of his right by a sale under conditions 
 prohibiting inquiry into title ; and a purchaser under 
 special conditions is supposed to take all risks and to 
 pay a diminished price in consequence (c). 
 
 (a) See last note. 104 ; below, Chap. VIII. ^ 1. 
 
 (i) Worthington v. iforgan, 16 (c) See the cases cited in the 
 
 Sim. 547; Pi'to \. Hammond, 30 previous note. Fry, J., appears 
 
 Beav. 495 ; Wihon v. Hart, L. R. to have lost sight of these priu- 
 
 1 Ch. 463 ; Carter v. Williams, ciples in holding in Kcttleivell v. 
 
 L. R. 9 Eq. 678; Patman v. JVatson, 21 Gh. D. 685, 708, that 
 
 Harland, 17 Ch. D. 353; Ee Cox persons who purchased very small 
 
 and Neve^s Contract, 1891, 2 Ch. pieces of land without investi- 
 
 109, 117, 118; C. A., Re Nishet gating the title, were not aifected 
 
 and Potts' Contract, 1906, 1 Ch. with constructive notice of an 
 
 386, 404, 408, 410 (but as to the equitable incumbrance, which the 
 
 decision in this case, see the usual investigation of title would 
 
 writer's criticism in 51 Sol. J. have disclosed. There was no 
 
 141, 155); Perham v. Kempster, appeal from his decision on this 
 
 1907, 1 Ch. 373, 379 ; see also point : but his views do not 
 
 Oliver v. Hinton, 1899, 2 Ch. 264 ; appear to have been accepted by 
 
 Berwick Y. Price, l^(}b,\ Ch. 632 ; the C. A. See 26 Ch. D. 501, 
 
 Walker v. Linom, 1907, 2 Ch. 508.
 
 213 
 
 CHAPTER VII. 
 
 OF DEVOLUTION ON DEATH. 
 
 Devolution of lands on death is a fact of title which Devolution 
 is constantly brought before the conveyancer. As before 1898. 
 the law on this subject has lately been altered it is 
 deserving of special consideration. We will begin by 
 giving a short summary of the law in force before the 
 1st of January, 1898, when the Land Transfer Act, 
 1897 (a), took effect. 
 
 The first thing to be remembered in considering who Dower and 
 were rightly entitled to succeed to lands on a former ° ^^^" 
 owner's death is the law of dower and curtesy. For 
 the purpose of the investigation of title, it may still be 
 necessary to have regard to the old law of dower, which Dower, 
 continued to regulate the dower of all widows who were 
 married before or on the 1st of January, 1834 (b). It 
 will be remembered that, at common law, the wife's 
 dower was paramount to every alienation by the husband, 
 whether in his lifetime or by will, of any lands on which 
 the claim had attached : but that in modern times the 
 wife's claim was generally prevented from attaching by 
 the assurance of lands on a purchase to uses to bar 
 dower {c). The dower of women married after the 
 
 (a) Stat. 60 & 61 Vict. c. 65; s. 14. 
 see sect. 25. {c) See Wms. Real Prop. 322 
 
 (*) Stat. 3 & 4 Will. rV. c. 105. nq., 390, 2l8t ed.
 
 214 
 
 OP DEVOLUTION ON DEATH. 
 
 1st of January, 1884, is governed by the Dower Act (d). 
 This statute deprives the widow of dower out of any 
 land, of which her husband has absolutely disposed in 
 his lifetime or by will (e) ; and postpones her right to 
 dower to all partial estates and interests and all charges 
 created by any disposition or will of the husband, and 
 all debts, incumbrances, contracts and engagements to 
 which his land shall be subject or liable (./"). It enables 
 the husband to bar his wife's right to dower out of any 
 land by declaration to that effect contained in any deed 
 of his or by will (g), or to restrict her right to dower by 
 his will (A) ; and it also deprives the widow of dower 
 out of any land, in which her husband has devised any 
 estate or interest for her benefit, unless a contrary 
 intention be declared by his will (/). The general 
 effect of these provisions is that a widow can only claim 
 dower out of lands, which her husband has suffered to 
 descend ; and even out of such lands her right to dower 
 may be barred, restricted or postponed (A-) . But it 
 must not be forgotten, in advising on title, that on 
 the death of a tenant of freeholds in fee intestate or on 
 the death of a tenant in tail, his widow may still be 
 entitled to dower. 
 
 {d) Stat. 3 & 4 Will. IV. c. 105. 
 
 [c) Sect. 4. 
 
 (/) Sect. 5. The opinion has 
 been expressed that, not-with- 
 standing the above words, the 
 widow's dower is paramount to 
 the claims of her late husband's 
 creditors, who have not in his 
 lifetime obtained a charge on his 
 lauds; Romilly, M.R., Spi/er v. 
 I£>/att, 20 Beav. 621 ; Wood, 
 V.-C, Jones V. Jones, 4 K. & J. 
 361. In neither of these cases, 
 however, was the expression of 
 this opinion necessary to the de- 
 cision. Spyer v. Hyatt was a 
 case of freebench ; and it had 
 been previously decided that the 
 Dowsr Act has no application 
 
 to freebench ; Smith v. Adams, 
 18 Beav. 499 ; 5 De G. M. & G. 
 712 ; so Lord Romilly's dictum 
 was peculiarly gratuitous. Jones 
 V. Jones was the ease of a mort- 
 gage by the husband. It is sub- 
 mitted that, according to the 
 ordinary meaning of the words 
 used in the Act, a man's lands 
 are by stat. 3 & 4 Will. IV. c. 104, 
 made " subject or liable " to his 
 debts after his death, notwith- 
 standing that his creditors have 
 no charge thereon. 
 
 {g) Sects G, 7. 
 
 (A) Sect. 8. 
 
 {i) Sect. 9. 
 
 (/.•) See Wms. Real Prop. 326, 
 327, 21st ed.
 
 OF DEVOLUTION ON DEATH. 215 
 
 Curtesy at common law was of course an estate com- Curtesy, 
 mencing in the wife's lifetime on the birth of issue that 
 might inherit (/). But as regards estates of inheritance 
 held on trust for the wife's separate use or held by her 
 as her separate property under the Married Women's 
 Property Act, 1882, the husband has no right to posses- 
 sion or receipt of the rents and profits during his wife's 
 lifetime, and he can only claim an estate by the curtesy, 
 if entitled by the birth of issue, on the wife's death and 
 intestacy ; and not in case she has disposed of the estate 
 in her lifetime or by will {m). 
 
 Subject to the law of dower and curtesy, on the death Succession to 
 before the year 1898 of a tenant of freeholds who was after death 
 also the beneficial owner, his estate devolved as follows before 1898. 
 according to its nature : — An estate in fee simple passed 
 directly to the devisee, if it should have been disposed 
 of by will {n), or in case of intestacy, to the heir of the 
 last purchaser (o). In case of a total failure of the heirs 
 of the last purchaser, the estate descended to the heir of 
 the person last entitled thereto (p) : but if there were no 
 such heir, it escheated to the lord of the fee, and usually 
 to the Crown, in default of any mesne lord being able 
 to prove his title (q) . It does not fall within the scope 
 of the present work to set out all the rules for the 
 descent of a fee to the heir of the last purchaser or 
 person last entitled (r) : but the conveyancer may be 
 reminded of the interest given by the Intestates' Estates 
 
 (/) See Wms. Real Prop. 307, descended according to the com- 
 
 2l8t ed. mon law niles to the heir of the 
 
 (/«) Ibid. 316, 318; Cooper v. person last seised; Wms. Real 
 
 Macdonald, 7 Ch. D. 288; Hoi)e Prop. 86, 227, 228, 2l8t od. 
 
 V. Hope, 1892, 2 Ch. 336. / n mu- u • . i; . . 
 
 , ^\xT T, , r. -, -. (^) This waa by ^'U■tue of Stat. 
 
 («) Wms. Iteal Prop. /4-/b. 22 .*.- 23 Vict. c. 35, ss. 19. 20, 
 
 244, 245, 2uO, 21st ed. passed 13th August, 1859 ; Wms. 
 
 (o) That is, of cgiu-se, under Real Prop. 236, 2Ist od. 
 
 the Inht'ritance Act, 1833, rogu- , > j,., ,, ro i n 
 
 lating the succession on deaths ^^> ^^^'^- ^^—^^^ '^'^^■ 
 
 occurring after the year 1833. (;•) Sec for these Wms. Real 
 
 On deaths before 1834, lands Prop. 227 .vi/., 2l8t ed.
 
 216 
 
 OF DEVOLUTION ON DEATH. 
 
 Estates tail. 
 
 Gavelkind ; 
 
 borougli- 
 
 English. 
 
 Estates pur 
 autre vie. 
 
 Copyholds. 
 
 Act, 1890 (.s), to the widow in the real estate of any 
 man dying intestate after the 1st of September, 1890, 
 and leaving a widow but no issue. Estates tail, if not 
 barred in the tenant's lifetime {t), descended to the heir 
 in tail ^^e/' formam doiii (u). And where lands are 
 subject to the custom of gavelkind or borough-English, 
 it must not be forgotten that the descent of estates tail, 
 as well as estates in fee simple, is regulated by the 
 custom {x) . Life estates of course cease on death : but 
 estates pur autre fie pa&sed, if devised, to the devisee, 
 and otherwise either to the heir as special occupant, or 
 if there were no special occupant to the deceased tenant's 
 executors or administrators ; and in the last- mentioned 
 event they became distributable in the same manner as 
 personalty (//). 
 
 Copyholds held beneficially in customary fee simple 
 or tail may by special custom be subject to the widow's 
 freebench or the husband's curtesy (s). Subject to 
 these rights, copyholds held in fee are devisable without 
 any surrender to the use of the tenant's will {a) : but 
 the devise only gives the devisee a right to be admitted, 
 similar to the right of a surrenderee, and he does not 
 become completely tenant until admittance, a ceremony 
 usually involving the payment of a fine to the lord (h). 
 In default of being devised, copyholds in fee descend to 
 the customary heir, that is, to the person entitled by 
 the custom of the manor in which the lands lie, to 
 
 (s) Stat. 53 & 64 Vict. c. 29 ; 
 see Re Twigg's Estate, 1892, 1 Ch. 
 579 ; Re Charrietr, 1896, 1 Ch. 
 912; Re Heath, 19U7, 2 Ch. 270; 
 Wms. Real Prop. 233, 328, 
 2 let ed. 
 
 (0 See Wms. Real Prop. 110, 
 21st ed. 
 
 (m) Ibid. 232. 
 
 (x) Ibid. 59, 60. 
 
 (y) That is, of course, under 
 the provisions of the Wills Act, 
 replacing those of stat. 14 Geo. II. 
 
 c. 20, and the Statute of Frauds ; 
 see Wms. Real Prop. 132, 133, 
 21st ed. ; Re Inman, 1903, I Ch. 
 241. 
 
 {z) Wms. Real Prop. 495, 496, 
 2l8t ed. 
 
 [a] That is, since stat. 55 
 Geo. III. c. 192, passed 12th July, 
 1815 ; see Wms. Real Prop. 486, 
 487, 21st ed. 
 
 {b) See Garland v. Mead, L. R. 
 6 Q. B. 441 ; Wms. Real Prop. 
 407, 468, 486, 487, 21st ed.
 
 OF DEVOLUTION ON DEATH. 
 
 succeed to them as heir ; and he acquires the estate 
 directly on the ancestor's death, though he is not com- 
 pletely tenant as regards the lord until admittance (c). 
 And it appears that, even when copyholds are devised 
 by will, the estate descends to the customary heir, 
 pending the devisee's admittance {d). Copyholds given 
 to the tenant and the heirs of his body in a manor, 
 where there is no custom to entail, being held for an 
 estate similar to a fee simple conditional at common 
 law, are alienable and therefore devisable on the birth 
 of issue : but if not devised, they descend to the 
 customary heirs of the donee's body only(('). Copy- 
 holds held to the tenant and the heirs of his body of a 
 manor, where there is a custom to entail, appear not to 
 be devisable by will, if the entail be not duly barred in 
 the tenant's lifetime (./') ; and unless the entail be so 
 barred, they will descend to the customary heir in 
 tail {</). Copyholds held for au estate ^j'^y autre vie are 
 devisable ; if not devised, they descend to tlie heir of 
 the grantee, if the estate were given to him and liis 
 heirs : otherwise they pass to the executors or adminis- 
 trators and are distributable as personalty (h). 
 
 Leaseholds for years were always devisable as chattels. Leaseholds. 
 As chattels too, they devolved upon the deceased 
 tenant's executors or administrators and were applicable 
 in payment of his debts (/). And the executors or 
 administrators, or any one of them (,/), always had the 
 
 (c) Wms. Real Prop. 451), 476, surrender, they might be barred 
 2l8t ed. by a surrender to the use of the 
 
 (d) Garlaml v. Mead, L. R. (i tenant's will ; Carr d. Duffwrl/ v. 
 Q. B. 441 ; but see Davidson's Singer, 2 Ves. sen. 603; Moore v. 
 Concise Precedents, 576, n., 18th Moore, ib. 596, 602 ; I Scriy. Cop. 
 ed. 71.3rded. 
 
 (e) I Scriv. Cop. (J'J, 3rd ed. ; (^) See Wms. Real Prop. 471- 
 Kowden v. Maltxter, Cro. Car. 42 ; 473^ 21st ed. 
 
 Wms. Real Prop. 471, 21st cd. ,,' ,,., ,_.. 
 
 (/) See Stat. 3 & 4 Will. IV. ^''^ /^'f" •*"^- 
 
 c. 74. ss. 40, r)0 Bef..rc this (0 Ihid. 20, 21, 521. 
 
 Act, it was held that xw manors [j) Simpaon v. Gutteridge, 
 
 where entails were barrable by Madd. 609. 
 
 217
 
 218 OF DEVOLUTION ON DKATH. 
 
 same powers of disposition over the deceased person's 
 leaseliolds as over his other chattels {k) ; and so might 
 sell or mortgage the same to raise money for payment 
 of funeral or testamentary expenses or debts, or, if 
 necessaiy, legacies. By such a sale or mortgage the 
 leaseholds are conveyed free from all claims of the 
 deceased person's creditors, legatees or next of kin ; and 
 the purchaser or mortgagee is in no way concerned to 
 see to the application of the purchase money, or to 
 inquire for what purpose the sale or mortgage is made (/). 
 Leaseholds, if specifically bequeathed, devolve never- 
 theless upon the executor in the first instance, and do 
 not pass to the specific legatee until the executor has 
 assented to the bequest : but when this assent is given, 
 they vest in the legatee at once, without the necessity 
 of any formal conveyance to him (w). Leaseholds are 
 also distributable as other chattels upon intestacy 
 according to the Statutes of Distribution {n). There is, 
 however, this difference between leaseholds and other 
 goods : — Personal chattels devolve on death according 
 to the law of the country in which their owner was 
 domiciled, whilst the succession to lands held under a 
 lease for years is determined by the law of the place 
 where they are situate (o) . 
 
 Equitable The devolution on death of an equitable estate in 
 
 land corresponded in general with that of the legal 
 estate, which was the subject of the equity. Thus the 
 succession after death to the estate of a cfufKi que trud 
 under a simple trust or of a mortgagor of freeholds, 
 
 [k) Brazier v. Hudson, 8 Sim. 2 Ch. 251. 
 67.' («) Wms. Real Prop. 21, 21st 
 
 (/) 2 Wins. Exors. 932-943, ed. ; Wins. Pers. Prop. 479 sq., 
 
 946 sq., 7th ed. ; Re Whistler, 35 16th ed. 
 
 Ch. D. 561 : Re Venn and Furze's (o) Wins. Pers. Prop. 439-441. 
 
 Contract, 1894, 2 Ch. 101. 479, IGth ed. : Freke v. Lord Car- 
 
 (;h) Wms. Exors. 679, 1372, iery, L. R. 16 Eq. 461; Duncan 
 
 7th ed. ; Wms. Pers. Prop. 443, v. Lawson, 41 Ch. D. 394 ; Pepin 
 
 16th ed. ; Re Culrerliomc, 1896, v. Brui/erc, 1902, 1 Ch. 24.
 
 OF DEVOLUTION ON DEATH. ^1^ 
 
 coj^yliolds or leaseholds, was governed by the same rules 
 as determined the course of the legal interest therein ( />). 
 The exception was that under the old law a widow 
 could claim no dower out of her husband's equitable 
 estate {q). This exception was removed by the Dower 
 Act in the case of wives married after the 1st of January, 
 1834 (r) : but such dower was placed under the control 
 of the husband equally with dower out of legal 
 estates (s) . 
 
 Formerly, when lands were held upon any trust or by Estateb held 
 way of mortgage, the legal estate therein devolved upon i^n nioAo-aKo 
 the tenant's death in the same manner as if he were the 
 beneficial owner of them, but subject to the trust or the 
 equity of redemption. Estates in fee simple so held 
 passed therefore to the devisee or heir, according as 
 they were devised or suffered to descend (f). In all 
 well-di'awn wills a specific devise used to be inserted of 
 all estates held by the testator upon an}' trust or by 
 way of mortgage ; and this devise was usually made to 
 the persons who were appointed executors (?(). When 
 a will contained no specific devise of estates subject to 
 a trust or mortgage, the question frequently arose, 
 whether such estates passed under a general debase of 
 all the testator's real estate. The rule was, that such 
 estates did pass imder a general devise, unless a con- 
 trary intention could be collected from the expressions 
 used in the will, or from the objects of the devise (r). 
 
 The old rule as to the devolution of estates held on 
 trust was first invaded by the Vendor and Purchaser 
 
 {p) Lewiu on Truflts, 670, 6th (a) Above, p. 215. 
 
 ed. ; lOOf), 10th cd. ; Wms. Real {t) Wms. Real Prop. 192, 548, 
 
 Prop. 181. 191, 490, 552, 2l8t. ed. ; 551, 2l8t ed. 
 Jte Uuilsoii, 1908, 1 Ch. 655. («) 4 Davidson, Prec. Conv. 9, 
 
 (q) Win.s. Real Prop. 32:j. 58, 4th ed 
 
 {>■) Stat. 8 & I Will. IV. c. 105, (j) Lord liraubroke v. Inskip, 
 
 8. 2; "Wms. Real Prop. 327, 8 Ves. 417 ; 1 "Janii. Wills, 693 
 
 2l8t ed. sq., 4th ed. ; 647 sq., 5th ed.
 
 220 OF DEVOLUTION ON DEATH. 
 
 Act, 1874 {y), enacting that upon the death of a bare 
 trustee (s) , any corporeal or incorporeal hereditament, 
 of which he was seised in fee simple, should vest in his 
 legal personal representative. This enactment was 
 repealed, except as to anything duly done thereunder, 
 by the Land Transfer Act, 1875 {a), after having been 
 in force from the 7th of August, 1874, until the 31st of 
 December, 1875. The same Act provided {a) that, 
 upon the death of a bare trustee intestate, any corporeal 
 or incorporeal hereditament, of which he was seised in 
 fee simple, should vest in his legal personal represen- 
 tative. 
 
 Mortgaged When real estate held in mortgage passed on the 
 
 es a es. mortgagee's death to his devisee or heir, it was 
 
 necessary, on any transfer or reconveyance after such 
 death, that his devisee or heir should convey the legal 
 estate in the mortgaged land, and that his legal 
 personal representatives should join in the conveyance 
 to acknowledge the receipt of the money paid and 
 assign or release the mortgage debt (/>). By the Vendor 
 and Purchaser Act, 1874 (r), the legal personal repre- 
 sentative of a mortgagee of a freehold estate, or of a 
 copyhold estate to which the mortgagee should have 
 
 [ij) Stat. 37 & 38 Vict. c. 78, Re Uucwra, 29 Ch. D. 693 ; He 
 
 !s. ,'). Cunninghaiu and Frayling, 1891, 
 
 (z) Different opinions liave '2 Ch. 5fi7 ; Wms. Real Prop, 
 
 been expressed by eminent judges 181, 21st ed. 
 as to the meaning of the expres- [n) Stat. 38 & 39 Vict. c. 87, 
 
 sion "bare trustee" : but the s. 48, repealed by 44 & 4o Vict, 
 
 better opinion is that it is not c. 41, s. 30 (2, 3), as to cases of 
 
 applicable to a trustee under a death after the 31st December, 
 
 special trust who has an active 1881. 
 
 duty to perform with regard to {h) Davidson, Prec. Conv., 
 
 the trust property, as in the case vol. ii. pt. ii. pp. 793, 796, n., 816, 
 
 of a trustee for sale, but rather 818, 4th ed. 
 
 denotes a trustee having no other [c) Stat. 37 & 38 Vict. c. 78, 
 
 duty than to convey the tmst s. 4, passed 7th August, 1874, 
 
 estate at the cestui que trusfs and repealed by 44 & 45 Vict, 
 
 direction; seeCfn-istiev. Ovinf/fon, c. 41, s. 30(2, 3), as to cases of 
 
 1 Ch. D. 279 ; Morgan v Swansea death after the 3l8t December, 
 
 Urban Authority, 9 Ch. D. 582 ; 1881.
 
 OF DEVOLUTION ON DEATH. 221 
 
 been admitted, might, on payment of all sums secured 
 by the mortgage, convey or surrender the mortgaged 
 estate, whether the mortgage were in form an assurance 
 subject to redemption, or an assurance upon trust. But 
 it was held that this enactment did not give the legal 
 personal representative of a mortgagee power to convey 
 the estate upon a transfer of the mortgage (r/). 
 
 So the law continued until the end of the year 1881. Devolution of 
 On the death after that year of any sole trustee or held iu trust 
 mortgagee of real estate, the succession is regulated by aftpr^mi^^ 
 the 30th section of the Conveyancing Act of 1881 [e), 
 providing as follows : — " Where an estate or interest of 
 inheritance or limited to the heir as special occupant, 
 in any tenements or hereditaments, corporeal or incor- 
 poreal, is vested on any trust or by way of mortgage in 
 any person solely, the same shall on his death, notwith- 
 standing any testamentary disposition, devolve to and 
 become vested in his legal personal representatives or 
 representative from time to time (/), in like manner as 
 if tlie same were a chattel real vesting in them or him ; 
 and accordingly all the like powers, for one only of 
 several joint persoual representatives, as well as for a 
 single personal representative, and for all the personal 
 representatives together, to dispose of and otherwise 
 deal with the same, shall belong to the deceased's 
 personal representatives or representative from time to 
 time, with all the like incidents, but subject to all the 
 like rights, equities and obligations, as if the same were 
 a chattel real vesting in them or him ; and for the 
 purposes of this section, the personal rejn'esentatives for 
 the time being of the deceased shall be deemed in law 
 his heirs and assigns witliin the meaning of all trusts 
 
 (rf) Re Spradheri/ s Martgngi', {/) These appear to be his 
 
 14 Ch. D. 514. fjenoral, and not his special, ex- 
 
 [c] Stat. 44 & 4.') Vict. c. U, oeutor..* ; lir P„r;:rr's Tnisfs, \H94, 
 
 8. 30. I Ch. 707 ; cf. below, p. 232.
 
 222 
 
 OF DEVOLUTION ON DEATH. 
 
 and powers." This enactment was held to apply to 
 Copyholds. copjholds as well as freeholds (g) : but the Copyhold 
 Act, 1887 {h), now replaced in this respect by the Copy- 
 hold Act, 1894 (/), provided that it should not apply to 
 land of copyhold or customary tenure vested in the 
 tenant on the Court EoUs of any manor upon any trust 
 or by way of mortgage. As is well known, trustees of 
 copyhold lands are usually admitted tenants thereof, 
 but mortgagees are not(./). On the death of a 
 mortgagee of copyholds, who has not been admitted 
 tenant on the rolls, it appears that his estate will still 
 devolve on his executors or administrators. 
 
 Liability of Before 1898, freeholds in fee were liable to be applied 
 
 deceased ^ " iu payment of the tenant's debts after his death either 
 owner's debts. ))ecause, in the case of specialty debts, he had bound his 
 heir to their payment, or because he had by will devised 
 his real estate in trust for or charged with payment of 
 his debts, or under Statute 3 & 4 Will. IV. c. 104 making 
 real estate equitable assets for the payment of the 
 deceased owner's debts generally (k). Copyholds in fee 
 were liable to their deceased owner's debts either by 
 virtue of an express charge of debts thereon or under 
 the same statute (/). Estates tail in freehold or copy- 
 hold were not liable to the tenant's debts after his death 
 (excepting certain Crown debts), unless during his life- 
 time a judgment had affected the lands, or he had been 
 adjudged bankrupt (;;?). Life estates are of course not 
 liable to the tenant's debts after they have determined 
 by his death or otherwise (>/). Estates jij?/r aufre vie 
 were subject to the deceased tenant's debts, if devised, 
 
 iff) Re Hughes, W. N. 1884, 
 p. 53 ; H(dl V. Bromley, 35 Ch. D. 
 G42. 
 
 (A) Stat. 50 & 51 Vict. c. 73, 
 s. 4G, passed 16tb September, 
 1887 ; see Re Milh' Trmh, 37 
 Ch. D. 312; 40 Ch. D. 14. 
 
 (J) Stat. 57 & 58 Vict. c. 46, 
 s. 88. 
 
 [j] Wms. Real Prop. 565, 
 21st ed. 
 
 {k) Ibid. 280—284. 
 
 [I) Ibid. 474. 
 
 [ni] Ibid. 289, 290, 475. 
 
 («) Ibid. 290, 475.
 
 I 
 
 OF DEVOLUTION ON DEATH. 223 
 
 either by virtue of an express charge or under the last- 
 mentioned statute ; and if not devised, under the Wills 
 Act, replacing with regard to freeholds the Statute of 
 Frauds in this respect (o). And equitable estates were 
 subject to the like liability as estates at law (p). When 
 the heir was specially bound to pay his ancestor's debt, 
 the creditor had the remedy of suing the debtor's heir 
 or devisee personally in an action of debt or covenant : 
 but in order to have the debtor's lands applied in pay- 
 ment of debts after his death the creditor was obliged 
 to take proceedings in equity for the administration of 
 the debtor's estate, when a sale or mortgage of the lands 
 would be decreed, if necessary, to raise money to pay 
 the debt {q). And the same proceedings were necessary 
 to secure the benefit of an express charge of debts on 
 real estate or of the statute of o & 4 Will. IV. 
 c. 104 (/■). Where the heir was specially bound or the 
 lands were made assets by the statute, the debts were 
 not a specific lien on the lands (v) ; so that if the lands 
 were aliened for valuable consideration by the heir or 
 devisee before any creditors' proceedings were insti- 
 tuted, the creditor could not follow the lands in the 
 hands of the alienee {f), who was not bound, even if he 
 had notice of the deceased owner's debts, to see to the 
 application of the purchase money {n). And where lands 
 were devised on trust for or charged with payment of 
 debts, the devisee was also enabled to dispose of them, 
 before the institution of any creditors' proceedings, dis- 
 charged from all liability to the testator's debts ; as it 
 was considered that the testator, both in the case of a 
 
 (o) Stat. 7 Will. IV. & 1 Vi.t. Sim. 2.')3 ; Richardson v. Horton, 
 
 c. 26, S8. 3, G ; Wms. Real Prop. 7 Beav. 112 ; Kiudcrleij v. Jeriix, 
 
 132, 133, 473, 474, 2l8t 6(1. 22 Beav. 1, 2> ; Sug. V. \- P. 
 
 (p) Ibid. 2:13. (;.i5— 6.i7 ; Frice v. Price, 3;') Ch. 
 
 {q) Wms. Real Prop. 284, 21st D. 297; lie Atkinson, 1908, 2 
 
 pd. ; Wms. Real Assets, 16. Ch. 307 ; Worlhinf/ton 4- Co., Ltd. 
 
 (r) Wms. Real Prop. 284, 21st v. Abbott, 1910, 1 Ch. 58S, .591 
 
 cd. rjOQ. 
 
 (») Re Moon, 1907, 2 Ch. ;i04. (m) Jones v. Xoi/cs, 4 .Tiir. N. S. 
 
 (t) .Spach-miin v. Timbrel/, 8 1033.
 
 224 OF DEVOLUTION ON DEATH. 
 
 trust to pay debts and of a charge of debts, had made 
 his devisee a trustee for the payment of his debts, and 
 from the nature of such a trust a purchaser from the 
 devisee was exonerated from the duty of seeing to the 
 application of the purchase money (r) . And a mort- 
 gagee from a devisee or heir, before creditors' proceed- 
 ings, was in the same position as a purchaser (.r). But 
 after an order had been made for the general adminis- 
 tration of the deceased debtor's estate, in creditor's 
 proceedings duly registered as /is pendens (//), the heir 
 or devisee could not dispose of the lands descended or 
 devised to him free from the creditors' claim (s). 
 Whether he could so dispose of such lands after 
 creditors' proceedings had been instituted and duly 
 registered as a lis pendens, but before an order for 
 administration had been made therein, depended on the 
 nature of the proceedings. If they sufficiently indicated 
 an intention to enforce payment of the debts out of the 
 lands descended or devised, and the heir or devisee 
 were made a party thereto, a purchaser or mortgagee 
 from him would be bound thereby ; unless the circum- 
 stances were such that the purchaser or mortgagee was 
 entitled to suppose that the sale or mortgage was made 
 to raise money to pay the debts, as where the lands 
 were devised charged with debts to one who was also 
 appointed executor {a) . The case of a trust or power 
 to sell for payment of debts would appear to be similar ; 
 although after an order for administration, the trustees 
 must exercise their powers under the direction of the 
 Court {b). So an executor, in exercise of his general 
 
 {v) Sug. V. & P. 658, 660 ; (y) See Wms. Real Prop. 293, 
 
 Wms. Real Assets. 50, 51, 6-2. 294, 2 let ed. 
 
 (s) See Price v. Price, 35 Ch. D. 
 
 (z) Ball V. Harris, 4 My. & Cr. 297- 
 
 264 ; Eland v. Eland, ib. 420 ; (a) Ibid. ; and see Corser v. 
 
 British Mutual Investment Co. v. Cartwright, L. R. 7 H. L. 731. 
 
 Smart, L. R. 10 Ch. 567 ; Price v. (*) Lewin on Trusts, 391, 392, 
 
 Trxce,'ibGh..T).1'd1\ReAthinson, 515. 6th ed. ; 515, 733, 734, 
 
 1908, 2 Ch. 307. lOthed.
 
 OF DEVOLUTION ON DEATH. 225 
 
 power to alien his testator's assets, may well dispose of 
 the testator's leaseholds, notwithstanding that creditors' 
 proceedings are pending, at any time hefore an order 
 for administration is made (c). 
 
 Before 1898, the rule was that an executor took no Executors 
 estate or interest by virtue of his office in any of his □o'^^terest^ 
 testator's real estate ; any de\dse of such real estate was in their^ 
 entirely independent of the executor's assent or inter- estate. 
 ference {d) ; and, as we have seen (e), a will of real 
 estate, as such, did not require probate. We have 
 noticed (/) the exceptions created by statute in the case 
 of estates pur autre vie undevised, where there was no 
 special occupant, and of estates held on trust or by way 
 of mortgage. But of course a man might expressly 
 devise his lands to his executors on trust for sale or 
 otherwise, or so that his executors should have a power 
 of disposing of his lands ; and such devises were 
 commonly made whenever a testator desired that any of 
 his real estate should be sold or applied in payment of 
 his debts. And in certain cases a power for a man's Power for 
 executors to sell his real estate would be implied. Thus sell'relTe.state 
 if by will lands were directed to be sold, without saying might be 
 by what persons the sale was to be made, it would be ""^ ^^ 
 implied that the executors should have the power of 
 selling the lands, if the proceeds of sale would be dis- 
 tributable b}^ the executors, as where the sale was 
 directed to be made for the purpose of paying debts or 
 legacies or the testator had created a mixed fund com- 
 posed of the proceeds of sale of such lands and of 
 personalty (r/). And about the middle of the last 
 century it was decided in equity (//) that a mere testa- 
 
 (c) Neevesv. Bitrragc, 14 Q. B. ig) Sug. Pow. 118, 8th ed. ; 1 
 
 504. Wms. Exors. 655, 7th ed. ; Wms. 
 
 (rf) See 1 Wms. Exors. pt. ii. Real Assets, 53-0.5, 77 sq. 
 bk. ii. ; Wms. Real Prop. 260, 
 
 2l8t ed. (A) The contrary was decided 
 
 (e) Above, p. 161. at law; Doe d. Jones v. Uiighes, 
 
 If) Above, pp. 216, 217, 221. 6 Ex. 223. 
 
 w. 15
 
 226 OF DEVOLUTION ON DEATH. 
 
 mentary charge of debts on real estate implied a power 
 for the executors to sell the real estate so charged (i). 
 This doctrine met with severe criticism from eminent 
 lawyers [J) ; it was not only thought to be unwarranted 
 by reason or authority, but it threw doubt on the pre- 
 viously received opinion that a devisee of lands charged 
 with debts could so dispose of the same as to exonerate 
 the purchaser from seeing that the testator's debts were 
 paid (k). In 1859, statutory provision was made to re- 
 move the difficulties then attendant on the sale of lands 
 
 Statutory charged by will with the payment of debts. Lord St. 
 powers. o ./ i ^ 
 
 Leonards' Act (/) provides {/ii) that where, by any will 
 that shall come into operation after the passing of the 
 Act, the testator shall have charged his real estate or 
 any specific portion thereof with the payment of his 
 debts or of any legacy, or other specific sum of money, 
 and shall have devised the estate so charged to any 
 trustee or trustees for the whole of his estate or interest 
 therein, and shall not have made any express provision 
 for the raising of such debt, legacy or sum of money 
 out of such estate, such trustee or trustees may, notwith- 
 standing any trusts actually declared by the testator, 
 raise such debts, legacy or money by sale or mortgage 
 of the lands devised to them. But if any testator, who 
 shall have created such a charge, shall not have devised 
 the hereditaments charged in such terms as that his 
 whole estate and interest therein shall become vested in 
 any trustee or trustees, the executor or executors for the 
 time being named in his will (if any) shall have the 
 
 (i) Wrigley v. Sykea, 21 Beav. {m) Sect. 14. The powers thus 
 
 337 ; Sabin v. Heape, 27 Beav. conferred extend to all persons in 
 
 653. whom the estate devised shall 
 
 (/) Sug. Pow. 120-122 ; Sug. for the time being be vested by 
 
 V. & P. 662, n. ; "Wms. Real survivorship, descent, or devise, 
 
 Assets, 81 sq.; Lewin on Trusts, and to any persons appointed to 
 
 402 sq., 6th ed. ; 526 sq., 10th ed. succeed to the trusteeship, either 
 
 {k) Above, p. 223. under any power in the will, or 
 
 {I) Stat. 22 & 23 Vict. c. 35, by the Court; sect. 15. 
 passed 13th August, 1859.
 
 OF DEVOLUTION ON DEATH. 227 
 
 same power of raising the same moneys as is before 
 vested in the trustees (>?). And purchasers or mort- 
 gagees are not to be bound to inquire whether the 
 powers thus conferred shall have been duly exercised 
 by the persons acting in exercise thereof (o) . But these 
 provisions are not to prejudice or affect any sale or 
 mortgage made or to be made in pursuance of any will 
 coming into operation before the passing of the Act ; 
 nor are they to extend to a devise to any person in fee 
 or in tail or for the testator's whole estate and interest 
 charged with debts or legacies ; nor are they to affect 
 the power of any such devisee to sell or mortgage as he 
 or they may by law now do (p). It will be observed 
 that this last enactment does not expressly settle the 
 question whether a devisee of lands charged with debts 
 could dispose of them freed from the charge, according 
 to the old conveyancing opinion {q). And in a sub- 
 sequent case in the House of Lords, where it was held 
 that a devisee of lands charged with debts, who was 
 also an executor, could certainly dispose of the lands 
 fi'eed from the charge, Lord Caii-ns observed that diffe- 
 rent considerations might arise whore such a devisee was 
 not executor (/■) . Mr. Joshua Williams, however, appears 
 to have had no hesitation in pronouncing for the old 
 conveyancing opinion (s) in this case, namely, that the 
 charge of debts enabled the devisee to give a receijjt for 
 the purchase-money exonerating the buyer from seeing 
 to its application {t). And Mr. Dart approved of this 
 conclusion on principle : although he advised that a 
 prudent purchaser could scarcely disregard Lord Cairns' 
 
 (w) Sect. 16. Sucli power shall {</) Above, pp. 223, 224. 
 
 from time to time devolve to the / \ /-, ^ , • . i t t> 
 
 „ re \ ■ \ ('■) Corser v. Cartwnqht, Li. K. 
 
 personorper.sonsfif ixiiv) in wliom - tr t toi tot rril j • • 
 
 ik„„„ i \- 1 11 *■ .1 i- ' W. L. 731, 737. The decision 
 
 the executorship shall i<ir the time • ., • ' r n j ■ t. 
 
 K„:«™ i,„ „„ i. 1 1" this case was followed in lie 
 
 being be vested. ,, ,„„,, .,,-,, ., .„ 
 
 (o) Sect. 17. Ilcmo,,, 190S, 2 Oh. 3.^6. 
 
 (/j) Sect. 18. See Ito Wilson, W Above, p. 223. 
 
 2 Times L. R. 443; 34 W. R. (t) Wms. Real Prop. 223, 13th 
 
 612. ed. ; 261, 2l8t ed. 
 
 15(2)
 
 228 
 
 OF DEVOLUTION ON DEATH. 
 
 Administra- 
 tors. 
 
 The Land 
 Transfer Act, 
 1897. 
 
 dictum, and recommended him, in cases not covered by 
 Lord St. Leonards' Act, either to satisfy himself that 
 the debts were paid, or to procure the executors' autho- 
 rity for payment of the purchase-money to the devisee (?/). 
 It has been held that, when executors sell real estate 
 charged with debts under the power of sale so given by 
 statute, the purchaser is not bound to inquire whether 
 any debts remain unpaid, until twenty years have 
 elapsed after the testator's death {x). 
 
 An administrator of an intestate person's effects of 
 course had no interest in his real estate ; and an ad- 
 ministrator cion tesfamento annexo acquired no interest 
 in any real estate devised to the executors of the will, 
 and could not exercise any power which the testator 
 had either expressly or impliedly (y/) given to his 
 executors with respect to his real estate (s). Nor can 
 an administrator cum fcdamoito annexo exercise the 
 powers given to executors by Lord St. Leonards' Act 
 to sell or mortgage the testator's real estate to pay 
 debts or legacies [a). 
 
 By the Land Transfer Act, 1897 (J), where real estate 
 is vested in any person without a right in any other 
 person to take by survivorship, it shall, on his death 
 after that year (*?), notwithstanding any testamentary 
 disposition, devolve to and become vested in his personal 
 representatives or representative from time to time as if 
 
 {u) 2 Dart, V. & P. 618-621, 
 5th ed. ; 697-700, 6th ed. ; 639- 
 642, 7th ed. 
 
 {x) lie Tanqueray- Willaume and 
 Landau, 20 Ch. D. 465. This 
 rule is not applicable in the case 
 of an executor selling leaseholds : 
 and the purchaser is entitled, 
 unless he have actual notice that 
 no debts remain unpaid, to pre- 
 sume that such a sale is rightly 
 made although more than twenty 
 years have elapsed since the tes- 
 
 tator's death ; Ee Whistler, 35 
 Ch. D. 561 ; Re Venn and Furze's 
 Contract, 1894, 2 Ch. 101; Re 
 VerrelPs Contract, 1903, 1 Ch. 65. 
 
 («/) Above, pp. 225, 226. 
 
 \z) Y. B. 15Hen. VIL fos. 11, 
 12, i^l. 22, translated Sug. Pow. 
 893, 895, 8th ed. 
 
 {a) Re Clay and Tetley, 16 Ch. 
 D. 3 ; above, p. 226. 
 
 [b) Stat. 60 & 61 Vict. c. 65, 
 8. 1 (1). 
 
 {c) Sects. 1 (5), 25.
 
 OF DEVOLUTION ON DEATH. 229 
 
 it were a chattel real vesting in them or him. This 
 enactment applies to any real estate over which a person 
 executes by will a general power of appointment, as if 
 it were real estate vested in him {(/). But the expres- 
 sion " real estate " does not here include land of copy- 
 hold tenure or customary freehold in any case in which 
 an admission or any act by the lord of the manor is 
 necessary to perfect the title of a purchaser from the 
 customary tenant (e). Probate and letters of adminis- 
 tration may be granted in respect of real estate only, 
 although there is no personal estate (,/'). 
 
 Subject to the powers, rights, duties, and liabilities Personal 
 
 , . £,. .• 1 ii 1 I. !.• £ representative 
 
 herein alter mentioned, the personal representatives or a trustee for the 
 deceased person shall hold the real estate as trustees for ^'^i'"- 
 the persons by law beneficially entitled thereto, and 
 those persons shall have the same power of requiring a 
 transfer of real estate as persons beneficially entitled to 
 personal estate have of requiring a transfer of such 
 personal estate (g). All enactments and rules of law 
 relating to the effect of probate or letters of administra- 
 tion as respects chattels real, and as respects the dealing 
 with chattels real before probate or administration, and 
 as respects the payment of costs of administration, and 
 other matters in relation to the administration of personal 
 estate and the powers, rights, duties, and liabilities of Powers of per- 
 
 , • • i j« 1 i i sonul repre- 
 
 personal representatives in respect oi personal estate, scntatives 
 shall apply to real estate so far as the same are applic- "^^^J^*^^ 
 able, as if that real estate were a chattel real vesting in 
 them or him (//), save that it shall not be lawful for 
 some or one only of several joint personal represen- 
 
 (d) Sect. 1 (2). interested in his real estate, and 
 
 (e) Sect. 1 (4). his beir at law, if not one of the 
 (/) Sect. 1 (3). Where a per- next of kin, shall be ct^ually en- 
 
 Bon dies possessed of real estate, titled to the grant with the next 
 
 the Court shall in granting letters of kin ; sect. 2 (4). 
 of administration, have regard to {(/) Sect. 2 (1). 
 
 tho rights and interests of persons (A) Sic.
 
 230 
 
 OF DEVOLUTION ON DEATH. 
 
 Liability of 
 real estate to 
 deceased 
 owner's debts. 
 
 tatives, without the authority of the Court, to sell or 
 transfer real estate (/). In the administration of the 
 assets of a person dying after the year 1897, his real 
 estate shall be administered in the same manner, subject 
 to the same liabilities for debt, costs, and expenses, 
 and with the same incidents, as if it were personal 
 estate ; provided that nothing in the Act contained 
 shall alter or affect the order in which real and personal 
 assets respectively are now applicable in or towards the 
 payment of funeral and testamentary expenses, debts, 
 or legacies, or the liability of real estate to be charged 
 with the payment of legacies {k) . 
 
 Personal 
 representa- 
 tives' assent 
 to devise of 
 real estate. 
 
 At any time after the death of the owner of any land, 
 his personal representatives may assent to any devise 
 contained in his will, or may convey the land to any 
 person entitled thereto as heir, devisee or otherwise, and 
 may make the assent or conveyance, either subject to a 
 charge for the payment of any money which the personal 
 representatives are liable to pay, or without any such 
 charge ; and on such assent or conveyance, subject to a 
 charge for all moneys (if any) which the j)ersonal repre- 
 sentatives are liable to pay, all liabilities of the personal 
 representatives in respect of the land shall cease, except 
 as to any acts done or contracts entered into by them 
 before such assent or conveyance (/). And at any time 
 after the expiration of one year from the death of the 
 owner of any land, if his personal representatives have 
 failed on the request of the person entitled to the land 
 to convey the land to that person,, the Court may, if it 
 thinks fit, on the application of that person, and after 
 notice to the personal representatives, order that the 
 conveyance be made, or in the case of registered land, 
 that the person so entitled be registered as proprietor of 
 
 (i) Sect. 2 (2). 
 
 (/^) Sect. 2(3),-- 
 
 ■{I) Sect. 3 (1).^.
 
 OF DEVOLUTION ON DEATH, 
 
 231 
 
 the land either solely or jointly with the personal 
 representatives {nt) . 
 
 It is not the writer's purpose to make an exliaustive Effect of the 
 comment on this Act : but its most important results 
 may be indicated. The first of these is to assimilate the 
 devolution of the legal estate in freehold lands held in 
 fee to that of a chattel real («), and to subject such 
 lands to the same liability to their deceased owner's 
 funeral and testamentary or administration expenses and 
 debts as his chattels inciu'red at common law, though 
 without interfering with the order in which the assets 
 are applicable in payment of such expenses and debts (o). 
 
 {in) Sect. 3 (2). 
 
 («) There is this distinction, 
 however : — Pending the appoint- 
 ment of an administrator, the 
 chattels of a person dyiny intes- 
 tate vested formerly in the ordi- 
 nary, and afterwards in the judge 
 of the Court of Probate and now 
 appear to vest in the judges of the 
 High Court of Juslice who have 
 succeeded to the jurisdiction of tlie 
 judges of the Probate Court ; 
 Stats. 21 & 22 Vict. c. 9o, s. 19 ; .36 
 & 37 Vict. c. G6, ss. 1 1, 12, 16, 31, 
 34 ; Plnmi/ v. Iltoit, 6 Ch. D. 
 98 ; Wms." Pers. Prop. 475, 16th 
 ed. : but the fi'eehold estates in 
 fee simple of a person d^'ing 
 intestate appear stdl to vest in 
 the heir pending the appoint- 
 ment of an administrator. In 
 John V. Juhii, 1898, 2 Ch. 573, 576, 
 North,.!., held that since the com- 
 mencement of the Land Transfer 
 Act, 1897, real estaie di-iisid tn n 
 man\s executorx descends to the 
 heir pending probate of the will. 
 But this appears to have been an 
 oversight. Where e.xecutors are 
 appointed, they derive their au- 
 
 the testator from the will, not 
 from the Court in which the will 
 is proved. And the Act provides 
 that real estate shall vest in the 
 legal personal representatives in 
 the same manner as chattels real 
 vest in them, and applies to real 
 estate the law with respect to 
 dealing with chattels real before 
 probate. Chattels real vest in 
 the executors appointed by their 
 owner's will immediately on his 
 death ; and the executors can 
 dispose of them before probate ; 
 Grat/sbrook v. Fox, Plowd. 275, 
 281 ; Ifensloe's Case, 9 Rep. 38a ; 
 Trou/iei/ V. Clark, 5 B. & A. 744 ; 
 Brazier v. Hwhon, 8 Sim. 67. 
 And it has since been decided 
 that the law is now the sanje with 
 regard to real estate ; Re Pawley 
 and London and Provinc'tal Bank, 
 1900, 1 Ch. 58. But were this 
 not so, it does not appear that 
 real estate devixcd would descend 
 to the heir pending probate. 
 When an administrator has been 
 appointed, his title to the real 
 estate relates back to the intes- 
 tate's death ; lie Pri/se, 1904, P. 
 301, 305. 
 
 762; 
 
 thority and right to represent 
 
 (o) See Jie Jonc, 1902, 1 Ch. 92 ; He Vickerstaf, 1906, 1 Ch 
 Re BettH, 1907, 2 Ch. 149. The order is as follows : — 
 
 1. The general personal estate not expressly or impliedly 
 
 exempted. 
 
 2. Lands expressly devised to pay debts, whether the inherit- 
 
 ance or a term carved out of it, be so limited.
 
 53^ OF DEVOLUTION ON DKATH. 
 
 Then the personal representatives are invested with the 
 same powers of disposition over such lands as they have 
 at common law with respect to chattels real ( p) ; but 
 with the important diBtinction that such powers are 
 not exerciseable by some or one only of several joint 
 personal representatives without the authority of the 
 Court. And it has been decided that, where a testator 
 appoints several executors, his real estate vests in all of 
 them immediately on his death ; so that if any one of 
 them do not prove the will and do not renounce probate, 
 the others cannot dispose of the real estate without his 
 concurrence [q) . Where, however, the testator appoints 
 general executors and also special executors (as of his 
 assets in a colony or foreign country) his real estate in 
 England vests in his general executors only, who can 
 sell and convey the same without the concurrence of 
 
 3. Estates which descend to the heir, whether acquired before 
 
 or after the making of the will; see Ee Pullen, 1910, 
 1 Ch. 564. 
 
 4. Real or personal property devised or bequeathed, either to 
 
 the heir or a stranger, charged with debts, and disposed 
 of, subject to such charge ; Re Salt, 1895, 2 Ch. 203 ; 
 Re Roberts, 1902, 2 Ch. 834; Re Eempster, 1906, 1 Ch. 
 446 ; Re Balls, 1909, 1 Ch. 791, 794. 
 
 5. General pecuniary legacies. 
 
 6. Specific legacies and real estate devised, whether in terras 
 
 specific or residuary, pro raid. 
 
 7. Real and personal property over which the testator had a 
 
 general power of appointment, and which he has ap- 
 pointed, either by his will or by deed, in favour of a 
 volunteer. 
 
 See 2 Jarm. Wills, 622, 4th ed. ; Wms. Real Prop. 282-285, 
 21st ed. The Act does not give to an executor or administrator any 
 right of retainer out of real estate ; Re JFilliams, 1904, 1 Ch. 52. 
 
 (p) See above, pp. 217. 218, may be disclaimed by deed or 
 228, n. (x). conduct, as well as by matter of 
 
 ((/) Re Pairleij and London and record ; Re Birchall, u'/ii sup. But 
 Frovincial Bank, 1900, 1 Ch. 58. it should be noted that an executor 
 Renunciation of probate by one cannot renounce probate by mat- 
 appointed executor is eqiuvalent ter in pais; 1 Wms. Exors. 281, 
 to a disclaimer of any interest 7th ed. Since, therefore, an exe- 
 conf erred on him by the appoint- cutor, who has not proved, cannot 
 ment in the testator's estate, real disclaim the office by deed or 
 or personal ; see Lone/ v. Si/mes, conduct, it appears that he can- 
 3 Hagg. 771, 774, 778 ; Re not so disclaim the estate in the 
 Birchall, 40 Ch. D. 436, 439 ; Re testator's realty vested in him as 
 Fisher and Ilaslctt, 13 L. R. Ir. incident to that office. 
 546. As a rule, a trust estate
 
 OF DEVOLUTION ON DEATH. 233 
 
 the special executors {>•). The Act makes it equally 
 necessaiy for executors to assent to a devise of laud, 
 whether specific or residuary (s), as to a specific bequest 
 of personalty. And the executors' assent is sufficient to 
 vest in the devisee the legal estate in the devised lands, 
 without any formal conveyance, as in the case of asseut 
 to the specific bequest of a chattel real (;■). But where 
 lands are not devised but suffered to descend, the legal 
 personal representatives must convey the same to the 
 heir (u). Having regard to the provisions of the Act 
 with regard to the powers of several executors to sell or 
 transfer real estate and the right of the heir or devisee 
 to require a transfer oi the same (v), and the above-men- 
 tioned decision {/(•), the question is raised whether all 
 those a[)pointed executors (save such as have renounced 
 probate) must not join in assenting to a specific devise (u;). 
 It seems clear that they must all join in a conveyance 
 of the real estate to the devisee or heir. Where the 
 personal representatives convey the real estate to the 
 heir or devisee, subject to a charge for the payment 
 of any money which they are liable to pay (//), and 
 have previously issued the usual statutory advertise- 
 ments for creditors, the charge does not extend to debts 
 of which they had no notice at the time of conveyance {z) . 
 
 (r) Ee Cohen's Executors and (w) Above, p. 232, n. (q). 
 
 London County Council, 1902, 1 (x) In the case of a chattel, 
 
 Ch. 187. real or personal, asseut may be 
 
 («) The law regards every de- eithei* express or implied, and the 
 
 vise of lands as being in effect assent of one of several executors 
 
 specific, though iu terms it may is sufficient, even though he be 
 
 be residuary; JTenxman v. Fri/cr, himself the legatee; Toinison v. 
 
 L. R. 3 Ch. 420; Lunccjicld \. r(cAr//, 3 B. & A. 31, 40; Cole x. 
 
 Igguldcn, L. R. 10 Ch. 136; 2 Miles, 10 Hare, 179; 2 Wms. 
 
 Jarm. Wills, 1431, n., .5th ed. Exors. 948, 1374-1378, 7th ed. 
 
 {t) Me Fix, 1901, W. N. 165 ; In the absence of any decision, 
 
 Kemp V. Inland Revenue Commrs., it cannot safely be assumed that 
 
 1905, 1 K. B. 591, deciding that this is now the law with regard 
 
 no stamp is necessary where the to realty, 
 
 assent is given in writing not (y) See above, p. 230. 
 
 \xnder seal ; above, p. 218. (;) lie Can/ and Pott's Contract, 
 
 u) See sect. 3(1), above, p. 230. 1901, 2 Ch. 463. See Wms. Pers. 
 y) Above, p. 229. Prop. 458, 16th ed.
 
 234 
 
 OF DEVOLUTION ON DEATH. 
 
 The devolution of the beneficial interest in lands is not 
 altered by the Act. Such interest may therefore be 
 devised to the same extent as before, remains subject to 
 the law of dower and curtesy, and upon intestacy 
 descends to the heir or escheats according to the law 
 previously in force (a). It is obvious that the term real 
 estate [b) as used in the Act must receive a restricted 
 interpretation. Life estates are real estate : but as they 
 cease on death, of course they do not pass to the per- 
 sonal representatives, nor are they made liable to the 
 deceased owners' debts. It is submitted that the key to 
 the construction of the Act is in the provision that real 
 estate shall vest in the personal representatives, notivith- 
 standing any testamentary disposition (c). This seems to 
 show that the Act is intended to apply to such real 
 Estates tail, estate as may be effectually devised by will. If this be 
 so, the descent of estates tail, whether legal or equitable, 
 remains unaffected by the Act. But pending the deci- 
 sion of the Court on this point, a real difiiculty is raised 
 by the imskilled wording of the Act in the case of 
 estates tail. They are not only real estate, but real 
 estate of inheritance in the hands of the donee ; as such, 
 they are subject to the law of dower and curtesy [d) ; 
 and they are charged by statute, in the hands of the 
 heir in tail after his ancestor's death, with debts due 
 from the ancestor to the Crown by judgment, recogni- 
 zance, obligation or other specialty, although the heir 
 shall not have been comprised therein {e), and also with 
 all arrears and debts, if any, due to the Crown from the 
 ancestor as an accountant to the Crown whose yearly or 
 total receipts exceeded three hundred pounds (/'). Why 
 
 («) Above, pp. 213—216. {e) Stat. 38 Hen. VIII. c. 39, 
 
 {b) As to the origin and mean- s. 52 (s. 73 in RuiShead) ; Chitty 
 
 ing of the term "real estate," on the Prerogative of the Crown, 
 
 see Wms. Real Prop. 8, 25-29, 299. 
 
 184, 548, 21st ed. (/) Stat. 13 Eliz. c. 4 ; see 
 
 (c) Sect. 1 (1) ; above, p. 228. 25 Geo. III. c. 35 ; Chitty, Pre- 
 
 \d) Above, pp. 214, 216. rogative, 294, 295.- ^ ;
 
 OF DEVOLUTION OX dp:ath. 235 
 
 then, It may be urged, shall not estates tail vest in the 
 deceased owner's personal representatives and he charged 
 with the payment of all his debts, according to the 
 letter of the Land Transfer Act ? It is probable, how- 
 ever, that the Court will consider that no sutHcient 
 intention is expressed in the Act to subject estates tail 
 to all their deceased owner's debts, and that the Act 
 only applies to de\isable real estate. But the point is 
 one on which it would be scarcely safe to act uijon a 
 
 . , . . mi A i Equitable 
 
 text- writer s opinion, ihe Act seems to apply to all estates, 
 real estate, to which the deceased person was entitled 
 for his own benefit in equity, and which he might 
 devise by his will [g) . As regards copyholds, it is clear Copyholds, 
 that legal estates of inheritance in copyholds vested in 
 one, wlio has been didy admitted tenant on the rolls 
 for his own benefit, are left to pass to the devisee or 
 heir according to the previous law [h). But it has been Equitable 
 decided that an eqidtable estate in fee in copyholds eopy^yids 
 passes to the legal personal representatives under the 
 Act (<) ; and the opinion has been judicially expressed 
 that the provisions of the Land Transfer Act, 1897, 
 excepting copyholds and customary freeholds from being 
 included in " real estate " in cases where an admission 
 or any act by the lord is necessary to perfect the title of 
 a purchaser from the i'i(dom<trij tenant (/.), are to be 
 construed as referring to a purchaser from the copy- 
 holder or other customary tenant, who is the actual 
 tenant on the rolls or at law of the lord. Upon this Eqaitublo 
 
 construction of the Act, it appears that the equitable <^-^**^t<' of 
 
 . "^ *■ unadmitted 
 
 estate in fee of an unadmitted siu-renderee of copy- sun-enderee. 
 
 holds (/) passes on his death to his personal repre- 
 sentatives. 
 
 {g) Kekewich, J., Re Homer- {k) Above, p. "J^t). 
 ville and Tnnicr\s Contritct, 1903, 
 
 2 Ch. 583, r^ST, .'iSS. {I) See 1 Scriv. Cop. 172, 173, 
 
 {h) Above, pp. -216, 217. 262, 361, 3rd ed. ; 1 Wat. Cop. 
 
 (i) Re Soiinrril/c and Tunwr'n llSaudu. (1), 4th ed. ; Elton ou 
 
 Contract, 1903, 2 Ch. 583. Copyholds, 70.
 
 236 OF DEVOLUTION ON DEATH. 
 
 Keal estate It has been held that the Crown is not bound by the 
 
 the Crown. ° Land Transfer Act, 1897, and therefore the legal estate 
 in lands escheating to the Crown does not vest in the 
 solicitor to the Treasury, who takes out administration 
 as nominee of the Crown, where chattels fall to the 
 Crown upon intestacy (w). But it does not appear that 
 this decision governs the case of an escheat to a common 
 person. Lands liable to escheat are devisable (w), and 
 are also assets for payment of the deceased tenant's 
 debts (o) . These are reasons for holding that lands 
 liable to escheat to a mesne lord will vest under the 
 above-mentioned Act in the executors of any will the 
 tenant may have made, though relating to personal 
 estate only, or in his administrator, if he die wholly 
 intestate. It seems that a purchaser of real estate from 
 an executor or administrator professing to sell under 
 this Act should require to be satisfied that the property 
 sold does not escheat to the Crown, i.e., that there is an 
 heir or a devisee. 
 
 (««) In the Goods of Hartley, (o) Evans v. Brown, 5 Beav. 
 
 1899, P. 40. 114; Hughes v. Welh, 9 Hare, 
 
 («) See Wras. Real Prop. 56, 749; Beah v. Symonds, 16 Beav. 
 
 21st ed. 406.
 
 237 
 
 CHAPTER VIII. 
 
 OF NOTICE OF TRUSTS AND SALFS BY TRUSTEES. 
 
 § 1. Of Notice of Trusts. 
 § 2. Of Sales by Trustees. 
 
 In order to call attention to every point which may pos- 
 sibly come before a conveyancer for his consideration in 
 advising on title, it would be necessary to give an ex- 
 haustive account of the whole of the English law of real 
 property and chattels real. To this the present work 
 makes no pretension, the writer's chief aim being to 
 set forth the main principles of the law relating to 
 sales of land. There are, however, various points 
 arising on particular titles which are of sufficiently 
 frequent occurrence to call for special mention ; and it 
 is now proposed to deal with these. We will begin in 
 the present chapter with the subject of notice of trusts 
 and sales by trustees. Next, we will treat of titles 
 depending on the exercise of a power, especially the 
 power of sale given by the Settled Land Acts ; and then 
 we will shortly consider a variety of miscellaneous 
 matters such as sales of copyholds, of leaseholds, of 
 lands situate in Middlesex or Yorkshire, and other 
 special subjects. 
 
 § I.— Of Notice of Trusts. 
 
 We have seen {a), that whenever the purchaser's Notice 
 adviser obtains notice from any document or fact °* ^'^^^^^ 
 
 (a) Above, p. 170.
 
 238 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 appearing on the abstract or produced or elicited in the 
 course of investigation of the title that a person entitled 
 to some legal estate or interest in the property sold 
 holds the same upon some trust (b) or subject to some 
 equity, he must see that title is properly deduced 
 through or from all persons beneficially entitled under 
 the trust or equity, unless the circumstances be such 
 that a good title can be made without the concurrence 
 of the beneficiaries, as in the case of a trust for or power 
 of sale. When lands are vested in trustees, it is fre- 
 quently desired to keep notice of the trusts off the title. 
 This is especially the case when mortgages are made to 
 trustees ; and it has been the regular practice, whenever 
 a mortgage is held by trustees, to represent in the 
 mortgage deed that they are jointly entitled in equity 
 as well as at law (c) ; and also, when such a mortgage 
 has had to be transferred to give effect to an appoint- 
 ment of new trustees, to frame recitals in the deed of 
 transfer which shall not disclose the trust. Thus, if 
 John and Thomas are trustees who have invested part of 
 their trust money on mortgage, and Thomas wishes to 
 retire from the trust, Charles being appointed in his 
 place, Charles is duly appointed a trustee in the usual 
 way, and then a separate deed is executed between the 
 three whereby, after a recital that the principal money 
 and interest now owing upon the security have become 
 and are the property in equity of John and Charles, 
 John and Thomas assign the mortgage debt and convey 
 the mortgaged lands to John and Charles (rf) . It has 
 
 (/)) Note that notice that the (c) This was done, before 1882, 
 
 legal owner holds in trust issuffi- by the joint-account clause then 
 
 cient to put the purchaser iipon usual, and has since been usually 
 
 inquiry, although the name of accomplished by the operation of 
 
 the cestui que trust or the purposes sect. 61 of the Conveyancing Ac t 
 
 of the trust be not disclosed by of 1881 ; Wms. Real Prop. 569, 
 
 the notice ; Bank of Montreal v. '21st ed. 
 
 Su-eeny, 12 App. Cas. 617, 621, . (d) See Davidson, Pree. Conv.- 
 
 622 ; Perham v. Kcmpster, 1907, vol. ii. pt. ii. pp. 51-53, 805, 806, 
 
 I Ch. 373, 380. 4th ed. ; 2 Key & Elph. Prec.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 been held that, when recitals of this kind are met with, 
 they may and indeed shall he accepted by a purchaser 
 without inquiry (e). Conveyancers therefore, though 
 of course they are well aware for what purpose such 
 statements are made, do not seek to go behind them, 
 and abstain from inquiries whieh, if answered, would 
 oust their client from the position of a purchaser for 
 value obtaining tlie legal estate in good faith without 
 notice of any trust. The acceptance of such statements 
 seems to rest on the presumption that all things have 
 been rightly done ( /'). Thus, if A. and B., who have 
 been parties to deeds which have conferred on them an 
 absolute title at law to some land or mortgage money, 
 choose to acknowledge that the land or money belongs 
 in equity to C. absolutely, a purchaser from them is 
 justified in accepting this acknowledgment as rightly 
 made, and in assuming, without f oi'ther evidence, that 
 the whole beneficial title is, as stated, in C. And he is 
 not bound to make and should refrain from making 
 any further iuquiiy in the matter, such as whether the 
 trust admitted by A. and B. in C.'s favour is declared 
 by any document. He is, it is conceived, justified in 
 
 Conv. 242, '243, 4th ed. ; 224, 22;'), with an adjudication stamp of 10«. 
 
 8th ed. Where a deed of this the purchaser cannot require it to 
 
 kind is abstracted as part of a be further stamped ; see stat. oi 
 
 vendor's title, the purchaser's & oo Vict. c. 39, s. 12 (5, 6 a); 
 
 advisers must of course see that and it is thuug-ht that he is not 
 
 it is duly stamped. Such a trans- thereby affected with notice of 
 
 fer, if made between beneficiaries. any trust. 
 
 requires an W /vf/«/rw stamp ; but i \ j, tt j rr . ■ . 
 
 . £ J f n; J i.- [e) lie Kariiian and Uxhndae. 
 
 as a transfer made for ettectuatiuir . ^ n , --, ,, ^, t^ -,„'' 
 
 .1, • i ^ e >. ^ ^'f"- Jiaii. ( 0., 24 Ch. D. 720. a 
 
 the appomtment ot a new trustee ^ . . ' ^ ., ■' , 
 
 it would not ro<pure a hijrher very strong instance, as the recital 
 
 stamp than lO.v. ; see stat. 54 & 55 ^^>'J ^^^ '^«'^^* compelled the 
 
 Vict. c. 89, s. 62, and First Scho- Purchaser to accept was not made 
 
 dule. tit. Mortcrajre : 10 Kdw. VII. ^'v°"';''t\ f ""^TT :x appeared 
 
 c. 8, s. 74 (6); Davidson. *'. be absolutely entitled but was 
 
 Prec. Conv. vol. iv. pp. 609. 610. I '••^"/'^l V an executnx to whom 
 
 3rd ed. If the mort^aife monev ^"r' ^^'^^'V^'" ^ ,^^^^]? ^ad been 
 
 should exceed 2.000// and the f^on on trust for others, that A.,- 
 
 stamp be 10... only, the vendor f^''"f"- held the property in ques- 
 
 sho,.ld be required to have the *",'" «" trustee for other persons, 
 
 deed duly stamped with the "''u were jointly entitled thereto, 
 
 proper ad valonm stamp. If in {f) Ante, p. 118; Re Cousins, 
 
 8uch case the deed be stamped 31 Ch. D. 671, 675. 
 
 239
 
 240 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 such circumstances in accepting a conveyance of the 
 land or a transfer of the mortgage from A. and B., 
 with the concurrence of C, without making any further 
 investigation of C.'s title or as to the nature of the 
 alleged trust. Where the legal title is correct on the 
 face of the abstract, the purchaser is not entitled to 
 object to it on the mere suspicion of some equity adverse 
 to the title {g) . It is, of course, quite a different matter 
 if some document be disclosed to the purchaser, showing 
 that A. and B. are trustees of the land or money on 
 certain particular trusts, as for C. for his life and after 
 his death for his children. In that case the purchaser 
 has notice of the trusts declared by the document, and 
 must have regard to them ; he is no longer entitled or 
 bound to accept as correct any statement by A. and B. 
 that they are jointly entitled in equity as well as at 
 law or are trustees for C. On the contrary, the pur- 
 chaser is entitled to require and should ask for all such 
 information respecting matters connected with the trusts 
 so disclosed as he could have demanded if no such state- 
 ment had been made {li). For example, where a mort- 
 gage has been made to several persons jointly, and it is 
 disclosed to a purchaser that they hold upon the trusts 
 declared by a particular deed of settlement, it should be 
 ascertained that these persons are or were the duly 
 appointed trustees of the settlement and were empowered 
 to invest their trust funds on mortgage and can give 
 receipts for the mortgage money when repaid (/ ) . And 
 where land has been conveyed to several persons jointly 
 in fee, and it is disclosed that they are trustees of some 
 settlement, a purchaser from them must find out whether 
 they are duly appointed trustees and were empowered 
 to invest their trust funds in the purchase of land and 
 
 {g) McQueen v. Farquhar, 11 (/;) Be Bkdberq and Abrahams, 
 
 Ves. 467 ; Green t. Puhford, 2 1899, 2 Ch. 340.' 
 Beav. 70 ; below, Chap. XIX. 
 
 § 3. (0 See S. C.
 
 OF NOTICE OF TRUSTS AND .SALES BY TRUSTEES. 241 
 
 are empowered to sell the land and can give good 
 receipts for the purchase money ; and if it appear that 
 such powers have not been conferred upon them, he 
 must require the concurrence of all persons beneficially 
 entitled, and should not accept the title if this cannot 
 be obtained or some beneficiary be under an insurmount- 
 able disability. 
 
 Where lands have been assured to several persons as Circumstances 
 joint tenants without disclosing the fact that they are disclosure^ 
 
 trustees, circumstances may occur which will place the oi a trust 
 
 ,..,.. ,, ,.,, 1. V IP unavoidable, 
 
 conveyancer engaged in investigating the title on behali 
 
 of a purchaser in an awkward dilemma. Thus, if it 
 appear on the face of the abstract that several persons 
 were seised of lands in fee (not by way of mortgage), 
 and one of them has died, the purchaser mav of course - 
 require the usual proof of the discharge of the succes- 
 sion and estate duty which would be payable on the 
 death if they were beneficially entitled (k). But if this 
 be done, and the joint tenants were in fact trustees, the 
 only answer that can be given will be that no duty 
 became payable, because the deceased person was not 
 beneficially entitled (/). This, however, is tantamount 
 to notice tliat he was a trustee ; and after such an 
 answer the purchaser cannot safely accept the title 
 without the concurrence of the persons beneficially 
 interested {ni). On the other hand, if no requisition as 
 to succession or estate duty should be made, and the 
 joint tenants should happen not to be trustees, and the 
 duty had not been satisfied, the purchaser would take 
 the property subject to the charge of duty (n). And 
 the same difficulty may arise, as regards estate duty, 
 
 (A) See stats. IG & 17 Vict. (w) See 2 Dart, V. & P. 594, 
 
 c. .51, 8. :J ; .)7 & JS Viot. c .30, ,5th ed. ; 660, 6th ed. ; Vim, 7th 
 
 SH. 1, 2 (1). ed. : above, p. 238. n. lb). 
 
 {I) See Stat.«. 1<> A: 17 Vict (w) See Stats. 16 & 17 Vict, 
 
 c. 51, 8. 2 ; 57 & .58 Vict. c. 30, c. ol, s. 42 ; 57 & 58 Vict. c. .30, 
 
 s. 2 (3). a. 9 (1). 
 
 W. 
 
 16
 
 242 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 in consequence of the death of one of several joint 
 mortgagees : although with respect to succession duty 
 the law is different. Thus, in such a case succession 
 duty would be payable, if the mortgagees were bene- 
 ficially entitled, by the survivors as on a succession to 
 personal property ; but the duty would not be a charge 
 on the successors' interest, except while the property 
 should remain in their ownership or control ; and it 
 does not appear that persons in whom the property 
 (that is, the mortgage debt and the charge on the 
 mortgaged lands) might become vested by alienation 
 after the succession had become an interest in posses- 
 sion would be accountable for the duty (o) . It appears, 
 therefore, to be unnecessary for any person proposing 
 to take from the survivors a transfer or release of the 
 mortgage to inquire respecting the payment of such 
 succession duty {p). But in the case of the estate duty 
 which would be payable if the mortgagees were benefi- 
 cially entitled, it is at least a question whether persons in 
 whom the mortgage should become vested by the aliena- 
 tion of the surviving mortgagees would not be account- 
 able for the duty, and whether the property (which 
 would not have passed to the deceased person's executor) 
 would not be charged therewith (§'). And if a person 
 taking a transfer from such surviving mortgagees would 
 be so accountable, or the duty be a charge on the mort- 
 gage debt, it seems that he ought to ascertain whether 
 the duty has been discharged before he pays them the 
 money owing on the security ; and it is easy to put a 
 case in which omission to make this inquiry might lead 
 
 (o) See Stat. 16 «& 1 7 Vict. c. .51, cordiug- to the strict grammatical 
 
 8S. 42, 44, construction of the words used, 
 
 {p) Davidson, Prec. Conv. makes a person accountable in 
 
 vol. ii. pt. ii. pp. 52, 53, 4th ed. ; whom the property shall become 
 
 but see 2 Dart, V. & P. 594, 5th vested by alienation made after 
 
 ed. ; 669, 6th ed. ; 1230, 7th ed. the death, which gives rise to the 
 
 [q) See Stat. 57 & 58 Vict. liability to duty : but in Hanson's 
 
 c. 30, ss. 8 (4), 9 (1). It may be Death Duties, 174, 4th ed. (197, 
 
 doubted whether sect. 8 (4), ac- 5th ed.), it is asserted that it does.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 to a serious liability. Thus, suppose that a fatlier and 
 a son were joint mortgagees, who had made the invest- 
 ment with the view of the survivor becoming solely 
 entitlf^d, and the father died first : could any person 
 safely take a transfer of the mortgage from the son 
 without inquiring as to the payment of the estate duty ? 
 For if in this case the duty be indeed a charge on the 
 property which passed on the father's death, then the 
 mortgage debt and the mortgagee's estate in the 
 mortgaged lands would appear to be as effectually 
 charged therewitli as if the two moi'tgagees liad made 
 a sub-mortgage of wliioh the debtor had notice. And 
 a similar difficulty arises where it is proposed to take 
 a release or reconveyance by the survivor of two 
 joint mortgagees appearing to be beneficially entitled. 
 For if the estate duty which became payable on the 
 death of one of the mortgagees be a charge on the 
 proper! 1/ (that is, the mortgage debt and the mortgagees' 
 estate in the lands) , and the mortgagor or his successors 
 in title have notice of the charge of dut}', it does not 
 appear that a release or reconve3^ance to him or them 
 by the surviving mortgagee alone would vest in them 
 the mortgagee's interest free from the charge of duty 
 (if unpaid) ; and it seems that he or they might be 
 held to be accountable for the duty as being a person 
 or persons in whom the property had become vested by 
 alienation (/•). There seems to be no doubt that where 
 a title is deduced through joint tenants appearing on 
 
 (r) See Stat. 57 A: 58 Vict. c. 30, duty which m:ij' have hecome 
 
 8. 8 (4) ; above, p. 242, n. (7). payable on the death of one of 
 
 Where lands have been mort- the mortqragees ; they are in the 
 
 ffag'ed to two persons joi-itly, the po*<itiou of debtors ; see Ma'ffietp 
 
 mortjfaffor and his successors in v. Xortfurii Assurnnce Co., 9 Ch. 
 
 title are not accountable under D. 80. But if a debtor have 
 
 the same sub-section, as l)ein>f notice of a chai-fre created on the 
 
 "tnisfees or otf-er persons in debt due from him, how can he 
 
 whom any interest in the pro- safely pay the whole amount of 
 
 perty is vested."' for any estate the debt to the orijjinal creditor? 
 
 243 
 
 16(2)
 
 244 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 the face of tlie deeds to be entitled for tlieir own benefit, 
 the only course which is perfectly safe is to treat them 
 as being so entitled for all purposes, and consequently 
 to require proof of the discharge of all death duties 
 which if they were so entitled would be a charge on 
 the property in the purchaser's hands. At the same 
 time the writer believes that hitherto it has not been 
 the practice to inquire respecting the payment of estate 
 duty on the death of one of several joint mortgagees, 
 unless there is good reason (as there would be in the 
 case above put of a joint investment by father and 
 son) to suppose that the parties are not or may not 
 be trustees. The only justification for this course seems 
 to be that joint mortgagees are so generally trustees 
 that the risk run in omitting the inquiry is really very 
 small, and the inconvenience consequent upon asking is 
 exceedingly great. Whenever it is proposed to sell 
 land under a title comprising a conveyance by the 
 survivor of joint mortgagees, and the deceased mortgagee 
 died after the 1st of August, 1894 (.s), it is advisable to 
 make a special stipulation in the conditions or contract 
 of sale that no inquiry shall be made or objection taken 
 as to any estate duty that may have become payable on 
 such death {t). Where several persons appear to have 
 been entitled to lands as joint tenants, but not by way 
 of mortgage, it has not been the practice to refrain from 
 inquiry as to the discharge of any death duties which 
 may have become payable on the death of one of them 
 on the ground that they are likely to have been trustees : 
 on the contrary, regard is had to the fact that omission 
 to inquire as to the payment of estate or succession duty 
 on the death of one of them would leave the purchaser 
 with an unsatisfied charge on the face of his title, 
 
 («) The date of the commence- duty ; Stat. 57 & 58 Vict. c. 30, 
 ment of that part of the Finance s. 24. 
 
 Act, 1894, which imposes estate (t) For a form of such a con- 
 
 dition, see Appendix A., below.
 
 OF NOTICE OF TRUSTS AND SALES I'.V TRUSTEES. 245 
 
 and so prevent him from getting a good marketable 
 title (u). 
 
 It is said, speaking generally, that notice of any Notice of a 
 document is notice of its contents: but this statement is how far notice 
 only applicable as a rule subject to the following quali- of its contents, 
 fications : — If a purchaser of any land haAC notice of 
 some document, which must necessarily affect, or is 
 stated to affect, the title to the land, then he ought to 
 inquire as to its contents ; and if he omit to prosecute 
 this inquiry, he will be affected with notice of its 
 contents and of any equitable interest disclosed by its 
 contents. And if the document must necessarily affect 
 the title, he will have notice of its contents (if he have 
 notice of the document), notwithstanding that he were 
 told that the document did not affect the title. But if 
 the document be such as may or may not affect the 
 title, and the purchaser ask, on receiving notice thereof, 
 whether it does affect the title, and be told that it does 
 not, he is justified, in the absence of any reason for 
 suspecting the vendor's veracity or good faith, in accept- 
 ing this statement as correct ; and if he omit to peruse 
 the document, he will not be fixed with notice of its 
 contents or of any equity thereby disclosed (.r). As 
 
 («) Theoretically, omission to of redemption under the Statute 
 
 make the like inquiry with re- of Limitatious, have become 
 
 spect to estate duty pnyable on the owners of the whole estate in the 
 
 death of a joint mortgagee leaves lauds and uot merely of a char're 
 
 the title equally open to objec- thereon ; aud on the subsequent 
 
 tion : but. as we have seen (above, death of one of them any succes- 
 
 pp. 'J41, 242;, before the Finance siou duty which might become 
 
 Act, 1894, when succession duty payable woulil be a charge on the 
 
 only was payable, there was no survivors' estate in the lands, ho 
 
 necessity to make the inquiry, that inquirj' as to the payment 
 
 and the ditfereuce arising under thereof could no longer be safely 
 
 that Act with respect to estate dispensed with ; see Kf Loveridgc, 
 
 duty has hardly yet been appre- 1904, 1 Ch. 518. 
 ciated by the profession generally. (j-) Jotien v. Smith, 1 Ph. 244, 
 
 It should not be forgotten that 253, 254 ; Potman v. Hnrlatid, 
 
 joint mortgagees, who have been 17 Oh. D. 353, 356, 357 ; Lloyd's 
 
 obliged to foreclo.se, or who have Bmikiny Co. v. Jones, 29 Ch. D. 
 
 had to take pussession and h;ivc 221, 230; Eiujlish and Scolfisli 
 
 acquired a title barring the equity Mercantile Invvstment Co. v. Brun-
 
 246 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 already pointed out (//), however, it is imprudent not to 
 require the production of a document, of which the 
 purchaser has notice and which may or may not affect 
 the title, because the document may disclose some Jognl 
 estate or interest adverse to the vendor's title, and the 
 purchaser would take subject to this, whether he had 
 notice of the contents of the document or not. 
 
 Notice, actual Notice of trusts, equities or similar matters, may be 
 tive. ' either actual or constructive. Actual notice to the 
 
 person principally concerned himself, as to a purchaser 
 personally, calls for no remark ; but it may be observed 
 that the term " constructive notice " is applied to two 
 kinds of notice, namely, the notice which is imputed to 
 a person principally concerned where he acts through a 
 solicitor or other agent, and the notice which is imputed 
 to a person where he or his agent has not made such 
 inquiry or investigation as ought to have been made. 
 The law with respect to notice is now contained in the 
 following section of the Conveyancing Act, 1882 (2) : — 
 
 notice. 
 
 Restriction on Sect. 3, sub-sect. 1. — A piu-chaser («) shall nut be prejudicially 
 constructive affected by notice of any instrument, fact or thing, unless — 
 
 (i) It is within his own knowledge, or would have come to his 
 knowledge, if such inquiries and inspections had been made 
 as ought reasonably to have been made by him ; or 
 (ii) In the same transaction with respect to which a question of 
 notice to the purchaser arises, it has come to the knowledge 
 of his counsel, as such, or of his solicitor, or other agent, as 
 such, or would have come to the knowledge of his solicitor, 
 or other agent, as such, if such inquiries and inspections had 
 been made as ought reasonably to have been made by the 
 solicitor or other agent. 
 Suh-sect. 2. — This section shall not exempt a purchaser from any 
 
 ton, 1892, 2 Q. B. 1, 700 ; lie mortgagee, or an intending pur- 
 
 Valletort, ^-c. Co., Ltd., 1903, 2 chaser, lessee or mortgagee, or 
 
 Ch. 654. other person, who, for valuable 
 
 [y) Above, p. 135. consideration, takes or deals for 
 
 (s) Stat. 45 & 46 Vict. c. 39, property, and "purchase" has a 
 
 s. 3. meaning corresponding with that 
 
 («) By sect. 1 (2) (ii) in this Act, of "purchaser." 
 "purchaser" includes a lessee or
 
 OF NOTICE OF TKUSTIS AND «ALE« BY TlilJ«TKES. 247 
 
 liability under, or any obligation to perform or observe, any coveuaut, 
 condition, provision, or restriction contained in any instrument under 
 which his title is derived, mediately or immediately ; and such 
 liability or obligation may be enforced in the same manner and to the 
 same extent as if this section had not been enacted. 
 
 Sub-sect. 3. — A i>urchaser shall not by reason of anything in this 
 section be affected by notice in any case where he would not have 
 been so affected if this section had not been enacted. 
 
 Sub-sect. 4. — This section applies to purchases made either before 
 or after the commencement of this Act ; save that, where an action is 
 pending at the commencement of this Act {b), the rights of the 
 parties shall not be .-.ffected by this section . 
 
 Sub-sect. 1 (i) of the above enactment appears to be 
 no more than a statement of the previously existing 
 law(^). But sub-sect. 1 (ii) of the above section has 
 made a substantial alteration of the law. Before this 
 Act came into operation, it was necessary, as a general 
 rule, in order that a purchaser might be affected by 
 notice to his counsel, solicitor, or other agent, that the 
 agent should be affected with notice in the same trans- 
 action in which the question of notice to the principal 
 arose (r/). But where one trausaction was closely 
 followed by and conuected with another, or where it 
 was clear that a previous transaction was present to the 
 mind of the agent when engaged in another transac- 
 tion, the principal was affected by notice to the agent, 
 altliough received in the previous transaction (6^). This 
 exception to the general ride has been removed by the 
 above section. Thus, where A. first mortgaged his 
 share under the trusts of a will to B., who was his 
 solicitor and was also the solicitor of the trustees of the 
 will, and this mortgage was afterwards transferred to C. 
 and then to L)., B. acting as C.'s and D.'s solicitor ; and 
 
 {h} Immediately after the Slst (> Ch. 652 ; Agm Jiank v. Barry, 
 
 Dec. 18S2; sect. 1 (2). L. R. 7 H. L. i:r> : ratmau v. 
 
 (f) liailtyw.linnies, 1894, 1 Ch. Harhiml, 17 Ch. D. :i.')3 ; Krttle- 
 
 2/J, 3o ; li'rrwu'lc ^- Co. v. Prior, uril v. Wittnoii, 21 Ch. D. 08.'). 
 
 1905, 1 Ch. 632, (33!) ; see Jvvm v. {d) Sug. V. & P. 757. 
 
 Smith, 1 Hare, 43, I Ph. 244 ; (r) Harqreaves v. Rothurll, 1 
 
 Wihon V. Unrt, L. R. 1 Ch. 4«3 : Keen. 154. 159 : Sug. V. & P. 
 
 Carter v. U'i/liiims, L. R. 9 Eq. 757 : see the cases stated below, 
 
 b78 ; Ratdiffv v. Barnard, L. R. pp. 250—253.
 
 248 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 within a year after the transfer to D., A. mortgaged the 
 same property to E., when B. acted as A.'s and E.'s 
 solicitor ; and E. was the first to give actual notice of 
 his charge to the trustees, who had no personal know- 
 ledge of the previous mortgage: it was held that E. 
 was not aifected with notice of the previous mortgage 
 by reason of B. having acted as his solicitor, and E.'s 
 charge had accordingly priority over D.'s (./). 
 
 Reason for ^he rule that a purchaser is afPected by notice to his 
 
 the rule that , , . . , " / j.i • 
 
 notice to the counsel, solicitor or other agent [g), seems to rest on this 
 tif th* ^^ ""^^^'^ ground : — When a man employs such agents to transact 
 cipal. his business he holds them out to the world as standing 
 
 in his own place and representing himself, in fact, as 
 being identical, for the purposes of the business which 
 he has authorised them to transact, with his own person. 
 He must therefore accept this rejDresentation of himself 
 by another, which is the consequence of his own act in 
 employing an agent, as complete for all the purposes of 
 such business, and cannot justly be permitted to sever 
 the identity of person created by him so as to repudiate 
 notice or knowledge given to or acquired by the agent, 
 but not in fact communicated to the principal (It). It is 
 therefore said that, when the relation of principal and 
 agent and the duty of the agent to communicate any 
 matter to the principal have been established, an irre- 
 buttable presumption arises that the agent communicated 
 the matter to the principal — evidence is not admissible 
 to prove that the agent did not in fact communicate his 
 The exception knowledge to the principal (/). The rule is, however, 
 fraiTd^ ° subject to the exception that, if the matter, of which it 
 
 (/) lif Comim,;i\ Ch. D. 671 ; L. R. 2 Eq. 134 ; cf. Blackburn 
 
 and see below, p. 252 ; Re Valle- v. Viyors, 17 Q. B. D. 553, 12 
 
 tort, ^-c. Co., Ltd., 1903, 2 Ch. App. Cas. o3l ; Blackburn v. 
 
 654, 663. Haslam, 21 Q. B. D. 144. 
 
 , \ c TT f -n irn (*) Fry, J., Kctthwell v. Wat 
 
 {,,) Sng. V. & P. 756. ^J^^ 21 Ch. D. 685, 704-707 
 
 [h) See Kennedy V. Green, 'S My. Berwick 4- Co. v. Price, 1905 
 
 & K. 699, 719 ; Boursot v. Savuye, 1 Ch. 032, 639, 640.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 249 
 
 is sought to affect the principal with notice, be the 
 agent's own fraud or fraudulent dealing or some equity 
 arising thereout (/.), or if the agent during the time of 
 his employment as such, and when he acquired the 
 information in question, was a party to a scheme of 
 fraud (/), tlien the principal is permitted to give 
 evidence to rebut the above presumption and to prove 
 his ignorance of the matter ; for the supposition that 
 the agent communicated his own fraud to the principal 
 is too improbable to be entertained even by a Court of 
 Equity. 
 
 Some very line distinctions were taken with regard to The law pre- 
 the above rule and its exception, before the passing of Couveyanchi.' 
 the Conveyancing Act, 1882 {in). Thus it was decided A-ct, 1882. 
 that, where a solicitor has been or is acting fraudulently, 
 but the circumstances are such that if the purchaser 
 were represented by another solicitor innocent of the 
 fraud, that solicitor would be put upon inquiry and so 
 affected with notice of some equity other than that 
 arising out of the fraud, the client will be affected witli 
 notice of this equity, notwithstanding the solicitor's 
 fraud (»). And it was even held, that where in the 
 same transaction a solicitor is engaged in committing a 
 fraud, but has notice of some equity independent of that 
 arising out of his fraud — as where he is a trustee en- 
 gaged in wrongfully disposing of the trust property for 
 his owu benefit — any person who is his client in that 
 transaction will be affected with notice of such indepen- 
 dent equity, notwithstanding that, if tlie client were 
 represented by another solicitor, that solicitor would 
 not be put upon inquiry (o). And it was considered 
 
 (k) Ki'Hiiedy y. Green, i My. & well v. JFatnon, 21 Cli. I). tiSo, 
 
 K. 699, 720 ; Cave v. Cave, 16 707. 
 
 Oh. D. G;59, 64."); Berwick ^ Co. (m) Above, p. 216. 
 
 V. Price, 1905, 1 Oh. (i;j2-OlO. («) See Kennedy v. Green, 3 
 
 (/i ^hnrpr V. Foij, L. R. 4 Oh. My. & K. 699. 
 
 35 ; lie iSuut/i(imjjlon\s Extuti , 16 [o) See Bourxol v. StuKgc, L. l\. 
 
 Ch. D. 178, 184 ; Fry, .J., KcttU- 2 Eq. 134.
 
 250 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 that, where the matter of which notice is sought to be 
 imputed is not the solicitor's own fraud or unjust 
 dealing, the mere fact that it was fraudulent or wrongful 
 of the solicitor to conceal the matter from the client is 
 not sufficient to exempt the client from the consequences 
 
 Kennedy v. of the rule (y^). For example, where a solicitor fraudu- 
 lently induced a client, who was a mortgagee of lease- 
 holds, to execute (without receiving any money) a deed 
 conveying the legal estate to him as upon a transfer of 
 the mortgage, and having suhsequentlj'^ acquired the 
 equity of redemption mortgaged the whole property to 
 another, for whom he acted as solicitor in the transaction, 
 it was held that the latter mortgagee was not affected 
 with constructive notice of the solicitor's fraud on the 
 original mortgagee. But, it appearing that the peculiar 
 form of the deed of transfer of the mortgage and of the 
 receipt endorsed thereon were sufficient to put a solicitor 
 innocent of the fraud upon inquiry whether any money 
 had been paid on the execution of the transfer, it was 
 considered that the latter mortgagee was affected 
 through the solicitor with notice of the equity arising 
 from the fact that no money had been paid, notwith- 
 
 Boursot V. standing the solicitor's fraud {q). So, where a solicitor, 
 aiage. being one of three trustees entitled to certain leasehold 
 
 land, the trust not being disclosed on the face of the 
 title deeds, sold and assigned the land to a purchaser, 
 for whom he acted as solicitor, by forging the signatures 
 of his co-trustees to a letter of authority to sell and to 
 the deed of assignment, and it was considered that the 
 deed was a nullity on their part, but passed the legal 
 estate in one-third of the land, the Court held that the 
 purchaser was affected, through the solicitor, with notice 
 of the trusts ; for it was said that if the client would be 
 affected with constructive notice of a trust, the existence 
 
 (//) Atterhury v. Wallis, 8 De (q) Keiuiedyv. Green, 3 My. & 
 
 G. M. & G. 454, 466 ; Holland v. K. 699 : see also Me Soutkiiinpton\s 
 Hart, L. R. 6 Ch. 678, 682, 683. Estate, 16 Ch. D. 178, 184.
 
 OF NOTir-F, OF TRTTSTS AND SALES BY TRTTSTEES. 251 
 
 of which is known to his solicitor, in the case where 
 there was no frand, the fact that the solicitor was com- 
 mitting a fraud in relation to the trust could not afford 
 any reason why the client should not be affected with 
 constructive notice of theexistpnee of the trust {>•). The 
 application of the rule, where the solicitor had notice of 
 some equity not arising out of his own fraud and the 
 only fraud was in his concealment thereof from his 
 client, is illustrated by the followins: cases : — A solicitor Aiterimnj v. 
 took a mortgage oi an equity of redemption and sub- 
 mortgaged it. Soon afterwards he and the first mort- 
 gagee and the mortgagor joined in a new mortgage of 
 part of the property, he acting as solicitor of all the 
 parties to the transaction and suppressing all mention of 
 the sub-mortgage. It was held that the new mortgagee 
 was affected, through the solicitor, with notice of the 
 sub-mortgage ; notwithstanding that it was fraudulent 
 or wrongful of the solicitor to conceal the sub-mortgage 
 from him (.s). A solicitor entitled to an equitable Zf>-w/^// v. 
 interest in land in Middlesex mortgaged the same to A. "^"^ "^*' 
 by deposit of title deeds and letters of charge, which 
 were not registered. He afterwards mortgaged the 
 same interest by registered deed to B., for whom he 
 acted as solicitor in tlie transaction. It was held that 
 B. must be taken to have had notice of A.'s mortgage, 
 the Court refusing to find a ground of exception from 
 the general rule in the fact that it was to the solicitor's 
 interest to conceal the prior mortgage from A., and 
 declining to presume that in this conflict of interest and 
 duty the solicitor consulted his own interest in preference 
 to performing his duty to his client (/). The exception simrpc v. Foy. 
 to the rule was allowed to prevail in Sharpe v. Foy (u), 
 where a liusV)and and wife mortgaged land, to which the 
 
 (>•) BoHinut V. Saviiyr, L. K. 2 v. Hart, L. R. G Cli. G7S. 
 
 Eq. 134. {t) lirndUy v. Riches, 9 Cli. D. 
 
 (s) Attetbury v. irallix, » Do 189. 
 
 G. M. & G. 4o4 : see also ItoUuud (m) L. R. 4 Ch. 3;").
 
 252 
 
 OF NOTICE OF TRUSTS AND SALES BV TRUSTEES. 
 
 wife was entitled at common law, but which was subject 
 to a covenant for settlement. The same solicitor acted 
 for the mortgagors and the mortgagee. The mortgagors 
 informed the solicitor of the existence of the covenant, 
 but it was agreed between them that the matter should 
 not be mentioned to the mortgagee. It was decided 
 that the mortgagee was not affected, through the 
 solicitor, with notice of the covenant, as the solicitor 
 Cave V. Cure, was party to a scheme of fraud. Again, in Cave v. 
 Cave (.r), a solicitor, who was the sole trustee of a 
 marriage settlement, wrongfully applied part of the 
 trust funds in the purchase of certain land, which was 
 conveyed to his brother. A. advanced to the brother 
 4,500/. on a first mortgage of this land. The solicitor 
 acted for A. in this transaction, but represented to A. 
 that his brother was the owner of the land, and that the 
 mortgage contained absolute covenants for title by the 
 brother. The solicitor also raised loans for his brother 
 from other persons on mortgage of the same land. In 
 these circumstances the Court found that the trust 
 funds were applied in purchase of the land in jDursuance 
 of a scheme of fraud to which the solicitor was a party, 
 his design from the first being to enable his brother to 
 raise money on mortgage of the laud ; and it was held 
 that A. was not affected, through the solicitor, with 
 notice of the equities in favour of the ceHtai-qiie-trKufii 
 under the settlement. 
 
 Etfeot of the 
 Conveyancing 
 Act, 1882, 8. 3. 
 
 Taylor v. 
 London and 
 County Bank. 
 
 Section 3 of the Conveyancing Act, 1882 (//), preserves 
 to principals the benefit of the exception established as 
 above mentioned (z) in the case of the agent's fraud. 
 But the distinctions drawn with regard to this exception 
 have been greatly modified by the ojieration of sub- 
 section (1) (ii) of the same enactment. Thus, in Taylor v. 
 London and Comity Banking Co. (a), one Tasker had 
 
 (a;) 15 Ch. D. 639. 
 (y) Above, p. 246. 
 
 {z) Above, p. 248. 
 («) 1901, 2 Ch. 231.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 253 
 
 appropriated part of certain mortgages to which he was 
 entitled in satisfaction of a breach of trust committed 
 by him as trustee of the Brockman settlement. After- 
 wards, on the appointment of Nixon as a new trustee 
 of the Tasker settlement, whereof Tasker had been 
 previously sole trustee, and had apparently converted 
 part of the trust funds to his own use, Tasker trans- 
 ferred these mortgages to Nixon and himself, repre- 
 senting that they were part of the funds subject to the 
 trusts of the Tasker settlement ; and in this business 
 Tasker acted as Nixon's solicitor. It was argued for 
 the persons entitled under the Brockman settlement (6), 
 on the authority of Boursof v. Sarof/c (c), that notice of 
 the equity in their favour must be imputed to Nixon in 
 consequence of Tasker having so acted as his solicitor. 
 But it was held [d) that the doctrine laid down in 
 Boiir-sof V. Savac/e is now subject to the modifications 
 introduced by the '3rd section of the Conveyancing Act, 
 1882 (e) ; and that, as knowledge of the appropriation 
 to the Brockman settlement did not come to Tasker as 
 Nixon's solicitor or in the same transaction in which 
 the question of notice arose, Nixon could not be affected 
 thereby. The principle of this decision appears to 
 affect not only the case of Bonr.sof v. Sarafjr, but those 
 of Atterhnt'!/ v. WoIUh and Bradleij v. Riche^i [/) as well. 
 For in neither of these cases was the kiiowledge sought 
 to be imputed to the client acquired b}' the solicitor in 
 his capacity of solicitor for that client or in the trans- 
 action in which the question of notice arose. 
 
 As a general rule, a piux'haser is affected by notice Vendor or 
 to his counsel, solicitor, or other agent, notwithstanding ,'^.'tTn^'*^°pur- 
 that the agent be also employed as the agent of the 'hjisor's or 
 
 mortgageo's 
 solicitor. 
 
 (A) 1901, -2 Ch. 24-2. (rf) 1901, 2 Ch. 257-2.59. 
 
 {c) L. R. 2 Kq. 1.34: ;ilK)ve. W Above, p. 246. 
 
 p. 250. (/) Above, p. 251.
 
 254 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 What 
 inquiries 
 ought a pur- 
 chaser to 
 make ? 
 
 vendor ((/) or be himself the vendor (/^). But when 
 the vendor is a solicitor or other agent, it must appear 
 clearly that he acted generally as the solicitor or agent 
 of the purchaser in the transaction, in order that the 
 knowledge of the agent may be imputed to the pur- 
 chaser. The purchaser will not be affected with notice 
 if the vendor be merely employed to prepare the con- 
 veyance (i). The rule is the same between mortgagor 
 and mortgagee (k). 
 
 It will be observed that, imder the Conveyancing 
 Act, 1882 (/), a purchaser will not be afFected with 
 notice of anything which would not have come to the 
 knowledge of himself or his agent if such inquiries and 
 inspections had been made by the one or the other as 
 ought reasonably to have been made. The question 
 then arises, what inquiries and inspections ought 
 reasonably to be made ? The answer to this appears 
 to be : such inquiries and inspections as are usually 
 made by a prudent purchaser buying under an 
 open contract (m) ; for, as we have seen (ii), a pur- 
 chaser buying under special conditions limiting his 
 right to investigate the vendor's title is fixed with con- 
 structive notice of all equitable incumbrances which he 
 would have discovered if he had made such inquiries. 
 And it should be noted that a purchaser or mortgagee 
 taking the legal estate, but omitting to make reasonable 
 and proper inquiries and inspections, will be affected 
 
 ((/) Lc JVerc V. Le Neve, Amb. 
 436 ; Dryden v. Frost, 3 My. & 
 Cr. 670 ; Rolhnd v. Hart, L. R. 
 6 Ch. 678. 
 
 (/() Ketthwell v. Watnon, 
 Ch. D. 6So. 
 
 (j) Eapin V. I'emherton, 3 
 G. & J. 547, 554; Kettlewell \ . 
 Watson, 21 Ch. D. 6.t5. 
 
 iji) See the cases cited in the 
 three preceding notes and above, 
 pp. 250—253. 
 
 {I] Above, p. 246. 
 
 21 
 
 De 
 
 (in) Wilson v. Kart, L. R. 1 Ch. 
 463, 467 ; Patman \. Ear land, 17 
 Ch. D. 353, 355-358 ; Oliver v. 
 Hinton, 1899,2 Ch. 264 ; Berwick 
 % Co. V. Price, 19o5, 1 Ch. 632, 
 638 ; Perham v. lumpster, 1907, 
 1 Ch. 373, 379 ; see also Molyneiix 
 V. Hawtrey, 1903, 2 K. B. 487. 
 
 (w) Above, p. 212; see also 
 Taylor v. London and County 
 Bankmy Co., 1901, 2 Ch. 231, 
 258.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 205 
 
 with notice of such prior equities as he would have 
 discovered if he had made such inquiries, although the 
 omission to make the inquiries did not arise from any 
 fraudulent motive, but was simply owing to gross 
 negligence. Thus, where a purchaser bought land in Olirer v. 
 good faith through an agent, who was not a solicitor, 
 and required no abstract of title nor production of the 
 title deeds, and the deeds were in the possession of an 
 equitable mortgagee, it was lield that the purchaser, to 
 whom the legal estate had been conveyed, took the 
 same with coustructive notice of and subject to the 
 charge created by the deposit of the deeds {o) . Where, 
 however, a purchaser makes due inquiry for the title 
 deeds and a reasonable excuse is given for their non- 
 production, he will not be alfected with notice of any 
 equity arising out of their absence, and may, if he 
 obtain the legal estate, avail himself of it and of the 
 defence of purchaser for value in good faith witli- 
 out notice as against all persons asserting any such 
 equity (;j). 
 
 Where a purchaser has notice that the property Notice that 
 bought is subject to charges or incumbrances, he must gui^^ect^to'* 
 inquire what these are, or he will be taken to have had charges or 
 notice of them all. Thus, where one took a le^'al 
 mortgage from two partners of property formerly 
 belonging to them and a third partner since retired as 
 tenants in common, and the retiring partner had by 
 deed conveyed his share in the property to the con- 
 tinuing partners " subject to all charges and mortgages 
 affecting the same," and this deed was recited in the 
 
 (o) Ulher v. Hinlon, 1S99. J liariiard, L. R. G Ch. (152; A(irii 
 
 Ch. 264 ; aud «ee liirwick ■\ Co. Jiank v. Barry, L. R. 7 H. L. 
 
 V. /Vitr, IflO.i, 1 Ch. G.32; WalLn- \Zh, 1,57; Northern Count' fs of 
 
 V. Llnom, 1907, 2 Ch. 104. England Fire Insurance Co. v. 
 
 Ifiii/j/j. 2<) Ch. D. 4«2 ; He Ing- 
 
 {p) Hewittv.Loosemorey^'RaxG, /mm, 1.S93, 1 Ch. 3o2. Se<^ also 
 
 449,4,58; a,nd nee Hunt v. IJlinen, Jfoli/neux v. Uawtrey, 190.3, 2 
 
 2 Df G. F. & J. ;57.S ; Maidife v. K. B. 487.
 
 256 OF NOTICE OF TRUSTS AND SALi:S BY TRUSTEES. 
 
 mortgage without the words iu inverted commas, and 
 the mortgagee, knowing of two equitable charges on 
 the property and believing that these were all the 
 incumbrances, made no inquiry whether this was the 
 ease or whether there were any other mortgages or 
 charges, it was held that the mortgagee was affected 
 with notice of a third equitable charge which existed on 
 the property (q) . So, where lands were mortgaged 
 subject to land tax and tithe rentcharge and " to all 
 other payments and outgoings, ecclesiastical or civil, 
 charged upon or payable out of the said lands," and 
 the mortgagee made no inquiry what other payments 
 and outgoings there were to which the lands were 
 subject, it was decided that he had constructive notice 
 of an annual rent of a certain quantity of corn charged 
 thereon in equity (r). 
 
 § 2.— Of Srf/cH h// Trufifee^. 
 
 Sales by The first observation to be made with regard to sales 
 
 rus eea. ^^^ trustees is that trustees holding the legal estate in 
 
 lands under a simple trust for the benefit of some other 
 person or persons have no power to sell without the 
 consent of all the persons who are in equity beneficially 
 entitled to the lands («) . In such cases the trustee is but 
 an instrument to execute the will of f.estui-que-frnst. 
 The latter may sell as he will, and the trustee is bound 
 to convey at his bidding (?'). But the trustee cannot 
 bind any beneficiary by contract with or conveyance to 
 any purchaser who has notice of the trust : although 
 conveyance of the trust property by the trustee to a 
 
 {q) Jonex v. Williams, 24 Beav. que-trusts had in writing autho- 
 
 47. rised the trustee to sell, and were 
 
 (r) Re Alms Corn Charity, 1901, bound at law by the contract as 
 
 2 Ch. '■'iO. undisclosed principals ; see above, 
 
 (.v) Leev. Soames, 36 W. R. 884; p. 160, and u. [u] ; below, Chap, 
 
 cf . Re Raker and Selmon's Contract, XIX. § 2. 
 
 1907, 1 Ch. 238, where the cestui- (t) See above, p. 167.
 
 OP NOTICE OF TRUSTS AND SALES BY TRUSTEES. ^'-'^ 
 
 bond fide purchaser for value without notice of the 
 
 trust maj deprive cedui-que-tnid of his equitable rights 
 
 in the laud {u). To enable trustees to sell lands without 
 
 the concurrence of their catui-que-trusts an express 
 
 power to that effect must be inserted in the instrument 
 
 creating the trust, or the lauds must be vested in them 
 
 upon a special trust for sale. When such powers of or Trusts for or 
 
 trusts for sale are created they must be carried out in ^^jg 
 
 all respects according to the intention of theii' creator ; 
 
 they must not, for example, be exercised before the 
 
 time at which it has been declared that they shall 
 
 arise (.r). Thus, when lands are vested in trustees on 
 
 trusts for one for life, and after his death on trust for 
 
 sale or on trust for others with power of sale, the trust 
 
 for or power of sale cannot be validly exercised in the 
 
 lifetime of the tenant for life — not even with his consent 
 
 and concurrence (//), nor by order of the Court (s). But 
 
 the intention of the author of a trust or power will be 
 
 collected from the whole of the instrument creating the 
 
 same, and may in some case be ascertained at the 
 
 sacrifice of the literal interpretation of every expression 
 
 therein contained. Thus, where lands were devised to Mills v. 
 
 one for life, and after her death to trustees to seU as ^"9>nore. 
 
 soon as conveniently might be after the testator's 
 
 death, it was held that the will in effect created a trust 
 
 for sale immediately exercisable with the consent of 
 
 the tenant for life («). So a devise on trust to sell with 
 
 (m) Wins. Real Prop. 186, 187, cases with the concurrence of all 
 
 21st eil. the bonefi<!iaries, if siii Jnris^ or 
 
 {x) See Johtmtone v. liaber, 8 tlie tenant for life may sell uuder 
 
 Beav. 233 ; Sug. Pow. 266, 8th the Settled Land Acts ; see above, 
 
 cd. ; Farwell on Powers, 147, pp. 168, 180. 
 
 2nd ed. {z) Blackloiv v. Laws, 2 Hare, 
 
 (y) Moahy v. Hide, 17 Q. B. 40; Johnstone v. Baber, S Beav. 
 
 9\; JFdHtv. Stallibrass,!,. R. 8 233; Goslinff v.. Carter, 1 Coll. 
 
 Ex. 175 ; Jir Bryant and Bar- 644, 652 ; Carhjon v. Truscott, 
 
 ninghani's Contract, 44 Ch. D. L. R. 20 Eq. 348. 
 
 218 ; Rr ffrnd's Trustees mid Mac- (a) Mills v. Bugmore, 30 Beav. 
 
 donald, 45 Ch. D. 310. A sale 104. 
 may of course be made in such 
 
 w. 17
 
 258 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 all convenient speed and within five years after the 
 testator's death has been held to enable the trustees to 
 make a good title to a purchaser after the five years had 
 expire'!, the testator's expressions being considered to 
 be merely directory and not imperative (b). A trust 
 for sale with all convenient speed nevertheless allows 
 the trustees to exercise a reasonable discretion as to the 
 time of sale (c), and they may postpone the sale if such 
 a course be beneficial to their ccstui-qne-trnsts [d). But 
 trustees for immediate sale, who postpone sale in- 
 definitely without good reason, will be accountable for 
 any loss thereby caused to the trust estate {e). 
 
 Acceleration 
 of time for 
 exercising a 
 power or 
 trust. 
 
 When lands are settled on several persons for suc- 
 cessive life estates, with power for each tenant for life 
 when in possession to charge the estate with a jointure 
 or portions, it appears that, as such charges are a burden 
 on the remainderman, the time for exercising the power 
 cannot be accelerated by the surrender to any tenant for 
 life of a life estate prior to his own; he must wait, 
 before he can well exercise the power, until the time has 
 arrived when he would have become entitled in pos- 
 session according to the limitations of the settlement. 
 But where lands are so settled with a power of sale 
 exercisable with the consent of the tenant for life in 
 possession, the power, being merely administrative and 
 
 (J) Pearce v. Gardner, 10 Hare, 
 287 ; see also Cw/'v. Hall, 1 Jur. 
 N. S. 972, where a will confen-ed 
 a power to postpone sales, but 
 not for a longer period than ten 
 years from the testator's death. 
 
 {c) Buxton V. Buxton, 1 My. & 
 Cr. 80, 93; Maraden v. Kent, 5 
 Ch. D. 598. For the purpose of 
 determining the respective rights 
 of tenant for life and remainder- 
 man, one year is considered to be 
 the time within which such a 
 trust might reasonably have been 
 exercised ; Farrij v. n^arrini/ton, 
 
 6 Madd. 155 : Tickers v. Scott, 3 
 My. & K. 500. 
 
 {d) Morris v. Morris, 4 Jur. 
 N. S. 802. 
 
 (e) Cuff V. Hall, 1 Jur. N. S. 
 972 ; Bevaynes v. Robinson, 24 
 Beav. 86 ; Fry v. Fry, 27 Beav. 
 144. See Re Davidson, 11 Ch. D. 
 341, 348, on the question how far 
 concurrence in the postponement 
 of a sale directed to be made with 
 all convenient speed may amount 
 to an election by the beneficiaries 
 to take the property in specie.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 259 
 
 only altering the state of investment of the trust pro- 
 perty and not diminishing the remainderman's interest, 
 may be exercised with the consent of a tenant for life 
 in actual possession, although so entitled through the 
 surrender of a prior life estate (./'). Where lands are 
 vestel in trustees on trust for one for life and after 
 his death on trust for sale or on trust for others with 
 power of sale, so that the settlor's intention is that the 
 trust or power shall not arise until such death ((/), the 
 time for exercising the same cannot be accelerated by a 
 surrender of the life interest (A). 
 
 When lands are settled by deed on trust for sale, and Trusts for sale 
 to hold the proceeds of sale for the benefit of certain ment of The 
 persons successively and after their death for their purchase- 
 children or others absolutely, which is a very common 
 form of marritige settlement, it is usually provided that 
 the sale shall be made at the request or with the consent 
 of the tenants or tenant for life, and after the death of 
 every tenant for life at the discretion of the trustees (/). 
 In such cases there is no intention that the trustees 
 should proceed to sell immediately (X-) ; the trust is well 
 exercised if the sale be made during the lifetime of any 
 tenant for life or within a reasonable time after the 
 beneficiaries entitled to the capital of the purchase 
 money have become entitled in possession (/). If, how- 
 ever, the lands remain unsold for a long time after the 
 interests of all persons absolutely entitled to the pro- 
 ceeds of sale have vested in possession, the question 
 
 (/) Tnull V. Ti/sson, 21 Beav. Conv. 506, 4th ed. ; 497, 8th ed. 
 137; Su^'. Puw. 270, ■i71,8tlicd. ; {/,■) See 1 Dart, V. & P. 59, 
 
 I'^arwoU ou Powers, 152, 2ud ed. oth ed. ; 64, bth ed. ; 66, 7th ed. 
 
 {ff) Above, p. 257. (/) -^W' v. Feac-ck, 22 Ch. D. 
 
 (/jj See CojT V. Bill/, 13 East, 284; Re Twicdie and Miles, 27 
 
 US; lie Hold's TniKtirstiiid Mac- Ch. D. 315; Jie Douglas and 
 
 dunald, 45 Ch. D. ;510. Poivrirx Contract, 1902, 2 Ch. 
 
 (») :< Davidson. Prec. Conv. 296, 313; Re HorsnaUI. 11)09, I 
 
 858, 3rd ed. ; Williani.s on Settle- Ch. 631, 635. 
 menis, 125 ; 2 Key & Elph. Prec. 
 
 17 (2)
 
 260 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Trusts 
 declared by 
 •will for sale 
 in order to 
 pay testator's 
 debts. 
 
 Re Horsnaill. 
 
 arises whether they have not elected to take the property 
 in specie, and so put an end to the trust for sale (;;?). If 
 so, it would be necessary to obtain their concurrence 
 upon a sale of the property. The same question of 
 election by the beneficiaries to take the property may 
 of course arise in the case of a trust for sale created by 
 will (w) . If a trust for sale be declared by a will 
 merely for the purposes of a settlement of the purchase- 
 money made by the will, the same considerations apply 
 with regard to the time of sale as in the case of a like 
 settlement made by deed {n). Trusts declared by will 
 for the sale of lands are, however, generally created for 
 the purpose, amongst other objects, of raising money 
 to pay the testator's debts or debts and legacies ; and 
 in all well-drawn wills a power for the trustees to 
 postpone the sale is invariably inserted (o). Such a 
 power remains effective until all the beneficial interests 
 in the settled property have vested absolutely in posses- 
 sion ; and where the whole of certain lands are devised 
 to trustees on trust for sale with power at their discre- 
 tion to postpone the sale, and the proceeds of sale are 
 bequeathed in definite shares, each share being given in 
 trust for one for life with remainder to his or her 
 children, the vesting in possession of one or more of the 
 shares will not put an end to the power of postpone- 
 ment, which will continue until all the shares have 
 vested absolutely in possession [p). Trusts created 
 by will for sale of lands in order to pay the testator s 
 
 {in) Crabtree v. Bramble, 3 Atk. 
 680 ; Dcivies v. Asliford, 15 Sim. 
 42 ; 31uilmc v. £i(/ff, 1 Ch. D. 
 385; Jte Gordon, 6 Ch. D. 531 ; 
 lie Davidson, 11 Ch. D. 341; 
 Solder v. Lofts, cited lie Lewis, 
 30 Ch. D. 654, 656 ; and see Jte 
 Douglas and Powell's Contract, 
 1902, 2 Ch. 296 ; Re Grimthorpe, 
 1908, 2 Ch. 675. 
 
 (h) See 1 Dart, V. & P. 59, 
 
 5th ed. ; 64, 6th ed. ; 66, 7th ed. ; 
 and cases cited in nn. (/), (m), 
 above. 
 
 (o) 4 Davidson, Prec. Conv. 6, 
 7, 49, 3rd ed. ; 2 Key K Elph. 
 Prec. Conv. 781, 782, 788, 4th 
 ed. ; 745, 746, 752, 8th ed. ; Da- 
 vidson's Concise Precedents, 566, 
 575, 18th ed. 
 
 {p) R". Horsnaill, 1909, 1 Ch. 
 631, 635. 
 
 I
 
 OF NOTICE OF TRUSTS AND SALES BY TliUSTEES. 261 
 
 debts appear to fall within the rule already men- 
 tioned ( q) with regard to the time for exercising the 
 poAver given by statute to sell real estate charged by 
 will with debts {>•) — namely, that if the sale be made 
 within twenty years after the testator's death, the 
 purchaser is not bound to inquire whether any of the 
 testator's debts remain unpaid. After the expiration of 
 that period, the purchaser should inquire whether any 
 debts remain unpaid, if the only object of the trust for 
 sale be to raise money to pay debts ; but of course if 
 the trusts of the purchase-money be not only to pay 
 debts, but to hold the surplus on trust for certain 
 persons in succession, the question of the propriety of 
 selling a long time after the testator's death depends on 
 the same considerations as occur in other cases of settle- 
 ments. Here it may be noted that the powers given to Executors' 
 executors by the Land Transfer Act, 1897 (.s),of selling ^^rthV^^ 
 their testator's real estate to satisf \' his debts appear to Land 
 
 y T 1 i 1 1 " • 1 Transfer Act, 
 
 be governed by the same rules as were previously 1397. 
 applicable to sales by executors of theii" testator's lease- 
 holds {t) ; so that if real estate be sold by executors 
 under such powers more than twenty years after the 
 testator's death, the purchaser will be entitled to pre- 
 sume that the sale is rightly made, and need not inquire 
 whether any of the testator's debts remain unpaid. In 
 regard to tlie general question of the time for exercising 
 trusts for sale, Lord St. Leonards observed that " people 
 "who deal with trustees raising moue}' at a considerable 
 distance of time, and without an apparent reason for so 
 doing, must be considered as under some obligation to 
 inquire and look fairly at what they are about" (m). 
 But it appears tliat an out-and-out trust for sale of 
 
 {q) Above, p. 'i-iS, n. (x). {t) Above, pp. 217, 218, 228, 
 
 (»■) Above, p. 228. n. {x). 
 
 («) Stat. 60 & 61 Vict. c. Go, (m) StroughiU v. Amtey, 1 De 
 
 8. 2 ; above, pp. 228, 232. G. M. & G. 635, 654.
 
 262 
 
 OF NOTICE OF TRUSTS AND SALES 1?Y TRUSTEES. 
 
 lands, if not determined by the beneficiaries' election, 
 may be exercised after any lapse of time {x). 
 
 Rule a"-ainst ^ trust for or power of sale of lands to arise at a 
 perpetuities in future time is invalid, unless so limited that it must 
 connection -i i • ^ ^ • i • i •in 
 
 with trusts uecessarily become exercisable within the period allowed 
 
 for and by the rule against perpetuities (y). But a trust for 
 
 powers 01 -^ .... 
 
 sale. sale arising immediately, and at once effecting a con- 
 
 version into personalty of the beneficial interest in the 
 lands to be sold, is not obnoxious to the rule against 
 perpetuities, although no limit of time be mentioned 
 within which the trust must be exercised (z). And it is 
 established that powers of sale immediately conferred 
 on trustees over property comprised in settlements are 
 not invalid for want of an express declaration that they 
 must be exercised within the time given by the rule 
 against perpetuities (a) . Such powers are therefore 
 exercisable within the period so allowed, though not, as 
 a rule, after the settlement has come to an end by the 
 vesting in possession of the estate in fee simple in 
 remainder or reversion or other the absolute interest in 
 the property settled (b). But such powers may remain 
 exercisable after absolute interests have vested in pos- 
 session, if such were the intention of the donor of the 
 power, so long as the rule against perpetuities is not 
 infringed. Thus, where the absolute interest in any 
 
 (z) See above, pp. 259, n. (l), 
 260, n. {m). 
 
 («/) He Daveron, 1893, 3 Ch. 
 421 ; GoodivvY. Edmunds, ib. 455 ; 
 Re Appleby, 1903, 1 Ch. .565 ; cf. 
 Re Bavieii and Kent's Contrctcf, 
 1910, W. N. 104. 
 
 [z) Biggs v. Peacock, 22 Ch. D. 
 284 ; Re Twcedie mid Miles, 27 
 Ch. D. 315 ; Re Douglas and 
 FowelPs Contract, 1902, 2 Ch. 
 296, 313. 
 
 (ff) Biddle v. Perkins, 4 Sim. 
 135 ; Boyce v. Hanning, 2 Cr. & J. 
 334 ; Waring \. Coventry, I My. & 
 K. 249 ; IVood v. White, 4 My. & 
 
 Cr. 460, 482 ; Lantsbery v. Collier, 
 
 2 K. & J. 709 ; Peters v. Leives, 
 <^c. Ri/., 18 Ch. D. 429, 433, 434 ; 
 Sug. 'Pow. 848-851, 8th ed. ; 1 
 Jarm. Wills, 291, 4th ed. ; 261, 
 5th ed. ; 1 Dart, V. & P. 68. 69, 
 6th ed. ; 69, 7th ed. ; Farwell on 
 Powers, 111, 2nd ed. 
 
 (b) Wolley V. Jenkins, 23 Beav. 
 53 ; 3 Jur. N. S. 321; Taite v. 
 Sirinstead, 26 Beav. 525 ; Re 
 Brown^s Settlement, L. R. 10 Eq. 
 349; Sug. Pow. 859-862, 8th ed. ; 
 
 3 Davidson, Prec. Conv. 570-577, 
 3rd ed. ; Farwell on Powers, 32, 
 33, 2nd ed.
 
 263 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 settled property is ultimately limited to several persons 
 as tenants in common, and a power of sale is given 
 with the intention that it shall be exercised for the pur- 
 pose of facilitating the division of the property after 
 their interests have vested in possession, the power is 
 exercisable within a reasonable time after such interests 
 have so vested, provided that the limits allowed by the 
 rule against perpetuities be not exceeded (c). If pro- 
 perty be given to trustees in trust for persons entitled, not 
 successively, but for immediate absolute interests therein, 
 it seems that a power of sale given to the trustees, and not 
 limited as to the time of its exercise, would be void (c/) ; 
 but if some of the beneficiaries were infants, the power 
 might perhaps be exercisable during their minority. 
 
 Where trustees hold lands under a trust for or with Order of the 
 power of sale, and an order of the Court has been made administra- 
 for the administration of the trust, they cannot properly *^"^ ^^ ^^^ 
 exercise the trust or power without the direction of the 
 Court ((?) . 
 
 The duties of trustees for sale, whether acting under Duties of 
 a trust for or power of sale, are to sell the trust pro- gaie*^^*^^ ^°^ 
 perty to tlie best advantage : that is, in the manner most 
 beneficial to all the ('cufiii-que-t rusts ; to receive the pur- 
 chase money and dispose of it in due accordance with 
 the trusts ; to obtain proper advice as to the value of 
 the trust property, and the best mode of sale ( /), and 
 generally to take all other precautions which a prudent 
 man of business would take in conducting liis own 
 
 (c) Re Cotton''s Trustees and the (e) Lewin on Trusts, 374, 391, 
 
 School Hoard for London, 19 Ch.B. 6th ed. ; 493, 526. 11th ed. ; 
 
 624; Rf Sitdchy and lUiws S; Co., Price v. Price, 3.5 Ch. D. 297; 
 
 1894, 1 Ch. 33t ; Re Jump, 1903, see above, p. 224. 
 
 1 Ch. 129; Re HorsnaiU, 1909, (/) Jessel, M. R., Re Cooper 
 
 1 Ch. 631. 635. and Alien to Harkch, 4 Ch. D. 
 
 (rf) Taitcv. Suinstead, 26 Beav. 802, 815. 
 525, 629.
 
 264 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 affairs (g) . Trustees for sale should be especially careful 
 to avoid any misdescription in the particulars or contract 
 of the property, which they are entrusted to sell (^\ for 
 • if by their negligence in this respect the trust estate 
 should suffer any loss, it appears that they would be liable 
 to make it good (/). Under the Trustee Act, 1893 (k), 
 where a trust for sale or a power of sale of property is 
 vested in a trustee by any instrument coming into opera- 
 tion after the year IbSl, and in the absence of any ex- 
 pression of a contrary intentioD, he may sell or concur with 
 any other person in selling all or any part of the property, 
 either subject to prior charges or not, and either together 
 or in lots, by public auction or by private contract, sub- 
 ject to any such conditions respecting title or evidence 
 of title or other matter as the trustee thinks fit, with 
 power to vary any contract for sale, and to buy in at 
 any auction or to rescind any contract for sale and to 
 re-sell, without being answerable for any loss. These 
 powers are similar to those which were generally in- 
 serted in instruments made before the year 1882 and 
 creating trusts for or powers of sale {/) ; but neither the 
 express nor the statutory powers appear to confer on 
 trustees much greater authority or discretion than they 
 
 {ff) Speight V. Gaunt, 22 Ch. D. v. Flood, 28 Ch. D. 586, 591 sq.; 
 
 121, 9 App. Cas. 1 ; see also 1 Key & Elph. Prec. Conv. 267, 
 
 Falkner v. Equitable Reversionary n. [c), 4th ed. ; 255, n. [g), 8th. 
 
 Society, 4 Drew. 352. ed. ; above, pp. 65, 66 ; below, 
 
 {h) See above, p. 70. Chap. XII., § 4. 
 
 (i) See White v. Cuddon, 8 CI. (A) Stat. 56 & 57 Vict. c. 53, 
 
 & Fin. 766, 788, 789, 793. 798. s. 13, replacing 44 & 45 Vict. 
 
 It is thought that trustees for c. 41, s. 35. 
 
 sale are justified in stipulating {I) Like powers were given by 
 
 either that no compensation shall Lord Cranworth's Act to tnistees 
 
 be allowed for errors of descrip- having an express power of sale 
 
 tion (which seems best for them) over any hereditaments by virtue 
 
 or that compensation shall be of an instrument executed on or 
 
 allowed, and that on either side, after the 28th Aug. 1860 ; Stat, 
 
 for such errors, as it does not 23 & 24 Vict. c. 145, ss. 1, 2, 34 ; 
 
 appear that either of these con- but these powers were not usually 
 
 ditious is depreciatory ; see Hill relied on in practice ; Davidson, 
 
 V, i?'«'/.'^(v/, 17 Ves. 395; Croiiipton Prec. Conv. vol. iii. 557, 565, 
 
 V. Melbourne, 5 Sim. 353; Ilobson n. {/<), 858, 1013-1018, 3rd ed. ; 
 
 V. Bell, 2 Beav. 17, 19, 23 ; Dunn vol. iv. 33, n. (A), 4th ed.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 265 
 
 possess independently of them under the rules of 
 equity (m). And in exercising either the statutory or 
 similar express powers, trustees are bound to apply the 
 same principles which should regulate their action in 
 the absence of express aiithority. In both cases Courts 
 of Equity exact a strict adherence to the duties of 
 trustees for sale (»). Thus it was hpld that trustees, 
 pxpres<5ly empowered to make such special conditions of 
 sale as they might think fit, were no more at liberty to 
 make deprc-iatory conditions of sale, unless strictly 
 necessary in the state of their title, than were trustees 
 who had no such express anthority. And if deprecia- 
 tory conditions were unnecessarily made on a sale by 
 trustees, the Court would restrain the sale at the 
 
 (in) Thus, iu the abseuce of any 
 restriction as to the mode of sale, 
 trustees for sale mig-ht sell the 
 trust property either all together 
 or in lots, and I'ither by public 
 auction or private contract ; Sug'. 
 V. & P. GO, 01 ; Le win on Trusts, 
 
 383, 384, 6th ed., o07-511, Uth 
 ed. They might make such 
 special conditions of sale as might 
 be reasonable and necessary iu 
 the state of their title ; Hobson v. 
 Belt, 2 Beav. 17 ; Falkuer v. 
 Equitable licversiotiary Society, 4 
 Drew. 352 ; Lewin on Trusts, 
 
 384, 6th ed. ; but they might not 
 depreciate the trust property by 
 unnecessary conditions of sale ; 
 Dance V. Goldiiiy/iuiii, L. R. 8 Ch. 
 9()2. They might conciu- with 
 other persons iu selling the trust 
 property together with other pro- 
 pi rty, if such a mode of sale were 
 clearly advantageous tothecestui- 
 que-tniyts, and the trustees took 
 due precautions t'> ascertain that 
 they would receive a proper pro- 
 portion of the purchase money, 
 and were careful to receive the 
 money themselves ; but otlierwise 
 not ; Rede v. Oakcs, 4 De G. J. & 
 S. 505 ; Itc (Joopcr and Alien to 
 Harlech, 4 Ch. D. 802, 814-821. 
 
 They might consequently join 
 with the owners of prior charges 
 in selling the whole property free 
 from incumbrances, or they might 
 sell the particular interest only, 
 which had been vested iu them 
 on trust for sale, whicliever course 
 would be likely to be most advan- 
 tageous to their cestui-que-trnnts ; 
 see 4 Ch. D. 817. Trustees were 
 justified in fixing a reserved price 
 on a sale by auction, and they 
 might buy in at that price ; Re 
 Peyton'' s Settlement, 30 Beav. 252 ; 
 Sug. V. & P. 62 ; but if, after 
 buying iu . they made undue delay 
 in effecting a sale, they were 
 answerable for any loss occasioned 
 therein' ; Taylor v. Tabrum, 6 
 Sim. 281. It appears also that 
 trustees might vary or rescind 
 any contract for sale, if such a 
 course clearly appeared to be for 
 the advantage of their cestni-qnc- 
 trnsts ; Falkner v. Equitable Rever- 
 sionary Society, 4 Drew. 352 ; 
 Lewin on Trusts, 384, 6th ed., 
 510, 11th ed. 
 
 (w) Dance v. Goldingham, L. R. 
 8 Ch 902. 907, n., 909, 910; 
 Ihnin V. Flood, 25 Ch. D. 629, 
 634, 28 Ch. D. 586. 591, 592.
 
 266 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 instance of any cesfni-que-frKnf (o), or the purchaser 
 might resist the specific performance of the contract (p). 
 In this particular instance, however, the legislature has 
 interposed ; and with regard to sales made after the 24th 
 of December, 1888, it is now enacted as follows (q) : — 
 
 (1.) No .sale made by a trustee shall be impeached by any bene- 
 ficiary upon the ground that any of the conditions subject to which 
 the sale was made may have been unnecessarily depreciatory, unless 
 it also appears that the consideration for the sale was thereby ren- 
 dered inadequate. 
 
 (2.) No sale made by a trustee shall, after the execution of the 
 conveyance, be impeached as against the purchaser iipon the ground 
 that any of the conditions subject to which the sale was made may 
 have been unnecessarily depreciatory, unless it appears that the pur- 
 chaser was acting in collusion with the trustee at the time when the 
 contract for sale was made. 
 
 (3.) No purchaser, upon any sale made by a trustee, shall be at 
 liberty to make any objection against the title upon the ground 
 aforesaid. 
 
 Trustees are, moreover, expressly empowered to sell 
 subject to any of the stipulations implied in contracts 
 by virtue of the Vendor and Purchaser Act, 1874 (r), or 
 the Conveyancing Act, 1881 {s). Subject to these 
 enactments, however, trustees for sale must still exercise 
 the discretions conferred upon them by the above- 
 mentioned statutory powers (t) in a reasonable manner, 
 and with an eye to obtaining the best advantage they 
 can for their cestiti-que-tnids {u). 
 
 Trustees for It is important to note, with regard to the exercise of 
 
 sale must sell ^ ^ ^ ^^, power of sale, that the term " sale " is, as 
 tor money. ^ . 
 
 a rule, taken in the strict sense of conveyance m con- 
 
 (o) Dance v. Goldivfjham, L. R. (r) Stat. 56 & 57 Vict. c. 53, 
 
 8 Ch. 902. s. 15, replacing 37 & 38 Vict. 
 
 [p) Rede v. Oakes, 4 De G. J. c. 78, s. 3. 
 & S. 505 ; Dunn v. Flood, 25 Ch. (s) Stat. 44 & 45 Vict. c. 41, 
 
 D. 629, 28 Ch. D. 586. s. 66. 
 
 {q) Stat. 56 & 67 Vict. c. 53, (t) Above, p. 264. 
 
 s. 14, replacing 51 & 52 Vict. (m) Above, p. 265, n. (;«). 
 
 c. 59, 8. 3.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 267 
 
 sideration of a price paid in nionej [x). Trustees acting 
 under a trust for or power of sale are not, therefore, at 
 liberty to accept any other consideration for their 
 conveyance than the payment of money. They must 
 not, for example, sell in consideration of receiving 
 stock, shares, bonds, debentures or similar securities (x), 
 or in consideration of the grant of a rentcharge (//), 
 unless the terms of the trust or power specially autho- 
 rize them to convey for such considerations (s). For 
 trustees are bound strictly to pursue the powers or 
 authorities, with which the creator of the trust has 
 invested them ; and they cannot, as a rule, obtain any 
 enlargement of their authority by an application to the 
 Court (a). So, also, a conveyance by way of exchange 
 or partition is not a valid execution of a trust for or 
 power of sale (h). But trustees for sale, who are autho- 
 rized to invest the purchase money on real securities, 
 may well agree to leave a proper proportion of the 
 purchase money on mortgage of the lands sold {c). A 
 
 {x) Above, p. 1; Stirling, J., trust there arises some emergency 
 
 Payne v. Cork Co., Ltd., 1900, 1 which can only be met by taking 
 
 Oh. 308, 314 ; see also Re A. B., some coiu-se of action not ex- 
 
 1899, W. N. 233; and cf. Re pressly authorised ; and in such 
 
 Ware, 1892, i Ch. 344. cases, but in such oases only, the 
 
 (y) Read v. Shaw, Sug. Pow. Court may and, if it thinks fit, 
 
 9.t3, 8th ed. ; ibid. 864 ; cf . lie will sanction the performance by 
 
 Ware, 1892, 1 Ch. 344; Farwell the trustees of acts of this kind ; 
 
 on Powers, 5.59, 2ud ed. see the two last cases cited ; and 
 
 (s) See Re Morgan, 24 Ch. D. Re Wells, 1903, 1 Ch. 848. 
 114,115. In Re Jackson, U %o\. {b) M' Queen v. Farqiihar, 11 
 J. 573, it was held that trustees Ves. 467 ; Sug. Pow. 857, 858, 
 empowered to sell a testator's 8th ed. But where there is a 
 real estate, " upon such terms and power of sale and investment of 
 conditions and generally in such the proceeds in the purchase of 
 manner as they could du if abso- other hereditaments, it appears 
 lute owners thereof," were at that an exchange or a partition 
 liberty to sell either wholly or may be effected circuitously by 
 partly in consideration of a fee .sale and investment of the pur- 
 farm rent. chase money iu the lands desired 
 
 (ff) See i?r J/ocmow, 1901, 1 Ch. to be taken in exchange or held 
 
 701; Re Nctr, 1901, 2 Ch. 534, in severalty; Sug. Pow. 858, 
 
 644. 545; AV ToKemachc, 1903, 8th ed. As to effecting a parti- 
 
 1 Ch. 457, 955. This rule is, tion under a power of sale and 
 
 however, subject to an exception, exchange, see Re Frith and Osborne, 
 
 where owing to circumstances 3 Ch. D. 618. 
 unforeseen by the author of the ;<•) Observe the terms of the
 
 268 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Whether a 
 trubt for or 
 power of sale 
 authorizes a 
 mortsfaure. 
 
 Whether a 
 trust or power 
 to mortgage 
 authorizes a 
 sale, or a 
 mortgage 
 with power 
 of sale. 
 
 trust for or power of sale created for the purpose of 
 effecting an out-and-out conversion of lands into money 
 does not authorize a mortgage of the lands (d) . But if 
 the intention of the author of the trust or power were 
 simply to facilitate the raising of a sura of money 
 charged on the lands, and not to disturb the ownership 
 of the lands further than should he necessary in order 
 to satisfy the charge, a mortgage made under the trust 
 or power may be supported as a conditional sale (e). 
 A trust or power to mortgage lands does not authorize 
 a sale of them (/). Upon this ground it has been held 
 that a power to mortgage lands does not authorize a 
 mortgage of them with power of sale (g) ; but in later 
 cases this rule has been abandoned in favour of the 
 doctrine that a power of sale is an usual and a necessary 
 incident of a mortgage, and may therefore properly be 
 inserted in a mortgage made under a trust or power to 
 mortgage (h). A trust for sale of lands does not autho- 
 rize a lease of them, so that a trustee for sale of lease- 
 holds is not justified in disposing of them by way of 
 underlease at an improved rent («"). But where lease- 
 
 coutract for sale under the Settled 
 Laud Acts sanctioned by the 
 House of Lords iu Bruce v. Alli-s- 
 burj. 1892, A. C. 356, 357 ; and 
 see Thurlow v. Mackeson, L. R. 4 
 Q. B. 97 ; Bettyes v. Maynard, 31 
 W. R. 461 ; Re Hothain, 1902, 
 2 Ch. 575. Such a contract may 
 be enforced specifically ; Slarkey 
 V. Barton, 1909, 1 Ch. 284. 
 
 {(i) Haldoihi/ V. Spofforth. 1 
 Beav. 390 ; Sirouc/hill v. Anntey, 
 1 De G. M. & G. 635 ; Page v. 
 Cooper. 16 Beav. 396; Bevaynes v. 
 liohinsou, 24 Beav. 86. 
 
 {e) See Stroughill v. Anntey, 1 
 De G. M. & G. 465 ; Page v. 
 Cooper, 16 Beav. 400; Sug. Pow. 
 425, 8th ed. ; Lewin on Trusts, 
 377, 6th ed. ; 497, 11th ed. 
 
 (/j Drake v. Whit more, 5 De 
 G. & S. 619 ; Cook v. Dawson, 29 
 Beav. 123. 
 
 [g) Clarke v. Royal Pano^Jticon, 
 4 Drew. 26. 
 
 (A) Bridges v. Longman, 24 
 Beav. 27, 29 ; Cook v. Dawson, 29 
 Beav. 123, 128 ; Re Chaicner''s 
 Will, L. R. 8 Eq. 569 ; Farwell 
 on Powers, 447-450, 2nd ed. 
 
 (*) Evans v. Jackson, 8 Sim. 
 217. An executor or administra- 
 tor, however, where the assets 
 include leaseholds, miay grant an 
 underlease if such a mode of 
 disposition be beneficial to the 
 estate, but not otherwise, and the 
 title of the underlessee is depen- 
 dent on the underlease being 
 beneficial ; Wms. Exors. 939, 
 940, 7th ed. ; Keating v. Keating, 
 LI. & G. ;;. Sug. 133 ; Havkett v. 
 M'Na.mara, LI. & G. t. Plunk. 
 283 ; Oceanic Steam Navigation Co. 
 V. Sutherberry, 16 Ch. D. 236, 
 243.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 269 
 
 holds are vested in trustees for sale they are j ustified in Sale of lease- 
 making- a sale of thfra bv way of underlease — that is, of* underlease, 
 in granting an underlease for the whole term less a day 
 or two at the rent at which they hold in consideration 
 of receiving a lump sum of money — if such a course 
 be advantageous to the trust osteite ; for this method of 
 disposition is essentially a transfer in consideration of 
 a price in money, that is, a sale, and the assurance 
 of the property by way of underlease is regarded as 
 mere machinery for making the conveyance to the 
 purchaser (/»•). Thus if such trustees propose to sell 
 their leaseholds in lots as they lawfully may (/), they 
 may well sell them under the usual conditions that the 
 purchaser of the largest lot in value shall take an 
 assignment of the lease and grant to the other purchasers 
 underleases at apportioned rents and that in case any of 
 the lots shall not be sold the vendors themselves shall 
 grant similar underleases (w). 80 also if such trustees 
 hold land let together with other land for a term of 
 years at one entire rent, they may well sell their land 
 by way of underlease at an apportioned rent {n). And 
 it appears that trustees for sale will be justified in 
 selling leaseholds by way of underlease in any circum- 
 stances in which such a course is expedient in the 
 interests of theii- cestui-quc-trusfs (0). 
 
 Trustees for sale of land, unless expressly authorized Timber and 
 by the instrument creating the trust, are not entitled to 
 sell the land apart from the timber growing thereon (/;), 
 
 (A) lie Judd and Fo/arid and («) Jir IVeblt, 1897, 1 Ch. 144, 
 
 Ske/cher\i Contract, 1906, 1 Ch. a^-proyed, Jie Jitdd and Pofand and 
 
 684, overruling He Walker and NkeMirr\s Contract, 1906, 1 Ch. 
 
 Oak.s/inft's C.ntrart, 190], 2 Ch. 684, 600. 691. 
 383; and see Jie Wehb, 18!t7. 1 (o) See note (/t). above. 
 
 Ch. 144, 149 ; above, pp. 1, 207. (p) Choli„elii\. I'ajlon, 3 Biug. 
 
 (/) Above, p. 264. 207, S Biug." 4S ; .S. C. nom. 
 
 («)) Jie Judd and Poland and Cockerrll v. Cholmileu, 10 B. & C. 
 
 Skilcher'x Contract, ubi sup. ; see .564, 3 Ru9,s. .56'), 1 R. & M. 418, 
 
 above, p. 82 ; below. Chap. X. 1 CI. & Fin. 60. 
 § 2, ut end ; Appendix A.
 
 270 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Trustees 
 should not 
 sell at a 
 valuation. 
 
 or to sell the surface reserving the mines and minerals 
 thereunder (r/). But under the Trustee Act, 1893 (r), 
 replacing an Act of 1862 (s), the High Court may 
 sanction the sale by a trustee, or other person authorized 
 to sell land, of the land with an exception or reservation 
 of any minerals, or of the minerals separately from the 
 rest of the land, and in each case either with or without 
 rights and powers of and incidental to the working, 
 getting or carrying away of the minerals. And when 
 such sanction has been once obtained, the trustee or 
 other person may make such sales from time to time 
 without any further application to the Court, unless 
 forbidden by the instrument creating the trust or autho- 
 rity to sell (f). Trustees for sale of land should not 
 agree to sell at a price to be fixed by valuation ; for 
 that would be a delegation of their discretion to decide 
 what price they will accept {ii). On these grounds it 
 appears that they ought not to enter into a contract for 
 sale containing the usual stipulations (x) as to taking 
 timber at a valuation ; but they should sell the whole 
 property together at one price (//). The same reason- 
 
 (q) BucliUy v. Howell, 29 Beav. 
 546. See 3 Davidson, Prec. Conv. 
 295. 3rd ed. ; Dart, V. & P. 68, 
 1184, 5th ed. ; 76, 1296, 6th ed. ; 
 77, 1117, 1134, 7th ed. 
 
 (>•) Stat. 56 & 57 Vict. c. 53, s. 44, 
 amended by 57 & 58 Vict. c. 10, 
 s. 4, and extending to dispositions 
 by way of exchange, partition or 
 enfranchigement by <'i trustee or 
 other person authorized so to 
 dispose of land. 
 
 (s) Stat. 25 & 26 Vict. c. lOS. 
 
 \t) Stat. 56 & 57 Vict. c. 53, 
 8. 44 (2), amended by 57 & 58 
 Vict. c. 10, s. 4. 
 
 [u) Fcfers v. Lewes ^- East Grin- 
 stead Si/. Co., 16 Ch.D. 703, 713, 
 18 Ch.D. 429, 437 ; Be Wilton's 
 Settled Estates, 1907, 1 Ch. 50, 55; 
 1 Dart, V. & P. 79, 5th ed. ; 90, 
 6th ed. ; 89, 7th ed. 
 
 {x) Above, pp. 60, 71. 
 
 [y) 1 Davidson, Prec. Conv. 522, 
 4th ed., 434, 5th ed. In Re 
 Lleivdlin, 37 Ch. D 317, a tenant 
 for life without impeachment of 
 waste selling under the Settled 
 Laud Acts sold the settled land 
 by auction with a stipulation that 
 the purchaser should paj' for the 
 timber at a valuation to be made 
 iu the usual way. The vendor 
 claimed to have the amount of 
 this valuation paid to him. It 
 was decided that he was not 
 entitled to this. But no suggestion 
 was m.ade that the sale was 
 invalid as an exercise of the 
 statutory power on the ground 
 th.it the price of the timber was 
 to be ascertained by valuation. 
 The remainderman was probably 
 content with the result of the 
 sale. But in Re TFiltoti's Settled 
 Estates, 1907, 1 Ch. 50, 55, it
 
 271 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 ing is applicable in the case of fixtures. But a stipula- 
 tion on a sale by trustees that the purchaser shall 
 pay a fixed sum for the timber or fixtures in addition 
 to the price of the land does not appear to be objection- 
 able ; as that is, in efPect, a sale of tlie whole property 
 at one price settled by the trustees themselves (;:). A Option of 
 
 . -11 • i J. P'lrchase. 
 
 trustee for sale is not entitled to enter into an agreement 
 giving some person an option to purchase the property 
 at a future time (a). 
 
 It must not be forgotten, in considering a title de- What persons, 
 pending on the exercise by trustees of a trust for or Q^^i^al*! ^ 
 power of sale, that the capacity to exercise the trust or tees, can 
 power is not necessarily co-incident with the devolution trust for 
 of the legal estate. It is not every person succeeding power of sale 
 to an estate given in trust who is competent to execute 
 a discretionary trust or power connected therewith ; on 
 the contrary, the general rule is that such a trust or 
 power can only be well executed by the persons whom 
 the author of the trust has designated for the purpose, 
 and in whom he has placed his confidence accord- 
 ingly {b). Thus in every case in which such a trust or 
 power is exercised by any other persons than those 
 originally entrusted therewith, the question arises 
 whether the persons who purport to act in exercise 
 of the trust or power are expressly or impliedly autho- 
 rized to execute the same. On this point the law is as 
 follows : — 
 
 trus- 
 exercise a 
 
 was laid down that a tenant for (b) Creu-e v. Dicken, 4 Ves. 97 ; 
 
 life selling under the Settled Cole v. Wade, 16 Ves. 27, 46, 47 ; 
 
 Land Acts ought not to soil at a Rr Crionhn and Meux's Contract, 
 
 price to be fixed by somebody 1909, 1 Ch. 690, 695, 696; and 
 
 else. see the cases cited below, pp. 273, 
 
 (s) See Coc/icre/l V. C/iohiirlri/, \0 274, and Er Biinnio/ n»d Smith, 
 
 B. & C. 564, 571. " 1897, 2 Ch. 351, 356, 359, 360. 
 
 (a) Claij V. Riijford, 5 De G. & It does not appear that this rule 
 
 Sm. 768, 779, 780 ; Oceanic Steam was intende<l to bo inipuirncd by 
 
 Naviqation Co. v. Untherberry , 16 the remarks of Farwell, J., in Re 
 
 Ch. b. 236. Smith, 1904, I Ch. 139, 142.
 
 272 
 
 OF NOIICE OF TEUSTS AND SALES BY TRUSTEES. 
 
 As to trusts 
 or powers 
 coupled -with 
 an intereut. 
 
 Survivorship 
 of the trust. 
 
 Disclaimer. 
 
 First, with respect to discretionary trusts or powers 
 coupled with au estate or interest, as where lands are 
 vested in trustees in fee upon trust for or with power 
 of sale. If several trustees be invested with such a 
 trust or power, the same may be exercised by the sur- 
 vivors or survivor of them for the time being, unless a 
 contrary intention should have been expressed in the 
 instrument creating the trust (c) . And if one or more 
 of the trustees should disclaim, the trust or power may 
 New trustees, be exercised by the other trustees or trustee [d). Every 
 new trustee duly appointed under the statutory power 
 to appoint trustees — whether conferred by Lord Cran- 
 worth's Act ie), the Conveyancing Act of 1881 (/), or 
 the Trustee Act, 1893 {g) — has the same powers, autho- 
 rities and discretions, and may in all respects act as if 
 he had been originally appointed a trustee, and so can 
 well exercise such a trust or power, after the estate has 
 been properly vested in him. Any new trustee duly 
 appointed under an- express power has equal authority 
 
 ((?■ So enacted as to trusts 
 constituted after or created by 
 instruments coming into opera- 
 tion after the 31st Dec. 1881 ; 
 Stat. 56 & 67 Vict. c. 53, s. 22, 
 replacing 44 & 45 Vict. c. 41, 
 8. 38. But with respect to trusts 
 or powers coupled with an in- 
 terest, these enactments did no 
 more than declare the previous 
 law; Co. Litt. 113a; Warbnrton 
 V. Handy s, 14 Sim. 622 ; Watson 
 V. Pearson, 2 Ex. 581, 594; Lane 
 V. Bebenham, 11 Hare, 188; 
 Lewin on Trusts, 230, 509, 510, 
 6th ed., 288, 738, 11th ed. ; Re 
 Bacon, 1907, 1 Ch. 475. 
 
 {d) Co. Litt. 113a; Jenk. Cent. 
 44 ; Crewe v. Dicken, 4 Ves. 97, 
 100 ; Granville Y. McJSfeile, 7 Hare, 
 156. It is now settled that dis- 
 claimer of the estate, as well as 
 of the office, of a trustee may be 
 made by conduct only and need 
 not be evidenced by matter of 
 record or by deed ; £e Birchail, 
 
 40 Ch. D. 436 ; Lewin on Trusts, 
 176, 177, 6th ed., 211, 212, 10th 
 ed. It must not be forgotten 
 that, where one is appointed 
 executor and trustee of a will, 
 refusal to act as executor, and 
 even renunciation of probate, is 
 not in itself a disclaimer of the 
 trusteeship or of any estate in or 
 power over land devised or given 
 to the trustees of the will ; but it 
 may be evidence of such dis- 
 claimer ; Lewin on Trusts, 220, 
 1 1th ed. ; Re Gordon, 6 Ch. D. 
 531, 534. As to the effect of a 
 disclaimer by all the trustees or 
 the only trustee, see Mallott v. 
 Wihon, 1903, 2 Ch. 494; below, 
 p. 276, andnn. [%), {k). 
 
 (e) Stat. 23 & 24 Vict. c. 146, 
 s. 27. 
 ' (/) Stat. 44 & 45 Vict. c. 41, 
 s. 31 (5). 
 
 iff) Stat. 56 & 57 Vict. c. 53, 
 s. 10 (3).
 
 OF NOTICE OF TRU8TS AND SALES BY TRUSTEES. 273 
 
 in this respect (h). And the same authority is now Trustees 
 
 conferred hy statute upon every trustee appointed by the court. 
 
 a Court of competent jiu-isdiction (?'). Witli respect to Persons 
 
 J 1 . p 1 , , „„ succeedinsr to 
 
 the exercise ot such a trust or power as we are con- ^^le estate on 
 
 siderino- after the death of a sole or the last surviving the death of 
 . i 1 ii i. 1 1 ^ sol® or 1^8* 
 
 trustee, the true principle appears to be that the same surviving 
 is exercisable by the persons who succeed to the legal trustee, 
 estate after his death, if the author of the trust has 
 either expressly or impliedly authorized such persons to 
 execute the same ; but otherwise not (/>•) . Thus, where 
 lands have been vested in A. and B. in fee in trust 
 that they, A. and B. (naming them, but not mentioning 
 their heirs or other legal representatives), shall sell the 
 same, it does not appear that under the old law of the 
 descent of trust estates (/) the heir («?), or according to 
 the present law (>/) the executors or administrators of 
 the survi^dng trustee, could well execute the trust (o). 
 According to the old conveyancing practice in force 
 before the commencement of the Conveyancing Act of 
 1881 {])), it was usual, where real estate was vested in 
 trustees in fee on trust for or with power of sale, to 
 provide expressly that the trust or power should be 
 
 (A) Such authority was ex- should have been expressly or 
 
 pressly conferred in the old com- impliedly extended to the trustees 
 
 nion form of power to appoint for the time being ; Fordijcf v. 
 
 new trustees: but if not expressly Bridgcx, 2 Ph. 497,510; Xewman 
 
 couferrtd, it would be implied v. jrariier, 1 Sun. N. S. 457 ; 
 
 from the very fact that the TSartlei/ v. Bnrtleii, 3 Drew. 3S4 : 
 
 creator of the trust expressly Byam v. Byam, 19 Beav. 58. 
 authorii-ed the appointment of (/•) Above, p. 271, and n. (i). 
 
 new trustees; Lewin on Trusts, {I) Above, p. 219. 
 
 507, 6th ed. : 734, Uth ed. (;«) Mortimer y. Ireland, 11 Jur. 
 
 («) Stat. 5(5 iV: 57 Vict. c. 53, 721 ; Lewin on Trusts, 202, 6th 
 s. 37, roplacinir 44 & 45 Vict. ed. ; 251. 11th ed. 
 c. 41, 8. 33, and 23 & 24 Vict. (w) Above, p. 221. 
 c. 145, s. 27. Before the enact- (o) Be luff Mi/ niid Bonk, 6(C., 
 ment last cited, new trustees 13 L. R. Ir. 326 ; Re Crunden and 
 appointed by the Court and not Mettx's Contract, 1909, 1 Ch. 690. 
 by virtue of an express power to But distingui.«h the cases men- 
 appoint new tiustccs ciiuld uot, tioncd iu note (r), p. 274, Ix'low. 
 as a general rule, exercise arbi- ( />; Stat. 44 ..i' 45 Vict. c. 41, 
 trary or spcriiil discretionary which came into operatinu after 
 powfrs confetred upon the ori- the 31st Dec. 1881 ; s. 1 (2). 
 giual trustees, uule.NS such powers 
 
 w. 18
 
 274 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Heir of sole 
 or surviving 
 trustee. 
 
 Devisee. 
 
 exercisable by the trustees originally appointed or the 
 survivors or survivor of them, or the heirs of such sur- 
 vivor (q) ; and in such cases there was no doubt that 
 the heir of the last surviving trustee could well execute 
 the trust or power if he took the legal estate (r). But 
 where lands were vested in trustees in fee on trust that 
 they or the survivors or survivor of them or the heirs of 
 such survivor should sell the same, and the surviving 
 trustee devised the trust estate, it was held that the 
 devisee, not being authorized by the creator of the 
 trust to execute the trust for sale, could not make a 
 good title on a sale of the lands (s). And in such a 
 case, it may be noted, the heir could not execute the 
 trust, for he had no estate in the land (f). Where 
 lands were vested in trustees in fee in trust that they or 
 the survivors or survivor of them or the heirs or assic/m 
 of such survivor should sell the same, it was held that 
 the devisee of the last surviving trustee, being one of the 
 persons expressly designated by the author of the trust, 
 could well execute the trust for sale (?^). It was held 
 by Jt^ssel, M. R., that where lands were devised to 
 trustees and their heirs on trust for sale, it must be 
 taken that the testator intended to annex the trust to 
 the estate, and that the devisee of the sur\iving trustee 
 could execute the trust for sale accordingly ; and he 
 considered that the preceding decision to the con- 
 trary {t) had been overruled (//). Subsequently, how- 
 
 (q) Davidson, Prec. Conv.vol. i. 
 p. 333, 4th ed. ; vol. iii. pp. 858, 
 1271, 3rd ed. ; vol. iv. p. 32, and 
 note, 3rd ed. 
 
 (r) See Lewin on Trusts, 202, 
 6th ed. So the heir of the last 
 surviving trustee could sell under 
 a limitation to trustees and their 
 heirs on trust ' ' for sale " or "to 
 sell ' ' or that the trustee for the 
 time beins: should sell; Ee Morton 
 and Halktt, 15 Ch. D. 143, 145, 
 149 ; Re Cunningham andFrayling, 
 1891, 2 Ch. 567. 
 
 (.«) Cooke V. Crawford, 13 Sim. 
 91 ; JFilson v. Btnnett, 5 De G. & 
 S. 475 ; Stevens v. Austen, 3 E. & 
 E. 685. 
 
 [t) Lewin on Trusts, 202, 6th 
 ed. ; 251, 252, 11th ed. 
 
 (u) Titley v. Wolstenhoh)ie, 7 
 Beav. 425 ; Sail v. Mai/, 3 K. & 
 J. 585. 
 
 [x) OooJce v. Crawjord, 13 Sim. 
 91. 
 
 (y) Osborne to Rotvlett, 13 Ch. D. 
 774.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 275 
 
 ever, Baggallay and James, L. JJ., stated that they 
 were not prepared to concur in this view (2), and 
 Stirling, J., declared that he would hesitate to force 
 upon a purchaser a title depending on the case of Coohe 
 V. Crawford not being good law (a), and Parker, J., 
 has expressed his assent to these criticisms (i^^). It 
 appears, therefore, that the decision of Jessel, M. R., 
 in Be Oxhoriip fo RoicMf (c), in so far as it conflicts 
 with the principle above stated {(I), can no longer be 
 regarded as srood law. As we have seen (e). since the Personal 
 
 ° " representa- 
 
 Conveyaming Act of 1881 (/) took effect, real estate tives of sole 
 of inheritance vested in a sole trustee devolves, notwith- t^ustee^^^^ 
 standing any testamentary disposition, upon his legal 
 personal representatives in like manner as if the same 
 were a chattel real vested in them, and they are to be 
 deemed in law his heirs and assigns within the meaning 
 of all trusts and powers. It appears, therefore, that the 
 legal personal representatives of a sole or sole surviving 
 trustee may now exercise such trusts or powers as we are 
 discussing in all cases in which under the old law the 
 estate would have descended to the heir, and the heir 
 so taking the legal estate could have well executed the 
 trust or power (r/). But the authority of such legal 
 personal representatives so to exercise the trusts or 
 powers will cease upon the appointment duly made of 
 new trustees in place of the deceased trustees, and 
 thenceforward the new trustees will be the ))roper 
 persons to execute the trust (//). Where lands have Failure of 
 been devised to tnistees in fee upon trust for sale, and estate to 
 
 trustee. 
 
 (z) Re Morton and llallett, lo {/) Stat. 44 & 45 Vict. c. 41, 
 
 Ch. D. 143, 149, loO; and see 8.30. 
 
 Re Inqlehxi and Bon/,; 13 L. R. Ir. {(/) See Re TFaidanis, 1908, 1 
 
 326. " Ch. 123; Re Routkdge's Trusts, 
 
 {>') Re Rnmnei/aitd Smith, 1897, 1909, 1 Ch. 280; Re I'rundcn and 
 2 Cli. 351. 357." Meux\i Contract, 1909, 1 Ch. 6<}0. 
 
 (A) Rr Criinden and Meu.r.s Con- 698, 699 ; above, p. 274, and 
 tract, 1909, 1 Ch. 690. note (r). 
 
 (c) 13 Ch. D. 774. (h) Re Routlrdqe's Trn.sts, 1909, 
 
 (<f) Pp. 273, 274. 1 Ch. 280. 
 
 (e) Above, p. 221. 
 
 18(2)
 
 276 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 the devise of the legal estate has failed bj reason of the 
 trustees' death in the testator's lifetime, or of their 
 disclaimer, then, if the testator died before the com- 
 mencement of the Land Transfer Act, 1897, his heir, 
 and otherwise his personal representatives, would take 
 the legal estate subject to the trusts declared by the 
 will (?■), but could not well execute the trust for sale (k) ; 
 although in the latter case the personal representatives 
 could, of course, exercise the power of sale given to 
 Question in them by the last-mentioned Act(0. It should be 
 
 case 01 a de- "^ ^ ^ ■ ■^ 
 
 vise by a sole noted that a difficulty may arise as to the persons 
 
 theVresent ^"^ ^'^^^ ^^^ authorized to exercise a trust for or power 
 ^^^- of sale, where lands vested in a sole trustee in fee 
 
 upon such a trust or with such a power have been 
 devised by him (under the present law) to other 
 persons than his executors. The Conveyancing Act 
 of 1881 (m) does not expressly take away the power 
 of devising real estate held in trust : it merely pro- 
 vides that, notwithstanding any testamentary disposi- 
 tion, the same shall vest on the trustee's death in his 
 legal personal representatives in like manner as if the 
 same were a chattel real vesting in them. Now, when 
 a man dies possessed of a chattel real, it vests at first 
 in his legal personal representatives by virtue of their 
 office, notwithstanding that he may have bequeathed it 
 specifically ; but on their assent to the bequest the legal 
 estate therein passes at once to the specific legatee with- 
 out any further conveyance (w). And if a man be 
 possessed of a chattel real upon trust, he may neverthe- 
 less devise his estate therein to other persons than his 
 executors {o) . And should he do so, it does not appear 
 
 (i) rut V. Pelham, Freem. Ch. {m) Stat. 44 & 4.') Vict. c. 41, 
 
 134; SonleifY. Cloekmakers'' Co., 1 s. 30. 
 
 Bro. C. C.'Sl. (w) Above, p. 218. 
 
 {}:) Robaon v. Flujht, 4 De G. (o) See Stat. 7 Will IV. & 
 
 J. & S. 608. 613; Farwell on 1 Vict. c. 26, s. 3; Lewin on 
 
 Powers, 460, 2nd ed. Trusts, 198, 6th ed. 
 
 {I) Above, p. 233.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 that his executors could disregard the specific devise and 
 execute the trusts themselves, although the chattel has 
 vested in them in the first instance by virtue of their 
 office, and they would, but for the specific devise, be the 
 proper persons to execute the trust. Thus, where lease- 
 holds had been conveyed to two trustees, their executor-'i 
 or adniiiu'.strafor.s (without further words), upon certain 
 trusts, and the survivor of the two trustees devised all 
 estates vested in him on any trust to A. and B. upon 
 the same trusts on which he held the same, and appointed 
 A., B. and C. his executors, it was held that neither the 
 devisees of the trust estate nor the executors could exer- 
 cise the trusts ; and that since by the bequest the testator 
 had taken the legal estate from those persons who ought 
 otherwise to have been the trustees, the appointment of 
 new trustees was necessary {p). It seems, therefore, 
 that where real estate of inheritance vested in a sole 
 trustee for sale or with power of sale has been devised 
 by him to other persons than his executors, then, if 
 under the old law the trust or powers could not have 
 been well executed by his devisee, a pm-chaser could 
 not safely accept the title under a purported exercise of 
 the trust or power either b\' the executors alone or by 
 the executors and devisees together. And if the terms 
 of the trust should have authorized the assigns of the 
 trustees to exercise the trust or power, still a purchaser 
 could scarcely be advised to accept a title under a pur- 
 ported exercise of the trust or power by the devisees in 
 conjunction with the executors ; for as the latter are to 
 be deemed in law the deceased trustee's heirs and atisigiis 
 within the meaning of all trusts and powers, it would 
 be doubtful to what persons the purchase money should 
 be paid. In either case, therefore, the only safe course 
 would seem to be to require the appointment of new 
 trustees. 
 
 (p) Jif Burtt, 1 Drew. ;U9. 
 
 27/
 
 278 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Power 
 without an 
 interest. 
 
 Survivorship 
 of powers 
 given to 
 trustees. 
 
 Survivorship 
 of bare 
 powers. 
 
 General rule. 
 
 Powers given 
 to executors. 
 
 In the case of a power of sale given to trustees 
 without any estate in the land, sTich as the power of 
 sale usually inserted in settlements of land before the 
 Settled Land Act, 1882, took effect, the rule is even 
 more strict that the same can only be well exercised by 
 the persons designated for this purpose by the donor of 
 the power {q). It is now provided (/•), with respect to 
 executorships and trusts constituted after or created by 
 instruments coming into operation after the year 1881, 
 that a power given to two or more executors or trustees 
 jointly may be exercised by the survivors or survivor of 
 them for the time being, unless the contrary were 
 expressed in the instrument creating the power. In- 
 dependently of this enactment, the law respecting the 
 survivorship of bare powers appears to be as follows : — 
 
 I. The general rule is that, when a bare power is 
 given to two or more persons, after the death of any 
 one of them, it cannot be exercised by the survivor or 
 survivors (s) . 
 
 II. When a bare power was given to two or more 
 executors, words might be used, which showed an 
 intention that the power should be annexed to the office 
 of executor ; and, in such a case, after the death of any 
 one of them, the survivor or survivors were capable of 
 exercising the power {t). When therefore, a man by 
 will gave a power to his executors, designating them as 
 such without naming them (//), or designating them 
 "his executors hereinafter named " (a?), it was held 
 that the power was annexed to the office of executor 
 
 [q] Townsend v. TVihmi, 1 B. & 
 A. 608. 
 
 (r) Stat. 56 & 67 Vict. c. 53, 
 s. 22, apparently extended to 
 executors by s. 50, and replacing 
 44 & 45 Vict. c. 41, s. 38. 
 
 («) Co. Litt. 112b, 113a; Sug. 
 Pow. 126, 128 ; Montejiore v. 
 Broun, 7 H. L. C. 241. 
 
 {t) Brasseyv. Chalmers, 16 Beav. 
 
 233 ; 4 De G. M. & G. 528 ; Sug. 
 Pow. 128 ; Crawford v. Forshaw, 
 1891, 2 Ch. 261. 
 
 {u) Jenk. Cent. 43, case 83. 
 
 (x) Brasi,ey v. Chalmers, 4 Ue 
 G. M. & G. 528, following Houell 
 V. Barnes, Cro. Car. 382; Crawford 
 V. Forshaw, 1891, 2 Ch. 261 ; 
 contra. Lock v. Loggin, 1 And. 
 145.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 279 
 
 and might be exercised even by a sole surviving 
 executor. Supposing that a man gave by will a mere 
 power to two or more persons, designating them by 
 their names, without any reference to the office of 
 executor, and in a subsequent part of the will appointed 
 the same persons executors : it would be an exceedingly 
 nice question, to be determined by a consideration of the 
 purposes for which the power was given, whether an 
 intention were shown to annex the power to the office 
 of executor, sufficient to take the case out of the general 
 rule (//). 
 
 III. Powers of executors, whicli arose by implication Powers 
 
 of law, were annexed to the office, and might be exer- inipii(S,tion of 
 cised after the death of any executor, by the surviving ^*^- 
 executors for the time being or by a sole survi\T[ng 
 executor (s). 
 
 IV. If a bare power were given to two or more Powers given 
 trustees, and the words used in the instrument creating *° trustees, 
 the trust showed that the power was intended to be 
 annexed to the office of trustee and not to be conferred 
 
 upon the donees as individuals, it appears that, after 
 the death of one, the survivor or survivors could execute 
 the power («). But if no such intention appeared, the 
 case fell within the general rule (6). 
 
 V. It is said that, if a power be given to three or Powers given 
 more persons, by a class designation and not by their ^ * ^ ' 
 names, for instance, " to my trustees," " to my sons," 
 
 after the death of any of them, the authority will 
 
 (y) See Sug. Pow. 127, I'iS ; the decision was that a power 
 
 Jonk. Cent. 43, caHe 83; Har- g-iven to " the undersigned trus- 
 
 grave's note (2) toCo. Litt. 113a; tees" could, under the old law, 
 
 Ciair/ord V. For.ihau\ 1891, '2 Cli. be exercised by trustees appointed 
 
 •261, 266-269. by the Court; see above, p. 273, 
 
 (j) Dyer, 371b. case 3; Forbes n. (») ; Jie Smit/i, 1904, 1 Ch. 139. 
 V. Feacock, 11 M. & W. 630, 639 ; {b) Totvmenciy. JrHsoii, 1 B. & 
 
 Sug. Pow. 128. A. 608 ; see Hall v. Dewe», Jac. 
 
 («) Roinilly, M. R.. lii/am v. 189; He Bacon, 1907, 1 Ch. 475, 
 
 Byam, 19 Beav. 58, in which case 478.
 
 280 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 survive so long as tlie plural number remains (r) . This 
 is a doubtful proposition (d). It is submitted that if 
 a man gave a power to his " trustees " without desig- 
 nating them by uame, the case would have fallen within 
 the preceding proposition (e) . 
 
 Release and 
 disclaimer of 
 powers. 
 
 Under the Conveyancing Act of 18S1 (/'), a person 
 to whom any power, whether coupled with an interest 
 or not, is given may by deed release or contract not to 
 exercise the power. And under the Conveyancing Act, 
 1882 {g), any power, whether coupled with an interest 
 or not, may be disclaimed by deed, after which the 
 disclaiming party shall not be cap<ible of exercising or 
 joining in the exercise of the power ; but the power may 
 be exercised by the other or others, or the survivors or 
 survivor of the others, of the persons to whom the 
 power was given, unless the contrary were expressed in 
 the instrument creating the power. With respect to 
 powers coupled with an interest, these enactments did 
 no more than declare the previous law (/?). But a 
 power simply collateral could not formerly be extin- 
 guished or suspended by release or any other means {i). 
 
 (c) Sug. Pow. 128 ; Lee\. rin- 
 cent, Cro. Eliz. 26; Co. Litt. 
 113a. 
 
 {d) See Syken v. Sheard, C. A., 
 2 De G. J. & S. 6, disapproved 
 by MaUus, V.-C, Jefferya v. 
 Marshall, 19 W. R. 95 ; Farwell 
 on Powers, 456, 2nd ed. 
 
 [e) See Re Smith, 1904, 1 Ch. 
 139 
 
 (/) Stat. 44 & 46 Vict. c. 41, 
 s. 52 (1), applying (by sub-s. 2) 
 to powers created either before or 
 after the commencement of the 
 Act. 
 
 {g) Stat. 45 & 46 Vict. c. 39, 
 s. 6 (1, 2), applying (by sub-s. 3) 
 to powers created either before or 
 after the commencement of the 
 Act. 
 
 (A) The donee of any power 
 
 other than a power simply col- 
 lateral might always release or 
 contract not to exercise it : Sug. 
 Pew. 82 aq. ; West v. Bernnj, 1 
 R. & M. 431 ; Smith v. Death, 5 
 Madd. 371 ; Horner v. Swann, T. 
 & R. 430 ; Hurst v. Hurst, 16 
 Beav. 372 ; Isaac v. Hughes, L. R. 
 9 Eq. 191. And if a power 
 coupled with an estate or interest 
 were given to any person, he 
 might disclaiiu the estate and 
 thus render himself incapable of 
 exercising the power : Sug. Pow. 
 50 ; Hawkins v. Kemp, 3 East. 
 410,437; Xiclosonv. Wordsworth, 
 ■1 Sw. 365, 369, 370 ; Adams v. 
 Taunton, 5 Madd. 435. 
 
 (i) Sug. Pow. 49, 893 ; West 
 v. Berney, 1 R. & M. 431, 434. 
 A power simply collateral is a
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 281 
 
 And it appears that the disclaimer of a bare power was 
 formerlj ineffectual (/.). And where a bare power had 
 been given to two or more persons and one of them had 
 afPected to disclaim the power, the power could not, as 
 a rule, be well exercised by the other or others of 
 them (/). But in the case of a power given by will to 
 the testator's executors to sell his lands, if any of the 
 executors refused to take administration of the will, the 
 accepting executors or executor might by statute {fn) 
 exercise the power alone. And where a power was 
 annexed to the office of executor, either by implication 
 of law or by the testator's direction (»), an executor who 
 renounced probate could not exercise the power (o) ; but 
 the executors or executor who proved might well do 
 so (/>). If trustees were invested with any power which Release of 
 it would be their duty to exercise, they could not release a"breach^of' 
 or contract not to exercise the same or otherwise divest ti'is*^- 
 themselves of their authority (</) ; and the above enact- 
 ments have not altered the law in this respect {r). 
 
 The law as to the exercise by any new trustee duly Exerei.-se of a 
 appointed of a bare power given to any trustee or newfrultees.^ 
 trustees is the same as governs the exercise by a new 
 trustee of a power coupled with an interest (s) . With ^J ^^7 others 
 
 / .1 , \ after the 
 
 respect to the exercise by any other person than a new death of the 
 trustee duly appointed of a bare power given to a '^^^^f' 
 
 power by the exercise of which («) Above, p. 279. 
 
 the douee can acquire no intere.st (o) Keates v. Burton, 14 Ves. 
 
 in the subjecit- matter of the 434; A.-G. v. Fletcher, o L. J. 
 
 power, oriven to a person who (N. S.) Ch. 75 ; see Farwell on 
 
 has not any interest therein at Powers, 95-98, 2nd ed. 
 
 the time of the creation of the [p; Crawford v. Forshaw, 1891, 
 
 power and takes no interest 2 Ch. 261, 266, 267. 
 
 therein under the instrument [q) TTeller v. Ker, L. R. 1 Sc. 
 
 conferring the power; see Sug. App. 11; Re Dunne's Trmts, 1 
 
 Pow. 47, 48. L. R. Ir. 516 ; Sunt v. Patthuioti, 
 
 {k) Sug. Pow. 50. ;54 W. R. 561. 
 
 (/) Sug. Pow. 50, 126; see (r) 7?<- ^yr<-, 49 L. T. N. S. 259. 
 
 above, pp. 278-280. (i) Above, p. 272 ; see Hall v. 
 
 («») Stat. 21 Hen, VIII. c. 4. Bewes, Jac. 189.
 
 282 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 trustee or trustees after the death of a sole or the last 
 surviving trustee, there is, of course, no succession to 
 any estate in the land, and the power can only be 
 exercised, if at all, by some person expressly designated 
 for the purpose by the donor of the power, as where the 
 executors or administrators of the last surviving trustee 
 are mentioned among the persons to whom the power is 
 given (f). 
 
 Trustees exer- In the case of a purchase fi'om trustees exercising a 
 
 confCTred°b^^a power of sale, the conveyancer advising the purchaser 
 
 settlement for must have regard to the provisions of the Settled Land 
 
 provided for Act, 1882 (w), which make the consent of the tenant for 
 
 m the Settled |^£g under a settlement necessary to the exercise by the 
 Land Acts. ' '^ 
 
 trustees of the settlement or any other person of any 
 
 power conferred by the settlement and exercisable for 
 
 any purpose provided for in the Act. He must consider, 
 
 therefore, whether the instrument conferring the power 
 
 is, either alone or together with other instruments, a 
 
 settlement within the meaning of the Act {x) . And if 
 
 it be, he should require the limitations of the beneficial 
 
 interests under the settlement to be abstracted (if this 
 
 has not been done) sufficiently to show whether there is 
 
 a tenant for life, or a person having the powers of a 
 
 tenant for life, entitled in possession under the settle- 
 
 {t) Sec above, pp. 278-280 ; trustees of the settlement or other 
 
 Farwell on Powers, 453, 454, person of any power conferred by 
 
 2nd ed. the settlement exercisable for any 
 
 («) Stat. 45 & 46 Vict. c. 38, purpose provided for in this Act. 
 s. 56, sub-s. 2, enacting that in [x) See stats. 45 & 46 Vict, 
 
 case of a conflict between the c. 38, s. 2 ; 53 & 54 Vict. c. 69, 
 
 provisions of a settlement and the s. 4 ; He Ailesburn and Iveagh, 
 
 provisions of this Act, relative to 1893, 2 Ch. 345 ; Re Mtmdij and 
 
 any matter in respect whereof the Roper^s Contract, 1899, 1 Ch. 275 ; 
 
 tenant for life exercises or con- Talbot v. Scarisbrick, 1908. 1 Ch. 
 
 tracts or intends to exercise any 812, 819, deciding that a private 
 
 power under this Act, the pro- Act of Parliament, which simply 
 
 visions of this Act shall prevail ; conferred powers upon the trus- 
 
 and accordingly, notwithstanding tees of a settled estate, but did 
 
 anything in the settlement, the not alter or afPect the limitations 
 
 consent of the tenant for life of the property, was not one of 
 
 shall, by virtue of this Act, be the instruments constituting the 
 
 necessary to the exercise by the settlement ; and see next chapter.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 283 
 
 ment (//) . And if the existence of any such person be 
 disclosed, the conveyancer should require him to consent 
 to the exercise of the power ; for if such consent should 
 not be obtained, any conveyance to him by the trustees 
 in supposed pursuance of the authority conferred by 
 the settlement would be void as an exercise of the 
 power (s) . 
 
 It will be observed that the only powers, to the exercise 
 of which the consent of the tenant for life is so required, 
 are those conferred by the settlement and exercisable 
 for any purpose provided for in the Act. It must not 
 be forgotten that in this context the expression " the 
 settlement " means the settlement as defined in the Act, 
 and therefore extends to any group of instruments 
 forming what is termed a compound settlement (//). 
 The piu-poses provided for in the Act are, of course, 
 principally the sale of settled land and the application 
 of the purchase-money in manner therein provided, the 
 exchange and partition of settled land and the leasing 
 thereof for the terms specified in the Act (0) ; and any 
 express powers conferred by the settlement for any of 
 these purposes, upon any person or persons other tlian 
 the tenant for life, are exercisable only with his consent. 
 If, however, the settlor should have given to trustees 
 larger powers over the settled land than are by the Act 
 conferred upon the tenant for life, as if he should have 
 authorized them to sell in coDsideration of the receipt of 
 debentures of or shares in a company, or of the grant 
 of a rentcharge, or to lease for longer terms than may 
 be granted under the Act, these powers are perfectly 
 vaHd {c) ; and it does not appear that they would be 
 
 (y) See stat. 45 & 46 Vict. c. 38, (a) See note (x), above. 
 
 88. 2 (5), (7), 58. (*) See stdt. 45 & 46 Vict. c. 3S, 
 
 (z) See lie Xi'uca Hill's Estates, ss. 3, 6, 21. 
 
 24 Ch. D. 129, 139 «/. .• Jte (r) Stat. 45 & 46 Vict. c. 38, 
 
 Clitheroc Entute, 28 Ch. 378; 31 88. 56(1), 57; Lo>i.sdaU'\. Lout her, 
 
 Cb. D. 135; lie Atherlon, 1891, 1900, 2 0b. 687. 
 W. N. 85.
 
 ^84 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 " exercisable for any purpose provided for in this 
 Act " (f/), so as to make the consent of the tenant for 
 life necessary to their exercise {e). It has been sug- 
 gested ( /') that to the exercise of a power given to 
 trustees for raising charges by mortgage or sale the 
 consent of the tenant for life would not be necessary, 
 on the ground that the trustees would have a title 
 paramount to that of the tenant for life, and he could 
 not prevent the raising of the charges. But with 
 regard to a power conferred by the settlement to raise 
 charges by sale, it must be remembered that the Settled 
 Land Act, 1882 {(/), authorizes the application of the 
 proceeds of a sale of the settled land by the tenant for 
 life under the power thereby conferred in the discharge 
 of any incumbrances affecting the inheritance of the 
 settled land or other the whole estate, which is the sub- 
 ject of the settlement. So that if the charges to be 
 raised should come within the definition of such incum- 
 brances, their raising by sale would appear to be a 
 purpose provided for in the Act ; and it is thought that 
 in such case it would not be safe to rely on an exercise 
 of the express power of sale without the tenant-f or- life's 
 consent. As regards a power for trustees to raise 
 charges by mortgage, prior to the Settled Land Act, 
 1890, a tenant for life had no general power to mort- 
 gage the settled land in order to raise money to dis- 
 
 {d) See sect. 56 (2), above, exceeding 120 years it were pro- 
 
 p. 282. and n. (ti). posed to grant a building lease 
 
 (f) This statement assumes that tor 99 years on the same cou- 
 
 by the exercise of the express ditions as are authorized by the 
 
 power bomething will be done statutory power, the case is dif- 
 
 which the tenant for life could ferent : and the consent of the 
 
 not do under his statutory power. tenant for life would appear to be 
 
 But if by the exercise of a larger nefessary. 
 
 power than that conferred by the (/) Wolstenholme's Convey- 
 
 Act it were proposed to do some- ancing and Settled Land Acts, 
 
 thing which could be done under 387, 8th ed. 
 
 the statutory power, as if under {ff) Stat. 45 & 46 Vict. c. 38, 
 
 a power for trustees to grant s. 21 (ii). 
 building leases for any term not
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 285 
 
 charge some incumhrance affecting the same ; so that 
 raising charges bj mortgage was not a purpose provided 
 for by the Settled Land A.,-t, 1882. The Act of 
 1890 (h), however, empowered the tenant for life to 
 mortgage the settled land for the i)urpose of raising 
 money to discharge an incumbrance thereon. And as 
 this Act and the previous Settled Land Acts are to be 
 read and construed together as one Act (/), it seems 
 that the raising of money by mortgage to discharge 
 incumbrances is now a purpose provided for in the Acts, 
 and consequently that an express power for this purpose 
 conferred on trustees by the settlement is no longer well 
 exercisable without the consent of the tenant for life. 
 Where the settlement contains, not a mere discretionary 
 power, but an imperative trust exercisable for some pur- 
 pose provided for in the Act, it appears that the consent 
 of the tenant for life to the exercise of the trust is not 
 required {k) . 
 
 By the Settled Land Act, 1881 (/), where two or where two or 
 more persons together constitute the tenant for life for more persons 
 
 tog'ether con- 
 the purposes of the Settled Land A<;t, 1882, then, not- stitute the 
 
 withstanding anything contained in the above-cited truant for life. 
 
 provisions (m) of that Act requiring the consent of all 
 
 those persons, the consent of only one of those persons 
 
 is to be deemed necessary to the exercise by the trustees 
 
 of the settlement, or by any other person, of any power 
 
 conferred by the settlement and exen-isalde for any 
 
 purpose provided for in that Act. By the Act of 
 
 1882 (;/), if in any cas(^ there are two or more persons 
 
 beneficially entitled t(» possession of settled land as 
 
 tenants in common, or as joint tenants, or for other 
 
 (/i) Stat, o.'? A: r)4 Vict. c. (J9, (/) Stat. 47 & 48 Vict. c. 18, 
 
 «. 11. 8. 6 (2). 
 
 (i) Sect. -2. (ill) Stat. 4o i: 46 Vict. c. 38, 
 
 {/i) See Tai/lnr v. I'oncia, Ih s. o6 (2) ; above, p. 282, n. (m). 
 
 Ch. D 646. ■ (m) Sect. 2 (5), (6).
 
 2i^6 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 concurrent estates or interests, they together constitute 
 the tenant for life for the purposes of that Act. In 
 any such case, therefore, one only of such persons need 
 now consent to the exercise by the trustees of the 
 settlement, or any other person, of any power conferred 
 by the settlement and exercisable for any purpose 
 provided for in that Act. Where lands were given for 
 the benefit of several persons in imdivided shares, and 
 some of the shares were given in fee and others limited 
 to a donee for life with remainder over, and a power 
 was given for trustees to sell the entirety of the 
 premises, it was questionable whether the consent of 
 the tenants for life of the settled shares was necessary 
 to the exercise by the trustees of their power of sale 
 over the entirety. For the power of sale conferred by 
 the Settled Land Acts would embrace the settled shares 
 only, and it was only as regards these shares that the 
 land would be the subject of a settlement within the 
 meaning of those Acts ; so that the power to sell the 
 entirety might be considered to be not a power con- 
 ferred by the settlement and exercisable for a purpose 
 provided for in the Acts, but a power altogether para- 
 mount to the settlement. But in a ease (o) where a 
 testator gave one-fifth part of his estate to each of his 
 four daughters for life with remainder over, and gave 
 the remaining fifth part to the children of a deceased 
 daughter absolutely, and empowered trustees to sell the 
 whole of his estate, Kekewich, J., held that there was a 
 conflict between this express power of sale and the 
 power of sale given by the Settled Land Acts, because 
 the sale of the entirety would deprive the tenants for 
 life of the settled shares of their statutory power to sell 
 them ; and that the consent of the tenants for life was 
 therefore necessary to the exercise by the trustees of 
 their express power of sale. And he further decided 
 
 (o) Re Ofibomc and Bright's, Ltd., 1902, 1 Ch. 33.5.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 287 
 
 that the tenants for life of the four settled shares did 
 not together constitute a tenant for life witliin the 
 meaning of the Settled Land Act, 1882 (p), so as to 
 enable the required consent to be given under the Act 
 of 1884 (q) by one only of them. 
 
 It must not be forgotten that, when land is settled Estato duty 
 eitlier by deed or will on trust for sale and investment laud'sottlo.l 
 of the purchase- money for the benefit of various persons «" trust for 
 in succession, and the lands are not immediately sold, 
 estate duty will become payable on the death of an}^ 
 one of those persons, and will, it appears, become a 
 charge on the land. On a purchase, therefore, from 
 the trustees for sale under such a settlement, the pur- 
 chaser, if he have notice of the death on or after the 
 1st August, 1894, of any person so interested in the 
 purchase-money, must see that all estate dut}-, which 
 has become so charged on the land sold, has been or 
 shall be paid (>•). 
 
 If trust money be improperly invested in the purchase Sale of land 
 of land, it is the duty of the tru-^tee to realise the CS of '" 
 investment at the earliest favourable opportunity, and t^'"***- 
 invest the proceeds in some manner authorized by the 
 instrument which created the trust. The trustee is 
 therefore empowered to sell the land, and can make a 
 good title thereto and convey the same without the 
 concurrence of the beneficiaries, notwithstanding that 
 the purchaser have notice of the breach of trust ; unless 
 the beneficiaries, being all .sv^/./'/iy/.s, have elected to take 
 the land in specie (.s) . 
 
 {p) Stat,. 4.') & K; Vict. o. ;{8, (.v) Jte Patten mxi Edtmnton 
 
 M. t (6). (6). Union, -i'i L. J. Ch. 787; Power 
 
 (q) Stat. 47 & 48 Vict. c. 18, v. Banks, 1901, 2 Ch. 487, 496; 
 
 s. 6 (2). Me Jenkins and RandaWs Contract, 
 
 (r) Stat. 57 & SS Vict. c. 30, 1903. 2 Ch. 362 ; see above, 
 
 88. 1,2, 9(1), 24; see the chapter p. 200; Dart, V. & P. 610-612, 
 
 on the Death Duties in the second .ith ed. ; 687-689, 6th ed. ; 629- 
 
 Tolume. 630, 7th ed.
 
 288 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 Trustees' 
 receipts. 
 
 Modern statutes have in effect abolished the old rule 
 of equity, that anj' person paying money or assigning 
 other personal estate to a trustee thereof was bound to 
 see that the same was duly applied pursuant to the 
 trust, unless exempted fi*om that obligation by the 
 intention of the author of the trust, either expressly 
 declared or implied from the nature of the trusts (f). 
 Under the Trustee Act, 1893 (»), the receipt in writing 
 of any trustee for any money, securities or other pro- 
 perty or effects, payable, transferable or deliverable to 
 him under any trust or power, shall be a sufficient dis- 
 charge for the same, and shall effectually exonerate the 
 person paying, transferring or delivering the same from 
 seeing to the application or being answerable for any 
 loss or misapplication thereof. It may be noted that 
 this enactment does not justify the payment of money 
 or delivery of securities to one onl}^ of several trustees. 
 In such a case the money must be paid or other pro- 
 perty assigned over to all the trustees, who should all 
 join in giving the receipt (ir). 
 
 Purchase by According to the general rule of equity, trustees 
 
 investing trust money in the purchase of lands were 
 
 (t) Lloyd V. Baldwin, 1 Ves. 
 sen. 173 ; Sug. V. & P. 657 sq. ; 
 Lewin on Trusts, 394 si/., 6th ed. ; 
 530 sq., nth ed. 
 
 [a) Stat. 56 & 67 Vict. c. 53, 
 s. 20, replacing 44 & 45 Vict. 
 0. 41, s. 36, and applying to 
 trusts created either before or 
 after the commencement of the 
 Act. Also by stat. 22 & 23 Vict, 
 c. 23. the receipt of a trustee for 
 any purchase or mortgage money 
 payable to him is a good dis- 
 charge, unless a contrary inten- 
 tion be expressly declared by the 
 instrument creating the trust. 
 Lord Cranworth's Act, stat. 23 & 
 24 Vict. c. 145, s. 29, provided 
 that trustees' receipts should be 
 good discharges for auj' vioney 
 
 payable to them : but this pro- 
 vision applied only in the case of 
 instruments executed on or after 
 the 2Sth Aug. 1860, and was 
 repealed by stat. 44 & 45 Vict, 
 c. 41, s. 71. After the passing of 
 Lord Cranworth's Act, however, 
 the old practice of inserting in 
 every instrumeut creating a trust 
 a receipt claiise, in terms similar 
 to those of the present statutory 
 provision, was discontinued ; 3 
 Davidson, Prec. Conv. 222-226, 
 719, n., 3rd ed. 
 
 (.r^ Hall V. Franck, 11 Beav. 
 519 ; Webb v. Led.sam, 1 K. & J. 
 385 : Margetts v. Perks, 12 W. R. 
 517 ; Lee v. San key, L. R. 15 Eq. 
 204 : 3 Davidson, Prec. Conv. 
 223, u., 3rd ed.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 bound to see that they obtained a good marketable 
 title (y). This rule, however, was not inflexible; it 
 might be modified iu its application according to the 
 circumstances of particular eases. Thus if, considering 
 the objects of the trust (such as the acquisition of land 
 advantageous or convenient to be held with land already 
 in settlement), the purchase were otherwise desirable, it 
 appears that trustees would be justified in accepting a 
 substantially safe holding title (s) . And the rule has 
 now been considerably relaxed by statute. Trustees 
 purchasing land are expressly authorized to buy without 
 excluding the application of the second section of the 
 Vendor and Purchaser Act, 1874 {a). This exonerates 
 trustees authorized to invest in the purchase of leasehold 
 lands, held for a term of which less than forty years 
 are unexpired, from the necessity of stipulating for the 
 production of the lessor's title (^).' Trustees are also 
 specially protected in buying under the conditions im- 
 ported into contracts for sale by the Conveyancing Act 
 of 1881 {(•), when the period, for which title is by law 
 required to be shown, is not curtailed by special stipu- 
 lation. And it is now provided by the Trustee Act, 
 189^5 (d), that a trustee shall not be chargeable with 
 breach of trust only upon the ground that in effecting 
 the pm'chase of any property he has accepted a shorter 
 title than the title which a purchaser is, in the absence 
 of a special contract, entitled to require, if in the opinion 
 
 (y) Lewin on Trusts, 437, 6th for that section altered the rule 
 
 ed. ; 579, Ilthed. ; /Jnnrrv. Gotri- of law, and made a forty years' 
 
 ingham, L. R. H Ch. 902, 911. title an equally good marketable 
 
 (;) 1 Dart. V. & P. 89, 90, otli titl(> as a sixty years' title was 
 
 ed. ; 99, 100, Gth ed. ; 97, 98, previously: see above, pp. 98, 
 
 7th ed. 192. 
 
 (a) Stat. 56 & .57 Vict. c. 53, [h) See above, pp. 96, 99. 
 
 8. 15, replacing 37 & 38 Vict. (c) Stat. 44 & 45 Vict. c. 41, 
 
 c. 78, s. 3 ; see above, pp. IJ, 99, s. 66 ; see above, pp. 4"2, 45, 99. 
 192. Trustees punhasinji' need (</) Stat. 56 & 57 Vict. e. 53, 
 
 not, of course, exclude the opera- s. 8 (3), replacing 51 & 52 Vict, 
 
 tion of the first section of the c. 59, s. 4 (3). 
 Vendor and Purchaser Act, 1874 ; 
 
 w. 19 
 
 289
 
 290 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 of the Court the title accepted be such as a person acting 
 with prudence and caution would have accepted. The 
 standard so set is that to which trustees are now obliged 
 to conform (e) ; and they should be careful, in buying 
 lands with trust money, not to bind themselves by any 
 condition of sale which will preclude them from requiring 
 such a title as they ought to obtain. Trustees directed 
 or empowered to purchase lands are frequently authorized 
 by the express terms of the instrument creating the trust 
 to purchase any hereditaments with less than a market- 
 able title ; but this scarcely allows them to adopt a 
 lower standard than that now set by the Trustee Act, 
 1893 (/). 
 
 What kind of 
 property 
 should be 
 bought by- 
 trustees for 
 persons 
 entitled 
 successively. 
 
 Trustees authorized to purchase land to be held on 
 trust for persons entitled in succession, as tenant for life 
 and remainderman in fee, should take care that the 
 property they buy is of a nature to confer upon all the 
 persons so entitled their due share of the benefit to be 
 derived from the purchase. Generally speaking, they 
 should seek to obtain a property which will produce a 
 fair immediate letui-n in the way of income to the 
 
 (e) See lie Theobald, 19 Times 
 L. R. 536. 
 
 (/) See Davidson, Prec. Conv. 
 vol. iii. 250, 722, 3rd ed. ; vol. iv. 
 55. 3rd ed. ; 1 Dart, V. & P. 90, 
 5th ed. ; 100, 6th ed ; 98, 7th 
 ed. ; 2 Kev & Elph. Prec. Conv. 
 537, 4th ed. ; 528, 8th ed. It 
 may be mentioned here that 
 trustees investing- trusi, money on 
 a mortgage of lands were bound 
 equally as on a purchase to invest 
 on the security of prt>perty with 
 a good marketable title ; and 
 there were not the same reasons 
 in the case of an investment on 
 mortgage for relaxiug the strin- 
 gency of the rule. It has long- 
 been the regular conveyancing 
 practice expressly to authorize 
 trustees to dispense -with the in- 
 
 vestigation of the lessor's title iu 
 lending money on the security of 
 leasehold hereditaments or other- 
 wise to lend on any security with 
 less than a marketable title ; see 
 the authorities last cited. And 
 now the above-quoted enactment 
 (sect. 8 (3) of the Trustee Act, 
 1893J applies equally in tbe case 
 of trustees lending money on the 
 secm-ity of anj" property as in 
 that of a purchase ; and by .sect. 
 8 (2) of the same Act a trustee 
 lending money ou the security of 
 any leasehold property shall not 
 be chargeable with breach of trust 
 only upon the ground that in 
 making such loan he dispensed 
 wholly or partially with the pro- 
 duction or investigation of the 
 lessor's title.
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 291 
 
 tenant for life, and is likely to continue to yield the 
 same advantage to the remainderman after his death. 
 They should avoid alike property which is wasting, or 
 may he wasted, such as mines or timber, and property 
 yielding no present profits, as a reversion or remainder 
 to which no rent is incident, or an advowson (g) . Even 
 house property has been thought to be objectionable for 
 purchase by trustees on the ground of its being liable to 
 decay for want of repair and to destruction by fire {h) . 
 It has been held, however, that trustees authorized to 
 invest in the purchase of " lands or hereditaments of an 
 estate in fee simple in possession " were entitled to buy 
 lands subject to building leases for ninety-nine years (/). 
 Each case must, of course, be considered with reference 
 to the terms and object of the power given to purchase. 
 Thus, where it is intended that a large estate shall be 
 purchased and conveyed to the usual limitations of a 
 strict settlement, it is certainly allowable to buy lands 
 bearing a fair proportion of timber (A-) ; and at the 
 present time it seems equally permissible to purchase 
 land containing mines and minerals, so long as the 
 mineral wealth does not form too large a part of the 
 value of the property, since the mines can be worked 
 and the profits equitably distributed between tenant for 
 life and remainderman under the powers given by the 
 Settled Land Act, 1882 (/). 
 
 Trustees selling land under a trust for or power of Valuation ou 
 sale should, as a rule, obtain a valuation of the property tees selling or 
 from a competent professional surveyor acting for them purchasing, 
 independently and in nowise concerned on behalf of any 
 
 iff) Lewin on Trusts, 438, 43!), (k) Lewin ou Trusts, 4:59, 6th 
 
 6th ed. ; 582, ."iSS. 11th ed. ed. ; 582, Uth ed. 
 
 (A) Lewin on Trusts, 138, 6th (/) Stat. 4.5 & 46 Vict c. 38, 
 
 ed. ; .582, Uth ed. ss. 6, 9-11. See Jief/ot v. Littler, 
 
 (i) Re rn/f»ii'.'< Sttt/nnfiit Tnat. W.N. 1874, p. 1.56; 22 W. R. 
 
 L. R. 7 h^q. 4 63; aud see lie 8.36; 30 L. T. N. S. 861. 
 Theobald, 19 Times L. R. 536. 
 
 19(2)
 
 292 
 
 OF NOTICE OF TRUSTS AND SALES BY TRUSTEES. 
 
 purchaser, in order to guide them as to the sum to be 
 accepted on a sale by private contract or to be fixed as 
 the reserve price on a sale by auction. And trustees 
 intending to purchase land should obtain similar advice 
 with regard to the value of the land thej'^ propose to 
 buy(m). But, of course, cases may occur in which 
 trustees are practically safe in acting on their own 
 judgment, as where obviously favourable terms are 
 proposed to them. If all the ccstid-que-fnisfs should 
 be siii juris, and not too numerous, the best plan is to 
 obtain their sanction as to the price to be taken, 
 paid or fixed. Where a title depends on the exercise 
 in the past of a trust for or power of sale or purchase 
 of land, the purchaser may assume, if nothing appear 
 to the contrary, that the trust or power was duly exer- 
 cised to the best advantage of the cestui-que-trusts as 
 regards price or value and otherwise ; and he need not 
 and should not make any inquii-y or ask for any e\idence 
 as to this [n). But if it appear that the property was 
 sold at an undervalue, or the trust or power was other- 
 wise improperly exercised, the case is diiferent and the 
 title cannot safely be accepted (o). 
 
 {m) Lewin on Trusts, 375, 37G, («) See Borcll v. Bann, 2 Hare, 
 
 436, 6th ed.; 495, 578, 11th ed. ; 440, 449-452; Wure v. Egmunt, 
 
 1 Dart, V. & P. 79, 5th ed. ; 90, 4 De G. M. & G. 460, 471-474 ; 
 
 6th ed. ; 89, 7th ed. ; above, Hurrell v. Littlejohn, 1904, 1 Ch. 
 
 p. 263. As to the valuation 689; above, p. 117. 
 
 which ought to be obtained by (o) See A.-G. v. Pargeter, 6 
 
 trustees proposing to invest trust Beav. 150 ; Ei-r v. Dunganuon, 
 
 money on a mortgage of lands, 1 Dru. & War. 509, 542 ; f^terens 
 
 see Stat. 56 & 57 Vict. c. 53, s. 8. v. Austen, 3 E. & E. 685.
 
 293 
 
 CHAPTER IX. 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Where the title depends on the exercise of a Title depend - 
 power of appointment, it is the duty of the crm- exercise of 
 veyancer advisinsr the purchaser to ascertain that the * power of 
 
 '' . . T appointment. 
 
 power has been or will be in all respects well executed. 
 The general rule is that in the exercise of a power nil 
 conditions prescribed in the instrument creating the 
 power must be strictly observed ; and in this respect no 
 distinction is made between matters apparently sub- 
 stantial, such as the nature of the instrument by which 
 the power is to be executed or the requirement of the 
 consent of any person to its execution, and formalities 
 like the number of witnesses by which the executing 
 instrument is required to be attested («). And the 
 rule is that any instrument showing an intention to 
 exercise the power, but not exactly complying with the 
 terms and conditions imposed by the donor of the 
 jiower, is void altogether as an exercise of the power (/>). 
 
 («) JlnwkiHs V. Kemp, 3 East, in the case of powers of leasing 
 
 410, 440, Ilolmen 7. Coghill, 7 by the Leases Acts, 1849 and 1850 
 
 Ves. 499, o06; Reid v. Shcrgold, (stats. 12 A: 13 Vict. c. 26; 13 & 
 
 10 Ves. 370; Maijuribanks v. 14 Vict. c. 17), under which an 
 
 HovPtiden, 1 Dniry, 1 1 ; Siig. attempted exercise of a power of 
 
 Pow. 206 .5^., 8th ed. ; Farwell leiising, which is invalid at law 
 
 on Powers, 128 «'/., 2ud cd. ; for want of strict compliance with 
 
 Wms. Real Prop. 384 «/., 2l8ted. the terms of the power, may be 
 
 (6) See previous note ; liarrHlo considered in equity as a contract 
 
 V. Toung, 1900, 2 Ch. 339. This for the grant of a valid lease 
 
 rule is modified in equity, though under the power, and leases pre- 
 
 uot at law, by tlie »(iuit,ible doc- maturely granted in exercise of a 
 
 trines mentioned below as to power are made valid if the 
 
 Sliding the defective execution of lessor's estate endure imtil the 
 
 powers ; and is further modified time when the lease might have
 
 294 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Under the Wills Act (c), however, wills executing 
 powers muHt be executed and attested by two witnesses 
 in the manner therein prescribed for the execution of all 
 wills {d) ; but if so executed and attested, they operate as 
 valid executions of the power, notwithstanding that the 
 instrument creating the power may have required some 
 additional or other form of execution or solemnity. 
 
 been well granted : Wms. Real 
 Prop. 39'i, ;i93, 21st ed. 
 
 [c) Stat. 7 Will. IV. & 1 Vict. 
 c. 26, s. 10. 
 
 {d) This rule must be strictly 
 observed in the case of all wills 
 exercising powers to dispose of 
 land in Englnnd, leasehold as 
 well as freehold or copyhold, 
 whether the testator were domi- 
 ciled in England or elsewhere ; 
 see Hurra ti v. Champcrnowne, 
 
 1901, 2 Ir. 230 ; Pepin v. Bruylre, 
 
 1902, 1 Ch. 24 ; and also in the 
 case of all wills exercising an 
 English power to dispose of per- 
 sonal chattels, and made in Eng- 
 land by persons domiciled in 
 England (whether British sub- 
 jects or aliens). By an English 
 power is meant one created by an 
 instrument intended to be c(m- 
 strued according to English law 
 and to confer a power exercisable 
 accordinar to the rules of English 
 law. Wills exercising English 
 powers to dispose of personal 
 chattels are valid, as an exercise 
 of the power, if executed in ac- 
 cordance with the requirements 
 of the Wills Act, whatever be the 
 testator's domicile and although 
 (where he is domiciled out of 
 England) the will is invalid by 
 the law of the place of his domi- 
 cile ; Murphy v. Belclder^ 190;*, 
 A. C. 446. But wills made by 
 persons domiciled out of England 
 (whether aliens or British sub- 
 jects), exercising powers to dis- 
 pose of personal chattels, com- 
 plying mth the formalities (if 
 any) required by the terms of the 
 power, and otherwise executed iji 
 accordance with the law of the 
 
 place of the testator's domicile 
 are valid, as an exercise of the 
 power, althongh they do not 
 comply with the requirements of 
 the Wills Act ; I)' Huart v. Hark- 
 ties.s, 34 Beav. 324 ; Ee Price, 
 1900, 1 Ch. 442; Barrettow. Young, 
 1900, 2 Ch. 339; Re Walker, 
 1908, 1 Ch. 560. Cf. and dis- 
 tinguish lie B^ Este\s Settlement 
 Trusts, 1903, 1 Ch. 898 ; Pe 
 Scholejield, 1905, 1 Ch.408, settled, 
 1907. 1 Ch. 664. As to the wills 
 of British subjects exercising a 
 power over personal chattels and 
 not complying with the Wills Act 
 but admissible to probate as wills 
 solely by virtue of Lord Kings- 
 down's Act (stat. 24 & 25 Vict, 
 c. 114, s. 1), see Pe Kirwan's 
 Trusts, 25 Ch. D. 373 ; Hummel 
 v. Hummel, 1898, 1 Ch. 642; Pe 
 Price, 1900, 1 Ch. 442, 448-450; 
 Dicey, Conflict of Laws, 691-696, 
 821 S(f., 2nd ed. It has been 
 decided in Ireland that a power 
 to dispose of the jiroceeds of sale 
 of land settled on trust for sale is 
 for the purpo^es of the doctrine 
 here discussed a power to dispose 
 of land ; Murray v. Champernotvne, 
 ubi sup. But it seems question- 
 able whether this is correct, as an 
 interest in the proceeds of sale of 
 land settled on trust for sale is for 
 all other purposes treated in 
 English law as personalty ; see 
 Forbes v. Steven, L. R. 10 Eq. 
 178 ; A.-G. V. Hubbuck, 13 Q. B. 
 D. 275; A.-G. v. Johnson, 1907, 
 2 K. B. &85. The same remark 
 is applicable to a beneficial inte- 
 rest in a definite sum of money 
 directed to be raised out of land, 
 such as a portion.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 295 
 
 And under Lord St. Leonards' Act (e) powers of 
 appointment, exercisable by deed or by any instrument 
 in writing not testamentary, may be well exercised, sub- 
 sequently to the Act, by a deed executed in the pre- 
 sence of and attested by two or more witnesses, in the 
 manner in which deeds are ordinarily executed and 
 attested, although the instrument creating the power 
 may have required some additional or other form of 
 execution or attestation, or solemnity. It will be ob- 
 served that, where a power is required to be executed by 
 a deed or writing attested by two witnesses, it is not 
 well executed by a deed attested by one witness only or 
 unattested (./"). Such a defect of execution is not aided 
 by Lord St. Leonards' Act. And it is expressly pro- 
 vided (r/) that this statutory provision shall not operate 
 to defeat any direction in the instrument creating the 
 power that the consent of any person shall be necessary 
 to a valid execution, or that any act shall be performed, 
 in order to give validity to any appointment having no 
 relation to the mode of executing and attesting the in- 
 strument. Nothing contained in the Act shall prevent 
 the donee of a power from exercising it conformably to 
 the power by wi-iting oi' otherwise than by an instru- 
 ment executed and attested as an ordinary deed (A). 
 Equity will aid the defective execution of a power, if Equitable 
 the intended appointee be a purchaser from or the wife j^f ^^i^"^^* 
 or a child or a creditor of the person intending to exercise execution of a 
 the power, or if the appointment be for a charitable P°^^^' 
 purpose (/) ; and this relief is granted, notwithstanding 
 that the person entitled in defaidt of appointment was 
 a purchaser, and even against a purchaser from him, of 
 
 (e) Stat. 22 & 23 Vi<;t. c. 35, (h) Stat. 22 & 23 Vict. c. 35, 
 
 8. 12, passed 13th Aug. 1S69. s. 12. 
 
 (/) Su^. Pow. 207, 8th ed. (i) Sug. Pow. .')33-')3ti, Sth ed. ; 
 
 • iff) Stat. 22 & 23 Vict. c. 35, Farwell on Power.s, 327, 2nd ed. ; 
 8. 12. and see Charlton v. Charlton, 1906, 
 
 2 Ch. 523.
 
 296 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 the estate limited in default of appointment (A*) . But 
 such relief is only afforded to cure defects which are 
 not of the essence of the power, such as the want of a 
 seal or of the proper number of witnesses, or execution 
 by will of a power to appoint by deed (/). And equity 
 will not uphold an act which will defeat what the person 
 creating the power has declared, by expression or 
 necessary implication, to be a material part of his inten- 
 tion (m). No relief will therefore be given against the 
 exercise by deed of a power to appoint by will (n), or 
 against the exercise by will of a power to appoint by 
 deed to be executed before a specified event, which 
 happened in the lifetime of the person purporting to 
 appoint by will(o). It must not be forgotten that 
 where a power to appoint the legal estate in lands is 
 exercised defectively, but so that equity will grant 
 relief against the defective execution, the legal estate 
 remains outstanding in the person entitled in default of 
 appointment, and must be got in if it be desii'ed to make 
 title under the appointment (p) . 
 
 Title under a 
 special power 
 of appoint- 
 ment. 
 
 Fraudulent 
 execution. 
 
 Where a title depends on the valid exercise of a 
 special power of appointment, such as a power to 
 appoint amongst a limited class of persons (the ap- 
 pointor's children, for instance), the conveyancer must, 
 of course, see that the appointment is made in favour of 
 those persons who are objects of the power {q\ or some 
 or one of them (r). And he must further ascertain 
 that the appointment does not transgress the rules of 
 
 (A) Sug. Pow. 512, Sth ed. 
 
 {I) Sug. Pow. 548 sq., 558, 559, 
 560, 8th ed. ; Farwell on Powers, 
 330, 2nd ed. 
 
 (w) Rolt, L. J., Cooper v. Mar- 
 tin, L. R. 3 Ch. 47, 58; Sug. 
 Pow. 560, 8th ed. 
 
 (n) Jieid v. dkergtold, 10 Ves. 
 370. 
 
 (o) Cooper ▼. Martin, ubi sup. 
 
 ip) Sug. Pow. 532, 8th ed. ; 
 Farwell on Powers, 327, 2nd ed. 
 
 (q) See Sug. Pow. 498 sq., 652 
 xq., 664 sq., 8th ed. ; Farwell on 
 Powers, 298 sq., 486 sq., 2nd ed. 
 
 (r) As to exclusive appoint- 
 ments, see Farwell on Powers, 
 362 sq., 2nd ed. ; Wms. Pers. 
 Prop. 369, 16th ed.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 297 
 
 equity with respect to the fraudulent execution of such 
 powers ; as where an appointment is made ostensibly for 
 the benefit of some object of the power but with the 
 real design of effecting some other pur[)Ose than that 
 contemplated by the power (.s). AVhere these rules are 
 transgressed, it must be remembered that the appoint- 
 ment, if of the legal estate in lands, may be void in 
 equity only, but not at law {() ; so that where a title 
 depends on the avoidance of such an appointment, the 
 legal estate may have to be got in from the appointee. 
 Another point to be borne in mind in considering the Remoteness 
 exercise of powers of appointment amongst a limited limitation, 
 class of persons is the question whether the appointment 
 infringes any of the established rules with respect to 
 remoteness of limitation. In such cases, the validity of 
 the estates limited b}' the instrument exercising the 
 power depends on the result of the inquiry whether 
 they would have been valid if inserted in tlie instru- 
 ment which created the power. And in investigating Exercise of 
 this point, the conveyancer must not forget that, as the Powers to 
 law now stands, powers given by a marriage settle- amongst un- 
 ment or any other instrument to appoint estates in land °™ ***"'^" 
 amongst the issue of the marriage or of some specified 
 living person, cannot well be exercised in such a way 
 that the unborn child of a child unborn when the in- 
 strument took effect shall take either a legal or an 
 equitable estate in remainder expectant on a life estate 
 appointed to his or her parent (?/) ; or so that a legal or 
 an equitable estate appointed in remainder after a life 
 estate appointed to some such unborn child sliall be such 
 as need not necessarily vest (if at all) within the period 
 allowed by the rule against perpetuities {x) ; or so that 
 
 (») See Sag. Pow. 606 .«/., 8th («) Jr/iitbi/ v. Mttclull, 44 Ch. 
 
 ed. ; Farwell on Power.s, 403 s^., D. 8.) : Re Nash, 1910, 1 Ch. 1. 
 
 2nd ed. [i) Re Front, 48 Ch. D. 246, 
 
 (0 See Sug. Pow. 606—608, followed in Rr Ashfurth, 1905, 
 
 8th ed. 1 Ch. 535 (as to which case, see
 
 298 
 
 OF TITLE UNDER THE EXERCISE OP P0WER8. 
 
 any future estate or interest, whether legal or equitable, 
 appointed to arise in favour of any child or issue un- 
 born when the instrument took effect by way of shifting 
 use or other executory limitation (and not by way of 
 remainder) shall be such as contravenes the rule against 
 perpetuities (//). 
 
 Atfc(\station 
 clause to 
 instrument.s 
 exercising 
 powers. 
 
 Where an instrument creating a power of appoint- 
 ment has required that certain acts done in connection 
 with the exercise of the power (such as the signing, 
 sealing and delivery of a deed or writing) shall be 
 attested by witnesses, the attestation clause of the 
 instrument exercising the power should be examined 
 with special care, as the omission to express therein 
 that some or one of such required acts has been duly 
 attested may vitiate the exercise of the power. On 
 this subject Lord Justice Farwell (s) has laid down the 
 following rule as the result of the authorities : — " If a 
 power requires two or more formalities to be attested, 
 and the attestation clause expressly certifies that one of 
 such formalities has been performed, then the power is 
 not well executed {a). But if the attestation, although 
 a limited and special one, is of such a nature that it 
 must necessarily be inferred that the other requisites 
 
 Mr. Charles Sweet's criticism iii 
 49 Sill. J. 793, which it is respect- 
 fully Mubniitted is well founded) ; 
 fFhitby V. I OH Luedec/cc, 1906, 1 
 Ch. 788. 
 
 {//) See Wms. Real Prop. 361- 
 366, 405-417, 'ilst ed. ; and the 
 writer's articles on Contingent 
 Remainders and the Rule against 
 Perpetuities in tlie Encyclopaedia 
 of English Law, 2ud ed. 
 
 (z) Farwell on Powers, 135, 
 2nd ed. 
 
 («) Vincent v. BLiIiop of tiodor 
 and Man, 4 De G. & Sm. 294, 
 307 ; 5 Ex. 683, 694. In IV right 
 V. Wakeford, 17 Ves. 454, 4 
 
 Taunt. 213, where a power of 
 consent to a sale was required to 
 be exercised by writing under 
 hand and seal attested by two or 
 more credible witnesses, and the 
 attestation clause of the deed 
 exercising the power only certi- 
 fied that it was sealed and de- 
 livered in the presence of two 
 witnesses, it was held that the 
 power was not well executed. 
 The like defect in instruments 
 exercising powers executed before 
 the 30th July, 1814, was ciu'ed 
 by Stat. 54 Geo. III. c. 168 : but 
 this Act had no prospective opera- 
 tion.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 299 
 
 were complied with {/j), or if the attestation is general, 
 then the execution is valid, unless the contrary is 
 shown "(c). This rule is, of course, subject to the 
 above-mentioned provisions of the Wills Act and Lord 
 St. Leonards' Act(^/), which have greatly diminished its 
 importance in practice. 
 
 It may be noted here that, whenever an abstract of Inquiry 
 title mentions some express power of which the exercise power meu- 
 
 mijrht affect the property sold, but no exercise thereof ti^^ed in the 
 ^ I 1 J ' abstract has 
 
 is subsequently stated in the abstract (e), the piu'chaser's been exer- 
 advisers should inquire whether the power has been 
 exercised. 
 
 cised. 
 
 When property is sold or conveyed in the exercise of Sale under 
 a power created by statute, there is the same necessit}" power, 
 for exact compliance with all the terms and conditions 
 of the power as exists in the case of a power (treated by 
 the act of parties (./) ; and in default of such compliance 
 any instrument purporting to exercise the power is, as a 
 rule, void {(j). At the present time the most important 
 
 (A) See riuceut v. liinhop of was on the ground that publica- 
 
 Sodor and Man, 4 De G. & Sm. tion of a will is equivalent to 
 
 294 ; h Ex. 683, where a pow<^r delivery thereof, 
 
 required to be exercised by (c) See Burdett v. Doe d. Spilc- 
 
 will signed and published in the bury, 10 CI. A: Fin. :U0, where a 
 
 presence of and attested by two power to be exercised by will 
 
 or laore witue.sses was held to be signed, scaled and published in 
 
 well executed by a will purporting the presence of and attested by 
 
 to be signed and sealed in the three witnesses was held to be well 
 
 presence of two wituessts, on the executed by a signed and sealed 
 
 ground that sealing in the presence will with this attestation clause, 
 
 of witnesses jnust uaturally and '• Witness. Charles Ball, Eliz. 
 
 reasonably be considered to be a Ball, Anu Ball." 
 
 publication of the will ; Smith v. (rf) Above, pp. 294, 295. 
 
 AdkinK, L. R. 14 Eq. 402. where ('■) Above, p. 113. 
 
 a power to bi; exercised by any ( /) Above, p. 293. 
 
 instrument in writing signed, {p) Darirs v. Diiviea, 38 Ch. D. 
 
 sealed and delivered in the presence 499; Mogridge v. (Uapp, 1892, 3 
 
 of two or more witnesses was Ch. 382, 398 ; Sutherland v. 
 
 held to be well executed by a will Sutherland, 1893. 3 Ch. 169; 
 
 stated ill the attestation clause to Chandler v. Bradlei/, 1897. I Ch. 
 
 be signed, sealed, published and 31.5 ; Re Ifandinan and Ifileos'-s 
 
 acknowledged to be the last will Contract, 1902, 1 Ch. 599 ; Boi/ce 
 
 of the donee of the power; this v. Edbrooke, 1902, 1 Ch. 836.
 
 300 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Sales under statutory power of sale is that given by the Settled 
 LandVcts. Lfiutl Acts, 1882 to 1890. When title is made by 
 means of the exercise of this power of sale, the points 
 to which the attention of the purchaser's counsel should 
 be principally directed are the following : — In the first 
 place he must ascertain that the property so conveyed 
 or to be conveyed is settled land (A), and that the 
 person who has exercised or is to exercise the power is 
 a tenant for life or a person having the powers of a 
 tenant for life within the meaning of the Acts (/). He 
 must next inquire whether such property comprises the 
 principal mansion-house on the settled land and the 
 pleasure grounds and park and lands usually occupied 
 therewith or any part of the same, and if so, he must see 
 that the assurance of that part of the property was or shall 
 be made with the consent of the trustees of the settlement 
 or under an order of the Court as required by the 
 Settled Land Act, 1890 (k). Thirdly, he must assure 
 himself that the purchase money was or shall be paid to 
 duly constituted trustees of the settlement for the pur- 
 
 'i'he Leases Ar;ts, 1849 and 1850, changed uuder the Acts for 
 
 apply to an intended exercise of another easement, which the 
 
 a statutory as well as to an owners of the before mentioned 
 
 express power of leasing ; see servient tenement were entitled 
 
 above, p. 293, n. (b). to exercise over the settled land. 
 
 ,,s ,, . J. A- o .^ -tT- J. oo See Shep. Touch. 292, that a 
 
 («) bee stat. 4o & 46 Vict. c. 38, • u^. e „ u ^.v. v„ <- 
 
 J ,-, ^ 1f>^ o Ti n 1- right oi way may be the object 
 
 ss. 2 (1 — 4, 10), 3. By s. 2, sub- P x. o^ t n t? ocn 
 
 in/-\ ii • » J. ^ ^■ 1 J or an exchange 24 L. (J,. K. 260, 
 
 s. 10 (i), m this Act land includes •> /on oco ock 
 
 ^ " ,, T^ , , and n. (3), 262 — 266. 
 
 incorporeal hereditaments, also an ^ ' 
 
 undivided share in land. In Re (») See stat. 45 & 46 Vict. c. 38, 
 
 Brulhertoii's EstaU, 1908, W. N. *^«- '^ (5—7), 58. 
 
 56, 98 L.T. 547, it was considered (k) Stat. 53 & 54 Vict. c. 69, 
 
 by the C. A. that an easement s. 10, replacing 45 k. 46 Vict, 
 
 incident to settled land, as the c. 38, s. 15 ; nee Pease v. Courtney, 
 
 dominant tenement, and exercis- 1904, 2 Ch. 503; Gilbeij v. Rush, 
 
 able over other land might well 1906, 1 Ch. 11 ; Re Wythes' Settled 
 
 be sold under the ^Settled Laud Estates, 1908, 1 Ch. 593. For the 
 
 Acts to the owners of the servient principles by which the Court is 
 
 tenement ; although the Court guided in exercising the jurisdic- 
 
 appeared to entertain a doubt tion so conferred, see Re Ailes- 
 
 (which it is respectfully submitted burifs Settled Estates, 1892, 1 Ch. 
 
 was not well founded) whether 506 ; Bruce v. Ailesbury, 1892, 
 
 such an easement could be ex- A. C. 356.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 301 
 
 poses of the Acts'^), or into Court (/>/)• This is essen- 
 tial to the valid exercise of the power of sale given b}' 
 the Acts ; and even where the settled land is subject to 
 some incumbrance, which is prior to the settlement, and 
 of which the amount exceeds the whole price, the pur- 
 chase money cannot properly be paid to the incumbran- 
 cer on a sale under the Acts unless the trustees concur 
 in the conveyance to direct such payment (//). Fourthl}-, 
 he must be satisfied that all the estate, to which title is 
 alleged or required to be made under this statutory 
 power, has been or will be duly assured by the exercise 
 of the statutory povver of conveyance (o) by the tenant 
 for life, either alone or with the concurrence of all other 
 necessary parties, it' any. He must also see that there 
 is nothing in the whole transaction carried out b}^ exer- 
 cising the statutory power which is inconsistent with the 
 duty of the tenant for life, in exercising the statutory 
 power, as trustee for idl parties entitled under the settle- 
 ment (p). As is well known, a tenant for life intending As to giving 
 to exercise the statutory power is required to give one J^jpjj^gjj ^aie 
 month's previous notice of his intention to the trustees 
 of the settlement [q), but a person dealing in good faith 
 with the tenant for life is not concerned to inquire 
 respecting the giving of the notice so required (r). It 
 is therefore unnecessary, when title is alleged or pro- 
 mised under an exercise of the statutory power, to make 
 any inquiry whetlier notice has been duly given to the 
 trustees. And it is improper to make any such inquiry ; 
 for if the purchaser ask this question and be informed 
 
 {I) See stats. 45 & 46 Vict. s. 53; Siithcrlaiid v. iSittherlinid, 
 
 c. 38, 88. 2 (8), 38— 40; .53 & .'■)4 1893. 3 Ch. 169; ChaudUr v. 
 
 Vict. c. 69, s. 16. Bradley, 1897, 1 Ch. 315 ; R, 
 
 (»») Stat. 45 & 46 Vict. c. 38, Ilandman and JFilcox's ContraH. 
 
 8. 22(1). 1902, 1 Ch. 599. 
 
 (m) Re Norton and Lax Cnxas^ [q) Stats. 45 & 46 Vict. c. 3,S, 
 
 Cmtract, 1909, 2 Ch. 59. s. 45 ; 47 & 48 Vict. c. 18, s. 5. 
 
 (o) Stat. 45 & 46 Vict, c, 38, (r) Stat. 45 & 46 Vict. o. 38, 
 
 8. 20. 8. 45 (3). 
 
 ip) See Stat. 45 & 46 Vict. c. 38,
 
 302 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 in answer of facts disclosing some irregularity, he may 
 lose the benefit of the protection undoubtpdly afforded 
 to those who abstain from inquiiy (.s). It has been 
 held that it is not a condition precedent to making a 
 valid contract for sale under the Settled Land Acts that 
 the tenant for life should give notice of his intention to 
 the trustees ; he can enter into a binding contract for 
 sale without giving any such notice {t), even though 
 there be no trustees of the settlement in existence {n) ; 
 and it will be sufficient to give the purchaser a good 
 title if trustees be duly appointed before the contract is 
 As to whether completed (?/)• But although the purchaser is not con- 
 trust ^^'^ f cerned to inquire whether notice of the intention to sell 
 the settlement were given to the trustees, he is not equally unconcerned 
 of sale.™*^ with the questiou, whether there are an}^ trustees of the 
 settlement in existence at the time when the statutory 
 power is completely exercised by conveyance. The Act 
 provides that capital money arising from a sale made 
 thereunder shall be paid either to the trustees of the 
 settlement or into Court, at the option of the tenant for 
 life ( w) ; and it is held that the existence of such trustees 
 is a condition precedent to the exercise of this option (x) . 
 Consequently, a vendor selling under the Settled Land 
 Acts cannot make a good title, where there are no trus- 
 tees of the settlement for the purposes of the Acts and 
 the purchaser has notice of this fact, by requiring the 
 purchase money to be paid into Court and conveying in 
 consideration of such payment (//) ; but trustees must 
 first be duly appointed, and then the sale can be com- 
 pleted. It appears, however, that if the purchaser, 
 
 («) See Marlborovqh v. Snrtoris, s. 22 (1). 
 
 32 Ch. D. 616, 623: Hat tin y. [x) Hntten w Jius.sili, '38 Gh.T>. 
 
 IfuKseH, 38 Ch. D. ;vi4, 344. 334, 345; Re Fisher and Graze- 
 It) MarlboroKf/// v. Sarforix, 32 brook's Contract, 1898, 2 Ch. 660. 
 
 Ch D. 616. {y) He Fisher mid Grazebrook' s 
 
 [u) I/atffti V. /{Kssel/, 'SH Gh.B. Contract, 1898, 2 Ch. 660; and 
 
 334. see Hughes v. Funagaii, 30 L. R. 
 
 (w) Stat. 45 k 46 Viot. c. 38, Ir. HI.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 303 
 
 supposing tliat there are trustees of the settlement in 
 existence and in ignorance that there are not, pay the 
 purchase money into Court in good faith at tlie vendor's 
 request, he will obtain a good title by a couvej^anee in 
 consideration of such payment (s). It seems therefore 
 that, if on a sale under the Settled Land Acts it appear 
 from the abstract that trustees of the settlement were 
 duly constituted or appointed, a purchaser directed to 
 pay his purchase money into Court need not inquire 
 whether such trustees still remain in existence. But if it 
 appear from the abstract that there are no such trustees 
 in existence, then the purchaser must require trustees 
 for the purposes of the Acts to be appointed, and cannot 
 safely pay the money into Court and accept a convey- 
 ance accordingly, without first seeing that such appoint- 
 ment has been duly made. Where the vendor's title 
 depends on a former exer«Mse of the power of sale given 
 by the Settled Land Acts whereon the purchase money 
 was paid into Court, and it appears from the abstract 
 that there were no trustees of the settlement in existence 
 at the time when the power was exercised by convey- 
 ance, the purchaser should, it seems, take the objection 
 that the power was not well exercised unless there were 
 such trustees in existence at that time, and should 
 require proof of their existence to be furnished accord- 
 ingly. If, however, such proof cannot be fiu-nished, it 
 wdl have to be considered whether a good title can be 
 made on the ground that the pui-chaser from the tenant 
 for life, supposing tliat there were such trustees, bought 
 in good faith in ignorance of the fact that there were 
 none [a). It has beeu held in the case of a building 
 lease made by a tenant for life under the Settled Land 
 Acts in the absence of any trustees, wln^re no capital 
 money was payable on granting the lease, that the 
 
 [z) S. C, 1898, 2 Ch. 662. 
 
 («) Cf. lie Haiidman ami IFilcox's Contract, 1902, I Ch. 599.
 
 304 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 existence of trustees of the settlement was not a condi- 
 tion precedent to tlie validity of the lease, and that a 
 purchaser from the lessee must presume, in the absence 
 of evidence to the contrary, that the lessee acted in good 
 faith and had no notice of the irregularity {b). But in 
 such a case, the only necessity for trustees is that due 
 notice of the intention to lease may be given to them ; 
 and lessees and purchasers are expressly exonerated 
 from the obligation of inquiring as to the giving of 
 such notice {c). Where, however, any capital money 
 has to be paid by a lessee or purchaser, the case is dif- 
 ferent (d) ; and there is not the same statutory absolu- 
 tion from the duty of inquiring into the existence of 
 trustees. But even on a sale of settled land, the trus- 
 tees have no active duty to perform, if the tenant for 
 life desire that the purchase money shall be paid into 
 Court. And as it is provided that a purchaser dealing 
 in good faith with a tenant for life shall, as against all 
 parties entitled under the settlement, be conclusively 
 taken to have complied with all the requisitions of the 
 Act (e), and it is presumed generally that everything is 
 rightly done until the contrary be shown (/'), it seems 
 that in this case also it would be presumed that the 
 purchaser from the tenant for life acted in good faith 
 without notice of the irregularity {g) ; and if nothing 
 appeared to rebut this presumption, the title would be 
 unimpeachable. 
 
 "Who are In ascertaining who are the trustees for the purposes 
 
 the'pmTSes 0* ^hc Settled Land Acts of any given settlement, it 
 
 of the Settled should be borne in mind that such trustees must be 
 
 either — (1) the persons who are for the time being 
 
 (i) Mogridge v. Olapp, 1892, 3 (*) Stat. 45 & 46 Vict. o. 38, 
 
 CSi. 382. 8- •^4- 
 
 (c) Above, p. 301. (/) Above, p. 118. 
 
 (d) Mogridge v. Clapp, 1892, 3 [g) See Mogridge \. Cfapp, 1892, 
 Ch. 400. ■ 3 Ch. 382.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 trustees under the settlement with power of sale of the 
 settled land, or with power of consent to or approval of 
 the exercise of such a power of sale (A) ; or (2) if there 
 be no such trustees, the persons declared by the settle- 
 ment to be trustees thereof for the pui'poses of the 
 Acts (/) ; or (3) the persons appointed by the Court to 
 be trustees under the settlement for the pui'poses of the 
 Acts (k) ; or (4) if there be no trustees for the purposes 
 of the Acts of any of the above-mentioned tliree classes, 
 then the persons (if any) who are for the time being 
 under the settlement trustees with power of or upon 
 trust for sale of any other land comprised in the settle- 
 ment and subject to the same limitations as the land to 
 be sold, or with power of consent to or approval of the 
 exercise of such a power of sale (/) ; or (5) if there be no 
 such persons as are fou.rthly described, then the persons 
 who are for the time being under the settlement trustees 
 with future power of sale, or under a future trust for 
 sale of the land to be sold, or with power of consent to 
 or approval of the exercise of such a future power of 
 sale, whether the power or trust take effect in all events 
 or not {m). Each of these classes must be taken to 
 
 (A) It is important to observe {k) Sect. 38. 
 
 that trustees of a settlemeut, who (/) See lie Moore, 1906, 1 Ch. 
 
 have no such power of sale, 789. 
 
 oonsentor approval as above nieu- [»>) Stat. 53 & 54 Vict. c. 69, 
 
 tioued, are not trustees thereof for s. 16. As to cases affected by 
 
 the purposes of the Acts unless this amendment of the law, see 
 
 they come within classes (4) or (5) Ite Bronii^s If'Ul, '11 Ch. D. 179 ; 
 
 introduced by tlie amending Act Wheehcright v. fFalkcr, 23 Ch. D. 
 
 oil^^.lO\see jr/i,i/uriff/itv.jra/kei; 752, 761; lie Home's Settled 
 
 23 Ch. D. 752. 761 ; lie Morgan, Extatr, 39 Ch. D. 84. When 
 
 24 Ch. D. 114; lie Canir.s Settled lands are limited to trustees in 
 Estates, 1899, 1 Ch. 324 ; Re fee in trust for one of them for 
 Conirs Settled Estates, 1905, 1 Ch. life and after his death on tru.'^t 
 712. But trustees with a power for sale or for others with power 
 of sale exercisable with the con- of sale, it has been lield that all 
 sent of the tenant for life are the trustees, including the tenant 
 trustees for the purposes of the for life, are the trustees for the 
 Acts ; Constable v. Constable, 32 purposes of the Settled Land 
 Ch. D. 233. Acts ; Re Jackson's Settled Estate, 
 
 {%) Stat. 45 & 46 Vict. c. 38, 1902, 1 Ch. 258. 
 s. 2 (8). 
 
 w. 20 
 
 305
 
 306 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 include any trustees or trustee duly appointed under an 
 express or statutory power to appoint new trustees as 
 well as the trustees originally appointed. It has been 
 expressly provided that the statutory power of appoint- 
 ing new trustees shall apply to trustees for the purposes 
 of the Settled Land Acts, whether appointed by the 
 Court or by or under the settlement (.»/). 
 
 Deposit on 
 sale by 
 auction of 
 settled land. 
 
 As above stated (o), it is usual on sales by auction 
 to stipulate for payment of a deposit to the auctioneer 
 or the vendor's solicitors. If the sale be made by a 
 tenant for life selling under the Settled Land Acts, the 
 purchaser must see that the deposit is duly paid to the 
 trustees of the settlement for the purposes of the Acts, 
 or into Court, as the vendor may require, before he 
 accepts a conveyance and pays the balance of his 
 purchase money. Otherwise he cannot be assured that 
 he is obtaining a valid conveyance ; for unless the 
 whole of the purchase money be paid to the trustees or 
 into Court, as required by the Acts, the statutory power 
 of sale is not well executed {p). 
 
 As to the 
 power of 
 conveyance 
 under the 
 Settled Land 
 Acts. 
 
 With regard to the question, wliether all the estate, 
 to which title is alleged or required to be made, has 
 been or Avill be sufficiently assured by the exercise of 
 the statutory power of conveyance [q) , the Settled Land 
 Act, 1882 (r), empowers the tenant for life to convey 
 by deed any land sold under the power of sale conferred 
 by the Act for the estate or interest which is the subject 
 
 («) Stat. 56 & ^1 Vict. c. 53, 
 s. 47, replacing 53 & 54 Vict. 
 c. 69, s. 17, passed to amend the 
 law laid down in 7iV WUcock, 34 
 Ch. D. 508. 
 
 (o) Above, p. 57. 
 
 [p) Above, pp. 299—302. 
 
 (q) Above, p. 301. 
 
 (r) Stat. 45 & 46 Vict. c. 38, 
 s, 20. Exactly the same power 
 
 of conveyance is given in the 
 same hectiou with regard to land 
 exchanged, partitioned, leased . 
 mortgHged or charged in exercise 
 of the powers conferred by the. 
 Act, and also with regard to ease-; 
 ments or other rights or privileges! 
 sold or leased under the same' 
 powers.
 
 OF TITLE UNDEl? THE EXERCISE OF POWERS. 307 
 
 of the settlement, and provides that such a deed shall 
 be effectual to pass the land conveyed discharged fi'om 
 all the limitations, powers and provisions of the settle- 
 ment, and from all estates, interests and charges sub- 
 sisting thereunder, but ■subject to and rcitli the exception 
 of — (i.) All estates, interests and charges having priority 
 to the settlement ; and (ii.) all such other (if any) 
 estates, interests and charges as have been conveyed or 
 created for securing money actually raised at the date 
 of the deed ; and (iii.) all leases and grants at fee-farm 
 rents or otherwise, and alfgrants of easements, rights of 
 common, or other rights or privileges granted or made 
 for value in money or money's worth or agreed so to 
 be, before the date of the deed, by the tenant for life, 
 or by any of his predecessors in title, or by any trustees 
 for him or them, under the settlement, or imder any 
 statutory power, or being otherwise binding on the 
 successors in title of the tenant for life. 
 
 The Act contains (.s) a very wide definition of the What is "the 
 terra settlement, extending it to any instrument or any 
 number of instruments under or by virtue of which any 
 hind, or any estate or interest in land, stands for the 
 time being limited to or in trust for any persons by way 
 of succession. And this definition has received a liberal 
 interpretation. Thus, in Re AilcHlmry and Tveagh{t), Re Aiksbm-y 
 lands had been limited by deeds dated in 1796 and "'"^ ^'-'^o''- 
 IH26 to such uses as Charles and George sliould jointly 
 appoint, and in default to the use of Charles for life 
 with powers of jointuring a future wife ; and Charles 
 appointed a jointure rentcharge to Maria. Then by a 
 deed of IS-'i? the lands were limited in exercise of the 
 joint power of appointment, subject to the rentcharge, 
 to the use of Charles for life, remainder to George for 
 
 («) Stat. 45 & 46 Vict. c. 38, 8. 2 (1). 
 {t) 1893, 2 Ch. 345. 
 
 20 (2)
 
 308 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 life, remainder to Ernest for life, remainder to Ernest's 
 first son in tail male. In 18G3, the estate tail so given 
 to Ernest's first son was barred and the lands were 
 re-settled to the use of Ernest for life, remainder to his 
 eldest son George John for life, remainder to uses for 
 securing a jointure rentcharge to Evelyn, the son's 
 wife, remainder to George John's first son in tail male. 
 George John died leaving Thomas his eldest son, and 
 in 1885 Thomas's estate tail was barred and the lands 
 were re-settled to the use of Ernest for life in restoration 
 of his former estate, remainder to Thomas for life. 
 Ernest died, and Thomas sold the lands under the 
 Settled Land Acts to Lord Iveagh. And it was held 
 by Stirling, J., that the series of instruments constituting 
 the settlement for the purposes of the Acts comprised 
 not only the deeds of settlement of 1885 and 1863 
 taken together, but also those of 1837, 1826 and 1796, 
 and consequently that Thomas was empowered to 
 convey the lands sold discharged from Maria's as well 
 as from Evelyn's rentcharge. This decision at first 
 met with adverse criticism («), but it has been approved 
 by the Court of Appeal in the case of Re Miindy and 
 Be Mundy Hoper's Contract {x). In that case lands were limited 
 Co» truer ^ in 1861 to the use of John for life, remainder to uses 
 for securing a jointure rentcharge to Elizabeth, re- 
 mainder to trustees for the term of one thousand years 
 fi'om John's death on trust to raise portions for his 
 younger children, remainder to Francis for life, with 
 powers of jointuring and charging portions for younger 
 children and limiting a term to secure such portions, 
 remainder to Francis's first son in tail male. In 1865 
 Francis appointed a jointure rentcharge to Louisa his 
 wife, charged the lands with portions for his younger 
 children, and limited a term of 1,500 years to secure 
 
 («0 37 Sol. J. 336 ; Wolsten- Land Acts, 289, 7th ed. 
 holme's Conveyancing- and Settled {x) 1899, 1 Ch. 275.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 such portions. John died, and in 1889 Francis and 
 his eldest son disentailed, and the lands were re-settled 
 with the concurrence of John's younger children, who 
 released their portions, to the use that Francis might 
 charge the lands with 5,000/., remainder to uses for 
 securing rentcharges to Millicent and Sophy (two of 
 John's younger children) and Francis's eldest son, 
 remainder to Francis for life without expressing that 
 this should be in restoration of his former estate. 
 Francis then sold the lands under the Settled Land 
 Acts, and the purchaser objected that his life estate 
 under the settlement of 1861 was not kept alive, and 
 that he could not convey the lands discharged from his 
 wife's jointure or his younger children's portions. It 
 was held, however, by the Court of Appeal, that the 
 deeds of 1861, 1865 and 1889 together constituted the 
 settlement within the meaning of the Settled Land 
 Acts, and that the tenant for life was accordingly em- 
 powered to convey the settled lands discharged from his 
 wife Louisa's jointure and his younger children's 
 portions charged in 1865 under the powers given by the 
 deed of 1861 ; and it was considered that this result 
 was effected by the intention of the Acts, and that it 
 was immaterial that Francis's life estate under the deed 
 of 1861 was not expressed to be restored to him by the 
 re-settlement of 1889. These cases establish that when 
 lands have been limited to various beneficiaries succes- 
 sively by a series of family settlements or re-settlements, 
 and there is still subsisting in the lands any estate or 
 interest (though it be no more than a rentcharge or a 
 charge of portions) limited to a beneficiary by any 
 deed of settlement earlier than that which conferred the 
 estate of the tenant for life, then these deeds of settle- 
 ment together constitute a settlement for the purposes 
 of the Settled Land Acts, and the tenant for life can 
 sell and convey the settled lands free from the estates 
 or interests limited to beneficiaries by any of the earlier 
 
 309
 
 310 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Assignments 
 of or charges 
 on the life 
 estate in 
 consideration 
 of marriage 
 or by way of 
 family 
 arrangement. 
 
 deeds (;/). TheteTmbeneficianpfi is here applied to persons 
 taking some estate or interest by way of settlement, 
 that is to say, in consideration of marriage or natural 
 affection or of effecting a family settlement or re-settle- 
 ment ; the rule does not extend to estates created by 
 way of mortgage, or, apparently, on a sale in the strict 
 sense of the word {z). The definition of the settlement 
 has been further extended by the Settled Land Act, 
 1H90 (n), providing that every instrument whereby a 
 tenant for life, in consideration of marriage or as part 
 or by way of any family arrangement, not being a 
 security for payment of money advanced, makes an 
 assignment of or creates a charge upon his estate or 
 interest under the settlement, is to be deemed one of the 
 instruments creating the settlement, and not an instru- 
 ment vesting in any person any right as . assignee for 
 value within the meaning or operation of sect. 50 of the 
 Actof 1882(^). 
 
 Thecompound When, however, a settlement for the purposes of the 
 
 settlement. Settled Land Acts was first held to be constituted by a 
 
 series of deeds of family settlement, the question arose, 
 
 who could be the trustees of such settlement ; for any 
 
 trustees appointed by any of the deeds were only trustees 
 
 Trustees of of the family settlement made by that deed. The diffi- 
 
 settleSr''^ culty was solved by the appointment by the Coiu«t of 
 
 trustees for the purposes of the Acts of the compound 
 
 settlement (as it was called) constituted by the series of 
 
 {>/) See also He Wiinborne and 
 Browne's Contract, 1904, 1 Ch. 
 537 ; Re Fhillimore'' s Estate, 1904, 
 2 Ch. 460 ; Re Marshall's Settle- 
 ment, 1905, 2 Ch. 325. 
 
 (2) Above, pp. 1, 266. 
 
 (a) Stat. 53 & 54 Vict. c. 69, 
 s. 4, which is to apply and have 
 ettect with respect to every dis- 
 position before as well as after 
 
 the passing of that Act, unless 
 inconsistent with the nature or 
 terms of the disposition. 
 
 (/>) See Re Ailcsburif\s iScttled 
 Estates, 69 L. T. N. S. 493 ; Re 
 Titbits' Settled Estates, 1897,' 2 
 Ch. 149 ; Re Dii Cane and Nettle- 
 fold's Contract, 1>S98, 2 Ch. 96, 
 108-110. Section 50 of the Act" 
 is stated below, p. 321.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 family settlements (c). It is accordingly necessary, 
 whenever title is made through an exercise of the 
 statutory power of sale by a tenant for life under such 
 a compound settlement, for the purchaser's counsel to 
 satisfy himself that tlie persons who are alleged to be 
 the trustees of the settlement are the duly constituted 
 trustees of the compound settlement {d). In regard to 
 this question, care must be taken to distinguish the 
 cases where a tenant for life purports to convey the 
 settled land for all the estate limited by a compound 
 settlement from those in which he is really selling and 
 conveying as tenant for life under a simple deed of 
 family settlement, of which trustees for tlie purposes of 
 the Settled Land Acts have been duly appointed. 
 Where a deed of family settlement in the usual form 
 has been executed containing powers of jointuring or 
 charging portions and an appointment of trustees for 
 the purposes of the Settled Land Acts, and these powers 
 have been executed by some subsequent deed or deeds, 
 the original deed still remains the settlement for the 
 purposes of the Acts, and on a sale by the tenant for 
 life thereunder the trustees thereof are the proper persons 
 to receive the purchase money {e). The original deed 
 also remains the settlement for the purposes of tlie Acts 
 and the trustees thereby appointed remain the trustees 
 of the settlement, notwithstanding the absolute assign- 
 ment over (,/') or the re-settlement of any estate limited 
 
 (f) lie AUesbxrii mul lieiKjh^ 149, which at fir.st occasioned 
 
 1893, 2 Ch. 340, ';3o8, 3o9 ; ' R, great difficulty to the profession, 
 
 Mundy and Jtopcr's Contract, 1899, must now be taken as having' 
 
 1 Ch. '27"), 298. decided no more than that it is 
 
 (rf) See Jie Speiuri\i Settled within the jurisdiction of the 
 
 Estatfx, 1903, I Ch. "5 ; Jtc Co>d/\s Court to treat a deed of settle- 
 
 Scttlrd Kxtalrn, 190."), 1 Ch. 712. ment followed by deeds exercising 
 
 ()') It'' Keck and lliirt^s Contract, powers contained therein as 
 
 1898, 1 Ch. 617; Re Da Caitc and together constituting a compound 
 
 Nvltlefohrx Contract, 1898, 2 Ch. settlement and to appoint trustees 
 
 96, approved Rr Mumtij and of such compound settlement 
 
 Roper\H (hntract, 18ii9, 1 Ch. 27o, accordingly. 
 
 ;J96. The earlier case of Re Tih- (/) Wheelwright v. Walker, 23 
 
 bits' Settkd Estates, 1897, 2 Ch. Ch. D. 7.')2. 
 
 mi
 
 312 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 by the original deed in remainder after the estate of the 
 tenant for life (r/). Where there has been a deed of 
 settlement creating estates for life and in tail and 
 appointing trustees for the purposes of the Settled Land 
 Acts, and afterwards a disentailing assurance has been 
 executed with the conciu-rence of the tenant for life and 
 a re-settlement made limiting the lands to the use of 
 the tenant for life in restoration of his former estate or 
 otherwise expressing the intention that the powers given 
 to the trustees of the original deed of settlement shall 
 not be destroyed (/?), the tenant for life can exercise his 
 statutory power of sale as tenant for life under the 
 settlement made by the first deed and require the pur- 
 chase money to be paid to the trustees for the purposes 
 of the Settled Land Acts appointed by or under that 
 deed. And he may do this, although he subsequently 
 part with his old life estate, and even if his old life 
 estate were extinguished by the re-settlement ; since the 
 powers conferred by the Acts are incapable of assign- 
 ment or release (/). It follows that, where upon such 
 a re-settlement the former estate of the tenant for life 
 is not expressed to be restored, and the powers given by 
 the original settlement are not expressly preserved, the 
 tenant for life can nevertheless, by an exercise of his 
 statutory power, sell under the original settlement and 
 convey all the estate thereby limited, including that 
 dealt with by the re- settlement ; and upon such a sale 
 the trustees of the original settlement will be enabled to 
 give a good discharge for the purchase money. As we 
 have seen (/.•), after a settlement and re-settlement of 
 this kind, any person who has taken a life estate under 
 
 (g) Re Kiioivles' Settled Estates, {i) Re Wimborne an^ Broivne's 
 
 27 Ch. D. 707; Re Dn Cane and Contract, 1904, 1 Ch. 537; and 
 
 NettlefoUr s Contract, 1898, 2 Ch. &ee Re Miindy and Roper'' s Contract, 
 
 96, 101. 1899, 1 Ch. 275, 296, 297; below, 
 
 (h) See Re Wright's Trustees and pp. 318, 324. 
 
 Marshall, 28 Ch. D. 93. (/,) Above, p. 309.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. ''^1''^ 
 
 the re-settlement (whether he were tenant for life under 
 the original settlement or not) can sell as tenant for 
 life under the compound settlement (consisting of the 
 original settlement and the re-settlement taken together) 
 and convey all the estate limited by and still subsisting 
 under such compound settlement ; but in such a case 
 trustees of the compound settlement must be duly 
 appointed to receive the purchase money (/). It has 
 further been considered that in such eases of a settle- 
 ment and re-settlement, the re-settlement alone may be 
 treated as the settlement for the purposes of the iSettled 
 Land Acts, notwithstanding that the settlement and 
 re-settlement may together be treated as a compound 
 settlement ( m) . If in such cases the tenant for life 
 purport to sell and convey as tenant for life under the 
 re-settlement alone, the purchase money can be paid to 
 the trustees for the purposes of the Acts appointed by 
 the deed of re-settlement : but the assurance made by the 
 tenant for life will onl}- operate to convey the settled 
 land discharged from the limitations of the re-settle- 
 ment ; and if on such a sale any estate or interest 
 limited by the original settlement should be still sub- 
 sisting, the persons entitled tliereto must concur in the 
 conveyance to the purchaser in order to release the 
 same. 
 
 As above stated, the principle governing these Principle to 
 decisions is that in determining whether a man is under°vXit 
 
 tenant for life under a series of instruments consti- settlement 
 
 , 1 1 i one is tenant 
 
 tutiug a so-called compound settlement, or imder what for life. 
 
 settlement he is tenant for life for the purposes of the 
 
 Settled Land Acts, the true test is not whether he is 
 
 in of his old estate or whether an intention of keeping 
 
 (/) See Jie Miindy utid lio/jer'-s {in, lie Du Caiuuud Xettlefold's 
 
 Contract, 1899, 1 Uh. 275, 294, Contract, 1898, 2 Ch. 96 ; He 
 
 296, 298; He Spenccr'a Settled Miaidi/ and Hoper'n Contract, I8dd, 
 
 Extates, 1903, 1 Ch. lb. 1 Ch. rih, 295-296.
 
 814 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Contract. 
 
 alive the powers annexed to any former life estate of his 
 has been expressed, but regard is to be had solely to the 
 intention of the Acts and the definitions therein con- 
 tained ; for the powers conferred by the Acts acquire 
 theii* validity, not from any antecedent act or intention 
 of the parties to a settlement, but from the sovereign 
 power of the legislature alone (>?). This principle, how- 
 ever, appears to have been disregarded by Farwell, J., 
 
 Re CormcaiUs in the case of Re Corntml/i.s West and Munro's Con- 
 West and //NPi'ii -If 
 3funro\s tiYfct (o), ot whicli the material facts appear to be 
 
 these : — By virtue of a settlement made by will lands 
 were limited to the use of A. for life, with remainder to 
 the use of B. in tail male, and a jointure rentcharge 
 was limited to issue thereout to the use of C, A.'s wife. 
 A. and B., by a disentailing assurance duly enrolled, 
 granted the lands to X. and Y. and their heirs, to such 
 uses as A. and B. should jointly appoint ; and by a deed 
 of re-settlement A. and B., in exercise of this power, 
 appointed the lands to such uses as they should by deed 
 jointly appoint, and, in default of appointment, to the 
 use that B. should receive thereout a yearly rentcharge, 
 and subject and charged as aforesaid to the use of A. 
 for life in restoration of his former estate under the 
 will, with remainder to B. in fee ; and D. and E. were 
 appointed to be trustees of the deed of re-settletnent for 
 the purposes of the Settled Land Acts. A. afterwards 
 contracted to sell the lands as tenant for life selling 
 luider these Acts, and he proposed to make title as 
 tenant for life under the deed of re-settlement, the 
 purchase money being paid to the trustees appointed 
 thereby, and C, the jointress, concurring in the con- 
 veyance to release her jointure. The purchaser ob- 
 jected to the title so offered on the ground that the will 
 
 n) See lie Ailesbicn/andlrcaffh, 293 — 297. 
 1893, 2 Ch. 345; He Mimdi/ and (o) 1903, 2 Ch. 150; 72 L. J. 
 
 lioper's Contract, 1899, 1 Ch. 276, Ch. 499.
 
 OF TITLE UNDER THE EXERCISE OF POWERS, 315 
 
 and the re-settlement constituted a " compound settle- 
 ment," and that, without the appointment by the Court 
 of trustees of such compound settlement, a good dis- 
 charge for the purchase money could not he given. 
 Farwell, J., upheld this objection on the ground that 
 A.'s old life estate under the will had been restored to 
 him, and so the only settlement under which A. could 
 exercise his statutory power of sale was either the 
 compound settlement created by the will and the deed 
 of re-settlement together, or else the original settlement 
 created by the will {/>). In so deciding the learned 
 judge professed to follow the case of Re Jliuidy and 
 Roper^s Contract (q) ; but it is respectfully submitted 
 that his decision is exactly opposed to the principles 
 governing the judgment in that case and is manifestly 
 wrong {>•). 
 
 It appears, then, that in the common case of a settle- The courses 
 
 ment of lands on one for life with remainder in tail teiiant*^for 
 
 followed by a disentailing assurance and a re-settlement ^i^^ after a 
 again limiting a life estate in the lands to the original 
 
 (p) See the explanation given tlemeut given in Davidson, Pree. 
 in Be Wimhorne and fiiuwncx Cuit- Conv. iii. 1030, 10:<!), 1059, 1060, 
 tract, 1904, 1 Ch. 6;i7, 542. where after limiting the first life 
 {q) Above, p. 308. estate to A. in restoration of his 
 (r) The Court of Appeal in former estate, the powers of leas 
 M'ltidi/^s riixi udopteil the view ing and of consent to the exercise 
 of eminent real property lawyers of the power of sale are given to 
 that the words '• in restoration of •' every person herehii math' tenant 
 his former life estate" have no for life" (when in possession) 
 real conveyancing value except without naming any person; Be- 
 as an expresr-ion uf intention that sides, it may well be asked, how 
 the express power.-s appendant to in C'or)iirii//is TFif<t\i ruse could B. 
 that estate shall not be destroyed ; have ac(juii-ed a rentcharge in 
 Sug. Pciw. 71, 8th ed. ; Davidson, priority to A.'s life estate unless 
 Prec. Conv. iii. o9b, 3rd ed. ; A.'s estate had been entirely 
 1»99, 1 Ch. 294. And the opinion taken away from and then given 
 of conveyancers certainly was back to him 'r But if the deed of 
 that where upon a re-settlement a re-settlement did indeed restore to 
 life estate was limited to a man A. that life estate with which he 
 in restoration of his former life had pri'viously parted, how can 
 estate, he was tenant for life it be reasonably denied he was 
 under the new settlement as well tenant for life under the re-set- 
 as the old ; see the form of re-set- tlement ?
 
 316 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 tenant for life, the following courses are open to him 
 in selling the lands under the Settled Land Acts. 
 First, whether his life estate were or were not limited 
 to him in restoration of his former estate, he may sell as 
 tenant for life under the old settlement, the purchase 
 money being paid to trustees for the purposes of the 
 Settled Land Acts duly appointed under the old settle- 
 ment. Secondly, he may sell as tenant for life under 
 the compound settlement constituted by the settlement 
 and the re-settlement together and convey the whole 
 estate limited by and still subsisting under such com- 
 pound settlement : but then trustees of the compound 
 settlement must first be appointed ; and, unless all 
 persons beneficially interested be sui Juris and concur 
 in making the appointment (.s), this can only be done 
 by the Court (t). Thirdly, it is submitted that, on 
 the principles laid down in Bp Mnndi/ and Moper'/i 
 Contract {a), he may sell as tenant for life under the 
 re-settlement alone, when the trustees of the re-settle- 
 ment may receive the purchase money ; but in that case 
 he can only convey the estate which was the subject of 
 the re-settlement. This is certainly so where his life 
 estate was not limited to him in restoration of his former 
 estate (x) ; and should be so, although his life estate 
 were limited in restoration of his former estate. But in 
 the latter case, a difficulty is raised by the decision in 
 Cornwallis Wesfs case {;/) ; and so long as that decision 
 is not overruled, a purchaser could not be advised to 
 accept the title as upon a sale under the re- settlement 
 alone, if the estate of the tenant for life had been 
 thereby given to him in restoration of his former estate. 
 
 (s) See Ee Spearixan'' s Settled trustees of a compound settle- 
 
 Estates, 1906, 2 Ch. 502, deciding ment. 
 
 that tenant for life and tenant in {t) Me Spencer'' s Settled Estates, 
 
 tail in remainder of land free 1903, 1 Ch. 75. 
 from incumbrances can, when {u) Above, pp. 308 — 314. 
 
 disentailing, together appoint {x) Above, p. 313, and n. {m). 
 
 (y) Above, p. 314.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 31' 
 
 Where there has been a settlement and re- settlement Sale by tenant 
 
 „,.„. . ,. ,. ,, for life deriv- 
 
 and the tenant tor lite in possession derives iiis estate ing his estate 
 solely from the re-settlement and never had the estate *''°™ *^® ^®' 
 or the powers of a tenant for life under the original alone, 
 settlement, he cannot of course make title as exercising 
 the powers of a tenant for life under the old settle- 
 ment, hut can only sell as tenant for life either under 
 the compound settlement or under the re-settlement 
 alone (z) . 
 
 As already stated (a) , the tenant for life is empowered T^^ excep- 
 to sell and convey the settled land discharged from all tenant for 
 the limitations of the settlement, and from all estates or ^^f®'*^ ^^"^'^^ °^ 
 
 ' conveyance. 
 
 interests subsisting or to arise thereunder : but this Estates, &c. 
 
 power is subject to three express qualifications or leaving 
 
 . . , . . priority to 
 
 exceptions, of which the first is of all estates, interests, the settle- 
 and charges having priority to the settlement. These ™*^^*- 
 may be exemplified by a lease granted or a mortgage 
 made previously to the settlement, and also by charges 
 to which a statutory priority is given, such as estate 
 duty (/;) or rentcharges created under the Improvement 
 of Land Act, 1864 {c). And where there has been a 
 settlement followed by a re- settlement or re-settle- 
 ments, and the vendor purpoi-ts to sell as tenant 
 for life under the re- settlement or the last re-settle- 
 ment alone, then, as we have seen (d), that re- 
 settlement will be the settlement for the purposes of 
 the Acts, and any estate or interest still subsisting, 
 which has been created by or under some instrument of 
 earlier date than that re-settlement, will be an estate or 
 interest having priority to " the settlement " {r). The 
 
 {z) Above, pp. 307—310, 312, (c) Stat. 27 & 28 Vict. c. 114 ; 
 
 313. see ks. 49 sq., .59 ; and see above, 
 
 (a\ Above, p. 306. p. 177 : below, Chap. X. ^ 6, 
 
 (b) Stat. 57 & ;)8 Vict. c. 30, Chap. XII. § 2. 
 
 8. 9 (1) ; see the chapter on the (rf) Above, p. 312. 
 
 Death Duties in the second (e) lie Mttndu and Roper^s Con- 
 
 volume. tract, 1899, 1 Ch. 275, 289, 290.
 
 nis 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Estates, &c. 
 
 conveyed or 
 
 created for 
 
 securing 
 
 money 
 
 actually 
 
 raised. 
 
 lie Dickin and 
 KehalV s 
 Contract. 
 
 Mortgages by 
 beneficiaries 
 of their 
 interests 
 under the 
 settlement. 
 
 Mortgage by 
 tenant for 
 life or re- 
 mainderman 
 of his estate. 
 
 second exneption is of all sucli other estates, interests, 
 and charges as have been conveyed or created for 
 securing money actually raised at the date of the deed, 
 whereby the tenant for life exercises his power of con- 
 veyance. The word other seems to relate here to the 
 estates mentioned in the first exception ; so that 
 apparently the second exception is of all such estates, 
 &c., other than those having priority to the settlement, 
 as have been conveyed or created for securing money 
 actually raised. This exception has now been judicially 
 interpreted as being an exception (in the proper sense 
 of the word) out of the enabling words of sect. 20 of 
 the Settled Land Act, 1882 ( /'), and as including only 
 such estates, interests and charges, conveyed or created 
 for securing money actually raised at the date of the 
 deed, an subsist or arise under the settlement. And it has 
 been considered that estates, interests and charges subsist- 
 ing or to arise under the settlement and conveyed or created 
 for securing money actually raised include only such 
 mortgages or charges as have been made in pursuance 
 of some power or trust for the purpose either expressly 
 contained in the settlement or' annexed by law to some 
 estate or interest conferred by the settlement ; and that 
 these words (those printed in italics) do not extend to 
 mortgages or charges made by some beneficiary under 
 the settlement of the estate or interest thereby limited 
 to him, and created in exercise of the right of alienation 
 incident to his ownership. In particular, it has been 
 decided that the second exception does not include a 
 mortgage made by the tenant for life or any remainder- 
 man of his estate under the settlement, or, where the 
 tenant for life is also the ultimate remainderman in fee 
 simple imder the settlement, a mortgage made by him 
 of all his estate in the settled land. And it is held 
 that, where such a mortgage has been made, the tenant 
 
 (/) Stat. 45 & 46 Vict. c. 38 ; see above, pp. 306, 307.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 319 
 
 for life selling under the Settled Land Act {g), so long 
 as he has obtained the consent as required by sect. 50 [h) 
 of any mortgagee of his own life estate, is enabled 
 under sect. 20 to convey the settled land to the 
 purchaser discharged from the estate of the mortgagee Purchaser 
 or mortffaffees and the charge or charges so created : c*»iinot require 
 
 " ° . the concur- 
 
 and that the purchaser cannot require the mortgagee or rence of such 
 
 mortgagees to concur in the conveyance (/). It follows ™°^ gagees. 
 
 of course from this decision that where land limited to tenant for 
 
 one for life with remainder to anothf^r in fee simple has jJiainderman 
 
 been mortgaged by a joint assurance of their estates to i" fee. 
 
 one mortgagee, his consent is all that can be demanded 
 
 on a sale by the tenant for life under the Settled Land 
 
 Acts and his concurrence in the conveyance cannot be 
 
 required. Aforfion, the tenant for life can convey the Mortgages 
 
 settled land discharged from any mortgfaffe made by any ^^ .*^f ^®' 
 
 " _ *^ T J J mamdermau 
 
 remainderman alone of his estate or interest under the alone, 
 settlement, if the charge were created solely in exercise 
 of the right of alienation incident to his ownership and 
 
 {g) Stat. 4o & 46 Vict. c. 38. above-cited decision (which is a 
 (A) See below, p. 322. most beneficent ruling for con- 
 («) Rt Dickin and KehalVs Con- veyancing practice) will be upset. 
 tract (Swinfen Eady, J.), 190S, It is respectfully submitted that 
 1 Ch. 213, 221. Prior to this the best justification for the doci- 
 decision, the writer's opinion was sion seems to be found in the 
 that, where a remainderman had learned judge's observations 
 mortgaged his estate under a (ly08, I Oh. 218) that if the 
 settlement, a purchaser from the second exception above men- 
 tenant for life selling under the tioned should extend to mort- 
 Settled Laud Acts could not gages by beneficiaries for life or 
 safely accept the title without in remainder of their estates 
 the concurrence of the mortgagee. under the settlement, that would 
 The wiiter based this opinion on go far to render any sale under 
 the wording of the Act and on the Settled Land Acts impossible, 
 the balance of authority prior to and that mortgages by the re- 
 the decision above cited. His maiuderman should be governed 
 reasons were stated at large in by the same rule as alisolute 
 4'! Sol. J. 274, and in the first assurances of the remainderman's 
 edition of this book, vol. i. pp. 323 estate (as to which see above, 
 —327,330-334: but he expressed pp. 311, u. (/), 312, n. (</)). On 
 the view that the Court would this ground the decision has been 
 strive to overcome the difficulty approved by the C. A. ; Re Davies 
 raised. These pa.ssages are omit- and Kent's Contract, H»10, 2 Ch. 
 ted from the present edition, 36, 53 sq. 
 because it is not likely that the
 
 320 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Wliat mort- 
 gages come 
 within the 
 second excep- 
 tion. 
 
 Purchaser 
 must require 
 the concur- 
 rence of all, 
 whose charges 
 fall within 
 the second 
 exception . 
 
 not under any power or trust for the purpose contained 
 in the settlement ; and in such case neither the consent 
 nor the concurrence of the mortgagee can be demanded. 
 lu stances of estates, interests and charges, which do fall 
 within the terms of the second exception and cannot 
 be displaced by the life-tenant's power of conveyance 
 under the Settled Land Acts are those limited or created 
 by mortgages made to secure sums of money actually 
 raised under some trust or power contained in the settle- 
 ment, such as to charge portions for younger children, 
 for a tenant for life or in remainder to raise and charge 
 a capital sum for his own benefit, or for the trustees of 
 the settlement or the tenant for life or any other person 
 entitled thereunder to raise money by mortgage for 
 some purpose advantageous to all the beneficiaries, for 
 example, for discharging incumbrances, enfranchising 
 copyholds, or making improvements, or for equality of 
 exchange or partition. The second exception also in- 
 cludes all estates or interests created in exercise of any 
 power given by the Settled Land Acts (k) or any other 
 statute for the tenant for life or any other person 
 entitled under or by virtue of the settlement to mortgage 
 or charge the settled land (/). And whenever it appears, 
 upon a sale made by a tenant for life under the Settled 
 Land Acts, that the settled land is subject to any estates 
 or interests comprised within this second exception, the 
 purchaser must require the persons entitled thereto to 
 concur in the conveyance and assure their estates or 
 interests to him (m). The second exception includes 
 only estates or interests conveyed or created for securing 
 money, that is, by way of mortgage or charge, and does 
 not extend to those conveyed or created on an absolute 
 sale, from which the settled land will be effectually 
 
 {k) See stats. 45 & 46 Vict, 
 c. 38, ss. 18, 47; 53 & 54 Vict, 
 c. 69, s. 11 ; see above, p. 285. 
 
 [I) Swinfen Eady, J., Me Dickin 
 
 and EelsaWs Contract, 1908, 1 Ch. 
 213, 221. 
 
 {m) See Re Mnndy and Roper'' a 
 Contract, 1899, 1 Ch. 275, 289.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 321 
 
 discharged by the tenant-for-life's conveyance under 
 the Settled Land Acts (ii). And all charges, terms or 
 other estates to secure charges, and powers of charging 
 limited by or contained in the settlement but not 
 actually put in use or exercised by raising money 
 thereunder may equally well be displaced in the same 
 way (o). 
 
 The third exception from the estates, which a tenant The third 
 for life is empowered by the Settled Land Acts to {^.^^^ ^he 
 convey {p), appears to be confined to leases and grants life-tenant's 
 made by the tenant for life, or his predecessors or the conveyance. 
 settlement trustees in exercise of some power or trust 
 for the purpose contained in the settlement or of some 
 statutory power ( q) . 
 
 With regard to dispositions made by a tenant for life Dispositions 
 of his life estate in exercise of the right of alienation tenant for life 
 incident to his ownership (r) , the Settled Land Act, ^° f u ^^?*ht f 
 1882 (s), provides that the powers under this Act of a alienation 
 
 . ii>Tj> i iir • i. 1 incident to his 
 
 tenant tor iiie are not capable ot assignment or release, ownership. 
 and do not pass to a person as being, by operation of law 
 or otherwise, an assignee of a tenant for life, and remain 
 exercisable by the tenant for life after and notwith- 
 standing any assignment, by operation of law or other- 
 wise, of his estate or interest under the settlement ; also 
 that a contract by a tenant for life not to exercise any of 
 his powers under the Act is void (f) . But these provisions Rights of an 
 are to operate without prejudice to the rights of any value of the 
 person being an assignee for value of the estate or ^^*® estate, 
 interest of the tenant for life ; and in that case the 
 
 («) See Wheelictit/ht v. Walker, (p) Above, p. HOT. 
 
 23 Ch. D. 752: above, p. 311 ; [q) See above, p. 318. 
 
 Re Dickin and KehalVs Contract, (»•) Above, p. 318; Wms. Real 
 
 1908, I Ch. 213, 218. Prop. 118, 2Isted. 
 
 (o) Stirling, J., if*- />« Cane and («) Stat. 45 & 46 Vict. c. 38. 
 
 Nettlefold'x Contract, 1898, 2 Ch. s. 50, sub-s. 1. 
 
 96, 108; Be Mundi/ and Roper's [t) Sect. 50, sub-s. 2. 
 Contract, 1899, 1 Ch. 275, 290. 
 
 w. 21
 
 322 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 assignee's rights are not to be affected without his 
 consent, except that, unless the assignee is actually in 
 possession of the i^ettlpd land or part thereof, his consent 
 shall not be necessary for the making of leases thereof 
 by the tenant for life, provided the leases are made at 
 the best rent that can reasonably be obtained, without 
 fine, and in other respects are in conformity with this 
 Act {21). In this enactment "assignment" includes 
 assignment by way of mortgage, and any partial or 
 qualified assignment, and any charge or incumbrance, 
 and " assignee '' has a meaning corresponding with that 
 Morto-a,?es by of assignment (.r). It is clear from this enactment that, 
 Mfe^of his"^ where a tenant for life has mortgaged his life estate, he 
 life estate. cannot make a valid title on a sale of the settled land 
 under the (Settled Land Acts without the consent of 
 every such mortgagee (//). But as we have seen, it 
 has been held that, if the tenant for life obtain the 
 consent of every mortgagee of his life estate to his sale 
 of the settled land under the Settled Land Acts, he can 
 convey the land discharged from such mortgages and 
 the purchaser cannot require the mortgagees to concur 
 in the conveyance to him iz). It is thought, however, 
 that the purchaser is entitled to require that the consent 
 of every- such mortgagee to the sale shall be absolute 
 and not revocable, and shall be manifested as such by 
 some writing signed by him or his authorised agent, 
 and duly stamped as an agreement {a) ; for the giving 
 of such consent appears to be of the nature of a contract 
 respecting an interest in land and so to be governed by 
 the fourth section of the Statute of Frauds {b). It is a 
 
 iu) Sect. 50, sub-s. 3. v. Curzon-Hoive, 40 Ch. D. 338, 
 
 {J) Sect. 50, sub-s. 4, by which 340, 341 ; S. C, 41 Ch. D. 375. 
 
 sect. 50 is also extended to as- (z) Re Dickin and KelmWs 
 
 signments made or coming into Contract, 1908, 1 Ch. 213 ; above, 
 
 operation and to acts done before p. 319. 
 
 or after the commencement of the (a) See above, p. 28, n. [e). 
 
 Act. (*) Stat. 29 Car. II. c. 3; 
 
 (?/) Re Sehfight^s Settled Eitntes, above, p. 3. The element of cou- 
 
 33 Ch. D. 429, 437, 438 ; Cardiyan sideration appears to be present
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 323 
 
 question whether a lease granted by the tenant for life Lease granted 
 
 in exercise of the right of alienation incident to his y^^ at com-" 
 
 ownership is a partial or qualified assignment within ™o° 1^^'- 
 
 the meaning of the above enactment : but until it is 
 
 decided not to be, a purchaser from the tenant for life 
 
 should require him to obtain the consent of such a lessee 
 
 to the sale. The effect of the above-quoted provisions 
 
 is exactly the same as regards absolute assignments as Absolute 
 
 in the case of mortgages of the life estate, the consent for value of 
 
 only of an absolute assignee for value of the life estate *^^ ^^^ 
 
 , ° , . tenant s 
 
 (and not his concurrence in the conveyance) being estate, 
 necessary to enable the tenant for life to convey the 
 settled land discharged from the assignee's estate (d). 
 It must not be forgotten, however, that all assignments Assignments 
 of the life estate made (whether absolutely or by way of estate in con- 
 charge) in consideration of marriage or as part or by sideration of 
 
 iTiRmft^^G or 
 
 way of any family aiTangement are by the Settled by way of 
 Land Act, 1890 (e), excepted from the operation of arrangement 
 sect. 50 of the Act of 1882 ; and the tenant for life is 
 enabled, by the exercise of his power of sale and con- 
 veyance under this Act, to convey the settled land 
 discharged from the estate or interest of any person 
 entitled under an assignment of this kind. Thus where Settlement 
 there has been a settlement followed by a re-settlement g°ttlement 
 limiting a life estate to the same person who was tenant limiting rent- 
 for life under the original settlement (whether in restora- priority to 
 tion of his former life estate or not), and he desires tt>e original 
 
 . life estate. 
 
 to sell under the Settled Land Acts as tenant for life 
 under the original settlement (/*), he need not obtain 
 the consent of any person to whom he has by the 
 re-settlemeut either in consideration of marriage or by 
 way of some family arrangement made an assignment 
 
 in gi^ang such consent ; as it is (rf) Above, pp. 318 — 322. 
 
 accorded ou the terms of the [i-) Stat. 53 & 54 Vict. c. (ill, 
 
 mortgugoe's charge being trans- s. 4 ; above, p. 310. 
 ferred to the veudor's interest in (/) See above, pp. 307 — 317. 
 
 the purchase money. 
 
 21(2)
 
 324 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 of or charged liis former life estate. For instance, if 
 the re-settlement provide that in consideration of the 
 marriage of his eldest son (being the tenant in tail) or 
 by way of family arrangement, the son or the son's 
 intended wife shall have a rentcharge or rentcharges to 
 take effect during the father's lifetime in priority to his 
 life estate, it will not be necessary for any person 
 entitled to such a rentcharge to consent to the sale. 
 And every such rentcharge will be displaced by the 
 life-tenant's sale and conveyance in exercise of his 
 statutory powers as tenant for life under the original 
 settlement ; the purchase money can safely be paid to 
 the trustees for the purposes of the Settled Land Acts 
 under the original settlement ; and trustees of the 
 G-ratuitous compound settlement need not be apj)ointed {g). It 
 thr^restate. appears too that, where the tenant for life has made a 
 gratuitous assignment of his life estate, he can never- 
 theless sell and convey the settled land freed from the 
 Release of the assignee's estate, without his consent {h). It has been 
 held that if a tenant for life assign or release an 
 undivided share of the land he holds to the remainder- 
 man, so as to effect a merger of the life estate therein, 
 he nevertheless retains his statutory power of sale over 
 the whole of the land {i). And the tenant for life 
 equally retains his powers under the Settled Land Acts 
 where he has released his life estate to some remainder- 
 man entitled for life or in tail (whether under the 
 original settlement or some re-settlement) so that the 
 land still continues to be subject to a settlement, or (as 
 
 [g) See above, p. 310, aud cases Vict. c. 38, s. 2 (5); see Re 
 
 cited in n. [b). Mundy and Roper'' s Contract, 1899, 
 
 {h) This seems to be the case, 1 Ch. 275, 296, 297 ; Re Barlow's 
 
 notwithstanding that by such an Contract, 1903, 1 Ch. 382, 384 (in 
 
 assignment the tenant for life has which case it is presumed that 
 
 parted vrith the possession or the release was made for value) ; 
 
 receipt of the rents and profits of Re TFinihorne and Browne'' s Con- 
 
 the settled land, and has so ceased tract, 190-J. 1 Ch. 537, 541, 642. 
 
 to come within the definition of a (i) Re Barlow's Contract, 1903, 
 
 tenant for life in stat. 45 & 46 1 Ch. 382.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 325 
 
 it appears) where he has released his life estate to a 
 remainderman in fee simple, but some rentcharge or 
 charge of portions remains subsisting under the original 
 settlement (/«•) . But where no interest or charge remains 
 subsisting or exercisable under the original settlement, 
 it is a question whether the tenant for life would retain 
 his statutory powers after the release by him to a 
 remainderman in fee simple of his life estate in the 
 whole of the settled land, for then the settlement would 
 be brought to an end (/). 
 
 Another effect of sect. 50 of the Settled Land Act, Bankruptcy 
 1882 (m), is that on the bankruptcy of a tenant for life foi.*i^e.°* 
 his statutory powers do not pass to his trustee in bank- 
 ruptcy but remain exercisable by him ; and it is thought 
 that the trustee cannot be said to be an assignee for 
 value of the bankrupt's estate. It is also submitted 
 that a purchaser from the trustee of the bankrupt's 
 life estate is not " an assignee for value of the estate or 
 interest of the tenant for life " within the meaning of 
 sub-sect. 3 of this enactment (ii), which seems to be 
 intended to save only the rights of an assignee for 
 value who has obtained the life estate by the direct 
 assurance of the tenant for life himself (o) . Where a -^^ct of bank- 
 contract for the sale of the settled land has been signed tenant for 
 by the tenant for life, the subsequent commission by !^® ^^'.®'" ^^^®' 
 him of an act of bankruptcy, whether followed or not completion. 
 by an adjudication of bankruptcy, can be no bar to his 
 effectual completion of the sale under the powers of the 
 Settled Land Acts, and the purchaser need not require 
 
 (k) Re Wimborne and Broione's [m) Above, p. ill. 
 
 Contract, 1904, 1 Ch. 537 ; see (n) Above, p. 321. 
 
 above, p. 3J4 : llr P/iilliinore's (o) If this were not so, then 
 
 Estate, 1904, 2 Ch. 400; Jte May- the rights of a purchaser for 
 
 shalVs Settktnent, 1905, 2 Ch. value from a srratuitous assignee 
 
 325. of the life-tonant's estate could 
 
 (/) See Re Mundu and R^er's nut bo affected without his con- 
 
 Contract, 1899, 1 iCh. 275, 296, sent. But it is submitted that 
 
 297. this is not the law.
 
 326 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 the consent or concurrence of the trustee in the bank- 
 ruptcy or of any assignee from him of the bankrupt's 
 life estate. For the trustee and any purchaser from him 
 of the life estate would take the vendor's property 
 subject to all equities affecting it, and to the right of 
 the purchaser from the tenant for life to have his con- 
 tract specifically performed, and the purchase money is 
 payable, not to the trustee in the bankruptcy, but to 
 the trustees for the purposes of the Acts or into 
 
 Sale under the Court ( p) . And if a tenant for life, who has already 
 Settled Land y\ , o ^ , , , i- ■,• . n 
 
 Acts by a committed an act oi bankruptcy or been adjudicated 
 bankrupt bankrupt, afterwards sell the settled land under the 
 
 tenant tor ^ ' 
 
 life. Settled Land Acts, there appears to be no doubt that 
 
 he can well complete the sale in exercise of the power 
 of conveyance given by the Acts, if the life estate has 
 not then been sold by the trustee in the bankruptcy. 
 Until it is established by decision that the power of the 
 tenant for life to sell and convey is altogether paramount 
 to the rights of his trustee in bankruptcy and any 
 purchaser of the life estate from the trustee, it appears 
 advisable for a purchaser of the settled land from a 
 tenant for life, who has committed an act of bankruptcy 
 or been adjudicated bankrupt, to ascertain, before paying 
 his purchase money, either that no bankruptcy proceed- 
 ings have been taken or no adjudication made (in either of 
 which cases the vendor would clearly have full power to 
 convey), or that no sale of the life estate has been made 
 by the trustee. And if the trustee should have sold the 
 life estate, it is thought that the purchaser from the 
 tenant for life should require to be satisfied, before 
 paying his purchase money, that the purchaser of the 
 life estate does not claim to be entitled to keep hold 
 of the settled land while the life estate endm'es but will 
 peaceably yield up possession to him on completion (r/). 
 
 (p) See and compare below, {q) It is thought that if the 
 
 Chap. XI., § 2. trustee in banki-uptcy or the pur-
 
 OF TITLE UNDER THE EXERCISE OF POWERS. ^'-"^ 
 
 Where a debtor's life estate is vested in a trustee under Trustee 
 
 ... ^ p L 1 -L takinar the 
 
 a composition or sciieme oi arrangement approved by jjfg estate 
 the Court in bankruptcy proceedings prior to any adju- under a 
 dication of bankruptcy (r) , it is thought that the trustee or scheme of 
 is an assignee for value taking the life estate directly ^i^^ank^^ te 
 from the tenant for life ; for the trustee acquires the proceedings, 
 life estate, not by mere operation of law, but by the 
 debtor's own act and agreement under a contract 
 sanctioned by the Court and in consideration of the 
 creditors relinquishing their right to proceed to an 
 adjudication of bankruptcy. The trustee appears in 
 fact to be in the same position as a trustee under a deed 
 of assignment of the life-tenant's estate executed for the 
 benefit of his creditors without any bankruptcy proceed- 
 ings having been taken. And it is thought that in 
 either of these cases the trustee's rights cannot without 
 his consent be afPected by a sale subsequently made by 
 the tenant for life of the settled land. 
 
 As the tenant for life is only empowered to convey Purchaser 
 the settled laud for the estate or interest which is the sub- ^^'"^",'.1®°?°*^, , 
 
 lor life should 
 
 ject of the settlement, and with the exceptions above men- require evi- 
 tioned (s), and cannot displace the rights of his assignees non-existen^ce 
 for value without their consent (0, it is of the highest of estates, &c. 
 importance for a purchaser from a tenant for life selling latter cannot 
 under the Settled Land Acts to ascertain, first, that the ''""^^y- 
 estate or interest which is the subject of the settlement 
 is the whole fee simple or other estate contracted to be 
 sold; and, secondly, that there is not any subsisting 
 estate, interest, or cliarge, in or upon the lauds sold 
 which will not pass under the vendor's statutory con- 
 chaser of the life estate should so n. (c), 217, 2l8t ed. 
 yield up possession to the pur- (?•) See stat. 53 & 54 "Vict, 
 
 chaser from the tenant for life, c. 71, s. 3 (ifi, 17); see Wms. 
 that would bo equivalent to a Pers Prop. 252, 253, 16th ed. 
 surrender by operation of law of (,v) Above, pp. 307, 317—327. 
 
 the life estate in the settled land ; \t) Above, p. 322. 
 
 see Wms. Real. Prop. 100, and
 
 3'^8 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 veyance. With regard to the first of these requirements, 
 the purchaser's counsel must ascertain from the abstract 
 whether the settlor were seised of or otherwise well 
 entitled to the whole estate in fee simple or other interest 
 sold. And if this were the case, the tenant for life under 
 the settlement can well convey the same estate or interest 
 by an exercise of his statutory power of sale, even 
 though the settlor did not dispose of his whole interest 
 by the settlement. For the Settled Land Act, 1882 {it), 
 provides that an estate or interest in remainder or rever- 
 sion not disposed of by a settlement, and reverting to 
 the settlor or descending to the testator's heir, is, for 
 the purposes of the Act, an estate or interest coming to 
 the settlor or heir under or by vii'tue of the settlement, 
 and comprised in the subject of the settlement. In 
 order to ascertain whether there are any estates or 
 interests coming within the exceptions out of a tenant- 
 for-life's statutory power of conveyance, a purchaser 
 from him should inquire, first, whether there are still 
 subsisting in or upon the lands sold any estates, 
 interests, or charges having priority to the settlement ; 
 secondly, whether any estates, interests, or charges in or 
 upon the lands sold have been conveyed or created for 
 securing money actuallj^ raised ; thirdly, whether any 
 such leases or grants as are mentioned in the third 
 exception (;r) have been made of the lands sold or any 
 part thereof or any interest therein ; and, fourthly, 
 whether the tenant for life has made any assignment 
 for value, whether absolute, partial, qualified or by way 
 of charge, of his life estate. As the conveyance or 
 creation of such an estate, interest, or charge, or the 
 making of such a lease or grant, or such au assignment 
 of the life estate, is an event which, if it took place, 
 must necessarily have affected the title, it appears that 
 
 (m) Stat. 45 & 46 Vict. c. 38, Contract, 1907, 1 Ch. 46. 
 s. 2 (2) ; Re Hunter and HewUifs {x) Above, pp. 307, 321.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 329 
 
 the purchaser is entitled not only to insist upon an 
 answer to this inquiry, but also to require evidence that 
 no such event has occurred (//). But if the abstract be 
 satisfactory, sufficient evidence may be afforded as to 
 the subjects of this inquiry by a statutory declaration 
 by the vendor that he has not made and does not know 
 of any such estate, interest, charge, lease, or grant, and 
 by solicitors, who have acted for the vendor and his 
 predecessors, that they know of none, coupled with the 
 facts of possession of the lands sold having gone and 
 the custody of the title deeds being in accordance with 
 the abstracted title (s) . It is submitted tha,t the making 
 of these inquiries and the requisition of this evidence is 
 not prohibited by the rule in the case of Ro Ford and 
 Hill discussed above {a) . Sect. 20 of the Settled Land 
 Act, 1S82, does not confer on the tenant for life selling 
 under that Act a general or an unlimited power of con- 
 veyance, but only gives him a limited power, subject to 
 certain exceptions {b). It is thought, therefore, that 
 the onu>i lies on him of proving that these exceptions 
 have no application in his own particular case, and that 
 he is bound to answer the above-mentioned inquiries as 
 far as his knowledge is concerned. The practice, more- Practice as to 
 over, on sales under the Settled Laud Acts is to abstract \^ settlcmeut 
 the limitations of the settlement down to the estate or on sales under 
 interest, in virtue of which the vendor claims to have Land Acts, 
 the statutory power of sale, but not further ; and it is 
 obvious that such an abstract is by no means conclusive 
 of the vendor's ability to confer a good title. The pur- 
 chaser is entitled to be satisfied that the vendor has not 
 assigned, mortgaged or charged his life estate in any 
 way, and that no charge or power of charging given by 
 the settlement has been actually put in use or exercised 
 
 (y) Above, pp. 132—134. p. 178. 
 
 (z) See above, pp. 132 — 134. (A) See above, pp. 306, 3(17 
 
 (a) 10 Ch. D. 365 ; above. 317 sq.
 
 330 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 The second 
 and third 
 exceptions 
 relate to 
 interests 
 created before 
 the date of 
 conveyance, 
 not of the 
 contract 
 for sale. 
 
 by raising money, and that no lease or grant of the 
 land sold has heen made under any statutory or express 
 power ; for if any one of these events has occurred, the 
 vendor cannot make title by himself alone (c) . And the 
 usual abstract standing by itself affords no information 
 on these points. For instance, a term on trust to raise 
 portions for younger children is generally limited in 
 remainder after their parent's life estate {d) ; and a 
 portion is sometimes raised thereunder in the father's 
 lifetime, and he joins in the mortgage to secure, either 
 by his covenant or by a charge on his life estate, the 
 interest on the amount advanced (e) . In such a case the 
 father could not sell under the Settled Land Acts without 
 the concurrence of the mortgagees in the conveyance to 
 the purchaser. Their consent alone would not suffice 
 to assure their legal estate under their mortgage of the 
 portions term. Here it should be noted that the second 
 and third exceptions above mentioned from the life- 
 tenant's power of conveyance prevent him from con- 
 veying the settled land, on a sale under the Settled 
 Land Acts, discharged from any estates or interests 
 falling within the terms of those exceptions and con- 
 veyed or created after the contract for sale but before the 
 date of the deed of conveyance (./'). Thus where since 
 the contract but before the conveyance some estate, 
 interest or charge has been conveyed or created under 
 some trust or power for the purpose contained in the 
 settlement (g) for securing money then actually raised, 
 or some lease or grant has been made, or even agreed 
 to be made, for value under some express or statutory 
 power (A), the tenant for life cannot convey the settled 
 land free from the estates or interests so arising, unless 
 
 (c) See above, pp. 164 — 168, 
 318 sq. 
 
 (d) Davidson, Prec. Conv. 
 vol. iii. 272, 3rd ed. ; Williams 
 on Settlements, 219. 
 
 (e) See Davidson, Prec. Conv. 
 
 vol. ii. part ii. 460 — 467, and 
 notes, 4th ed. 
 
 (/) Above, pp. 306, 307, 317. 
 
 (ff) Above, pp. 318, 320, 321. 
 
 (h) See above, pp. 307, 321.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 331 
 
 the persons entitled thereunder concur in the conveyance 
 to the purchaser and assure the same to him. It follows 
 that the above-mentioned inquiries with respect to the 
 second and third exceptions (?) ought to he repeated by 
 the purchaser and an answer obtained immediately 
 before the execution of the deed of conveyance. 
 But it is thought that this extra precaution is not 
 required with regard to mortgages or other assign- 
 ments for value made by the tenant for life of his 
 own life estate under the settlement. It is now decided 
 that any estates or interests conveyed or created by such 
 mortgages do not fall within the second exception above 
 referred to, and the tenant for life has power to sell and 
 convey the settled land freed from any estate arising 
 under his own assignment (whether absolute or by way 
 of charge) of his life estate, provided only that he obtain 
 the consent of every assignee for value (k). Where a 
 tenant for life has made no assignment of his life estate, 
 either absolutely or by way of charge, at the time of 
 entering into a contract for the sale of the settled land 
 under the Settled Land Acts, it appears that by making 
 such a contract he exercises a statutory power which is 
 paramount, not only in equity but at law, to the rights 
 of any subsequent assignee of liis own life estate. And 
 it is thought that the purchaser's claim to have the con- 
 tract duly completed by conveyance has priority, not 
 only in equity but at law, over the rights of any subse- 
 quent mortgagee or assignee for value of the life 
 tenant's estate, even though the mortgagee or assignee 
 should have obtained a legal estate without notice of the 
 contract for sale (/). 
 
 (i) Above, p. 328. every such contract shall be eu- 
 (k) Above, pp. 318, 319. foreeable against every successor 
 (/) The Settled Land Act, in title for the time being of the 
 1882, gives to tenants for life tenant for life; stat. 4.') & 46 
 express power to sell the settled Vict. c. 38, ss. 3, 31 (1, 2). A 
 land, and to contract to make sale of laud is made when a bind- 
 any such sale, and enacts tliat ing contract for sale is entered
 
 332 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 As to seeing Witli regard to the general necessity for a purchaser 
 for life selling from a tenant for life selling under the Settled Land 
 
 has not com 
 mitted any 
 breach of 
 his duty as 
 trustee. 
 
 Acts to see that the terms of the sale involve no breach 
 of duty on the vendor's part [m) : — The tenant for life 
 is bound, as a rule, to sell for money, as other persons 
 are on whom a power of sale has been conferred {)>) ; 
 and he cannot sell at a price to be fixed by arbitra- 
 tion (o). Sales under these Acts are also required 
 to be made at the best price that can be reason- 
 ably obtained (p) ; and the tenant for life, in exercis- 
 ing any power under the Acts, is required to have 
 regard to the interests of all parties entitled under 
 the settlement, and is in the position and has the 
 duties and liabilities of a trustee for those parties (q). 
 But it is enacted that, on a sale under the powers 
 given by the Acts, a purchaser dealing in good faith 
 with a tenant for life shall, as against all parties entitled 
 under the settlement, be conclusively taken to have 
 given the best price that could reasonably be obtained 
 
 itjto ; see Shaw v. Foster, L. R. 5 
 H. L. 321, 333, 338, 349, 356 ; 
 Lymght v. Edwards, 2 Ch. D. 499; 
 below, Chap. XI. § 1. And 
 rights given by statute must be 
 recognised and enforced by all 
 Courts, whether of legal or equit- 
 able jurisdiction, even though 
 they may confer or create in- 
 terests unknown or foreign to the 
 previous law ; see Lord Advocate 
 V. Jl/orai/, 1905, A. C. 531. 
 
 {»/) Above, p. 301. 
 
 (w) See above, p. 267. For ex- 
 ceptions see stats. 45 & 46 Vict. 
 c. 38, 8S. 10, 16 ; 53 & 54 Vict, 
 c. 69, s. 9 ; Housing of the Work- 
 ing Classes Act, 1890 (stat. 53 & 
 54 Vict. c. 70), s. 74. 
 
 (o) Jie Wilton'' s Settled Estates, 
 1907, 1 Ch. 50, 55, in which rase, 
 however, a private Act of Parlia- 
 ment had been obtained confirm- 
 ing a contract by a tenant for life 
 to sell at a valuation, and it was 
 held that by virtue of the private 
 
 Act the sale was made valid and 
 binding on all parties interested. 
 See above, p. 270. 
 
 {p) Stat. 45 & 46 Vict. c. 38, 
 s. 4 (1)^. 
 
 [q) Sect. 53. As to the duties 
 of trustees for sale, see above, 
 pp. 263 sq. As the purchase 
 money may, at the direction of 
 the tenant for life, be invested in 
 real securities, he niay well agree, 
 on exercising his statutory power 
 of sale, to leave a proper proportion 
 of the piu-chase money on mort- 
 gage; see above, p. 367, and n. (e): 
 but in such case the trustees of 
 the settlement are not bound to 
 make the investment at the direc- 
 tion of the tenant for life, unltss 
 they are satisfied that that direc- 
 tion has been given upon a 
 proper investigation of the title 
 and a proper report as to the 
 value of the proposed security : 
 Ee Hotham, 1902, 2 Ch. 575.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 333 
 
 by the tenant for life, and to have complied witli all 
 the requisitions of the Acts {>•). And this enactment 
 has been held to protect the title of a purchaser, against 
 whom no evidence of want of good faith could be pro- 
 duced, but who had immediately resold at a large 
 increase in price (-s). This provision, however, does 
 not protect a purchaser who has notice of some im- 
 proper dealing on the part of the tenant for life. Thus, 
 if the terms of the proposed sale reserve any ad- 
 vantage to the tenant for life personally to the 
 detriment of the remaindermen, the statutory power 
 will not be well exercised, and the vendor's conveyance 
 will be void as an assurance under the Settled Land 
 Acts (t). For example, the payment of a commission 
 to the tenant for life would certainly invalidate the 
 sale (it) ; so would a stipulation that the purchaser shall 
 grant to the vendor a lease for years of the lands sold 
 or any part thereof, as the benefit of such a lease would 
 form part of the vendor's own estate, and would go on 
 his death to his executors or administrators, and not to 
 the persons entitled under the settlement. A stipula- stipulation 
 tion in a contract for sale by a tenant for life under the ^^^^ the pur- 
 
 •^ chaser shall 
 
 Settled Land Acts that the purchaser shall pay all the pay the 
 
 vendor's costs and expenses of and incident to the sale, of 'the'^sale^^ * 
 
 would not appear, as a rule, to avoid the contract ; for 
 
 the vendor's general costs of the sale are not payable 
 
 out of his own pocket, but are properly discharged out 
 
 of the purchase money or otherwise out of tlie capital 
 
 of the settled property (x) . But the case is different 
 
 if the purchaser agree to pay any costs which ought 
 
 (>•) Sect. 51, also extending, in 1893, 3 Ch. 169 ; Chandler v. 
 
 favour of a person dealiug in Bradley, 1897, 1 Ch. 315 ; Re 
 
 good faith witli the tenant for Handwun and Wilcox^s Contract, 
 
 life, to the ease of an exchange, 1902, 1 Ch. 599. 
 
 purtitiou, lease, moi'tgage or {u) Chandlery. Bradley, nh\sm^. 
 
 charge. {x) See Re Smith's Settled 
 
 («) Uurrcll V. Littkjohn, 1904, Estates, 1891, 3 Ch. 65; Smithy. 
 
 1 Ch. 689. Lancaster, 1894, 3 Ch. 439. 
 
 {J) See Sutherland \. Sutherland,
 
 334 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 properly to be borne by the vendor himself, such as the 
 costs of obtaining the concurrence of mortgagees of the 
 vendor's life estate {y). In this case the tenant for 
 life would be stipulating for an advantage to him- 
 self at the expense of the remainderman, as the pur- 
 chase money is obviously decreased by the amount of 
 costs payable by the vendor personally which the pur- 
 chaser contracts to discharge ; and the sale would 
 appear to be void. As we have seen (s), where the 
 purchaser has notice of some non-compliance with the 
 conditions of the Acts other tban those which forbid 
 the tenant for life to profit at the remainderman's 
 expense, it does not appear that he can rely on the 
 protection given by the enactment last quoted. It 
 should be noted that this enactment only gives relief 
 to a purchaser or other person dealing with the tenant 
 for life, and does not validate, in favour of a subsequent 
 purchaser, an infirm title acquired from the tenant for 
 life by a piu-chaser or lessee, who had notice of some 
 fact, which made void the attempted exercise of the 
 statutory power (a). And further, it appears that if, 
 on a purported exercise by a tenant for life of some 
 power given to him by the Settled Land Acts, he 
 do not comply in all respects with the conditions 
 prescribed by the Acts, any conveyance thereby made 
 is altogether void and not merely voidable, and does not 
 pass the legal estate in the land [b) ; save only when 
 the purchaser, lessee or other person dealing in good 
 
 [y] See Cardigan v. Curzon- question whether a lease granted 
 
 Howe, 41 Ch. I). 375 ; Re Sir under the Acts by a tenant for 
 
 Robert PeeVs Settled Estates, 1910, life to one who knew that the best 
 
 1 Ch. 389. rent was not reserved was void or 
 
 [z) Above, p. 302. voidable: but it is submitted that 
 
 (a) Re Handnian and Wilcox^s this view was mistaken, the rule 
 
 Contract, 1902, 1 Ch. 599. as to the execution of statutory 
 
 (A) See Chitty, J., Cardigan v. as well as express powers being 
 
 CMrswz-jHoMY, 30 Ch. D. 531, 540 ; that, in default of compliance 
 
 Re Norton and Las Co'^aa^ Contract, with the terms of a power, any 
 
 1'j09, 2 Ch. 69. In Re Handman purported exercise thereof is void ; 
 
 and Wilcox's Contract, 1902, 1 Ch. see above, pp. 293, 299. 
 599, it was treated as an open
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 335 
 
 faith with the tenant for life is assisted by the enact- 
 ment under discussion. 
 
 Where the title depends on the exercise by a mort- Title depend- 
 gagee of a power of sale contained or implied in the exercise of a 
 mortgage deed, the piu-chaser's counsel must satisfy mortgagee's 
 himself that the power of sale has become so exercisable 
 that a purchaser thereunder will obtain the estate 
 assured free from all equity of redemption or right to 
 set aside the sale. Under the conveyancing practice 
 prior to the year 1882, when powers of sale were usually 
 conferred by the express terms of mortgage deeds, the 
 common form was first to give the mortgagee a general 
 authority to sell at any time after the payment of the 
 principal money secured had become due (c), and then 
 to provide, particularly, that the power of sale should 
 not be executed unless and until default should have 
 been made in payment of the money secured at the 
 appointed time, and the mortgagee should have given 
 notice to pay off, and default should have been made in 
 payment for a specified time (d) after such notice, or 
 unless or until some interest should have fallen into 
 arrear for a given period (r). But in every well-drawn 
 mortgage deed an elaborate clause was inserted ex- 
 onerating a purchaser from the necessity of seeing or 
 inquiring whether any of the particular cases had arisen 
 in whicli a sale was authorised, and protecting him 
 against any impropriety or irregularity in the sale (./"). 
 
 ((-•) Usually six months after the particular cases has happened, 
 
 the date of the mortgage. in which a sale is authorised, 07- 
 
 (d) Usually six months. ivhclhtr defmiH hax been made in 
 
 (<■) Usually three months. payment of ami pruwipal or interest 
 
 (/) Davidson, Proc. Couv. vol. xecured />;/ tlie mortijat/e deed at the 
 
 ii. pt. ii. 6G kq., 79, ^508 — 310, time appointed for payment thereof , 
 
 4th ed. The form there given or tvhether any money remains on 
 
 provides that, upon any cale pur- the security of the mortyaye deed, or 
 
 porting to bo made in pursuance as to the necessity or expediency 
 
 of the mortgagee's power of sale, of the stipulations subject to 
 
 the purchaser shall not bo bound which the sale shall have been 
 
 to see or inquire whether any of made, or otherwise as to the pro-
 
 336 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 On a sale by a mortgagee under an express power of 
 sale containing a clause for the purchaser's protection 
 in the common form, the purchaser should, of course, 
 abstain from making requisitions as to any matter on 
 which he is exonerated from the duty of inquiry ; for if 
 through his own inquiries or otherwise he obtain notice 
 of some irregularity in the sale, he must have regard 
 thereto, and will no longer be protected {g). He must 
 see, however, that sufficient time has elapsed since the 
 date of the mortgage deed for the power of sale to 
 become properly exercisable (A) ; but if this appear to 
 be the case, he need make no further inquiry (i). If a 
 power of sale expressly given by a mortgage deed 
 
 priety or regularity of the sale ; 
 and that, notwithstanding any 
 impropriety or irregularity what- 
 soever in the sale, the same shall, 
 as regards the safety and protec- 
 tion of the purchaser, be deemed 
 to be within the power and be 
 valid and effectual accordingly, 
 and the remedy of the mortgagor 
 in respect of any breach of the 
 provisions of the mortgage deed 
 conferriug the power of sale or 
 any imprupiiety or irregularity 
 whatsoever in the sale shall be in 
 damages only. Where a mort- 
 gage deed contained a similar 
 clause, omitting the w^ords in 
 italics, it was held that a pur- 
 chaser buying in good faith on a 
 sale purporting to be made in 
 exercise of the mortgagee's power 
 of sale was not bound to inquire 
 whether any money remained 
 owing upon the security of the 
 mortgage deed, and would be 
 protected if the money secured 
 had been paid off at the time of 
 the sale ; Bicker v. Angerstein, 3 
 Ch. D. 600. 
 
 {g) Parkinson v. Hanbury, 1 Dr. 
 & Sm. 143 ; Selwtpi v. Garjit, 38 
 Ch. D. 273. 
 
 [h) Selwyn v. Garfit, 38 Ch. D. 
 273, where mortgage money was 
 made payable and a power of 
 sale given six months after the 
 
 date of the mortgage deed; but it 
 was provided that the mortgagee 
 should not execute the power of 
 sale unless and until default 
 should have been made in pay- 
 ment at the time appointed of 
 some principal money or interest 
 secured, and the mortgagee should 
 have given notice to pay off, (otd 
 default should have been made in 
 payment for three months after 
 such notice ; and it was held that 
 a purchaser from the mortgagee 
 purporting to exercise his power 
 of sale seven mouths after the 
 date of the mortgage deed had 
 notice ipso facto that the sale was 
 irregular ; for the power could 
 not possibly have become exer- 
 cisable until three months had 
 expired after the mortgage money 
 had become payable, that is, uutil 
 nine months after the date of the 
 mortgage deed. The sale was 
 therefore set aside on the mort- 
 gagor's application, the Court 
 being of opinion that the pur- 
 chaser was not relieved by a clause 
 for his protection in commonf orm, 
 even though it exonerated him 
 from the necessity of inquiring 
 whether default had been made 
 in payment of the money secured 
 at the time appointed. 
 (i) See note (/), above.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 33; 
 
 contain no clause for the purchaser's protection, he 
 
 must ascertain not only that the event has occurred in «. 
 
 which the power was made exercisable, but also that 
 
 the mortgag-e is still subsisting: U')- The power of sale Title under 
 
 incorporated by the Conveyancing Act of 1881 in pg^gj. of saie. 
 
 mortgage deeds made after that year (/), and since 
 
 generally relied on in practice, gives to the mortgagee 
 
 a power of sale when the mortgage money has become 
 
 due, but provides (m) that he shall not exercise such 
 
 power unless and until (I) notice requiring pavment of 
 
 the mortgage money has been served on the mortgagor, 
 
 or on one of several mortgagors, and default has been 
 
 made in payment of the mortgage money or of part 
 
 thereof for three months after such service (») ; or (2) some 
 
 interest under the mortgage is in arrear and unpaid for 
 
 two months after becoming due ; or (3) there has been 
 
 a breach of some provision contained in the mortgage 
 
 deed or in this Act, and on the part of the mortgagor 
 
 or of some person concurring in making the mortgage 
 
 to be observed or performed, other than and besides a 
 
 covenant for payment of the mortgage money or interest 
 
 thereon. This follows the old conveyancing form, 
 
 except that the power is made exercisable at an earlier 
 
 period {0) ; but tlie clause for the purchaser's protection 
 
 contained in the Act ( p) is not the same as that usually 
 
 (k) lie Edtvards to Green, 58 the expiration of the three 
 
 L. T. N. S. 789. months after the date of the 
 
 {!) Stat. 44 & 45 Vict. c. 41, notice. 
 88. 1, 19. (o) Above, p. 335. 
 
 (;h) Sect. 20. (;;) Sect. 21 (2), providing that 
 
 (w) See Barker v. Iliuigworth, where a conveyance is made in 
 
 1908, 2 Ch. 20, deciding that, professed exercise of the power of 
 
 where a notice had been served sale conferred by this Act the 
 
 requiring payment of the prin- title of the purchaser shall not be 
 
 cipal money secured at the ex- impeachable on the ground that 
 
 piratiou of three calendar months no case had arisen to authorise 
 
 from the date of the notice and the sale, or that due notice was 
 
 warning that in default nf such not given, or that the power was 
 
 papiient the mortgaget; would otherwise improperly or irrogu- 
 
 proceed to sell, the nu)rtgagee larly exercised ; but any person 
 
 was entitle<l to sell on non- damnified by an imauthoriscd or 
 
 payment of the mortgage debt at improper or irregular exercise of
 
 338 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 inserted in mortgage deeds under the old practice {q). 
 The Act gives no protection to a purchaser until he has 
 obtained a conveyance from the mortgagee in professed 
 exercise of the statutory power of sale ; and it does not 
 expressly exempt the purchaser from the duty of in- 
 quiring, before conveyance, whether the sale has been 
 properly made. If, therefore, the piu'chaser make 
 inquiry, before accepting the title, whether any case 
 has arisen to authorise the exercise of the power of sale, 
 the mortgagee will be bound to answer (r). But if the 
 purchaser, buying in good faith, refrain from making 
 any such inquiry, he will be protected against any 
 irregularity on obtaining a conveyance. It appears, 
 therefore, that he should, as a rule, abstain from making 
 such inquiries (s), and need only satisfy himself that 
 sufficient time has elapsed for the power to have become 
 properly exercisable {t). Where a mortgage deed is 
 executed in the usual form, providing for repayment of 
 the money advanced, with interest, six months after the 
 date of the deed {u), the earliest time at which the 
 statutory power of sale can become exercisable is eight 
 months after the date of the deed by the interest being 
 Waiver of two months in arrear. It appears, however, that at any 
 r^9"tnction"on^ ^^^^® ^^^^^ ^ mortgagee's power of sale has become 
 the exercise of generally exercisable — that is, after the mortgage money 
 power ?fSle^ has become due (.») — the mortgagor or his successors in 
 estate may waive compliance with any particular re- 
 striction imposed on the exercise of the power ; and in 
 such case the mortgagee can make a good title on an 
 exercise of the powers of sale {y). But such waiver, to 
 be effectual, must be given by all persons interested in 
 
 the i50wer shall have his remedy BaUc;/ v. Barnes, 1894, 1 Ch. 25. 
 
 in damages against the person {/) Above, p. 336 ; Be Tfioinpson 
 
 exercising the power. ci?!d Holt, 44 Ch. D. 492, 499. 
 
 [q) Above, p. 335, and n. (/). («) Wms. Real Prop. 549, 630, 
 
 (?■) Life Interest, %c. Corpn. v. 21st ed. 
 
 Hand in Hand, #c. Socy., 1898, 2 (x) Above, p. 337. 
 
 Ch ''30 [y) He Thompson and Holt, 44 
 
 (s) S.' C, 1898, 2 Ch. 238; Ch. D. 492.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 339 
 
 the equity of redemption ; thus, if the mortgagor have 
 made a second mortgage, his waiver alone is in- 
 sufficient (z). And where a mortgagee, selling under 
 his power of sale, asserts that he can make a good title 
 by means of such waiver, the purchaser is entitled and 
 ought to require him to prove that the alleged waiver 
 has been given by all persons interested in the equity 
 of redemption, and at his own expense to procure all 
 such persons to concur in the conveyance in order to 
 confirm the sale. Where one has bought land from a mort- Conveyance 
 gagee selling under the statutory power of sale, the pur- l.o^^.,^^^ ^^ 
 
 chaser's counsel should be careful to express in the deed of exercise of 
 
 . 1 i i 1 i • • P i 1 ^he statutory 
 
 conveyance that the mortgagee conveys in exercise or the power of sale. 
 
 power of sale conferred upon him by the Conveyancing 
 
 and Law of Property Act, 1881 ; as this Act only 
 
 protects a purchaser taking under a conveyance made 
 
 in professed exercise of the power of sale which it 
 
 confers («). 
 
 As a ride, however, the purchaser from a mortgagee Mortgagor's 
 
 IT 11' £ 1 • i. i-'ii J i. • concurrence 
 
 selling under his power oi sale is not entitled to require cannot be 
 the mortgagor's concurrence ; that is, supposing the required. 
 power to have become properly exercisable {h ) . Where "VVl)at estate 
 the power of sale is express, the mortgagee can convey can™onv^v^^^ 
 to the purchaser such estate as by the joint operation of 
 the mortgage and the power he has been effectually 
 authorised to convey free from equity of redemption ; 
 but if this do not comprise the entire fee simple or 
 other estate sold, the purchaser is, of course, entitled to 
 object to the title, and may require the concurrence of 
 all other necessary parties {<■). A mortgagee selling 
 under the power of sale given by the Conveyancing Act 
 of 1881 is enabled to convey the property sold by deed 
 
 (z) Sclwyn v. Gnrfit, 38 Ch. D. ;54(). u. ; Cordiy v. Morqan, ibid. 
 
 'i7;5. ■ 344 ; Sug. V. k P. 396," 14th ed. 
 
 (a) Above, p. 337, and n. ( p). (e) See above, pp. 164 — 166. 
 
 [b) Clay V. iS/tarpe, 18 Ves. 
 
 22 (2)
 
 340 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 for such estate and interest therein as is the subject of 
 the mortgage ((/). This does not empower a mortgagee 
 who has acquired an equitable interest only in the pro- 
 perty mortgaged to convey the legal estate therein on 
 an exercise of the statutory power of sale (fi), or a 
 mortgagee of leaseholds by way of underlease to convey 
 Copyholds. the original term (/). The Act provides ((^ ) that, in 
 the case of copyhold or customary land, the legal right 
 to admittance shall not pass by a deed exercising the 
 mortgagee's power of conveyance thereby conferred, 
 uul^^ss the deed is otherwise sufficient in that behalf in 
 law or by custom. When, therefore, a mortgage of 
 copyholds has been made in the form now usual, by a 
 deed of covenant to surrender incorporating the statu- 
 tory power of sale, followed by a conditional siu'render 
 to the use of the mortgagee (r/), and the mortgagee has 
 sold the legal interest under his power of sale, he must, 
 in ord^^r to confer upon the purchaser the legal title to 
 be admitted tenant on the court rolls (//), either procure 
 the mortgagor to surrender to the purchaser's use, or 
 himself be admitted and then execute a like surrender (/). 
 The same course is necessary when a mortgagee of copy- 
 holds sells under an express power of sale {i). 
 
 Title under 
 the power of 
 sale given to 
 mortgag-ees 
 by Lord 
 Cran worth's 
 Act. 
 
 The power of sale given to mortgagees by Lord 
 Cran worth's Act (/«•) may have been or may be well 
 exercised after the year 1881, notwithstanding the 
 repeal of the provisions of that Act by the Convey- 
 ancing Act of 1881 (/). The former Act affords the 
 
 (d) Stat. 44 & 45 Vict. c. 41, 
 8. 21 (1). 
 
 {e) Me Hoclson and Hoicch' Con- 
 tract, 35 Ch. D. 668. 
 
 (/) See Re De'ujhton and liarris' 
 Contract, 1898, I'Ch. 458 ; above, 
 p. 184, and n. (//). 
 
 {g) Wms. Real Prop. 564-566, 
 21st ed. ; Davidson, Prec. Conv. 
 vol. ii. pt. ii. 113 &q., 4th ed. ; 2 
 
 Key & Elphinstone, Prec. Conv. 
 79—82, 4th ed. ; 72—74, 8th ed. 
 
 (/() See above, p. 163. 
 
 ((■) Davidson, Prec. Conv. 
 vol. ii. pt. i. 407 — 411, and pt. ii. 
 116, 4th ed. ; and see Hall v. 
 Broiulci, 35 Ch. D. 642. 
 
 [k) Stat. 23 & 24 Vict. c. 145, 
 PS. 11- 24, 34. 
 
 (/; Stat. 44 & 45 Vict, c 41,
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 341 
 
 like protpction to purchasers when a sale has been 
 effected in professed exercise of the powers thereby 
 conferred (m) as the latter statute gives when a con- 
 veyance has been made in professed exercise of the 
 power of sale which it provided (ii). Lord Cranworth's Conveyance 
 Act (o), however, empowered a mortgagee exercising the sellh^^ imder 
 
 power of sale thereby conferred to convey or vest the Lord Cran- 
 
 •" 1 1 p 11 i.1 J. worth 8 Act. 
 
 l^roperty sold to or in the purchaser lor all the estate 
 
 and interest therein which the mortgagor had power to 
 dispose of, and so enabled a mortgagee of leaseholds by 
 demise to convey the original term (^j), and a mortgagee 
 who had obtained an equitable charge only on free- 
 holds to assure the legal estate therein {q) . The Act 
 provides, however, that in the case of copyholds, the 
 beneficial interest only shall be conveyed to and vested 
 in the purchaser by a mortgagee selling thereunder ; so 
 that if the mortgagee sell the legal interest he must 
 obtain for the purchaser the legal right to be admitted 
 tenant on the rolls by procuring a surrender to be made 
 to his use in the usual way (/•). 
 
 A mortgagee, in exercising his power of sale, does Mortgagee 
 
 not stand in a fiduciary relation to his mortgagor (s). spelling uuder 
 •^ o D » / power or sale 
 
 His only obligations are to observe the terms of the bound only to 
 power and to act in good faith {t). He is bound to f;iith" ^°° 
 sell fairly, and to take reasonable steps to obtain a 
 proper price ; and for this reason and because his autho- 
 rity is to sell and not to make himself full owner of the 
 mortgaged property, he cannot sell to himself or to a 
 
 8. 71 ; Re Solomon and Mraghir^s (p) Hiatt \. Hillman, 19W. R. 
 
 Contract, 40 Ch. D. oOS"; Re 694. 
 
 Bouchcnlt. 1908, I Ch. 180, 184; [q) Re Solomon and Meagher's 
 
 and see Williams' Conveyancing Contract, 40 Ch. D. 5u8. 
 
 Statutes, 2.51— 'i,');}. (r) Above, p. 340. 
 
 (w») Stat. 23 & 24 Vict. c. 145, («) Warner v. Jacob, 20 Ch. D. 
 
 8. 13. 220. 
 
 (n) Above, p. 337, and n. {p). {t) Kennedy v. De Trajf'ord, 
 
 Note the diitVronce in the Ian- i89G, 1 Ch. 762; 1897. A. C. 
 
 guage. 180 ; Natt v. Eaxtoii, 1899, 1 Ch. 
 
 (o) Sect. 15. 873 ; 1900, 1 Ch. 29.
 
 342 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 Kenned 1/ v. 
 Be Tmford. 
 
 Bailr.y v. 
 Barnes. 
 
 trustee or an agent for himself, or rightly pursue any 
 scheme for getting the property into his own hands 
 under the guise of sale {u) ; but he may proceed to a 
 forced sale for the purpose of paying the mortgage 
 debt (.!'). He need not sell by auction, unless of 
 course he should have been specially restricted to this 
 mode of sale by the terms of his power {y). For 
 example, the Court has upheld a sale by a mortgagee 
 to one of two mortgagors, who were tenants in common, 
 for the exact amount owing for principal, interest and 
 costs, the bulk of the purchase money being allowed 
 to remain on mortgage, when it appeared that the 
 mortgagee had acted in perfect good faith, having 
 refrained from putting the property up to auction on a 
 surveyor's advice that it would be unlikely to realise 
 the amount owing, and having advertised in vain for 
 another purchaser by private contract (s). On the other 
 hand, a sale by the transferee of a mortgage, imme- 
 diately after the transfer, for the exact sum paid for 
 principal and interest on taking the transfer, was set 
 aside, as between the parties to this sale and the persons 
 entitled to the equity of redemption, when it was shown 
 that the transferee of the mortgage had been a mere 
 nominee of the piu'chaser and there had been no bo)td 
 fide exercise of the power of sale. The piu-chaser, how- 
 ever, having mortgaged the property and resold the 
 equity of redemption prior to the commencement of the 
 proceedings to set aside the sale to her, and the purchaser 
 of the equity of redemption having taken a transfer of 
 this mortgage after he had notice of such proceedings. 
 
 (m) Downes v. Grazebrook, 3 
 Mer. 200 ; Robertson v. Korris, 1 
 Giff. 421 ; 4 Jur. N. S. 155, 443 ; 
 National Bank of Australasia v. 
 United, ^-c. Co., 4 App. Gas. 391 ; 
 Martinson v. Clowes, 21 Ch. D. 
 857, aff. 1885, W. N. 41 ; Bod- 
 son V. Deam, 1903, 2 Ch. 647 ; see 
 below, Chap. XVII. 
 
 {jc) Farrar v. Farrars, Ltd., 40 
 Ch. D. 395, 398 ; Bailey \. Barnes, 
 1894, 1 Ch. 25, 32. 
 
 [y) Kennedy v. Be Trafford, 
 1896, 1 Ch. 762, 767 ; 1897, A. C. 
 180, 185. 
 
 {z) Kennedy v. Be Trafford, ubi 
 sup.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 343 
 
 and having proved that he had no notice at the time of 
 his purchase of the equity of redemption of the circum- 
 stances attending the prior sale, it was held that he was 
 not afPected with constructive notice of these circum- 
 stances or of any imperfection in the prior sale, owing 
 to the facts apparent on the face of the title or by 
 reason of his omission to make inquiiy as to the validity 
 of the prior sale ; and it was decided that he was entitled 
 to tack the equity of redemption which he had pur- 
 chased to the legal estate acquu-ed by him under the 
 transfer of the mortgage, and so exclude the equity of 
 the persons originally entitled to redeem to set aside 
 the prior sale (a) . A mortgagee may well exercise his Sale by mort- 
 power of sale, notwithstanding that he has been in fofsess^on 
 possession of the mortgaged property for a length of ^^fter mort- 
 time sufficient to bar the mortgagor's equity of redemp- barred, 
 tion under the Statutes of Limitation ; and this is also 
 the case where the mortgage has been made, not in the 
 form now usual of a conveyance with power of sale, but 
 in the form of a conveyance on trust for sale (/>), It Sale after 
 appears too that a mortgagee may well exercise his absolute^^ 
 power of sale after he has obtained an order for fore- 
 closure absolute (c) ; and his right to exercise this power Sale pending 
 is not affected by the mere commencement of proceed- redTtn'j^tion"'^ 
 ings either by himself to obtain foreclosure, or by the proceedings. 
 mortgagor for redemption {d) . But when the mortgagee 
 has obtained an order for foreclosure ni.si, giving tlie 
 mortgagor the usual time within which to redeem, or 
 the mortgagor has obtained the common order for 
 redemption {e), the mortgagee may not exercise his 
 power of sale without leave of the Court, so long as the 
 
 (a) Bailey \. Barnes, 1894, 1 Ch. 1903, 1 Ch. 857, 862, 863. 
 
 25. (rf) AdaniH v. Scott, 7 W. R. 
 
 (b) See Locking v.I'arker, Li. "R. 213; S/treiis v. Theatres, Ltd., 
 8 Ch. 30; Re Alison, 11 Ch. D. 1903, 1 Ch. 857, 861. 
 
 284, 290, 295. I'r) See 3 Seton on Judirnient», 
 
 (c) See Stevens v.Thcutrcs, Ltd., 1895, 1926, Gth ed.
 
 344 
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 
 
 right of redemption so reserved to the mortgagor remains 
 open. The power is, however, not destroyed but merely 
 suspended during this period, and if the mortgagee do 
 exercise it within that time in favour of a purchaser 
 taking without notice of the order, it appears that the 
 latter will get a good title (/) . But if the purchaser 
 have express notice of any foreclosure or redemption 
 proceedings or any such proceedings be registered as a 
 Ik pein/oin, the purchaser will be bound by them and 
 must see that no order suspending in effect the exercise 
 of the mortgagee's power of sale has been made or is 
 still subsisting (g) . 
 
 Sale by the 
 
 mortgagee's 
 
 attorney. 
 
 He Doivson 
 and Jenkins's 
 Contract. 
 
 A mortgagee entitled to exercise the statutory power 
 of sale (//) may well do so by attorney : but any power 
 of attorney given for this purpose must expressly confer 
 either a general authority to sell all property vested in the 
 principal by way of mortgage or a special authority to 
 exercise the mortgagee's power of sale in respect of some 
 particular mortgaged property (?') . A power to sell any 
 real or personal property belonging to the principal is 
 not sufficient to authorise the attorney to sell property, 
 of which the principal is only a mortgagee entitled to 
 exercise the statutory power of sale (/.•). And though 
 such a power of attorney authorise the attorney to 
 receive and give receipts and discharges for all moneys 
 due to the principal, that does not constitute the attorney 
 " a person for the time being entitled to receive and 
 give a discharge for the mortgage money " within the 
 meaning of sect. 21, sub-sect. 4 of the Conveyancing Act 
 of 1881 (/), and so enable him to exercise a mortgagee's 
 
 (/) Stevens v. Theatres, Ltd., 
 1903, 1 Ch. 857. 
 
 (g) See below. Chap. XII., § 2. 
 
 [h) Above, p. 337. 
 
 (i) C. A., Re Doivson and Jen- 
 kins's Contract, 1904, 2 Ch. 219, 
 224, 225. 
 
 (k) Re Dowson and Jenkinses 
 Contract, 1904, 2 Ch. 219. 
 
 {/) Stat. 44 & 45 Vict. c. 41, 
 authorising any person so entitled 
 to exercise the power of sale con- 
 ferred on mortgagees by that 
 Act.
 
 OF TITLE UNDER THE EXERCISE OF POWERS. 345 
 
 statutory power of sale vested in his principal ; for these 
 words of the Act do not extend to a person entitled as 
 an agent only to give a receipt and discharge (m). The 
 like rule applies, of course, to express powers of sale 
 worded in terras similar to those of the statute. 
 
 When property is purchased, to which a mortgagee Purchase of 
 
 1 1 A'j.1 1 J J £ i" 1 foreclosed 
 
 has become entitled under a decree oi loreclosure property. 
 
 absolute («), care must be taken to ascertain that there 
 
 were not any circumstances, attending the making of 
 
 the order, which would induce the Court to re-open the 
 
 foreclosure (o). 
 
 (m) See note (A-), p. 344. (o) See Campbell x. Holylaiid, 7 
 
 (w) Wms. Real Prop. 557, Ch. D. 166 ; 1 Dart, V. & P. 468, 
 558, 21st ed. 6th ed. ; 478, 7th ed.
 
 346 
 
 CHAPTEE X. 
 
 OF PARTICULAR TITLES. 
 
 ^ 1. Sale of Copyholds. 
 
 § 2. Sale of Leaseholds. 
 
 ^ 3. Sale of lands in a Register County or 
 
 Compulsory Registration District. 
 ^ 4. Voluntary Conveyances. 
 ^ 5. Sale of Ground Rents, Reversions and 
 
 Remainders, Mines, Roads, Rivers, &c. 
 § 6. Sale of purely Incorporeal Hereditaments. 
 § 7. Sale of Charity Lands. 
 § 8. Sale of Partnership Property. 
 ^ 9. Sale by Order of the Court. 
 § 10. Sale of an Equity of Redemption. 
 § IL Sale of Licensed Property. 
 ^ 12. Land subject to Restrictive Covenants. 
 § 13. Investigation of Title in view of a 
 
 Mortgage. 
 
 ^ 1. — 8alc of Copyholdn. 
 
 Copyliulds. On the sale of copyholds, the purchaser, in the absence 
 of special stipulation, is equally entitled to have the 
 whole legal and equitable estate vested in him as in the 
 case of freeholds {ii). In copyholds, however, what 
 comes under the head of the legal estate is the tenancy 
 of the lands sold on the court rolls of the manor of 
 which they are held, for the customary estate comprised 
 in the contract for sale ; and what the vendor has to 
 prove is that he can confer this right. He will have 
 
 [n) Above, p. 163; Re Wilson'' s avd Stevens's Contract, 1894,3 Ch. 
 546, 549.
 
 OF PARTICULAR TITLES. -547 
 
 discharged his obligation if he show either that he is 
 himself the tenant on the rolls of such an estate, and so 
 can surrender the same to the purchaser's use, or tliat 
 he can, by the exercise of a power of appointment, give 
 the purchaser a direct right to be admitted of such an 
 estate, or that some other person is such a tenant, and 
 that he (the vendor) is entitled to call upon that tenant 
 to surrender to the use of the purchaser {0). It must be 
 borne in mind, however, that if there is no tenant upon 
 the rolls, and the vendor cannot by appointment give 
 the purchaser a direct right to be admitted, the vendor 
 must, at his own expense, procure a tenant to be ad- 
 mitted who shall be able to execute the necessary sur- 
 render to the purchaser. And for this purpose the 
 vendor must himself pay all fines due to the lord in 
 consequence of such admittance [c). For example, if 
 A., a tenant of copyholds in customary fee, devise them 
 to B. and C. on trust for sale, and these devisees after 
 A.'s death sell them to D., B. aud C. cannot at once 
 give D. the right to be admitted, but must themselves 
 first be admitted tenants on the rolls ; after which they 
 will be enabled to execute such a surrender to D.'s use 
 as will give him the legal right to be admitted. But 
 if A.'s will had contained a power (as distinct from a 
 trust) for B. and C. to sell his copyholds, or if A. had 
 devised his copyholds to such uses as B. and C. should 
 appoint for the piu-pose of giving effect to any sale 
 made by tht-m under the trust declared in that behalf, 
 then, if B. and (J. were to sell to D. before the lord 
 had seized qi(oi(sq«<- for want of a tenant, D. would be 
 entitled to claim admittance dii'ectly as being in fact 
 the person entitled uuder A.'s will ((/). It must be 
 
 {b) Above, pp. 164—166. AV Thames Tiorncl, ^c. Act, 1900, 
 
 (c) See Bradktj v. Muulou, 16 [1908] 1 Ch. 493. 
 
 Beav. 294; ruramoir v. Grtrn- (</) G/asuv. Iiir/iardi>on,'MIiire, 
 
 slade, 1 Sm. & GiflF. 541 ; Whifr- 69S, 2 De G. M. ic G. (i.iS ; 7,'. 
 
 Icy V. Tai/lor, 35 L. T. N. b. 187 ; v. mkan, 3 B. & S. 201 ; 6ag.
 
 3-18 OP PARTICULAR TITLES. 
 
 remembered that the lord is entitled to exact the fine 
 due by the custom on every change in the tenancy of 
 lands held of him by copy of court roll. Thus, if A., 
 tenant of copyholds in customary fee, die intestate 
 leaving B. his heir, and B. die intestate without having 
 been admitted and leaving C. his heir, and then C. sell 
 the land to D., C. must, as we have seen, procure him- 
 self to be admitted in order to give to D. the title 
 promised by the contract. But in order to procm-e his 
 admittance, C. will have to pay a double fine, namely, 
 that due on the devolution of the estate from A. to B. 
 as well as that payable on his own admission as B.'s 
 heir (e) . The lord is not, however, entitled to any fine 
 by reason of the devolution of any equitable estate or 
 interest in lands holden of him by copy ; he is only 
 concerned with the changes in the legal tenancy upon 
 the com-t rolls (/). So that if A., tenant of copyholds, 
 sell them to B. and surrender to B.'s use, and B., 
 without being admitted, sell the lands to C, and C, 
 remaining unadmitted, sell to D., there is no need for 
 either B. or C. to be admitted in order to complete C.'s 
 contract with D., but C. can call upon A., who has 
 remained the tenant upon the rolls, to surrender to D.'s 
 use, and upon the execution of such surrender D. will 
 be entitled to be admitted on payment of a single fine. 
 If A. had died, his heir or devisee (//) would have to be 
 admitted at C.'s expense in order to surrender to D. ; 
 but the only fine payable by C. would be that incurred 
 by the admission of A.'s heir or devisee (h). 
 
 V. & P. 562 ; Davidson, Prec. Foster, 3 B. & S. 805 ; 1 Scriv. 
 
 Conv. vol. ii. pt. i. p. 375, n.. Cop. 383, 405, 3rd ed. 
 4th ed., vol. iv. p. 82, n., 3rded. ; (/) JIall v. Bromley, 35 Ch. D. 
 
 Wms. Real Prop. 494, 21st ed. 642. 
 
 {e) Morse v. Faulkner, I Anst. (</) See above, pp. 216, 217, 
 
 11, 13; Morris v. Clarkson, 3 221,222. 
 
 Swanst. 558, 563, 566; Watson, {h) 1 Scriv. Cop. 404, 3rd ed. ; 
 
 B., Garland v. Alston, 3 H. & N. Garland v. Alston, 3 H. & N. 
 
 390, 393, 395 ; Londesborough v. 393 ; Sail v. Bromley, ubi sup.
 
 OF PARTICULAR TITLES. 
 
 349 
 
 If A. sell and surrender cop^^holds to the use of B. Fines on 
 
 and his heirs and B. die intestate before being admitted, after the 
 
 then under the Land Transfer Act, 1897 (i), B.'s equit- ^^^^^ ?* ^^ 
 
 , , , ^ unadmitted 
 
 able estate in the land would vest in his administrator, surrenderee. 
 
 who would thus liave the right to be admitted (/.). It 
 is a question whether the administrator claiming to be 
 admitted under A.'s surrender Avould have to pay a 
 single or a double fine (/). But as A. remains the 
 lord's tenant on the rolls until some one else is 
 admitted {k), and would be a trustee for B. and his 
 heirs, it appears that B.'s administrator might call upon 
 A. to surrender to his use, and might well claim t ) be 
 admitted under this surrender on payment of a single 
 Rne{m). And if in the case put B.'s administrator, 
 before being admitted, convey his estate in the copy- 
 holds to B.'s heir (;/), it appears that B.'s heir will then 
 
 (i) Stat. 60 & 61 Vict. c. 65, 
 8. 1 (1) ; above, pp. 228, 229, 23o. 
 
 [k) See Payne v. Barker, O. 
 Bridjr. 18. 21—25, 33 ; Doe d. 
 Tofield V. Tofifhl, 11 East, 246, 
 250 ; 1 Wat. Cop. 307 andn. (2), 
 4th ed. ; Wms. Real Prop. 485, 
 21 St ed. 
 
 (/) In 1 Wat. Cop. 364, n. H), 
 and 1 Scriv. Cop. 404, 405, 3rd 
 ed., the opinion is expressed that 
 the heir of an unadmitted sur- 
 renderee is entitled to be ad- 
 mitted on payment of a sinjrle 
 fine ; and this opinion appears to 
 be fortified bv the rule laid down 
 in Jrall V. liromley, 35 Ch. D. 
 642. Mr. Elton, however, as- 
 serted that if the surrenderee die 
 before admittance his heir must 
 pay two fines ; Elton on Copy- 
 holds, 169 (182, 2nd ed.) : but 
 the authorities cited (in the 2nd 
 ed. only) contain nolhiug- to sup- 
 port this view. In Garland v. 
 Alston, 3 H. & N. 390. 395, 
 Watson, B., said that, if tlio heir 
 is entitled only on the yround that 
 the ancestor was entitled to be 
 admitted, and the lord could 
 have compelled the ancestor to come 
 
 in and pay his fine on admittance, 
 the heir must pay a double fine. 
 These conditions are not fulfilled 
 in the ease of the heir of an un- 
 admitted surrenderee ; since the 
 lord could not have compelled the 
 ancestor to come in and be ad- 
 mitted, the tenancy continuing 
 to be full in the person of the 
 surrenderor. It is thought that 
 the case of the heir of an un- 
 admitted surrenderee is distin- 
 guishable from that of an heir 
 claiming a copyhold tenement by 
 descent after the death and in- 
 testacy of an unadmitted heir of 
 an admitted tenant, who also died 
 intestate ; see above, pp. 348, 
 and n. [e), 349, n. [k). 
 
 [m) This appears to follow from 
 the decision in Hall v. Bromley, 
 ubi sup. But of course if 
 the administrator took and ob- 
 tained admittance upon a sur- 
 render to him from A. his legal 
 title would date from that sur- 
 render only and would not relate 
 back to the surrender from A. to 
 B. ; see Wms. Real Prop. 485, 
 2lsted. 
 
 (w) See above, pp. 230, 233.
 
 350 
 
 OF PARTICULAR TITLES. 
 
 Devise by an 
 
 unadmitted 
 
 surrenderee. 
 
 be entitled to be admitted, and no fine will be payable 
 in respect of the conveyance from the administrator to 
 the heir (o). But if B. had devised his estate in the 
 copyholds or appointed executors by his will, it appears 
 that his executors, taking under the Land Transfer Act, 
 1897, or his devisee in case the executors assented to the 
 de\dse (p), could only be admitted on payment of a 
 double fine ; since the Wills Act provides that, where a 
 testator was entitled to be admitted to any real estate 
 of the nature of copyholds and might, if he had been 
 admitted thereto, liave surrendered the same to the use 
 of his will, and shall not have been admitted thereto, no 
 person entitled or claiming to be entitled to such real 
 estate in conaequenco of such will shall be entitled to be 
 admitted to the same except on payment of all such 
 stamp duties, fees, fine and sums of money as would 
 have been payable in respect of the admittance of the 
 testator thereto and his subsequent surrender thereof to 
 the use of his will, in addition to the stamp duties, 
 fine, &c. payable on the admittance of the person so 
 entitled or claiming {q). 
 
 % 2. — Sale of Leaseholds. 
 
 Leaseholds. The principal duties of a conveyancer advising a pur- 
 
 chaser of leasehold land have been already noticed (r) . 
 He must see that the lease or term offered by the 
 abstract corresponds at all points with that offered by 
 the contract. The purchaser is entitled to require the 
 assignment to him of a lease from the freeholder unless 
 the contract distinctly specified an underlease as the 
 subject of the sale («). And it is now settled that, 
 
 {o) See Hall v. Bromley, 35 
 Ch. D. 652. 
 
 ip) See above, pp. 228—2:50, 
 233, 235. 
 
 {q) Stat. 7 Will. IV. & 1 
 
 Vict. c. 26, s. 4 ; Londesborotigh 
 V. Foster, 3 B. & S. 805. 
 
 (r) Above, pp. 100, 101, and 
 n.(j), 163, 164, 176. 
 
 (•sj Above, p. 101, n. («). 
 
 I
 
 OF PARTICULAR TITLES. ^^^ 
 
 notwithstanding the general rule that notice of a docu- 
 ment is notice of its contents (f), a purchaser of lease- 
 hold land is entitled to object to the title if the covenants 
 contained in tlie lease are more onerous or stringent 
 than those usually inserted in leases of like character to 
 that purchased, unless the existence of such covenants 
 were brouglit to his notice at the time of entering into 
 the contract, either through express mention therein or 
 through his having been afforded an opportunity of 
 inspecting the contents of the lease {ii). So we have 
 seen that the existence of a considerable ground rent 
 not mentioned in the particulars on the sale of houses 
 held for a long term of years may be an objection to 
 the title (.r) . A stipulation is frequently made on the 
 sale of leaseholds by auction that the lease will be pro- 
 duced at the sale and may be inspected at the office of 
 the vendor's solicitors at any time within a week pre- 
 viously, to the sale, and that any purchaser shall be 
 deemed to have full notice of the contents of the lease, 
 whether he avail himself of the opportunity of inspection 
 or not (//). A piu-chaser of leaseholds buying under 
 such a stipulation as this cannot, of course, object to 
 anything contained in the lease (s) ; unless, indeed, an 
 actual misrepresentation has been made by the vendor, 
 in the particulars of sale or otherwise, as to the contents 
 of the lease (a). 
 
 When the property purchased is held for a term of Evidence that 
 
 a lease held 
 years determinable by re-entry for non-payment of rent subject to a 
 
 U) Above, p. '21). shall be accepted: lie Ilaedickc 
 
 \u) Reeve v. livtridye, 20 Q. B. D. and Lipskis Contract, 1901, 2 Ch. 
 
 523 ; Midgk;/ v. S.nith, 18!).{, 666. 
 
 W.N. 120; ReWltitrai)dSmith\s (x) Above, pp. 175, 176. 
 
 Contract, 1896, 1 Ch. 637 ; Molii- (y) 1 Key & Elph Prec. Conv. 
 
 nrux V. Hawtri-n, 1903, 2 K. B. 270, 4th ed. ; 259, u. (r), 8th ed. 
 
 487 ; see also Xouai/le v. Fliyht, 7 {z) See Laicriev. Lcen, 14 Ch. D. 
 
 Beav. 521 ; Rr Davis to Cavei), 40 249, 252, 257. 
 
 Ch. D. 601 ; above, p. 205. This (a) See Van v. Curpe, 3 My. & 
 
 is so even though tlii' contract K. 269 ; Flight v. Barton, ib. 282 ; 
 
 provide that the voudor's title above, p. 199.
 
 352 
 
 OF PARTICULAR TITLES. 
 
 condition of or breach of covenant (/>), it is, of course, important to 
 not deter- ascertain that no cause of forfeiture under the condition 
 mnied. ^^^ re-entry has occurred. Before the year 1882, the 
 
 purchaser in such a case was entitled, in the absence of 
 stipulation to the contrary, to require evidence that all 
 the covenants and conditions in the lease had been duly 
 performed and observed up to the date of the actual 
 completion of the contract (c). It was, however, usually 
 stipulated that production of the receipt for the last 
 payment of rent due before the completion of the sale 
 should be conclusive evidence of this (d). At the present 
 time, the purchaser's rights in this respect are regulated, 
 in the absence of special stipulation, by the following 
 provision of the Conveyancing Act of 1881 {e) : — Where 
 land sold is held by lease (not including underlease), 
 the purchaser shall assume, unless the contrary appears, 
 that the lease was duly granted ; and on production of 
 the receipt for the last payment due for rent under the 
 lease before the date of actual completion of the pur- 
 chase, he shall assume, unless the contrary appears, that 
 all the covenants and provisions of the lease have been 
 duly performed and observed up to the date of actual 
 completion of the purchase. This provision is less 
 stringent than the special stipulation previously usual, 
 which was construed as obliging the purchaser to accept 
 the title, notwithstanding the existence of a continuing 
 breach of the covenants in the lease ( /'). The stipulation 
 contained in the Act only binds the purchaser to assume, 
 UTiless the contrary shall appear, that the covenants have 
 been performed, and does not preclude him from ob- 
 jecting to the title on the ground that a cause of forfei- 
 
 [b] Wms. Real Prop. 337, 513, (e) Stat. 44 & 45 Vict. c. 41, 
 
 21st ed. s. 3(4). 
 
 {(■) 1 Davidson, Prec. Conv. (/) See JiiiH v. Htitchens, 32 
 
 536, 4tlied. ; rolmer \. Goren, 2b Beav. G15 ; Lawrie v. Lees, 14 
 L. J. Ch. 841. Ch. D. 249; 7 App. Cas. 19, 30 
 
 {d) 1 Davidson, Prec. Conv. —33, 37—39, 42. 
 
 537, 624, 048 and u. {y), 4th ed.
 
 OF PARTICULAR TITLES. 353 
 
 hire has occurred, if it appear that a breach of covenant 
 has in fact been committed and has not been waived (r/) . 
 Receipt of rent by a landlord is a waiver of forfeiture Waiver of 
 for breaches of covenant which have occun-ed and been receip "of ^ 
 brought to his notice before the rent became due (//) : rent, 
 but it is not a waiver on account of breaches of which 
 he had no notice (/), or subsequent breaches {k). Pro- 
 duction of a receipt for rent is not, therefore, in itself 
 complete evidence of any waiver of a breach of covenant. 
 But a purchaser buying under the present statutory 
 stipulation must, on production of the last receipt for 
 rent in accordance therewith, assume (unless the con- 
 trary appear) that the covenants have been duly per- 
 formed, not only prior to the receipt of rent, but up to 
 the date of actual completion of the purchase. It has 
 been decided that the statutory stipulation does not 
 apply where the land sold is held under a lease for years 
 at a peppercorn rent, or indeed at any other rent in 
 kind and not in money ; in which ease the purchaser 
 has the same right to require strict evidence of the 
 performance of the lessee's covenants as in the case of 
 an open contract made before the year 1882 (/). 
 
 We have seen (in) that if a man buy land with notice, Purchaser 
 either oral or written but not contained in the contract holdTwith*^" 
 for sale, that a good title cannot or will not be made, notice of a 
 
 ' ° ' breach of 
 
 (ff) Re Highett and Bird's Con- [1] Re Moody and Yates' Contract, 
 
 tract, 1902, 2 Ch. 214; 1903, 1 28 Ch. D. 661; 30 Ch. D. 344. 
 
 Ch. 287. In this case there was a covenant 
 
 (A) Bridges v. Longman, 24 to finish a house within six months 
 
 Beav. 27, 30 ; Davmport v. The to the satisfaction of the lessor's 
 
 Queen, 3 App. Cas. 1 1.5 ; Jacoh v. surveyor, and it was held that the 
 
 Down, 1900, 2 Ch. 156. surveyor'scertificate to this effect 
 
 («) ronnant''s Case, 3 Rep. 64 ; was a part of the vendor's title. 
 
 Ewart v. Frgrv, 1901, 1 Ch. 499, and that the expense of procur- 
 
 •502, 511 ; .S'. C, nam. Fryer v. ing the .same was therefore not 
 
 Ewart, 1902, A. C. 187; Mnlthews payable by the purchaser under 
 
 v. Smallwood, 1910, 1 Ch. 777. sect. 3 (6) of the Conveyancing 
 
 786 sq. Act of 1881 ; see above, pp. 33, 
 
 {k) See .Vartfi v. Curteys, Cro. 10.5, 121, 136. 
 Eliz. 528; 3 Rep. Go a; Price v. [m\ Above, p. 203. 
 
 Woruood. 4 H. & N. .512. 
 
 w. 23
 
 354 
 
 OF PARTICULAR TITLES. 
 
 covenant that the vendor is exonerated from showing title to the 
 will not be extent indicated by the notice, unless he should have 
 remedied. expressly agreed by the contract for sale to show a good 
 title. It follows, therefore, that if one buy leasehold 
 land with notice so given to him that there has been a 
 breach of covenant, which cannot or will not be reme- 
 died by the vendor, he is precluded, unless the contract 
 contain an express stipulation that the vendor shall show 
 a good title, fi'om requiring the evidence, to which lie 
 would otherwise be entitled, that the covenant in ques- 
 tion has been duly performed. Thus, where houses 
 held under a repairing lease are obviously dilapidated 
 and the purchaser agrees, outside of the written contract, 
 to take them as they are, it is thought that he could not 
 insist on the vendor furnishing evidence of his perform- 
 ance of the covenant to repair. The rule in question, 
 though perfectly well established, was, however, un- 
 accountably overlooked both by the vendor's counsel, 
 by Swinfen Eady, J., and by the Court of Appeal in 
 the case of Re Highett and Bird's Contract [n) . In that 
 case the purchaser bought under an open contract a 
 leasehold house, which was obviously out of repair, and 
 the vendor accepted a rednced price in consequence. Before 
 the title was accepted, the vendor was served with a 
 " dangerous structure " notice from the London County 
 Council under the London Building Acts, 1894 and 
 1898, requiring him to pull down or render secure a 
 part of the house. The notice not being complied with, 
 a police court order was made requiring him to do the 
 repairs within fourteen days. This order was made 
 before, but not served on the vendor till after the 
 acceptance of the title. The vendor, who had produced 
 the receipt for the last quarter's rent (o), took out a 
 vendor and purchaser summons for a declaration that 
 
 Jie Highett 
 and Bird^s 
 Contract. 
 
 [n) 1902, '2 Ch. 214 ; 1903, 1 Ch. 287. 
 (o) Above, p. 352.
 
 OF PARTICULAR TITLES. 855 
 
 he had shown a good title, and that the expense of 
 complying with the police court order was an out- 
 going {p) which ought to he borne by the purchaser. 
 The vendor's counsel mainly contended that this expense 
 had not ripened into a charge or liability until after 
 the proper time for completion (p), and that under the 
 Conveyancing Act, 1881 {q), production of the last 
 receipt was conclusive evidence of perfonnance of the 
 covenant to repair. It was held (and in this respect, 
 no doubt, rightly) that under the statutory stipulation 
 such production is only evidence prima, focio of per- 
 formance of the covenant, and that the purchaser is 
 not obliged to accept it as conclusive where he has 
 notice of a breach of the covenant. It was, however, 
 decided in both Courts that the vendor was under an 
 obligation to prove that the covenant to repair had 
 been performed, and was /or this reason bound to defray 
 the expense of complying with the notice and order ; 
 and the Courts declined to consider at wliat time 
 this liability became a charge. But it is submitted 
 that this decision cannot be supported on the ground 
 so assigned for it. The Courts rested their judg- 
 ment on the supposed authority of the case of Baniett 
 V. Wheeler (r). That case, however, was an action of 
 assunipsif by a purchaser, in which the declaration stated 
 a sale of leaseholds on the express condition that the 
 vendor should make a good title, and was argued on 
 demurrer to a plea that the vendor made a good title 
 in all respects except as to compliance with a covenant 
 to repair, and that the purchaser knew that the property 
 sold was out of repair. It was considered that the plea 
 was bad, but Parke, B., particularly mentioned that 
 there was an express contract to make a good title. 
 This accords with the rule stated above («), As already 
 
 {p) See above, p. oO. and below, {>■) 7 M. ic W. 364. 
 
 Chap. XI. («) Pp. 203, 3.54. 
 
 {q) Above, p. 362. 
 
 23 (2)
 
 356 OF PARTICULAR TITLES. 
 
 mentioned, this rule was not brought to the notice of 
 either Court in Re Highett and BircVs Coniract, nor 
 were any of the authorities cited by which it is esta- 
 blished. No doubt under an open contracl3» for the sale 
 of leaseholds, without more, the vendor is bound to 
 prove that there is no liability to forfeiture by reason 
 of the non-performance of a covenant to repair {t) ; and 
 this may be the case notwithstanding that the property 
 is obviously out of repair, for it may be contemplated 
 that the vendor shall perform the covenant before com- 
 pletion (?f). But where a vendor is induced to accept 
 a lower price than he would otherwise take on account of 
 the property being out of repair, it is submitted that the 
 parties plainly intend to waive all objection to the title 
 caused by the non-performance of a covenant to repair, 
 and must be taken to have contracted on that footing. 
 This view appears to have commended itself to Lord 
 Justice Romer, who explained in a subsequent case (.r), 
 that Re Highett and Bird\s Contract was decided on the 
 footing that the vendor was in the same position as if 
 he had expressly agreed to make a good title ; and 
 declared that that case was not to be taken as an 
 authority for any case in which there is not an express 
 contract by tlie vendor to make a good title. To avoid 
 all question, however, of the apjDlication of the decision 
 above criticised, a vendor selling houses held under a 
 repairing lease should be most careful to stipulate 
 expressl}^ in the contract for sale that the purchaser 
 shall be deemed to have notice of the actual state and 
 condition of the property, and shall take the houses as 
 they are. And a vendor of leaseholds should always 
 employ an express stipulation, such as was generally 
 used before the Conveyancing Act, making production 
 of the last receipt for rent eoncluHire evidence of the 
 
 (0 Above, p. 352. {x) Re Allen and BriscoWs Con- 
 
 \u) See 7 M. & W. 366, 367. tract, 1904, 2 Ch. '226, 231.
 
 OF PAKTICULAK JITLES. ^57 
 
 performance of all covenants, and providing further, if 
 necessary, that the person giving such receipt, though 
 not the original lessor, shall be assumed to be the 
 reversioner or his agent {//). In default of this last 
 proviso, the vendor would have to prove that the giver 
 of the receipt, if not the lessor, was the reversioner or 
 his agent. 
 
 Where land held by underlease is sold as such, the ^^]% «* ^^^^ 
 purchaser cannot or course reject the title because he is underlease, 
 not getting a term granted by a lease from the free- 
 liolder ; but he has the same right as the purchaser of 
 su(^h a lease to object to the title on the ground of 
 liability to unusually onerous covenants not brought to 
 his notice at the time of sale (s). Where the under- 
 lease sold and the superior lease are both determinable 
 by re-entry for non-payment of rent and breach of 
 covenant, it is of course material to the title to show 
 that no cause of forfeiture of either has occurred. 
 And where the head lease includes other lands than those 
 demised by the underlease, it is important to ascertain 
 that no forfeiture of the head lease has been incurred 
 through omission to comply with the head lessee's 
 covenants relating to such other lands (a). Under 
 the Conveyancing Act of 1881 (b), a provision 
 similar to that considered above is implied, in the 
 absence of stipulation to the contrary, in contracts made 
 after the year 1882 for the sale of land held by under- 
 lease ; the purchaser being bound to assume, unless the 
 contrary appears, on production of the receipt for the 
 
 (y) Above, pp. 79, 352, 3o3. the assigns of the underlessor 
 
 (z) Above, p. 351, and cases under covenants by him to per- 
 
 cited in n. {u) thereto; Hi/rle v. form and to indemnify the under- 
 
 Warden, 3 Ex. D. 72. le.ssee against the covenants of 
 
 (a) See Deirtirv. Gvodiiiiiii, \9U1, the liead lease relating to otlier 
 
 1 K. B. 612 ; 1908, 1 K. B. 94 ; lands than those comprised in the 
 
 1909, A. C. 72, deciding that, in underlease. 
 
 case of such a forfeiture, the {/>) Stat. 44 & 4.t Vict. c. 41, 
 
 underlesisee has no remedy against s. 3 (5, 9, 10, II).
 
 358 OF PARTICULAR TITLES. 
 
 last payment due for rent under the underlease before 
 the date of actual completion of the purchase, that all 
 the covenants and provisions of the underlease have 
 been duly performed and observed up to the date of 
 actual completion of the purchase, and further that all 
 rent due under every superior lease, and all the cove- 
 nants and provisions of every superior lease, have been 
 paid and duly performed and observed up to that date. 
 It has been held that the vendor of an underlease does 
 not comply with this provision by producing a receipt 
 given by the superior landlord for rent paid to him by 
 the vendor under threat of distress ; what is required is 
 the receipt for the rent due under the underlease (c). 
 Where the receipt for the rent last due under the 
 imderlease had been produced, but it appeared that the 
 superior landlord had brought, though he had prac- 
 tically ceased to prosecute, an action to recover posses- 
 sion of the premises on the ground of breach of covenant 
 to repair, it was held that the purchaser must accept, as 
 sufficient proof that the covenants in the superior lease 
 had been performed, an affidavit by the vendor that he 
 .had been in possession of the premises without any 
 other distm-bance than the above, that he had repaired 
 the premises, and that, to the best of his knowledge 
 and belief, the covenants had been performed [d). As 
 already mentioned, it is desirable for a vendor of land 
 held by underlease to stipulate expressly that the last 
 receipt for rent thereunder shall be conclusive evidence 
 of the performance of the covenants and conditions of 
 the underlease and of every superior lease, and also, 
 where necessary, that the giver of the receipt shall be 
 assumed to be the reversioner or his agent (e). 
 
 Sale of lease- When leaseholds are sold, which are subject to a 
 holds not 
 
 (c) lie Miggbis and Percival, {d) Mini/er to Thompxon, b\ Li. J. 
 
 1888, W. N. 172. Ch. 42. 
 
 (e) Above, pp. 80, 357. 
 
 I
 
 OF PARTICULAR TITLES. 
 
 359 
 
 covenant not to assign without the landlord's licence (/), assignable 
 the vendor is bound to procure such licence at his own landlord's 
 expense, and if he fail to do this, he will not have ^^J^^^e- 
 shown a good title and will have broken the contract {g). 
 But it appears that the procuring of the necessary 
 licence is at first to be treated as a matter of conveyance 
 rather than of title (/?), and the purchaser cannot object 
 to the title on the ground of the absence of any licence 
 to assign, if the vendor procure such licence before the 
 day fixed for completion {Pf. If such property be sold 
 under an express stipulation that the sale is subject to 
 the landlord's approval or to his consent to the assign- 
 ment, the vendor is still bound to use his best endea- 
 vours to procure the necessary licence ; and if he do 
 this and the licence be refused, he will be discharged 
 from his contract {h). If, on the other hand, he fail to 
 
 (/) See Wms. Real Prop. 508, 
 509, 515, 21st ed. By stat. 55 & 
 56 Vict. 0. 13, s. 3, agreements in 
 leases against assigning or under- 
 lotting without licence shall, 
 unless the lease contain an express 
 provision to the contrary, be 
 deemed to be subject to a proviso 
 that no fine shall be payable for 
 such licence. It has been held 
 that this enactment does not 
 make the payment of such a fine 
 an illegal payment : so that if a 
 fine be voluntarily paid, it cannot 
 be recovered back. But if the 
 lessor refuse to give the licence 
 except on payment of a fine, the 
 lessee may lawfully as.sign or 
 underlet without the licence ; see 
 ll'diU V. Joinings, 1906, 2 K. B. 
 11 ; Jenkins v. Price, 1907, 
 2 Ch. 229, 233, 234, reversed on 
 other grounds, 1908, 1 Ch. 10 ; 
 Andrew v. liridtfmnn, 1908, 1 
 KB. 596. So if a lease contain 
 a covenant not to assign without 
 the lessor's licence, such licence 
 not to be unreasonably withheld, 
 and the lessor do unreasonably 
 refu.se his licence to assign, the 
 lessee may lawfully assign the 
 
 demised premises without the 
 licence : Bates v. Donaldson, 1896, 
 2 Q. B. 241 ; Jenkins v. Price, 
 ubi sup. But he has no right 
 of action against the lessor to 
 recover damages for unreasonably 
 refusing the licence : Trcloar v. 
 Bigge, L. R. 9 Ex. 151 ; Sear v. 
 House Property, if-c. Society, 16 
 Ch. D. 387. He may, however, 
 bring an action against the lessor 
 for a declaration that he is entitled 
 to assign without licence : Young 
 v. yls/iley Gardens, ^r.. 1903, 2 
 Ch. 112. This casewas not cited in 
 Jenkins v. Price, ubi sup., where 
 Swinfen Ea4y, J., considered 
 that the lessee ought not to have 
 the costs of bringing such an 
 action. But this ruling was fol- 
 lowed by Eve, J., in Evans v. 
 Levy, 1910, 1 Ch. 453. 
 
 (ff) Bain v. Fothergill, L. R. 7 
 H. L. 158. 
 
 {h) See above, pp. 164—166. 
 (j) Monro v. Tat/lor, 3 Mac. «fc 
 G. 713. 714, 722 ; ^ Ellis v. Rogers, 
 29 Ch. D. 661 ; Day v. Singleton, 
 1899, 2 Ch. 320. 327; and see 
 Smith V. Butler, 1900. 1 Q. B. 694. 
 (/•) Lehmann v. McArthur, L. B.
 
 360 OF PARTICULAR TITLES. 
 
 fulfil this duty, he will have broken the contract ; and 
 in such case he will be liable to compensate the pur- 
 chaser in damages for the loss of his bargain {/), con- 
 trary to the general rule (m). Whenever leaseholds 
 subject to a covenant against assignment without the 
 lessor's consent are offered for sale, it should be stated 
 that tbe property is subject to such covenant {>/), and it 
 should be expressly stipulated that, if the lessor's con- 
 sent cannot be obtained, the contract shall be rescinded, 
 the vendor returning the deposit, if any, but not paying 
 the purchaser's expenses of investigating the title or 
 otherwise (o). If the person to give the licence to 
 assign should not be the original lessor, the vendor 
 would have to prove that such person was the proper 
 person to give the licence ; and as this would involve 
 investigation of the landlord's title, it is better for the 
 vendor to relieve himself by express stipulation of the 
 obligation of giving such proof (p). Leaseholds subject 
 to a covenant not to assign without the lessor's licence 
 may 'he sold and conveyed, without committing any 
 breach of the covenant, either by way of underlease 
 (provided that the covenant do not also prohibit under- 
 letting) (q) , or by any disposition operating as an assign- 
 ment in equity only and not at law, such as a declaration 
 of trust for the purchaser (r). But if the vendor propose 
 
 3 Ch. 496. In Uk!/ v. SiHgleton, {i) Jjai/ v. t^iiiyhdou, ubi sup. 
 
 1899, 2 Ch. 320, 327, 328, there [m) Above, p. ;57. 
 
 are dicta to the apparent effect («) See above, p. 351. 
 
 that the vendor would in such (o) See 1 Davidson, Prec. Couv. 
 
 case be liable at law for breach 562, 5th ed. ; Davidson's Concise 
 
 of the contract; but it is sub- Prec. 120, 18th ed. 
 
 luitted that they must be read as [p) See 1 Key & Elph. Prec. 
 
 referring to an open contract to Conv. 292, 8th ed. 
 
 sell such leaseholds. In that case {q) Crusoe d. Blencowe v. Bugby, 
 
 the sale was expressly made sM^yeci 2 W. Bl. 766; Church \. Brown, 
 
 to the lancllord''s coHnent to the 15 Ves. 258, 265. 
 
 transference of the lease. This, it (»•) Gentle v. Faulkner, 1900, 
 
 it is submitted, would clearly 2 Q. B. 267. See also Horsey 
 
 absolve the vendor from breach Ettate, Limited \. ISteiyer, 1899, 2 
 
 of the contract at law. if he tried Q. B. 79 ; Grove v. Portal, 1902, 
 
 his best but failed to obtain the 1 Ch. 727. 
 
 necessary consent.
 
 OF PARTICULAR TITLES. 361 
 
 to carry out the sale in either of these ways, he must 
 make an express stipulation to that effect, or the pur- 
 chaser will not be bound to accept the same as a due 
 performance of the contract. If leaseholds be held sub- Where land- 
 ject to a covenant by the lessee not to assign without no^tobcT^^'^ 
 the lessor's licence, which is not to be unreasonably unreasonably 
 withheld, and the lessee sell them under an open con- 
 tract, and the landlord refuse to consent to the proposed 
 assignment on grounds which are apparently unreason- 
 able, it appears that the vendor cannot oblige the pur- 
 chaser to perform the contract specifically by accepting 
 an assignment without the lessor's consent (.s) ; for the 
 lessor may have some good reason for refusing it (;*), and 
 would be at liberty to prove this in an action brought 
 by himself to enforce his right of re-entry for breach of 
 the covenant. The title would therefore be too doubtful 
 for a Court of Equity to force upon an unwilling pm-- 
 chaser {u). 
 
 If a lessee for years, holding at a rent and subject to Sale of part 
 lessee's covenants, assign over part of the demised land, ^ fease^for 
 the assignee is liable to be distrained ujjon for the whole years, 
 of the rent reserved (x) ; although if the lessor sue him 
 personally for the rent, either in debt or on the cove- 
 nant to pay the rent, he will only be liable to pay an 
 apportioned part of the rent proportionate to the value 
 of the land he holds, as his personal liability to pay the 
 rent arises only from the privity of estate between him 
 and the lessor (//). It has been held that, if an assignee 
 
 («) See aboTe, p. 359, n. (_/'). v. London Road Gar Co., 1910, 1 
 
 But of course the vendor would Ch. T-'i-i. 
 
 have a good title to assign after (»<) Re Marshall and Halt's <,'ov- 
 
 he had obtaiuea, in an action tract, 1900, 2 Ch. 202. 
 against his landlord, a deolara- (.c) Curtis v. Hpitti/, 1 Bing. 
 
 tion of his right to assign without N. C. T^e, 760 ; Hyde v. Jfarden, 
 
 the landlord's consent. 3 Ex. D. 72, 76 ; see VVms. Real 
 
 (<) See and consider Re Spark's Prop. 67, 336, 2l8t ed. 
 Lra.te, 190,'), 1 Ch. 4o6 ; Jndim (;/) Hare v. Calor, Cowp. 766 ; 
 
 V. Price, 1907, 2 Ch. 229, j-c- Stevenson v. Lawbard, 2 'Eaat, n't r); 
 
 versed, 1908, ICh. 10; Willmott Sallsv. Battersbt/, l9lO,2K.B.l5b.
 
 362 OF PAETICULAR TITLES. 
 
 of part of land let on lease pay the whole rent reserved 
 by the lease under threat of distress, he cannot assert a 
 right of confnhution to such payment against an under- 
 lessee of the other part of the land, for the right to 
 roiitrihution only arises either at law or in equity where 
 both parties are subject to a common liability (3). It 
 is submitted, however, that in such case the party so 
 coerced to pay the whole rent is not without remedy. 
 He has paid off a charge upon the whole of the lands 
 comprised in the lease (a), and on general principles of 
 equity he should be entitled to the benefit of the charge, 
 and to stand in the lessor's place as against that part of 
 the demised premises which he does not hold himself {h) . 
 If a lessee for years holding subject to a proviso for 
 re-entry on breach of covenant assign over part of the 
 demised land, the lease remains determinable as to the 
 whole of the demised premises on any breach of cove- 
 nant; so that the lessor could re-enter upon the assignee 
 for breach of covenant committed after the assignment 
 by the original lessee with respect to the other part of 
 the land (r) . If, therefore, a tenant for years holding 
 at a rent and subject to lessee's covenants and a proviso 
 for re-entry on breach of covenant sell part of the land 
 leased to him, and represent that the property sold is 
 held at a rent less than that which he has to pay for the 
 whole of the land, the purchaser could object to the 
 title on the ground that the laud sold is charged with 
 the whole of the rent, and is subject to forfeiture for 
 breach of covenant committed in respect of the rest of 
 the land leased {d). It follows that on a sale of part 
 only of land held on lease for years, special stipulation 
 
 {£) Johnson v. Wild, 44 Ch. D. (c) Hyde v. Warden, 3 Ex. D. 
 
 146. 72, 76 ; Bewar v. Goodman, 1909, 
 
 [a] See above, p. 361, n. [x). A. C. 72; above, p. 357, and 
 
 \h) This view of the question n. [a). 
 seems to have escaped the notice 
 
 of the learned counsel for the {d) Hyde v. Warden, 3 Ex. D. 
 
 plaintiff and of the Court in 72, 76, 81 ; see also Tildes v. 
 
 Johnson V. Wild, ubi sup. Hooker, 3 Madd. 193.
 
 OF PARTICULAR TITLES. 363 
 
 must be made precluding objection to the title on these 
 grounds, and providing for apportionment of the rent 
 as between the vendor and the purchaser (e) . As already Sale of lease- 
 mentioned, when leasehold property is sold in lots, it is 
 usually stipulated that one of the purchasers shall take 
 an assignment of the lease, and the others shall accept 
 underleases either from that purchaser or from the 
 vendor (_/') . 
 
 Where leaseholds for years perpetually renewable Sale of 
 under a covenant in that behalf (a) are sold as such, it Renewable 
 
 ^"^^ ' leaseholds, 
 
 appears that, in the absence of stipulation to the con- 
 trary, the purchaser is entitled to be satisfied that he 
 will obtain, not only the existing term, but also the 
 effective right to renew it for ever. He is in fact 
 buying, not merely the term, but an equitable interest 
 in the fee simple as well {h). It is thought therefore 
 that, where the first lease was granted less than forty 
 yeai's before the contract, the purchaser is not pre- 
 cluded by the Vendor and Purchaser Act, 1874 (/), 
 from calling for the title to confer the right of renewal, 
 and may require the production, not only of the first 
 lease containing the covenant of renewal and the sub- 
 sequent title thereunder, but also of the title to the 
 
 (c) See above, p. 81. Fcudredv. Griffith, ib. 314; Sweet 
 
 If) Above, p. 82 ; 1 Dart, V. v. Anderson, 2 Bro. P. C. 256 : 
 
 & P. 132, .5th ed. ; 148, Cth ed. ; Igguldcn v. May, 9 Ves. 325, 334 ; 
 
 866 1 Davidson, Prec. Conv. 545, S. C, 7 East, 237, 242 — 245 ; 
 
 632, n., 699—701, 4th ed. ; ibid. Hare v. Surges, 4 K. & J. 45, 57 ; 
 
 453, 529. n., 563—566, 5th ed. ; Pollock v. Booth, Ir. R 9 Eq. 
 
 1 Key & Elph. Prec. Conv. 293, 229 : Jessel, M. R., Lottdo,, ,\- 
 
 and n. {d), 8th ed. ; Davidson's South Western Ry. Co. v. Gomm, 
 
 Concise Precedents. 116, and n. 20 Ch. D. 562, 579 ; Swinburne v. 
 
 (*), 17th ed. Milhurn, 9 App. Cas. 844, 850, 
 
 (g) Covenants to renew leases 853, 855 ; 42 Sol. J. 629, 630 (by 
 
 for years or lives cemtinually ou the author) ; Gray, Rule against 
 
 their expiration for ever are hold Perpetuities, §\j 230, 230a, 2nd ed. 
 
 to be valid and either not to be ob- /is a t i -m- r> ..- 
 
 i i 1 i. J i r (h) See Jessel, M. R. , Moore v. 
 
 noxious to or to be excepted out of r^, , , /-,u ^V. .- . ' > 
 
 .11 • . J ■.- J Cleneh, 1 Ch. D. 44<, 4n2. 
 
 the rule against perpetuities, and ' ' 
 
 may be specificaliy enforced ; see (i) Stat. 37 & 38 Vict. c. 78. 
 
 Ross V. Worsop, 1 Bro. P. C. 281 ; s. 2, r. 1 ; above, p. 99.
 
 364 OF PARTICULAR TITLES. 
 
 freehold from the granting of the first lease back to the 
 beginning of forty years before the contract (./) . Where 
 the first lease was granted more than forty years before 
 the contract, it is thought that not more than forty 
 years' title under the leases and the covenant to renew 
 them could be required to be shown, and that such 
 enjoyment would have to be accepted as prima facie 
 evidence that the right of renewal was effectually con- 
 ferred (./). But it is conceived that the purchaser would 
 be entitled to require proof of some covenant for per- 
 petual renewal entered into forty years at least before 
 the sale ; and that if the right of perpetual renewal 
 should depend solely on the original covenant to renew, 
 and not on new covenants to that effect contained in 
 the renewed leases, he would have the right to call for 
 an abstract and production of the instrument containing 
 the original covenant (/»). In cases of this kind, the 
 renewed lease is usually granted partly in consideration 
 of the surrender of the then existing lease, and where 
 this has occurred within the time, for which title can be 
 required to be shown, the purchaser has the right to 
 require proof that the surrenderor was entitled to the 
 entire interest, legal as well as equitable, in the lease 
 surrendered. For if there were anything in that lease 
 to give notice that the surrenderor was a trustee of his 
 interest therein, and consequently of his interest in 
 the renewed lease, the purchaser would take with 
 notice of such trust (/) . It appears from this that any 
 lease granted in express consideration of the surrender 
 of a prior lease is not in itself a good root of title (/«). 
 The vendor of leaseholds, which are renewable, whether 
 
 (/) Seeabove, pp. 94 — 97, 100; Cooper, 9 Beav. 304; Sug. V. & 
 
 1 Davidson, Prec. Conv. 534, 4th P. 369 ; 1 Dart, V. & P. 291, 
 ed. ; 443, 5th ed. ; Sug. V. & P. .5th ed. ; 332, 6th ed. ; 327, 7th 
 369. 370. ed. ; 1 Davidson, Prec. Conv. 
 
 {k) See above, pp. 94—98, 100. 696, n. (/), 4th ed. ; above, pp. 
 (/) See Coppin v. Fernijhoiigh, 237 sq. 
 
 2 Bro. C. C. 291 ; Hodgkinson v. {m) See above, pp. 106 — 108.
 
 OF PARTICULAR TITLES. 365 
 
 perpetually or for some definite period, should protect 
 
 himself by special stipulation against these liabilities (><). 
 
 And it seems that in any ease where a lease is sold, Sale of lease 
 
 which has on the face of it been granted in consideration gurrender^f a 
 
 of the smTender of a former lease, the vendor should P"or lease. 
 
 make special provision to preclude his being required to 
 
 prove that the surrenderor was entitled to the whole 
 
 interest in the lease surrendered (o). 
 
 The reader will remember that under the present Satisfied 
 law, when the purposes of long terms of years created ^*^""'*- 
 for secui'ing the payment of money charged on land 
 have been satisfied, they either cease, where originally 
 limited subject to a proviso for cesser, by virtue of such 
 proviso, or they are made to merge by being assigned 
 or surrendered to the person or persons seised of the 
 freehold in the land subject to the term, or they become 
 attendant upon the inheritance by express declaration 
 or construction of law and thereupon cease and deter- 
 mine under the Satisfied Terms Act of 1845 [p). 
 Whenever any land sold has been subject to such a 
 term, it is of course material for the purchaser's counsel 
 to ascertain that it became utterl}' extinct ; and if the 
 date of the term's alleged cesser fall within the period 
 for which title has to be shown, the title to the term 
 down to that date must be abstracted and produced (q). 
 It should be borne in mind that cesser under an express Proviso for 
 proviso does not usuall}^ take place unless and until the 
 
 cesser. 
 
 («) See 1 David^oll, Prec. Conv. that the title shall commence 
 
 696, n. (/), 4th ed. ; 1 Key & with the new lease; see stat. 
 
 Elph. Prec. Conv. 2.S4. 4th ed. ; 44 & 4.5 Vict. c. 41, s. 3 (3); 
 
 •290, 8th ed. ; Eucyclopjedia of above, pp. 108. n. {o), 193 xr/.. 
 
 Forms and Precedents, xii. 344. 209. 
 
 (o) See authorities cited in last / - o^ j. o <> f> i'- ^ , ■■ ■. 
 
 1 1 . >. Ti 1 iPi otat. 8 & 9 Vict. c. 112. 
 
 note but two. It appears, how- ., xxr d id , , ., . ,, ' 
 
 »i i. r .. 1 1 .... J s. 2 ; Wms. Real Prop. 413—421, 
 
 ever, that if It be oxiHessly stated ,oi.u j -o< -,- ,\ ^ j 
 
 A . , ^ jf- .■ 13th ed. ; i)34— o4o, 21st ed. 
 
 m the contract or conditions ot ' 
 
 sale that the lease sold was (q) See Z//fc v. Yarborough, 
 
 granted in consideration of the John. 70, 74, 77, 78; Sug. V. & P. 
 
 surrender of a prior lease, it 616 sq. ; 1 Dart. V. & P. 289, 
 
 would be sufficient to stipulate Sth ed. ; 329, 6th ed. ; 326, 7th ed.
 
 366 
 
 OF PARTICULAR TITLES. 
 
 Mersrer. 
 
 Trustees of a 
 term should 
 surrender it 
 themselves. 
 
 Cesser under 
 Satisfied 
 Terms Act. 
 
 trustees of the term have been duly reimbursed all 
 their costs and expenses (r) ; and that, in order to effect 
 the merger of a term, it must be surrendered to the 
 person entitled at law in reversion immediately ex- 
 pectant on the term to the freehold or some leasehold (.s) 
 estate in the land demised (^). No merger will take 
 place if the surrenderee were entitled in equity only 
 and not at law, or if another term of years be out- 
 standing between the estates of the surrenderor and the 
 surrenderee {u). Whenever a term vested in trustees is 
 intended to be merged, they should themselves sur- 
 render it ; as the persons equitably interested in the 
 term cannot make any effective assurance of the legal 
 estate therein, and the trustees may have a lien on the 
 term for their costs, which would prevent it from 
 becoming extinct as a satisfied term (x). With respect 
 to the cesser under the Satisfied Terms Act of 1845 
 of terms becoming satisfied after that year (//), it is to 
 be noted that such terms only are extinguished as have 
 become satisfied and attendant on the inheritance. A 
 term does not become so satisfied and attendant unless 
 the beneficial interest in the whole charge secm-ed by 
 the term and the beneficial interest in the entire free- 
 hold estate affected by the term are united in one 
 person, or so long as there remains any useful purpose 
 beneficial to the owner of the term and consistent with 
 
 (r) See 3 Davidson, Prec. Conv. 
 1165, 1251, n., 1261, 3rd ed. 
 
 (a) Hnqhcs v. Robuthum, Cro. 
 Eliz. 302; Sug. V. & P. 619. 
 
 (O Co. Litt. 337 b; Shep. 
 Touch. 303 sq.; 2 Black. Comm. 
 32b ; Burton, Comp. 287, 2nd ed.; 
 Sug. V. & P. 617 sq. 
 
 {u) See Whitchurch v. Whit- 
 church, 2 P. W. 326; 9 Mod. 
 124 ; Scott V. Fenhoullet, 1 Bro. 
 C. C. 69 ; Roopcr v. Harrison, 2 
 K. & J. 86, 110—115; Burt. 
 Comp. 287, 2nd ed. ; Sug. V. & 
 P. 625. 
 
 [x) See Davidson, Prec. Conv. 
 vol. ii. part i. p. 310, n., 4th ed. ; 
 cf. Davidson, Prec. Conv. vol. v. 
 part ii. p. 178, 3rd ed., where the 
 point as to costs is not mentioned. 
 
 {ij) Stat. 8 & 9 Vict. c. 112, 
 s. 2. As to the cesser under that 
 Act of satisfied terms, which were 
 on the 31st Dec. 1845, attendant 
 on the inheritance, and the pro- 
 tection afi^orded by such terms, 
 see Doe v. Price, 16 M. & W. 603 ; 
 Doe V. ilousdaU, ib. 689 ; Cottrell 
 V. Hughes, 15 C. B. 532 ; Plant v. 
 Taylor, 7 H. & N. 211.
 
 OF PARTICULAR TITLES. ^^'^ 
 
 the trusts thereof (z). And a term is not mtisfied, so as 
 to cease under the Act, so long as any of the moneys 
 originally secured thereby, including the trustees' 
 costs {((), remain unpaid, or if any incumbrance, 
 against which the term would be an effectual pro- 
 tection, be outstanding {b). 
 
 The rules as to terms becoming satisfied are not ^Vhether 
 
 iiPii f • terms subject 
 
 applicable to terms granted tor the purpose ot reserving to rent and 
 
 rent and subiect to the performance of lessee's cove- lessee's cove- 
 
 J ^ , nants become 
 
 nants, but questions often arise upon titles whether extinct when 
 
 such terms have been extinguished by reason of the ^^e fre^e- '^ 
 
 ownership of the term and of the fee simple becoming holder. 
 
 united in one person ; as where the termor has purchased 
 
 the fee simple or the freeholder the term. Under the Old la^^ of 
 
 ^ 1 ^ • p ^ merger. 
 
 common law such a term merged at law it by any 
 
 means it became vested in the tenant of the freehold in 
 
 his own right and not en autre droit (e). But if in Rules of 
 - ,, , .,..,, -ill equity as to 
 
 such case merger would be prejudicial to any equitable merger, 
 interest in the term, or the owner had expressed the 
 intention of keeping the term alive, the term would be 
 treated in equity as still subsisting (rf) . On the other 
 hand a term not merged at law would be treated in 
 equity as attendant on the inheritance if the equitable 
 ownership of the term and the fee simple became 
 united and an intention of extinguishing the term were 
 
 (z) Anderson v. r'ujnet, L. R. (c) Co. Litt. 338 b ; 2 Black. 
 
 8 Ch. 180, 188—190. Comm. 177 ; Sug. V. & P. 617 
 
 (a) Above, p. 366. xq. ; 1 Wms. Exors. 641, 64"2, 
 
 (/>) See Doe d. Clnii v. Joihh, 13 7th ed. ; Wms. Re^l Prop. 251, 
 
 Q. B. 774; /">vr>v. >/rs.s.'. 17 Jur. 283, 414-416, 13th ed. : 341, 
 
 177, reversed on other gnjunds, 371, 535 — 538, 2l8ted. 
 
 ib. 703. 4 De G. M. k. G. 495 ; [d) See Thorn v. Neumnn, 3 
 
 Shaw V. Johnson, 1 Dr. & Sm. Swanst. 603 ; Nurse v. Tcrirorth, 
 
 412, 7 Jur. N. S. 1005 (where ib. 008. 618; Fhilips v. FhiUps. 
 
 the dates are given) ; Anderson v. 1 P. W. 34.41; Sug. V. & P. 
 
 Hffiiet, L. R. 8 Ch. 180, 1S9 ; 620.621; Chambers v. Kiiigham, 
 
 Sug. R. P. Stat. 278-281, 2nd 10 Ch. D. 743; also Adams v. 
 
 ed. ; Sug. V. & P. 626 ; 1 Dart, Angdl, 5 Ch. D. 034, 645, 646 ; 
 
 V. & P. 507, 508, 5th ed. ; 577, and cases cited below. \>. 368, 
 
 578, 6th ed. n. {J).
 
 368 
 
 OF PARTICULAR TITLES. 
 
 Purchase of expressed or implied (^). Thus if the termor contracted 
 
 fee by termor j. i j.i p • i • ^ -l • i j 
 
 or of term by ^^ "^y ^'^^ ^^^ Simple, or Vice versa, it was considered 
 freeholder. that the term would be extinguished in equity, unless 
 a contrary intention were shown (./'). But where the 
 intention of keeping the term on foot was expressed, as 
 where the termor took a conveyance of the fee in the 
 name of a trustee for himself and his heirs with a 
 declaration against merger (^), or the freeholder in fee 
 took a conveyance of the term to a trustee on trust for 
 himself, his executors, administrators and assigns (//), 
 the purchaser's interest in the term remained distinct, 
 in equity as well as at law, from his ownership of the 
 Present law as fee simple. Since the commencement of the Judicature 
 Acts (/) merger does not take place by operation of law 
 only of any estate, in which the beneficial interest would 
 not be deemed to be merged or extinguished in equity. 
 And since that time, when the owner of the term pur- 
 chases or takes a conveyance of the fee simple, or vice 
 versa, the term does not merge, if an intention of 
 keeping it on foot be shown, notwithstanding that the 
 term and the inheritance be vested at law in the same 
 person (,/). 
 
 to mersrer. 
 
 Land held for 
 long term 
 enlarged 
 into fee 
 simple. 
 
 Where land sold is held for a long term of years 
 enlarged into a fee simple under the Conveyancing Acts 
 of 1881 and 1882 (/«•), and the enlargement has taken 
 place within the period for which the , title is to be 
 investigated, the vendor must remember that the deed 
 
 (e) Whitchurch v. JFhitchurch, 
 2 P. W. 236 ; 9 Mod. 124 ; Good- 
 rujht V. Sales, 2 Wils. 329, 331. 
 
 ( f) Capel V. Girdlcr, 9 Ves. 
 509 ; Sug. V. & P. 625, 626 ; and 
 see Saxton v. Saxton, 13 Ch. D. 
 359, and cases there cited. 
 
 ((/) Belaney v. Belanei/, L. R. 
 2 Ch. 138. 
 
 [h) Gnnter v. Gunier, 23 Beav. 
 571. 
 
 (i) Stat. 36 & 37 Vict. c. 66, 
 s. 25 (4), which commenced on 
 
 the 1st Nor. 1875 ; stat. 37 «S: 38 
 Vict. c. 83. 
 
 {J) See liiffk V. Vauqhan Jen- 
 kins, 1900, 2 Ch. 368; 'ihelhisson 
 V. Liddard, ib. 635 ; Capital ^■ 
 Counties Bank, Ltd. v. Rhodes, 
 
 1903, 1 Ch. 631 ; Lea v. Thursby, 
 
 1904, 2 Ch. 57 ; Re Gibbon, 1909, 
 1 Ch. 367, 373. 
 
 [k) Stats. 44 & 45 Vict. c. 41, 
 s. 65, amended by 45 & 46 Vict, 
 c. 39, s. 11.
 
 OF PARTICULAR TITLES. 369 
 
 of enlargement is not in itself a good root of title (/), 
 and that, in the absence of stipulation to the contrary, 
 he will be bound to show title to the term down to the 
 date of the enlargement, that is, to abstract and produce 
 the instrument which created the term, and so much of 
 the subsequent title prior to the enlargement as will 
 carry the abstract back to a date at least forty years 
 before the sale {>»). And he must not forget that it 
 lies on him to prove that the enlargement purported to 
 be made was warranted by the powers given by the 
 Acts («). The purchaser's advisers should see that the 
 vendor's duties in these respects are duly discharged ; 
 except of course so far as he is by special stipulation in 
 the contract exonerated from performing them. 
 
 On the purchase of leaseholds settled on sach trusts Leaseholds 
 as shall correspond, as nearly as the rules of law and ti-ust to go 
 equity will permit, with the uses declared of some 7''^^^ ^^^^' 
 freehold lands assured in strict settlement (o), it must 
 not be forgotten that the leaseholds are not thereby 
 converted in equity into real estate {])). On the con- 
 trary, they remain personal estate and mil therefore 
 vest absolutely (subject to any prior life interests) in 
 the person, who becomes entitled to the first estate of 
 inheritance, whether in fee or in tail, in the settled 
 freeholds {q) ; unless the settlement contain the usual 
 proviso that the leaseholds shall not vest absolutely in 
 any person thereby made tenant in tail by purchase 
 unless he shall attain tlie age of twenty-one years, but 
 
 (/) See above, pp. 106—108, ed. ; vol. 4, p. 436, 3rd ed. ; 
 
 208—210. Williams on Settlements, 223. 
 
 (w) Sec above, pp. 97 101, {p) See He TTalkrr, 1908, 2 Ch. 
 
 192, 208—210. 70o, 712 ; lie Gibbon, 1909, 1 Ch. 
 
 (m) See Hood & Challis, Couv. 367, 378. 
 
 and Settled Laud Acts, 160 sq., [q) See Folei/y. BtirueU, 1 Bro. 
 
 9th ed. C. C. 274, 4 Bro. P. C. 319; 
 
 (o) As to this modo of settle- Wms. Pers. Prop. 363, 409. 410, 
 
 ment. see Davidson, Prec. Conv. 16th ed.; and authorities cited iu 
 
 vol. 3, pp. .599—605, 1130, 3rd note (o), above. 
 
 w. 24
 
 370 
 
 OF PARTICULAR TITLES. 
 
 shall devolve on his death as if they were freeholds of 
 inheritance limited to the uses of the settlement. Such 
 a proviso is only effective if confined to tenants in tail 
 taking by purchase ; and does not of course prevent 
 the leaseholds from vesting absolutely in the person, 
 who becomes entitled to the first estate tail, if he take 
 by purchase and be of or attain full age, or if he should 
 become entitled thereto by inheritance (whether of full 
 age or not) (r). Leaseholds settled in this way do not, 
 of course, require to be disentailed at any time. If a 
 re-settlement be made, they should be assigned, as the 
 absolute property in reversion of the tenant in tail, 
 upon trusts to correspond with the uses declared of 
 the freeholds thereby assured, subject to the above- 
 mentioned proviso (.s) . 
 
 Options to 
 purchase con- 
 tained in 
 leases. 
 
 How far 
 options of 
 purchase 
 are subject to 
 the rule 
 against 
 perpetuities. 
 
 Sometimes leases contain an agreement giving to the 
 lessee, his executors, administrators or assigns, the option 
 of pm-chasing the freehold from the lessor, his heirs or 
 assigns, either at any time during the continuance of 
 the term or within some shorter period. It must be 
 remembered that covenants of this kind are collateral 
 covenants, not touching or concerning the demised pre- 
 mises as such, and are subject to the same law as options 
 to purchase conferred by agreements independent of 
 leases {f) . Contracts giving options exercisable at any 
 fixture time (without limit) to purchase land are so far 
 subject to the rule against perpetuities that the Courts 
 will not enforce them specifically against persons not 
 parties to the contract, who have acquired the original 
 
 (>•) See authorities cited in 
 note (o), above. Personal chattels 
 such as furniture, pictures, plate 
 and jewels, are governed by the 
 same law when settled on trust to 
 accompany freeholds ; see Wms. 
 Pers. Prop. 408—410, 16th ed. ; 
 but see He Chexham's Setfkmcnt, 
 1909, 2 Ch. 329, and Mr. Charles 
 
 Sweet's c-riticism of this decision 
 in 54 Sol. J. 26 ; Re Parker, 1910, 
 
 1 Ch. 581. 
 
 [s) See 2 Key & Elph. Prec. 
 Conv. 710, 715, 4th ed. ; 744, 
 748, 9th ed. 
 
 [t) Woodall V. Clifton, 1905, 
 
 2 Ch. 257 ; and see an article by 
 the writer in 42 Sol. J. 628, 650. 
 
 I
 
 OF PARTICULAR TITLES. -371 
 
 contractor's estate by succession after death or by 
 assignment with notice of the contract, in any case 
 where the efpect of ordering such specific performance 
 would be to secure to the person entitled to the option 
 a contingent equitable interest in the land, which would 
 not necessarily vest (if at all) within the period allowed 
 by the rule {k). It has been held, however, that such 
 agreements are not void at law as contracts, but are 
 enforceable by action for damages in case of their 
 breach (^■). Audit has been considered that contracts 
 of this kind are specifically enforceable against the 
 original contractor, even though made by a corporation 
 enjoying immortal existence {//). The result is that, to 
 be perfectly effective, options to purchase land must be 
 limited so as to be exercisable only within some period 
 not exceeding that allowed by tlie rule against perpetui- 
 ties, namely, the duration of some specified life or lives 
 in being at the date of the contract giving the option 
 and twenty- one years thereafter (s), and this is equally 
 the case where the contract is contained in a lease as 
 where it is not. If therefore the lease be for a term 
 exceeding twenty- one years and the option be for the 
 lessee, his executors, administrators or assigns, to piu'- 
 chase of the lessor, his heirs or assigns, at any time 
 during the term, the option is only partially effective. 
 
 («) Zondoti ^- South Western kind are in general or unlimited 
 
 Ry. Co. V. Gomm, 20 Ch. D. 562, restraint of alienation, and ought 
 
 580, nq. ; and see South Ensfeni to be treated as void on that 
 
 i?y. Co. V. Associafifl I'ortlaitd account ; see also another article 
 
 ^•c, Ltd., 1910, I Ch. 12, 28 — 34, by the writer on this subject iu 
 
 the decision iu Avhich case is 54 Sol. J. 471, 501. 
 
 criticised by the writer in .Vl {y) South EuKtern Ry. Co. v. 
 
 Sol. J. 471, 501. Associated Portland ^r., Ltd., 
 
 (x) TForthiiiy Corpn.v. Hrafhcr, 1910, 1 Ch. 12. 28—34. This 
 
 1906, 2 Ch. 532. An appeal was decision is criticised by the writer 
 
 entered against this decision, but in 54 Sol. J. 471, 501. 
 
 the case was compromised. The (z) See Wms. Real Prop. 405 — 
 
 decision in this case is criticised 407, 21st ed. : and the writer's 
 
 by the writer in 51 Sol. J. 648, article on the Rule against Per- 
 
 069, where it is respectfully snb- petuities in the Encyclopaedia of 
 
 mitted that agreements uf tliis the Laws of England, 2nd ed. 
 
 24 (2)
 
 372 
 
 OF PARTICULAR TITLES. 
 
 It would be specifically enforceable against the lessor 
 himself, or (as it appears) by the lessee himself against 
 the lessor's heirs or assigns : but not by the lessee's 
 assigns against the lessor's assigns (a) . 
 
 Reversionary 
 leases. 
 
 Terms to 
 commence 
 
 infntttro. 
 
 Where the landlord of a tenant for a term of years 
 has granted to him a new lease to commence in reversion 
 upon the expiration of the existing term, it must not be 
 forgotten that during this term the tenant has only an 
 interesiie termini, and no term, under the new lease ; he 
 is not tenant for one term compiled by adding the 
 years to be enjoyed under the new lease to the existing 
 term. If, therefore, the tenant should have underlet 
 for a period exceeding the existing term, he will in 
 effect have assigned his interest in the term, and will 
 have no reversion enabling him to distrain for the rent 
 reserved by the underlease {h). Terms of years may 
 of course be limited to commence at a future time (c) ; 
 and no period was defined by the ancient common law 
 within which such terms should be required to take 
 effect {d). But of late years the question has been 
 raised whether terms to commence in futuro are well 
 limited if they may take effect at some time exceeding 
 the period allowed by the rule against perpetuities {e). 
 And having regard to the recent trend of judicial 
 opinion on this subject (/), it cannot safely be assumed 
 
 [a) See WoodaUw. Clifton, 1905, 
 2 Ch. 257 ; Worthing Corpn. v. 
 Heather, 1906, 2 Ch. 532 ; and the 
 writer's articles in 42 Sol. J. 630, 
 650; 51 Sol. J. 648, 669, 670. 
 
 [h) Lewis V. Baker, 1905, 1 Ch. 
 46; Llatigattock v. Watne>/, ^-c, 
 ltd., 1910, 1 K. B. 236 ; affirmed, 
 1910, A. C. 394 ; see Wms. Real 
 Prop. 507, 523, 21st ed. 
 
 (c) Wms. Real Prop. 395, 13th 
 ed. ; 505, 21st ed. 
 
 (d) See Smith v. Dai/, 2 M. & 
 W. 684 ; 3rd Rep. of Real Pro- 
 perty Commrs., 29, 31 ; Encyclo- 
 
 paedia of the Laws of England, 
 xi. 72, 73, 2nd ed. (by the author). 
 
 (f) See 1 Sand. Uses, 197, 199, 
 4th ed. ; Lewis on Perpetuities, 
 600, 609, 614; Gray on Per- 
 petuities, ^ 299—303, 314, 316, 
 319, 2nded. 
 
 (/) See North, J., Dmiii v. 
 Flood, 25 Ch. D. 629 ; Baggallay, 
 L. J., S.C, 28 Ch. D. 592 ; Jig 
 HoUis^ Hospital and Hague, 1899, 
 2 Ch. 540 (these opinions are 
 criticised below. Chap. XII. ^ 3) ; 
 Farwell, L. J., South Eastern Ry. 
 Go. V. Associated Portland ^-c,
 
 OP PARTICULAR TITLES. 
 
 373 
 
 that terms limited to commence at a future time beyond 
 that period are validly created. 
 
 § 3. — Sale of Lands in a Register County or Coinpuhory 
 Registration Dii^triet. 
 
 If the property purchased be situate in Middlesex or Lands in 
 Yorkshire (including the town and county of Kingston- Yorkshire. ° 
 upon-HuU), the conveyancer must, of course, have 
 regard, in advising on title, to the law established by 
 the Hegistry Acts {y) for those counties, and to the 
 construction placed on the Middlesex and the old 
 Yorkshire Registry Acts in Courts of Equity with 
 regard to purchasers having notice of prior unregistered 
 assurances {h). He should note, in perusing the abstract, 
 whether every document which ought to be registered 
 has been duly registered, and, if not, he should require 
 the vendor to procure the same, if still capable of 
 registration, to be registered at the vendor's expense {i). 
 
 Ltd., 1910, 1 Ch. 12, 27 (as to 
 which case and dictum, see above, 
 p. 371, u. (//)); Wms. Real 
 Prop. 415, and note (c), 21st 
 ed. ; and the writer's article on 
 the Rule against Perpetuities in 
 the Encycloi^aedia of the Laws 
 of England, vol. ii. pp. 72, 73, 
 2nd ed. 
 
 {g) Stats. 7 Anne, c. 20, for 
 Middlesex, of which the register 
 was transferred to the Land 
 Registry Office by 54 & 55 Vict. 
 c. 64 ; 2 & 3 Anne, c. 4 ; 6 Anne, 
 0. 20 (5 Anne, c. 18, in Ruffhead), 
 for the West Riding of Yorkshire ; 
 6 Anne, c. 62 (c. 35 in Rutfhead;, 
 for the East Riding and King- 
 ston-upou-HuU : and S Geo. II. 
 c. C. for the North Riding. All 
 the Yorkshire Acts were repealed 
 and replaced by 47 & 48 Vict. 
 c. 54, amended by 48 & 49 Vict, 
 c. 26. 
 
 (A) See Wms. Real Prop. 211, 
 262, 572—574, 2l9t ed. ; 2 Dart, 
 V. i: P. G78— G85, 852—857, 5th 
 
 ed. : 767—776, 9.58—965, 6th ed.; 
 697—705, 865—872, 7th ed. ; 
 Brickdale on Registration in 
 Middlesex. 
 
 (i) Sug. V. & P. 546. The 
 memorial to be I'egi.stered in 
 Middlesex or Yorkshire of any 
 deed was required to be under 
 the hand and seal of some or one 
 of the grantors or grantees, his 
 or their heirs, executors or ad- 
 ministrators, guardians or trus- 
 tees, and to be attested by two 
 witnesses, whereof one should be 
 one of the witnesses to the exe- 
 cution of the deed : Sug. V. & P. 
 729, 730. The Yorkshire Regis- 
 tries Act. 1884, s. 6, substituted 
 parlies to the deed for f/raiitors or 
 grantees and one or more for two 
 witnesses. In Middlesex, the 
 memorial is now required to 
 be attested by one witness only, 
 such witness, tc/icrc practicable, to 
 be a witne.ss to the execution of 
 the deed : stat. 54 & 55 Vict, 
 c. 64, 8. 2, and First Schedule,
 
 374 OF PARTICULAR TITLES. 
 
 If the omission to register cannot be rectified, the pm-- 
 chaser's counsel must consider whether the circumstances 
 are such as prevent his client from obtaining an inde- 
 feasible legal estate in the property purchased, and he 
 should make requisitions or objections as to the title, 
 according to the conclusion at which he arrives. With 
 regard to dispositions taking effect inter vivos, the general 
 effect of the Middlesex and old Yorkshire Registry Acts 
 was that an unregistered deed or conveyance of lands 
 in either of these counties was voidable at law by 
 a subsequent registered deed or conveyance of the 
 same lands to a purchaser or mortgagee for valuable 
 consideration {k) . But an unregistered assm-ance by 
 deed was not void or inoperative ; it passed the 
 legal estate to the grantee, and was only defeasible 
 by such a registered assurance as above described [l). 
 Thus, if A. granted the same lands by unregistered 
 deed first to B. and subsequently to C, whether 
 
 r. 2 ; Land Registry (Middlesex agreement or memorandum in 
 
 Deeds) Rules, 1892, r. 6 ; W. N. writing: Suiiiptcrw. Cooper, 2 B. 
 
 ISth Feb. 1892. It is suflBcient & Ad. 223; or to a vendor's lien 
 
 if a witness to the execution of arising without express agree- 
 
 the deed by the grantee attest the nient in writing : Kettlcwdl v. 
 
 memorial : R. v. Registrar for Watson, 26 Ch. D. 501, 507 ; or 
 
 Middlesex, 21 Q. B. D. 555. In to the vesting, effected by an 
 
 default of compliance with these adjudication of bankruptcy, of 
 
 conditions theregistration is void: the banki'upt's estate in his 
 
 Essex V. Baiigh, 1 Y. & C. C. C. trustee: Re Cakott and Elvin^s 
 
 620. Contract, 1898, 2 Ch. 460. Con- 
 
 (k) Stats. 2 & 3 Anne, c. 4, s. 1 ; sidering these decisions, it would 
 
 6 Anne, c. 62 (c. 35 in RuflFhead), appear that the words above 
 
 s. 1 ; 7 Anne, c. 20, s. 1 ; 8 Geo. II. quoted are wide enough to in- 
 
 c. 6, s. 1. TThese enactments re- elude an unsealed memorandum in 
 
 quired the registration of " all writing of a contract to sell laud, 
 
 deeds and conveyances whereby Brady, Ir. C, Gardiner v. Blesin- 
 
 any hereditaments may be in any ton, 1 Ir. Ch. Rep. 79, 85 ; but 
 
 way affected at law or inequity"; see and consider Inland Revenue 
 
 and it was held that these words Commrs. v. Angus, 23 Q. B. D. 
 
 extend to a written memorandum 579; Rodger v. Harrison, 1893, 
 
 of an agreement gis'ing or opera- 1 Q. B. 161. The law stated in 
 
 ting as a charge in equity upon this note now applies to lands in 
 
 certain lands: Neve -v . Pennell, 2 Middlesex only; see below, p. 377, 
 
 H. & M. 170, 185—187 : Credland and n. (s). 
 V. Totter, L. R. 10 Ch. 8; but 
 
 not to the charge created by a {I) Grant, M. R., Jones v. 
 
 deposit of title deeds without Gibbons, 9 Ves. 407, 411.
 
 OF PARTICULAR TITLES. 375 
 
 for value or not, and C. by registered deed granted 
 the lands to D. on a sale or mortgage, I), did 
 not thus obtain the legal estate or any priority of 
 interest over B. For when A. granted the lands to C, 
 he had already parted with all his estate therein to B., 
 and A.'s grant to C, being unregistered, could not 
 operate to displace B.'s estate (m). If, however, the 
 conveyance from A. to C. were duly registered, as well 
 as that from C. to D., D. would obtain the legal estate, 
 whether he had or had not notice of the conveyance 
 from A. to B. {n) ; but if he had such notice, i)i equiti/ 
 he would obtain no priority of interest over B., and 
 would be a trustee of his legal estate for B.'s benefit (o). 
 It has been decided by the House of Lords, in a case 
 upon the Irish Registry Act, that in order to avoid an 
 unregistered assurance it is not necessary that the 
 subsequent registered conveyance shoidd be made by 
 the first grantor personally ; it may be made by anyone 
 who, but for the unregistered assurance, would take his 
 estate by operation of law in his lifetime (p). And 
 
 (»«) Jack d. Rennick v. Arm- be imputed to him: Holland v. 
 
 KtroHff, 1 Hud. & B. 727 ; Furi/ Hart, L. R. 6 Ch. 678. Regis- 
 
 V. Smith, lb. 735 : both oases on tration of an assurance is not of 
 
 the Irish Registry Act ; 2 Dart, itself equivalent to notice thereof: 
 
 V. >Sc P. 80.5, 856, 5th ed. ; 963, Moncock v. Dickins, Amb. 678 ; 
 
 964, 6th ed. ; 871, 872, 7th ed. He limsell Iloud PKrchasc Moneys, 
 
 («) Dov d. Robinson v. Allsop, L. R. 12 Eq. 78, 83. But if one 
 
 5 B. & A. 142. search in the register, he is 
 
 (0) Le Xevc V. Lc Neve, Amb. affected with notice of registex-ed 
 
 436; 2 White & Tudor L. C Eq. assurances : Bimhell v. Bit-shell, 1 
 
 As a iide, actual notice of a Sch. & Lef. 90, 103 ; Ilodyion v. 
 
 previous unregistered aasurance Lean, 2 Sim. it Stu. 221, 225; 
 
 was necessary tu deprive a pur- Procter v. Cooper, 1 Jur. N. S. 
 
 chaser of the benefit of registra- 149. 
 
 tiou: Wyutt v.Bnriall, 19 Ves. ^^,^ ir,irburton v. Lonland, 2 
 
 435. He would not lose his D^^. & c. 480, where a woman 
 
 priority through not makiug entitled to a term of years settled 
 
 mvestigations or inquiries for it on her marriage by unregistered 
 
 unregistered documents : Ayra sissurance, and it was held that 
 
 Bank, Limited v. Barry, L. R. 7 this settlement must be postponed 
 
 ?■ T "r.l"^^ ' ^^ t' ^t''""^"' *''' to a registered assignment of the 
 
 L. J. Ch. 43, 46 L. J. Ch. 48. term by her husband to a pur- 
 
 But if his solicitor or agent had chaser, 
 actual notice, such notice would
 
 376 OF PARTICULAR TITLES. 
 
 in the same case the English judges, who were called 
 in to advise the House, unanimously expressed the 
 opinion (q) that a secret conveyance of a man's lands 
 made by unregistered assurance may be avoided by a 
 registered conveyance from his heii-, or even from his 
 Wills. devisee (r) to a purchaser. Wills of lands in Middlesex 
 
 or Yorkshire, if not registered within six months of the 
 testator's death, were voidable by a registered convey- 
 ance from the testator's heii' to a purchaser (.s) ; so that 
 the devisee imder a will not so registered could not 
 make a good title to the devised lands without the 
 heir's concurrence (t). But under the Vendor and 
 Purchaser Act, 1874 {a), where such a will has not 
 been registered within due time, an assurance of the 
 land to a purchaser or mortgagee by the devisee, or by 
 someone deriving title under him, shall, if registered 
 before, take precedence of and prevail over any assur- 
 ance from the testator's heir-at-law. It is not clear to 
 what extent this enactment is retrospective. On a sale 
 of lands in Middlesex by the devisees under an 
 unregistered will of a testator, who died in 1875, 
 subject to the condition that no objection should be 
 taken on account of any document not being registered 
 in Middlesex, the purchaser was obliged to take the 
 
 {q) 2 Dow & C. 495. the death of a testator dying' 
 
 (?•) Assuming, it is presumed, upon or beyond the seas. In 
 
 that the wiU was duly registered : case of an impediment to the 
 
 see Dart, V. & P. 683, 684, 5th registration of the will, a memorial 
 
 ed., 772, 6th ed. ; 701, 7th ed. of the impediment might be 
 
 The rule Mibsequently laid down registered and the will might 
 
 by Mr. Dart and his editors be registered within six months 
 
 (p. 855, 5th ed., 963, 6th ed. ; after the removal of the impedi- 
 
 871, 7th ed.), that a purchaser ment. See stats. 7 Anne, c. 20, 
 
 under an uni-egistered conveyance ss. 1, 8, 9 ; 2 & 3 Anne, c. 4, 
 
 can only be disturbed by a pur- ss. 1, 20, 21 ; 6 Anne, c. 35, ss. 1, 
 
 chaser from the first grantor or 14, 15, 34 ; 8 Geo. 2, c. 6, ss. 1, 
 
 parties taking vmder him by aci 15, 16 ; Chadwlck v. Tunur, 34 
 
 in laiv, does not appear to be Beav. 634, L. R. 1 Ch. 310. 
 quite accurately expressed, as a {() 2 Dart, V. & P. 682, 683, 
 
 devisee is the testator's assign. 5th ed. ; 771, 772, 6th ed. ; 701, 
 
 («) That is, if the testator died 7th ed. 
 in Great Britain. Three years («) Stat. 37 & 38 Vict. c. 78, 
 
 were given for registration from s. 8.
 
 OF PARTICULAR TITLES. 
 
 •377 
 
 title, notwithstanding that it was unknown who was 
 the heir, and search against the heir's name was thus 
 prevented {x). 
 
 The Yorkshire liegistries Act, 1884 {>/), provides Yorkshire 
 that all assurances (as defined in the Act) {z) AcFIssT 
 affecting lands in Yorkshire ma// be registered under 
 the Act, and that all assurances entitled to be 
 registered under this Act shall have priority accord- 
 ing to the date of registration {a), and that all 
 priorities given by this Act shall have full effect in all 
 Courts, except in cases of actual fraud, and all persons 
 claiming thereunder any legal or equitable interests 
 shall be entitled to corresponding priorities, and no 
 
 {x) Girli)i(j V. Giii'uig, W. N. 
 1886, p. 18. 
 
 (y) Stat. 47 & 48 Vict. c. .54, 
 ss. 4, 14, as amended by 48 & 49 
 Vict. c. 26, s. 4. 
 
 [z) By Stat. 47 & 48 Vict. c. 54, 
 s. 3, in this Act, unless the con- 
 text otherwise requires, the ex- 
 pression asKuraxcr shall include 
 any conveyance, enlargement of 
 term into foe simple, memo- 
 randum of charge, deed of con- 
 sent to the discharge of a trustee, 
 statutory receipt, private Act of 
 Parliament, award or order of 
 the Land Commissioners, order of 
 a Court, certificate of appoint- 
 ment of a trustee in bankruptcy, 
 or affidavit of vesting under any 
 Act of Parliament ; and the e\- 
 ■pTCH>*\onscv>ivii/)incv (which is con- 
 fined to certain conveyances 
 made by deed), enlargement of 
 term into fee ainiplr, itiiiiioranduin 
 of charr/e, stdtutory receipt, anard 
 or order of Laud Commissioners 
 and ord^'r of a Court (which in- 
 cludes writ of execution and 
 adjudication in bankruptcy), are 
 also ehiborately interpreted. The 
 powers (if the I>:iinl Cmimis- 
 sioners were in 188'.) tran.sfeiTed 
 to the Board of Agricultiure ; .-see 
 
 above, pp. 146, n. {k), 147, u. ((/), 
 lo'i. By sect. 7 of the Act, the 
 charge given by a vendor's lien 
 or a deposit of title deeds is re- 
 quired to be accompanied by a 
 registered memorandum in order 
 to give priority over subsequent 
 registered assurances for valuable 
 consideration. It ha^s been held 
 that a written memorandum of a 
 contract for the sale of laud in 
 Yorkshire, subject to the con- 
 ditions implied by law that the 
 vendor shall show a good title 
 and convey on acceptance of the 
 title, and payment of the price, is 
 not an assurance withiu the 
 meaning of this Act: Rodger \. 
 JfarrisoH, 1893, 1 Q. B. 161. 
 
 («) By Stat. 48 & 49 Vict. c. 2C, 
 s. 3, a caveat in favour of any 
 person may be registered with 
 respect to any lands in Yorkshire 
 by any person claiming to be 
 entitled to any interest therein ; 
 and if, while the eaveat remains 
 in force, an assurance of the lands 
 from the g^ver of the caveat to the 
 other, his representatives or as- 
 signs, be duly registered, such 
 assurance shall have priority as 
 though it had been registered on 
 the date of registration of the 
 caveat.
 
 ST'S OF PARTICULAR TITLES. 
 
 such person shall lose any such priority merely in conse- 
 tj[uence of his having heeu affected with actual or con- 
 structive notice, except in cases of actual fraud {h). 
 This Act appears to have the same effect as the Acts 
 which it repealed {(■), with respect to the operation of 
 conveyances inter civo>i at law [d) ; but to abolish the 
 doctrine as to notice applied in equity to the old 
 Acts (e). Under the Act of 1884 (./'), wills of lands in 
 Yorkshire shall have priority according to the date of 
 the testator's death, if registered or entitled to rank as 
 registered, within six months thereafter [g) ; and if 
 registered later, according to the date of registration. 
 But the Act provides (A) for the registration within six 
 months after a landholder's death of an affidavit of his 
 intestacy, and gives priority, where such an affidavit 
 has been registered, to any duly registered assurance 
 for valuable consideration by any person entitled to 
 execute the same in case of such intestacy, over any will 
 of the supposed intestate which shall be subsequently 
 registered, and shall not be entitled to rank as regis- 
 tered within six months after the testator's death. 
 
 Exceptions. The Middlesex Registry Act and the old Yorkshire 
 
 Registry Acts do not extend to copjhold estates, leases at 
 a rack rent, or leases not exceeding twenty-one years when 
 the actual possession and occupation go along with the 
 lease (?'). And the Middlesex Registry Act does not extend 
 
 {b) Hee JJatti»ijtt\'. Mu/jxuti.lSim, may be registered within the 
 
 2 Ch. 403. same period, and iu such case the 
 
 (e) Above, p. 373, n. (;/). will, if registered within two 
 
 {d) Above, p. 374. years after the testator's death, 
 
 (e) Above, p. 375. This doctrine will have priority as though it 
 
 remains in force with regard to were registered on the date of 
 
 lands in Middlesex. registration of the notice : stat. 
 
 (/} Stat. 47 & 48 Vict. c. .',4, 47 >)c 48 Vict. c. 54, s. 11. 
 
 ss. 4, 14, amended by 48 & 49 n a *- ^.■l 
 
 Yict. c. 26, s. 4. ^ ' 
 
 [g) If the will cannot be regis- (i) Stats. 7 Anne, c. 20, s. 17 ; 
 
 tercd within six months after the 2 & 3 Anne, c. 4, s. 16; G Anne, 
 
 testator's death, notice of the will c. 35, s. 29 ; 8 Geo. II. c. tJ, s. 34.
 
 OF PARTICULAR TITLES. 379 
 
 to Chambers in Serjeant's Inn, the Inns of Court or Inns 
 of Chancer J (A-), and has no application to the City of 
 London (/) . The Yorkshire Registry Act, 1 884 (m) , does 
 not extend to copyhohls, or to any lease not exceeding 
 twenty-one years, or any assignment thereof, where accom- 
 panied by actual possession from the making of such lease 
 or assignment ; and the Act does not apply to land in 
 the city of York (ii). It has been held that, under the 
 old Yorkshire Registry Acts, it w^as not necessary to 
 register an assignment by deed of a pecuniary legacy 
 charged on land in Yorkshire (o) ; and that, under 
 the Middlesex Registry Act, registration need not 
 be made of a conveyance of an interest in the 
 proceeds of sale of land devised in trust for 
 sale ( p) . Here we may note that the non-registration Wills of 
 of wills of leaseholds does not appear to be an objection 
 to the title thereto {q), as, when a will of leaseholds has 
 been proved, there is no one, like the heir of freeholds, 
 who could possibly convey them to a purchaser so as to 
 defeat the executors' or legatees' title (r) . And pending 
 probate, the leaseholds could only be lawfully disposed 
 of by an administrator duly appointed on the supposi- 
 tion of intestacy ; in which case the validity of the 
 administrator's dealings therewith would appear to 
 depend on the general law (.s) and not on the policy of 
 
 (k) Stat. 7 Auue, c. 20, s. 17. in Aidoi v. A/dnt, 29 Ch. D. 7U2. 
 
 (/) Sug. V. & P. 732. Lauds <.P) ^Irdenv. Ardm, ubi sup. 
 
 takeu in 18>S8 from Middlesex to (?) See 2 Dart, V. k P. (383, 
 
 make up the anuiin of London -'th ed.; 772, 6th ed.; 702, 7th ed. 
 remained subject to the jurisdic- ('') Besides this reason, thepro- 
 
 tion of the Middlese.t Registry : visions of the Middlesex and old 
 
 Stat. 51 & 52 Vict. c. 41, .ss. 40, 96. Yorkshire Registry Acts for re- 
 
 / X oi i .- I . o 17- i. -. gistrations of wills of kinds appear 
 
 [m) btat. i, .^.-JSVict. c. 04, f^^.pp^^.^^ble to leaseholds the 
 
 **• " memorial being required to be 
 
 (h) This was equally the case the act of the devisee : see stjit. 
 
 with the old Yorkshire Registry 54 & 55 Vict. c. 64, First Sched. 
 
 Acts. r. 3. The Yorkshire Registries 
 
 (0) Malcolm v. VharUsworth, Act, 18S4, s. 6, permit** registra- 
 
 1 Keen, 63, doubted in Davidson, tion of a will by the executor. 
 Piec. Conv. vol. 2, part 2. p. 219, (.■<) See 1 Wins. Exors. Pt. I. 
 
 4th ed., but approved by Kay, J., Bk. VI. Ch. III.
 
 380 
 
 OF PARTICULAR TITLES. 
 
 Lands regis ■ 
 tered in 
 the Land 
 Registry. 
 
 the Registry Acts. It may be observed that since the 
 descent of the legal estate in freeholds lias been assimi- 
 lated to that of chattels real {f) , it is in most cases, if not 
 in all («), impossible for an heir of freehold lands in 
 Middlesex or Yorkshire to convey the same to a pur- 
 chaser so as to defeat the title of an executor or devisee 
 under an unregistered will. Lands situate within the 
 jurisdiction of the Middlesex Registry, or any of the 
 Yorkshire Registries, become exempt from such juris- 
 diction on being registered under the Land Transfer 
 Acts, 1875 and 1897, and no document relating to such 
 lands and executed after such registration, and no testa- 
 mentary instrument relating to such lands and coming 
 into operation after such registration, need be registered 
 in the county register {.r). But this provision does not 
 apply to estates and interests excepted from the effect 
 of registration under a possessory or qualified title (//), 
 or to an unregistered reversion on a registered leasehold 
 title, or to dealings with incumbrances created prior to 
 the registration of the land(s). If any such lands so 
 registered in the Land Registry should after^^'ards be 
 removed therefrom, they will again become subject to 
 the jurisdiction of the county register as from the date 
 of removal {a). 
 
 Where the land purchased is situate in a district in 
 
 Lands in a 
 
 district where ^ • ^ • i i- c l•,^ • ^ ^ -i^ 
 
 reo-istration which registration 01 title IS compulsory on sale, it 
 
 {t) Above, pp. 228, 231. 
 
 (m) Title must now be made 
 through the administrator in ca^e 
 of intestacy : above, p. 231. But 
 if the existence of a will were 
 not discovered for some years after 
 the testator's death, and the ad- 
 ministrator had conveyed to the 
 heir (see above, p. 233) and the 
 heir to a purchaser, both by duly 
 registered deed, it appears that in 
 Middlesex the purchaser's title 
 would prevail over that of the 
 devisee, as in Chddirick v. THviicr, 
 L. R. 1 Ch. 310. So, also, in 
 
 Yorkshire, if an affidavit of intes- 
 tacy had been registered (sec 
 above, p. 378) ; if not, queen . 
 
 {x) Stat. 38 k 39 Vict. c. 87, 
 s. 127 ; 54 & 55 Vict. c. 64, First 
 Sched. §14; Land Transfer Rules, 
 1908, I. r. 48. 
 
 (//) See Stat. 38 & 39 Vict. c. 87, 
 Fs. ' 8, 9 ; Wms. Real Prop. 645, 
 646, 21st ed. 
 
 (:;) Stat. 60 & 61 Vict. c. 65, 
 First Sched. 
 
 {<() Stat. 60 & 61 Vict. c. 65, 
 s. 17 (3).
 
 OF PARTICULAR TITLES. 
 
 381 
 
 must be remembered that under the Land Transfer of title is 
 Act, 1837 (/>), any conveyance on sale (c) executed on on sale, 
 or after the day on which registration of title on sale 
 was made compulsory in that district {(/), does not pass 
 
 (b) Stat. GO & 61 Vict. c. 65, 
 8. 20 (1, 2) ; Capital c^- Counties 
 Bank, Ltd. v. Uhodcx, 1903, 1 Ch. 
 631, 654. 
 
 (c) " Sale " in this enactmout 
 appears to be confined to sale 
 strictlj'' so called (cee above, 
 pp. 1, 266), and not to extend to 
 
 transactions in which other valu- 
 able consideration than the pay- 
 ment of a price in money is given 
 for the conveyance of land, such 
 as exchange, partition, mortgage 
 and marriage or family settle- 
 ment, and of course not to volun- 
 tary gifts. 
 
 {d) By Orders in Council dated the 18th July and 20th Oct. 1898, 
 28th Nov. 1899. 9th March and 10th Dec. 1901, and 6th March, 1902 
 (W. N. 23rd July and 29th Oct. 1898, 9th Dec. 1899, 23rd March and 
 21st Dec. 19ul, and loth March, 1902), registration of title was made 
 compulsory on sale in the following- districts comprising the county 
 and city of London on the dates mentioned below : — 
 
 DISTRICTS. 
 
 The parishes of Hampstead, St. Pancras, 
 St. Marylebone and St. Oeorge's, Hanover 
 Square 
 
 The parishes of Shoreditch, Bethnal Green, Mile 
 End Old Town, Wapping, St. George's in the 
 East, Shadwell, Ratcliff, Limehouse, Bow, 
 Bromley and Poplar 
 
 The parishes of Christ Church, South wark, 
 St. George the Martyr, Camberwell, Horsley- 
 down, Lambeth, Bermondsey, Newington, 
 Rotherhithe, St. Olave and St. Thomas, 
 St. Saviour and the detached part of the 
 parish of Streatham situate between the 
 parishes of Lambeth and Camberwell 
 
 The parishes of Battersea, Clapham, Putney, 
 Tooting Graveney, Wandsworth, and the re- 
 mainder of the parish of Streatliam 
 
 The remainder of the county of London (except 
 the city) 
 
 The city of London 
 
 Days of commencement 
 
 of Compulsory 
 
 Regi.<Jtration. 
 
 1st Jan. 1899. 
 
 1st March, 1899. 
 
 1st Jan. 1900. 
 
 Lst May, 1900. 
 
 1st Nov. 1900. 
 lst July, 1902. 
 
 It should be noted, however, witli regard to the city of London, that 
 an Order of Council making registration compulsory was actually in 
 force from the 1st until the cud of the .')th day of March, 1902 : and 
 it appears that conveyances executed during that time on sale of lands 
 there situate are governed by the law so introduced : see the Orders 
 of 10th Dec. 1901, and 6th March, 1902. cited above. As to convey- 
 ances executed on or after the 6th March, 1902, it appears that the 
 last-mentioned Order in Council, being in effect the execution of a
 
 382 OF PARTICULAR TITLES. 
 
 the legal estate in any freehold land situate in that 
 district to the person entitled thereunder unless or until 
 he is registered as proprietor of the land. The expres- 
 sion " conveyance on sale " here means an instrument 
 executed on sale (e) by virtue whereof there is con- 
 ferred or completed a title under which an application 
 for registration as fii'st proprietor of land may be made 
 imder the Land Transfer Act, 1875 (/). This provi- 
 sion, however, does not apply in the case of the con- 
 veyance on sale of an incorporeal hereditament, or 
 mines and minerals apart from the surface, or an im- 
 divided share in land or freeholds intermixed with and 
 indistinguishable from lands of other tenure, or corpo- 
 real hereditaments parcel of a manor (g) and included 
 in the sale of a manor as such ; for nothing in the Act 
 is to render compulsory the registration of the title to 
 Lcasoliolds. such hereditaments {/t). And as regards land situate in 
 a district where registration is compulsory, an assign- 
 
 power of legislation conferred by statute, would take effect from the 
 first instant of that day, and would operate as a revocation of the 
 previous Order: see stat. 60 & 61 Vict. c. 65, s. 20 (1, 3) ; Tomlinson 
 V. Bulloch, 4 Q. B. D. 230. 
 
 [c) See last note but one. 
 
 (/) Stat. 60 & 61 Vict. c. 65, s. 20 (2). To be entitled to make 
 such an application, a person must have contracted to buy, or be 
 entitled at law or in equity to, or be capable of disposing by way of 
 sale of, an estate in fee simple in the land for his own benefit, whether 
 subject to incumbrances or not ; and if he apply as purchaser the 
 vendor must consent to the application ; or he must hold the land on 
 trust for sale or be a trustee, mortgagee, or other person having power 
 of sale thereof (including a tenant for life or other person having the 
 power of sale given by the Settled Land Acts), and the persons (if 
 any) whose consent is required to the exercise of the trust or power of 
 sale must consent to the application ; or any two or more persons 
 must be entitled for their own benefit, conciirrently or successively, or 
 partly in one mode and partly in another, to such estates, rights, or 
 interests in the land as would if vested in one person entitle him to be 
 registered as proprietor: stats. 38 & 39 Vict. c. 87, ss. 5, 68, 69; 
 60 & 61 Vict. c. 65, ss. 6, 1-1 (1), and First Schedule; Wms. Real 
 Prop. 636, 637, 647, 648, 21st ed. 
 
 [g) This includes lands held of the manor as copyhold or as cus- 
 tomary freehold where the freehold is in the lord, but not lands 
 held of the manor by free tenure : Wms. Real Prop. 421, 422, 463 — 
 467, 21st ed. ; Williams on Seisin, 30. 
 
 (/() Stat. 60 & 61 Vict. c. 65, s. 24.
 
 OF PARTICULAR TITLES. '383 
 
 ment on sale of a lease or underlease having at least 
 forty years to run or two lives yet to fall in, and a 
 grant of a lease or underlease for a term of forty years 
 or more, or for two or more lives, executed after the 
 day on which registration was made compulsory in that 
 district, and capable of registration (/), operates only 
 as an agreement, and does not pass any legal estate to 
 the assignee or lessee unless or until he is registered as 
 proprietor of the lease or underlease {k). The expres- 
 sions " assignment " and " grant of a lease or under- 
 lease " here apply to any instrument by vii'tue whereof 
 there is conferred or completed a title under which an 
 application for registration as first proprietor of lease- 
 hold land may be made, not being an assignment or 
 surrender to the owner of the immediate reversion 
 executed on or after the 1st of January, 1909, and con- 
 taining a declaration that the term is to merge in such 
 reversion (/). A term created for mortgage purposes 
 
 (j) See note (/) below as tt) such an application are the same 
 
 what leases are capable of regis- as in the case of freehold land 
 
 tration. (above, p. 382, n. (/), except that 
 
 (/.) Land Transfer Rules (1903), for an estate in fee simple there 
 
 r. 09, further providing that, is substituted any leasehold land 
 
 where the assignees or lessees held under a lease which is either 
 
 shall be the trustees of a settle- immediately or mediately derived 
 
 ment for the purposes of the out of land of freehold tenure 
 
 Settled Land Acts, 1882 to 1890, and is for or determinable on a 
 
 or any of them, nothing in this life or lives or for a term of years 
 
 rule shall prevent the legal estate of which more than twenty-one 
 
 in the land from passing to the are unexpired ; but a term created 
 
 trustees, provided tliat the tenant for mortgage purposes is not to 
 
 for life or person having the be deemed a lease witliin the 
 
 powers of a tenant for life under meaning of these provisions, and 
 
 the settlement be registered as nothing in the Land Transfer 
 
 proprietor of the land comprised Act, 1897, is to render compul- 
 
 in the assignment or lease within sory the registration of the title 
 
 one calendar month from the date to a lease having less than forty 
 
 thereof, or witliin such further years to run or two lives yet to 
 
 time as the registrar shall allow. fall in : stats. 38 & 39 Vict. c. 87, 
 
 See Stat. 60 & 61 Vict. c. 6o, s. 6 ; ss. 2, 11 ; 60 & 61 Vict. c. 65, 
 
 Wma. Real Prop. 646-648, 21st ss. 14. 24, and First Schedule; 
 
 ed. Land Transfer Rules (1903), 51 — 
 
 (/) Land Transfer Rules (1903), 07; L. T. R. (1908), I. 18,11., 
 
 r. 70, as amended by L. T. R. III. ; Wms. Real Prop. 636, 673* 
 
 (1908), IV. The conditions re- 2l8ted. 
 quired to entitle a person to make
 
 ''^'*^4 OF PARTICULAR TITLES. 
 
 is not capable of registration under the Land Trans- 
 fer Acts (»?), so tliat the above provisions do not 
 affect the grant of such a terra. And it appears 
 that they do not affect an assignment on sale of a 
 term originally created for mortgage purposes, for the 
 " assignment " mentioned tlierein must confer or com- 
 plete a title under which an application for registration 
 as first proprietor of leasehold land may be made, and 
 the owner of a term created for mortgage purposes is 
 not entitled to make such an application. Here it may 
 be noticed that the exact scope of the expression " term 
 created for mortgage purposes " is doubtful. It certainly 
 includes the term created on a mortgage of leaseholds 
 by demise, but it is questionable whether it extends to 
 a term limited by a settlement to trustees on the usual 
 trusts to raise portions for younger children, such trusts 
 being to raise the portions not only by mortgage, but 
 also by sale of timber or minerals, or out of the rents 
 and profits, or by any other reasonable means (>/). If 
 on the purchase of land situate in a district where 
 registration is compulsory, title be deduced under 
 a conveyance on sale, or a grant or an assignment of 
 a lease, which is affected by the above provisions, it 
 must be ascertained that the purchaser, lessee, or assignee, 
 was duly registered as proprietor of the land, or the 
 legal estate must be required to be got in from the 
 vendor, lessor, or assignor or his representatives, and the 
 title thereto required to be deduced accordingly. And if 
 the land should not have been registered since registration 
 was made compulsory in the district, it must be remem- 
 bered that the purchaser must himself be registered as 
 proprietor of the land before he can acquire the legal 
 estate on completion of the purchase. The expense of 
 such registration will apparently fall on tlie purchaser, 
 
 {m) Stat. 60 & 61 Vict. c. 65, («) See Wms. Real Prop. 632, 
 
 First Schedule. ^33 and n. («), 21st ed. ; 45 Sol. 
 
 J. 357.
 
 OF PARTICULAR TITLES. 
 
 380 
 
 in the absence of special stipulation, under the general 
 principle that the purchaser must bear the expense of 
 the conveyance to himself of the property sold (o). It 
 appears, however, that in the absence of stipulation it is 
 the vendor's duty to procure the purchaser to be regis- 
 tered as proprietor ; for the general rule is that the 
 vendor must make the conveyance — i.e., do all acts 
 necessary to pass the legal estate — though the purchaser 
 must pay for the conveyance {p) ; and in the present 
 case the legal estate cannot pass until registration. 
 For the same reasons, it does not appear that the 
 vendor can claim payment of the purchase money 
 before the purchaser's registration, the rule being that 
 payment can only be demanded on conveyance of the 
 estate {p). When unregistered land situate in a com- 
 
 (o) Sug. V. & P. .j(il : Dart, 
 V. & P. 707, 5th ed. ; 798, 6th 
 ed. ; 714, 7th ed. 
 
 [p) See beh)w. Chap. XII.. 
 ^ 1, 5; Chap. XX. It i.s sub- 
 mitted that the case is iiot parallel 
 to that of the coiiveyanco of land 
 in a register county, when the 
 legal estate passes by the deed of 
 conveyance : above, p. 374. In 
 L. Q. R. XX. 97, the learned re- 
 viewer of the first edition of this 
 book challenged the correctness 
 of the statement in the text, and 
 (compared the case to that of a 
 tenant in tail selling the fee 
 simple, when (he suggested) the 
 duty of enrolling a conveyance 
 made by way of disentailing 
 assurance rests on the purcha.ser. 
 With great respe(^t for this 
 opinion, the aiithor is (constrained 
 to adhere ti> the view al>ovi> ex- 
 pressed ; and he submits tliat tlu' 
 case of a sale by a tenant in tail 
 is different. The effect of stat. 
 8 & 4 Will. IV. c. 74, .".s. IT), 41, 
 appears to be that the grantee of 
 an estate in fee simple under a 
 disentailing deed exei'uted by the 
 teniiiit in tail obtains th(> legal 
 estate in fee simple on the execu- 
 tion of the deed, subject to a con- 
 
 W. 
 
 dition subsequent reducing the 
 as.surance, in case of non-enrol- 
 ment within due time, to such a 
 conveyance as the tenant in tail 
 could make at common law ; see 
 }V hit more- Searle v. Whitmorc- 
 Srnrlft, 1907, 2 Ch. 332. And 
 even at common law the grantee 
 would take a fee simple defeasible 
 bv the entry of the issue in tail : 
 Doe d. XevUIe v. NiviUe, 7 T. R. 
 276 ; Doe d. Gregory v. Whiehelo, 
 8 T. R. 211, 214; Wms. Real 
 Prop. 108 andn (« ), 2l8t ed. 
 Besides, the fact that the tenant 
 in tail is bound to pay the costs 
 of ennilinetit (below, Chap. XII. 
 ^^ 4), appears to .show that the 
 duty of jJi'ocurinff the enrolment 
 (as being an act without which 
 he cannot convey the estate he 
 has sold iiud so a step in the 
 vendor's title) really lies on the 
 vendor. t>o in the case of the 
 sale of land in a compulsory 
 registration district it is sub- 
 mitted that the registration of 
 the pui'cha.ser is an act without 
 which the vendor cannot convey 
 to the jiurchaser the estate con- 
 tracted for, and is e<iually a step 
 in the vendor's title to convey 
 what he has contructed to sell 
 
 25
 
 '"^^6 OF PARTICULAR TITLES. 
 
 pulsory district is sold, the vendor generally desires that 
 the purchase money shall be paid on the execution by 
 him of a deed of conveyance in the old form, which, 
 of course, only passes an equitable estate to the pur- 
 chaser, and that the purchaser shall then complete his 
 title by registering himself. But to obtain this it 
 appears necessary to make special stipulations to that 
 effect in the contract for sale. It is also desirable, in 
 the vendor's interest, to stipulate that the purchaser 
 shall procure the registration of the title within a 
 specified time, in order that the legal estate and any 
 liabilities attached to the legal ownership of the land 
 may not remain outstanding in the vendor for an 
 Sale of lease- indefinite period. This is especially necessary where 
 compulsory the vendor of leasehold land situate in a compulsory 
 diHtrict. registration district is liiniself an assignee of the lease, 
 
 under which the property is held ; as he remains subject 
 to the rent and covenants of the lease until he has 
 parted with the legal estate in the terra granted {q). 
 Forms of the special stipulations appropriate on the 
 sale by auction of unregistered land situate in a compul- 
 sory registration district are given in the Appendix (r). 
 Priority notice The purchaser of such land may lodge at the Ofiice of 
 the pm^^ ° Land Registry a priority notice in favour of his appli- 
 chaser'.s appli- cation to be registered as first proprietor thereof ; and if 
 
 cation for first ... „ ,, „. .iii i e l^ 
 
 registration, withm fourteen days after the lodgment of the notice, 
 or such further time as the registrar shall think fit, an 
 application shall be made in accordance with the notice 
 
 (see above, p. 94^ . But the viously to his own in the property 
 
 main point is that in this case purchased, whether he has notieo 
 
 (unlike that of a purchase from a of such prior interests or not (see 
 
 tenant in tail or of land in a below, § 10 of this chapter). It 
 
 register county) the purchaser is submitted that he cannot be 
 
 can only obtain an equitable obliged to part with his purchase 
 
 estate by the conveyance to him money against a conveyance of 
 
 by deed of the land sold, and this kind, unless he be bound bj' 
 
 holds therefore, prior to the com- express stipulation to do so. 
 
 pletion of bis title by registra- [q) See Wms. Real ProjD. all, 
 
 tion, subject to all equitable •512, 21st ed. 
 
 interests (if any) created pre- (r) Appendix A., below. 
 
 I
 
 OF PARTICULAR TITLES. 387 
 
 and accompanied by the official acknowledgment of the 
 notice, it will be dealt with in priority to any other 
 application affecting the same land which may have been 
 made in the meantime (.s). Where a purchaser of Registered 
 
 • i iij'ii- 1 • j_ !• transfer or 
 
 unregistered land situate m a compulsory registration charge by the 
 
 district desires to make an immediate disposition thereof purchaser 
 
 1 p • -, p 1-11 before his own 
 
 by way oi registered transter or charge, he is under the registration. 
 
 Land Transfer Rules (1903) (f) enabled to do so before 
 he is himself registered as proprietor : but a question 
 has been raised whether such a transfer or charge will 
 convey any legal estate or interest if the purchaser be 
 not himself registered as proprietor of the land (n). It 
 appears, therefore, that any one who proposes to take a 
 registered transfer or charge from such a purchaser 
 should insist on the purchaser being registered as pro- 
 prietor before the intended transfer or charge is com- 
 pleted ; and this is especially necessary where the 
 registration of the proprietorship of the land is to be 
 made with possessor}^ title only. The subject of the 
 purchase to be followed by an immediate mortgage of 
 unregistered land, which is situated in a compulsory 
 registration district, is considered in the chapter on the 
 sale of registered land (/). 
 
 It has been suggested (i/) that the provisions of the Suggested 
 Land Transfer Act, 1897 {z), as to compulsory regis- '^'^^^gory*^* 
 tration on sale may be evaded in this way : — Let it be registration 
 stipulated in the contract for sale that, on paATnent of 
 the purchase money, the vendor shall execute a deed 
 declaring himself a trustee for the purchaser and his 
 heu's, and giving to the purchaser power to remove him 
 
 («) Land Transfer Rules (1903), (x) Below, Chap. XX. at end. 
 
 95. , ^, (y) Brickdalc & Sheldon, Land 
 
 (0 Rule 96 ; .see below, Chap. Transfer Aot^, 313, Ist ed. ; 339. 
 
 XX. ; Wms. Real Prop. 648— 2nd ed. 
 656, 662, 67;i, lUt cd. (-) stat. 60 & 61 Vict. c. 65, 
 
 (m) Bnckdal.' & Sheldon, Land „. 20 ; above, pp. 381, 382. 
 Transfer Acts, 396, 397. 2nd ed. > rr . 
 
 25 (2) 
 
 enactment.
 
 •3'S8 OF PARTICULAR TITLES. 
 
 from the trusteeship and appoint a new trustee in his 
 place, and shall put the purchaser into possession of the 
 property sold. Let the purchaser take possession on 
 comj)letion and afterwards execute a deed removing the 
 vendor from the trusteeship, appointing some nominee 
 of his own trustee in the vendor's place, and vesting the 
 land in the new trustee. Then let the purchaser call 
 upon this trustee to convey to him the legal estate in 
 the land, and let the same be conveyed to him accord- 
 ingly. There certainly seems to he good ground for 
 contending that neither the deed appointing the new 
 trustee nor the deed of conveyance from the new 
 trustee to the purchaser himself is " an instrument 
 executed on sale" within the meaning of the enactment 
 in question (a), for when the price was paid, the first 
 deed executed, and the purchaser put into possession, 
 the contract of sale would have been completely dis- 
 charged on both sides by performance of all the 
 obligations thereby undertaken (/»). But this plan is 
 open to the very serious objection that the purchaser 
 parts with the whole of the piu-ehase money against the 
 conveyance to him of a merely equitable estate. . It is 
 never safe for a purchaser to do this, because in that 
 event he takes subject to all equitable interests (if any) 
 affecting the land and created previously to his own, 
 and this is equally the case whether he has or has not 
 notice of such prior interests (c). 
 
 Successive 
 purchases 
 of several 
 undivided 
 shares. 
 
 It is a question whether registration of the title is 
 necessary to pass the legal estate on the completion of 
 the last of several successive purchases of undivided 
 shares (together making the entirety) of unregistered 
 land situate in a compulsory registration district. Tlie 
 enactment as to compulsory registration applies to every 
 
 (a) Above, p. 382. 
 
 (/>) See below, Chap. XVIII. ^ 1. 
 
 (c) See above, p. 386, n. ( p) ; below, § 10 of this chapter.
 
 OF PAKTICULAK TITLK8. 389 
 
 instrument executed on sale whereby a title to apply 
 for first registration is conveyed or wmplctcd : but 
 nothing in the Act is to render compulsory the regis- 
 tration of the title to an undivided share in land [d). 
 There seems to be no doubt that the conveyance by Conveyance 
 deed on purchase of an undivided share in unregistered )|^ undivided 
 land situate in a compulsory registration district passes '^'^'i^e alone, 
 the legal estate, so long as there is not conferred or 
 completed by virtue thereof a title to apply for first 
 registration of something more than an undivided share 
 in land. Thus, if A. be the owner of one-half of Purt^H'wo 
 Blackacre, and the other half belong to X., and B. shares from 
 
 purchase A.'s moiety, it seems clear that a deed of <i'^eront 
 '■ . . . . owners*, 
 
 grant by A. of his moiety to B. in fee simple woidd 
 
 pass the legal estate therein to B. Then suppose that 
 after this B. purchase X.'s moiety, and X. convey it to 
 him by deed, is B. obliged to register his title to this 
 moiety in order that he may acquire the legal estate 
 therein ? This can only be necessary if the deed can 
 rightly be described as an instrument by virtue whereof 
 there is completed in B. a title to apply for registration 
 in respect of some property, which is not an undivided 
 share in land. But this does not appear to be the case. 
 B.'s title to apply for registration in respect of the 
 moiety purchased from A. was entirely completed when 
 A. conveyed it to him (e) ; so that the deed of grant 
 from X. to B. could only complete B.'s title, whicli was 
 con/erred by the contract of sale, to be registered as pro- 
 prietor of X.'s moiety. And it seems clear that in any 
 case, non-registration of B.'s title to X.'s moiety could 
 not possibly avoid or impair the legal estate, which B. 
 had already obtained in A.'s moiety. If so, how can it 
 be necessary for B. to register his title to X.'s moiety, 
 as a conditicni })rccedont to his obtaining the legal estate 
 
 id) Above, p. ;}8'2. s. 14 (I), allowiug tlie registra- 
 
 (e) See stat. 60 id (il Vict. c. Go, tion of undivided .shares in land.
 
 390 
 
 OF PARTICULAR TITLES. 
 
 Successive 
 purchases of 
 undivided 
 shares from 
 the owner of 
 the entirety. 
 
 therein, when it is expressly enacted that nothing 
 contained in the Land Transfer Act, 1897, shall render 
 compulsory the registration of the title to an undivided 
 share in land (g) ? If B. were obliged to register his 
 title to X.'s moiety in order to gain the legal estate, 
 then it certainly would he compulsory to register the 
 title to an undivided share in land. If this reasoning 
 be right, there seems to be no difference between the 
 example given and the case where A. is the owner of 
 the whole of Blackacre and B. buys of him (say) nine- 
 tenths for 900/. and afterwards contracts to purchase 
 the remaining tenth for 100/. And it appears that the 
 deed of grant of the remaining tenth would only com- 
 plete B.'s title to be registered as proprietor of that 
 tenth, and would not confer on or complete in him any 
 title to be registered as proprietor of the nine-tenths 
 which he bought under a separate and prior contract. 
 In the absence, however, of any judicial decision on 
 these points, it would hardly be safe to accept a title 
 depending on the conveyance by deed alone of the 
 remaining undivided share or shares to one who was 
 already seised of some undivided share in unregistered 
 land situate in a compulsory registration district (h). 
 Thus if in either of the examples given B. omitted to 
 register his title to the share last convej^ed to him, it 
 would not be satisfactory for a purchaser from him to 
 accept his title to the entirety of Blackacre without 
 submitting the question of his being seised of the whole 
 legal estate to the decision of the Court ; though the 
 
 iff) Stat. 60 & 61 Vict c. 65, 
 s. 24 ; above, p. 382. 
 
 {h) The argument in favour of 
 the necessity of registration would 
 be that by the conveyance of the 
 last remaining share the title to 
 apply for registration in respect 
 of the whole property is com- 
 pleted. But even if this be ad- 
 mitted, it is difficult to see how 
 registration of title cotdd be 
 
 required to pass the legal estate 
 in that share, without depriving 
 of all meaning the proviso that 
 the Act is not to render compul- 
 sory the rejiistratiou of the title 
 to an undivided share in land. 
 For it seems impossible to contend 
 that, to effect this result, regis- 
 tration of the title to the whole 
 property would be necessary.
 
 Of PARTICULAR TITLES. •'^^1 
 
 purchaser would have to pay the costs of the application 
 if the Court should decide in favour of the title. If in 
 the cases put, the conveyance of the remaining half or 
 tenth share were taken to the use of a trustee in fee 
 simple in trust for B., there would be further ground 
 for contending that the legal estate would pass without 
 registration of the title ; for there would then be no 
 merger of tlie undivided shares acquired by B., his title 
 to registration as beneficial owner of the half or tenth 
 share last acquired would remain separate and distinct 
 from his title as legal owner of the other moiety or 
 nine-tenth shares, and there would not at any time have 
 been completed in him one title of the same kind (such 
 as tenancy of the legal estate in fee simple) to apply for 
 the first registration of the entirety of the land. But in 
 this case also it would scarcely be prudent for a pur- 
 chaser from B. to accept the title without a judicial 
 decision in its favoui'. If, however, it should be held 
 that in these instances the conveyance of the undivided 
 share last assured passes the legal estate without regis- 
 tration of the title, it would be difficult to maintain Completion 
 that there is any difference in the case where a contract to buy the 
 to buy the whole of Blackacre at one price is by mutual P"ti^<?ty by 
 
 ^ '' .success^ive 
 
 assent completed by the conveyance of one-half on conveyances 
 Monday and of the other half on Tuesday. It is true ^[^."."f^''^'^'*^ 
 that in this case (unlike the others) a title to apply for 
 registration in respect of the whole of Blackacre is 
 roitferred by the contract for sale, so that it may well be 
 argued that this title is completed by the conveyance of 
 the second moiety (/). But it appears that in this case 
 also the conveyance of the moiety first assured would 
 irrevocably pass the legal estate therein to the pur- 
 chaser (/«•). If then he should be obliged to register his 
 title to the second moiety in order to acquire the legal 
 
 (t) See above, pp. 382, and n. ( /'), :i90, n. (A). 
 \k) Above, p. 389.
 
 392 
 
 OF PARTICULAR riTLES. 
 
 Suggested 
 
 scheme for 
 
 avoiding 
 
 registration 
 
 of title in a 
 
 compulsory 
 
 district. 
 
 Lands 
 
 forming part 
 of Bedford 
 Level. 
 
 estate therein, the Act would (coutrary to its own express 
 words) render compulsory the registration of the title to 
 an undivided share in land (/). 
 
 If any purchaser of unregistered land situate in a 
 compulsory district should desire to avoid registration 
 of his title at all costs and to leave no stone unturned 
 to secure an unimpeachable title, he might adopt the 
 following plan : — Contract to buy (say) i-o^o^oth un- 
 divided shares of Blackacre for 999/. with an option to 
 be exercised within four weeks after completion to pur- 
 chase the remaining ro-ooth share for 1/., such option if 
 exercised to be completed by deed declaring the vendor 
 a trustee for the purchaser and empowering the pur- 
 chaser to remove him and appoint new trustees in his 
 place {m) . Complete the sale of the ATroths by deed of 
 grant, which should also contain the terms of the 
 option (ii). After this, exercise the option to buy the 
 remaining idVoth share and complete that sale in the 
 manner provided. Let the purchaser subsequently 
 appoint new trustees and vest the i-oVoth share in them, 
 and let them convey the legal estate therein to him. 
 This plan would, enable the purchaser to obtain the 
 legal estate in all but a very small share of the property 
 proposed to be sold before parting with the bulk of his 
 piu'chase money, and would make use of every possible 
 precaution against the necessity of registering the title 
 to the last rbooth share (o). And it is thought that 
 this plan would prove to be effective. 
 
 Conveyances of lauds forming part of the great level 
 of the Fens called Bedford Level are xalid, although 
 
 (/) See above, pp. 389, 390, 
 u. (/O. 
 
 {m) See above, pp. 387, 388. 
 
 (n) The object of this is that it 
 may appear on the face of the 
 title deeds that no title to apply 
 for registration in respect of the 
 
 last TBiTuth share, and conse- 
 quently of the whole property, 
 was conferred on the purchaser 
 j)reviously to the exercise of his 
 option to buy that share ; see 
 above, pp. 389, 390, n. (h), 391. 
 (o) See above, pp. 388 tsq.
 
 OF PARTICULAR TITLES. '^93 
 
 not registered in the Bedford Level Office, tor all pur- 
 poses ext-ept for entitling the grantees to the privileges 
 confen-ed by the Bedford Level Act {jj) on the owners 
 of such lands and for the other purposes of the Act (y). 
 
 >$ 4. — Voluntanj Conveyances. 
 
 Voluntary conveyances, and conveyances revocable Voluntary 
 by the grantor, of any estate in lands or other lieredita- ^'^^^"^^'y^^^^^^- 
 ments were liable to be defeated {r), before the 29th of 
 June, 1893 (s), by a subsequent conveyance thereof by 
 the grantor {t) for any valuable consideration ; but this 
 doctrine was not applied to voluntary conveyances in In favour of 
 favour of a charity («). And if the grantee under the ^^ ^^^ ^' 
 voluntary conveyance disposed of the lands for valuable 
 consideration the voluntary conveyance could no longer 
 be so defeated by the grantor (.r). Voluntary convey- Voluntary 
 ances of lands, and also of goods, are voidable if tondiu"'- to^'' 
 they tend to defeat or delay creditors, as against the defeat or 
 grantor's creditors seeking to take the lands or goods in creditors, 
 execution in his lifetime, or to make the same applicable 
 in payment of his debts after his death, or as against 
 the trustee in the event of his bankruptcy (//). And 
 
 {p) Stat. 15 Car. II. c. 17. fraudulent within the meaniuij;- 
 
 \q) Willis V. Brown, 10 Sim. of stat. 27 Eliz. c. 4, or be 
 
 127. defeated thereunder. 
 
 (>•) Lender the judicial w)ustruc- {() Not by his heirs or assigns : 
 
 tiou of stat. 27 Eliz. c. 4, made iJoe d. Newman v. Rmliaiii, 17 
 
 perpetual by ;i9 Eliz. e. 18, s. 31, Q. B. 723; Lewis v. Rees, 3 K. 
 
 and avoiding conveyances made & J. 132, 150; unless actually 
 
 with intent to defraud .subsequent fraudulent : see Sug. V. «& P. 
 
 purchasers; see Sug. V. & P. 713; 2 Dart, V. & P. 902, 5th 
 
 712 sqq. ; 2 Dart, V. & P. 889 sq., ed. ; 1021, 6th ed. : 931, 7th ed. 
 
 5th ed. ; 1003 .vv., Gth ed. : 914 («) Rammy v. Oilehrltt, 1892, 
 
 sq., 7th ed. : Wms. Real Prop. A. 0. 412. 
 
 79, 21.st ed. [x) Ptodqers v. Laiiqham, I Sid. 
 
 (v) The date of the pa.s.siug of 133; Sug.'V. & P. 719, 720; 2 
 
 the Voluntary Conveyances Act. Dart, V. & P. 901. 5th ed. ; 1019, 
 
 IS93 (5(i iS: 57 Vict. c. 21^, pro- Gth ed. : 929. 7th ed. 
 
 vidiug that voluntary convey- (;/) Stat. 13 Eliz. c. 5 : Tw;ine'\ 
 
 ances, if in fact made hand Jidr Case, 3 Rep. 81a; 1 Smith, L. C. 
 
 and without any fraudulent in- 1 ; Richardson v. fi/tia/livood, Jac. 
 
 tent, should no lunger be deemed 552 ; R'- Ridlcr, 22 Ch. D. 74 ;
 
 391 
 
 OF PAK'TICITLAK TITLES. 
 
 Bankruptcy 
 within two or 
 ten years 
 thereafter. 
 
 voluntar}' eonvejances of any property are voidable 
 uuder the Bankruptcy Act, 1883 (s), as against the 
 trustee in the grantor's bankruptcy, if the grantor 
 become (a) bankrupt within two years thereafter ; and 
 such conveyances are further so voidable if the grantor 
 become (rr) bankrupt within ten years thereafter, unless 
 it can be shown that at the time of making the con- 
 veyance he was able to pay all his debts without the 
 aid of the property so conveyed. But if the grantee 
 under the voluntary conveyance dispose of the lands 
 or goods to a bond fide purchaser for valuable con- 
 sideration, the purchaser's title cannot be displaced by 
 the creditors or trustee in bankruptcy of the maker of 
 the voluntary conveyance (/^). It appears however that, 
 in order to escape the operation of the above provisions 
 of the Banki^uptcy Act, 1883 (s), the disposition in 
 favour of the bond fide purchaser must be made before 
 the grantor, who executed the voluntary conveyance, 
 
 ■1 Dart, V. & P. 905-910, oth 
 ed. ; 1024—1030, 6th ed. ; 9:14 — 
 912, 7th ed. ; Williams on Settle- 
 ments, 362, 368 ; see Jie Johnson, 
 20 Ch. D. 389 : lie Bolland. 1902, 
 2 Ch. 360; Maskehjnc v. Snnth, 
 1903, 1 K. B. 671. 
 
 (2) Stat. 46 & 47 Vict. c. r)2, 
 s. 47- Under the Bankruptcy 
 Act, 1869 (32 & 33 Vict. c. 71;, 
 s. 91, voluntary conveyances by 
 traders were similarly voidable. 
 Voluntary conveyances are not 
 so voidable under the Act of 1883 
 if the grantor die insolvent, but 
 not bankrupt, and his estate be 
 administered in banki'uptcy after 
 his death : Ex purie Official Re- 
 ceiver, re Gould, 19 Q. B. D. 92. 
 
 («) A debtor becomes bankrupt 
 at the exact moment of time 
 when he commits the act of 
 bankruptcy (if only one) on which 
 a receiving order is subsequently 
 made against him, or the lirst of 
 several acts of bankruptcy, which 
 shall be proved to have been 
 
 committed by liim within three 
 months before the presentation 
 of the bankruptcy petition on 
 which such an order shall be 
 made : stat 46 & 47 Vict. c. .52, 
 s. 43, amended bj' 53 & i^A Vict, 
 c. 71, s. 20 ; Wright, J., Re Reis, 
 1904, 1 K. B. 4f)l, 455 (whose 
 judgment on this point is not 
 Hffected by the overruling of his 
 decision on the main question in 
 the case ; see S. C, 1904, 2 K. B. 
 769: 1905, A. C. 442); Fonsfurd, 
 Baker S; Co. v. I'nioii of London ^■ 
 Smiths Bank, 1906, 2 Ch. 440; 
 Re Bumpus, 1908, 2 K B. 330 ; 
 Wms. Pers. Prop. 266—269, 
 16th ed. 
 
 [h] See Halifax Joint Stock 
 Bankiny Co. \. (ilrdhill, 1891, 
 1 Ch. 31, as to Stat. 13 Eliz. c. 5 ; 
 and as to the Bankruptcy Act, 
 1883, Re Vansittart, 1893, 2 Q. B. 
 377 ; Re Brail, ib. 381 ; Re Carter 
 and Kenderchne^s Contract, 1897, 
 1 Ch. 776.
 
 OF PAKTICULAK TITLES. 395 
 
 hecotnex bankrupt {(•). It was held that, on a voluntary Voluntary 
 assignment of leaseholds subject to the payment of rent leaseholdr '^ 
 and performance of onerc^us covenants, the liability so 
 incurred by the assignee was sufficient consideration to 
 save the assignment from being defeated b}' a subse- 
 quent assignment for value id) ; but this liability does 
 not preserve a voluntary assignment of leaseholds from 
 avoidance by the assignor's creditors or trustee in bank- 
 ruptcy {^). Where title is made under a voluntary 
 conveyance, followed by a conveyance for valuable con- 
 sideration made by the grantee, the mere fact that the 
 voluntary conveyance was voidable in the interval is not 
 an objection to the title ',/). But the purchaser is, as Proof that a 
 we have seen (//), entitled to require e^ddence that the converame 
 voluntary conveyance was not avoided by a subsequent has not been 
 conveyance for valuable consideration, or otherwise : 
 though after long continued possession in accordance 
 with the title under tlie voluntary conveyance, it will 
 be presumed that it was not so avoided [1i). Similarly, 
 where title is made under the avoidance prior to the 
 29th of June, I(S9;i, of a voluntary conveyance by a 
 subsequent conveyance by the grantor for valuable con- 
 sideration, it does not appear to be a fatal objection 
 that, in the interval, the voluntary conveyance may 
 have ceased to be defeasible (/) ; but the purchaser is 
 
 (c) See the htst three cases cited sell lands with the intention of 
 
 in the previous note, and the last defeating a voluntary conveyance 
 
 note but one. thereof previously made by hira, 
 
 (rf) I'live V. Jenkins, .') Ch. J). the Couit would not enforce the 
 
 Hiy; Marrixv. 7m//A, 42 Ch. D. 79. specific i)erformance of the con- 
 
 (e) Ex parte Uilhnau, rr Fitin- tract against an unwilling pur- 
 
 /re;/, 10 Ch. D. tJ2"J : Re Rtdler, chaser at the vendor's suit : Stnith 
 
 22 Ch. D. 74. V. Carland, 2 Mer. 123; Johnson 
 
 (/) Xoijrs v. r<itr,M,ii, 1891, 3 V. Lti/(ird,T. k R. 281: r/aric 
 
 Ch. 267. " V. inUott, L. R. 7 Ex. 313 ; see 
 
 {g) Above, p. 133. I'eUr v. Xirholts, L. R. 11 Eq. 
 
 ,/*) Re Mtirs/i <ni(i Earl (irun- 391, depending on very peculiar 
 
 nV/e, 24 Ch. I). 11, 19. circumstances. But the Court 
 
 (i) 2 Dart. V. A: P. 1*99, .)th would spei-itically enforce the 
 
 ed. ; 1119, 6th ed. ; 1033, 1034. (contract at suit of the purchaser : 
 
 7th ed. Before the Voluntary Hmkle v. Milchrll, 18 Ves. 100 ; 
 
 Conveyances Act, 1893 (above, Roaher v. Jf'ifliamn, L. R. 20 Eq. 
 
 p. 393, n. («) ), if a man agreed to 210.
 
 3U6 OF PARTICULAR TlTLEy. 
 
 entitled to require evidence that it did not so cease to 
 be defeasible, tliougli this would be presumed from long 
 continued possession under the title given by the avoid- 
 ing conveyance for value. Since voluntary conveyances 
 have ceased to be defeasible by subsequent conveyances 
 for valuable consideration, it has been held that a 
 grantee of lands under a voluntary conveyance may 
 oblige a pui'chaser from him to perform the contract 
 specifically, as the purchaser will obtain a title para- 
 mount to the claims of the creditors or trustee in bank- 
 ruptcy of the maker of the voluntary conveyance (/.•). 
 Liability tu Under the Finance Act, 1894 (/), as amended by the 
 Sler''/"*^ Finance (1909—10) Act, \910 (m), if a vokmtary 
 
 voluntary conveyance be not made bond fide three years before 
 
 couveyance. -^ ^ s "^ ^ 
 
 the grantor's death, or if bond fide possession be not 
 assumed by the grantee under a voluntary conveyance 
 immediately upon the making thereof, and thencefor- 
 ward retained, to the entire exclusion of the grantor, or 
 of any benefit to him by contract or otherwise, or if a 
 voluntary conveyance reserve a life interest or power of 
 revocation to the grantor, estate duty will be payable 
 at his death in respect of the property conveyed. If 
 however any property taken under such a convej'ance 
 would be so chargeable with estate duty by reason only 
 that it was not, as from the date of the conveyance, 
 
 (/i) Jie Carter and Kexdtrdinv .•< By sub-8ect. '2, thu enactir.outs 
 
 Contract, 1897, 1 Ch. 776 ; above, makiug' gifts /'w<«;r (Vivs so chargc- 
 
 p. 394. able with estate duty are not to 
 
 [1) Stat. 57 & 58 Vict. c. 30, iipply to gifts wliich are made 
 
 ss. 1,2 (1 c) ; see the chapter on in consideration of marriage, or 
 
 the Death Duties in vol. ii. which are proved to the satisfac- 
 
 [ni) Stat. 10 Edw. VII. c. 8, ti on of the Inland Revenue Com- 
 s. 59 (1), substituting the period missioners to have been part of 
 of three years for that of twelve the normal expenditiu'e of the 
 months (the period originally deceased and to have been reason- 
 specified in the Act of 1894) with able, having regard to the amount 
 regard to grantors dying on or of his income or to the cu-cuui- 
 after the 30th April, 1909, but stances, or which, in the case of 
 not applying to any voluntary any donee, do not exceed in the 
 conveyance made before the 30th aggregate 100/. in value or 
 April, 1908, or made or effected amount, 
 for public or charitable purposes.
 
 OF PARTICTTI.AR TITLES. 397 
 
 rftained to the entire exclusion of the grantor and of 
 any benefit to him by contract or otherwise, it will not 
 be chargeable with estate duty if subsequently, by 
 means of the surrender of the benefit reserved or other- 
 wise, it is enjoyed to the entire exclusion of the gi-antor 
 and of any benefit to him by contract or otherwise for 
 three years prior to his death (w). Purchasers of lands 
 from the grantees under voluntary conveyances should 
 have regard to this liability, and require to be satisfied 
 that the grantor lived for three years (o) at least after 
 the making of the voluntary conveyance, or (if not) 
 that the estate duty (which falls upon the grantee) has 
 been discharged, and also that the conveyance was not 
 attended by any other circumstance which would make 
 the lands chargeable with estate duty {p). Since the 
 passing of the Finance Act, 1894, many voluntary con- 
 veyances have been made with the object of escaping 
 the liability to pay estate duty on the grantor's death. 
 Under the Finance (1909 — 10) Act, 1910 {q), voluntary Stamp duty 
 conveyances executed on or after the 29th of April, conve)'aiKX\ 
 1910, are chargeable with the like stamp duty as if 
 
 (n) Stat. 10 Edw. VII. c. 8, a conveyance made for nominal 
 
 3. 59 (3). consideration for the purj^ose of 
 
 (o) Or if the conveyance was securing the repayment of an 
 
 made before the 30th April, 1908, ;idvance or loan, or made for 
 
 for one year ; see last not* but effectuating the appointmi'iit of 
 
 one. a new trustee, or the retirement 
 
 {p) See A.-G. v. Earl Grey, of a trustee, whether the trust is 
 
 1898, 1 Q. B. 318, 2 Q. B. 534 : expressed or implied, or under 
 
 1900, A. C. 124. which no beneficial interest passes 
 
 (7) Stat. 10 Edw. VII. c. 8, s. 73 in the property conveyed, or made 
 
 (1, 2) (passed 29th April, 1910). to a binetidary by a trustee or 
 
 This section does not apply to a other peisoii in a fiduciary (^apa- 
 
 fonveyance operating as a volun- city uuderany tr\ist, expressed or 
 
 tary disposition of property to a implied, or a disentailing assur- 
 
 body of persons incorporated by ance not limiting any new estate 
 
 a special Act, if that body is by other than an estate in fee simple 
 
 its Act precluded from dividing in the person disentailing the 
 
 any profit among its members property, .shall not be charged 
 
 and the property conveyed is to with duty under this .section, 
 
 be held for the purposes of an uotwithstiinding that the circum- 
 
 open space or for the purposes of stances exemptiug the conveyance 
 
 its preservation for the benefit of from charge imder this .se<:tion 
 
 the nation. And by sub-sect. G, are not set forth therein.
 
 398 
 
 OF PARTICULAR TITLES. 
 
 Purchase of 
 ii'i'ouiid rents. 
 
 Ground rent. 
 
 they were conveyances on sale (/-), with the substitution 
 of the value of the property conveyed for the amount 
 or value of the consideration for the sale ; and the stamp 
 must he adjudicated. 
 
 55 5. — Sn/f of Ground JRent.s, Reversions and Remainders, 
 Mines, Roads, Rivers, 8fc. 
 
 The property commonly described as freehold or 
 leasehold ground rents is nothing else than the freehold 
 or leasehold reversion expectant on the determination 
 of a building lease (s) ; and the purchaser of a freehold 
 or leasehold ground rent described as such is entitled to 
 have conveyed to him such a freehold or leasehold 
 reversion expectant on a lease reserving a ground rent {f) 
 as will enable him to distrain and pursue the other 
 usual lessor's remedies for recovery of the rent (u). 
 The points to be attended to on behalf of the purchaser 
 of such property are, first, to see that he gets the rever- 
 sion on the lease, so as to be enabled to enforce all the 
 lessor's remedies, whether by distress, action on the 
 
 {>•) That is, where the value of 
 the property conveyed does not 
 exceed 500/. and the instrument 
 of conveyance contains a state- 
 ment certifying that the trans- 
 action thereby effected does not 
 form part of a larger transaction 
 or of a series of transactions in 
 respect of which the amount or 
 value, or the aggregate amount or 
 value of the property conveyed 
 exceeds 500/., nt the rate of M. 
 for every 5/. or fraction thereof 
 up to 25/., 2.S. 6d. for every 25/. 
 or fraction thereof up to 300/., 
 and above 300/., 5s. for every 50/. 
 or fraction thereof : and in all 
 other cases at double those rates ; 
 see stats. 54 & 55 Vict. c. 39, 
 ss. 1, 14, 54 — 61, and First Sche- 
 dule ; 58 Vint. c. 16, Part II. ; 
 10 Edw. VII. c. 8, 8. 73 : Wms. 
 Real Prop. p. 615, n. (p), 2l8t 
 ed. ; below. Chap. XII. § 3. 
 Voluntary conveyances made by 
 deed executed before the 29th 
 April, 1910, were subject to a 
 
 stamp duty of 10«. only; stat. 
 54 & 55 Vict. c. 39, s. 1, and 
 First Schedule, tit. Deed, re- 
 placing 33 & 34 Viet. c. 97, s. 3. 
 and Schedule. 
 
 (.s) Jfaundi/ v. Mnnndii, 2 Str. 
 1020. 
 
 [t) Ground rent properly means 
 the rent at which land is let for 
 the purpose of improvement by 
 building. Thus, it conveys the 
 idea of something less than the 
 rack rent, and a purchaser of a 
 ground rent described as such 
 without further explanation will 
 not be compelled to accept a rack 
 rent : Stewart v. AUlston, 1 Mer. 
 26 ; Bartletf v. Salmon, 6 De G. 
 M. & G. 33, 41 : 1 Dart, V. & P. 
 123, 5th ed. ; 138, 6th ed. ; 135, 
 7th ed. 
 
 ill) Lecoy v. Mogford, 2 Jur. 
 N. S. 1084: Langfordv. Selmes, 
 3 K. & J. 220 : F.vans v. Robins, 
 8 Jur. N. S. 846 ; cf. Smith v. 
 Watt-f, 4 Dr. 338.
 
 OF PARTICULAR TITLKS. '^^^ 
 
 lessee's covenants, or re-entrj, for non-payment of the 
 rent reserved and breach of the lessee's covenants ; and 
 secondly, to ascertain that the vendor has been in actual 
 receipt of the rents, the right to which constitutes tlie 
 profitable part of the thing sold. Whether the first of 
 these requirements is fulfilled will of course appear 
 from the usual investigation of tlie documentary title ; 
 tlie second is necessary to ensure that the purcliaser is 
 not getting a paper title and nothing more. The title 
 whicli ought to be abstracted on the purchase under an 
 open contract of a reversion expectant on a lease for 
 years has been already shown (./). If the lease be more 
 than forty years old, the title to the reversion, if free- 
 hold, must be carried back so as to show that the lease 
 was well granted. If the reversion sold be leasehold, 
 the title should of course commence with the lease, 
 under which the reversion is derived (//). The vendor 
 of a reversion on a lease is under no obligation to deduce 
 the title under the lease so as to prove who is the 
 assignee thereof or person entitled thereunder at the 
 time of sale ; it is sufficient if he show that there is a 
 person in possession paying to him the rent reserved on 
 the lease (c). The purchaser should of course inquire Inqixirics on 
 who is in possession of tlie property demised under the fhe reversion 
 lease on which he is purchasing the reversion, and should "n ^ lease, 
 ask the person so ascertained to be in possession as to 
 tlie extent of his interest in the property (a), and also 
 whether he has been paying rent to the vendor. If 
 such person be not the actual occupant of the property, 
 inquiry should be made of the occupant as to the nature 
 of his interest in the property, and to whom he pays 
 rent {/>) . A tenant or occupant is not bound to answer 
 
 {x) Above, pp. 97, 101. HIJ. HtiiU v. L<ic/c, 1901, 1 Ch. 4.">, 4'.) ; 
 
 (y) Above, p 101. Chap. XII , § 2, below. 
 
 (z) Flint V. ff'uodi)/, 9 Hare. (b) If the occupant should not 
 
 018. (5'21. be payiujr rent to the vendor's 
 
 (a) If he omit this, he will take tenant, the inquiry should be 
 
 with notic(> of such interest : see pursued until all the links of the
 
 400 
 
 OF PARTICULAR TITLES. 
 
 Sale of land 
 leased for 
 years, where 
 succession 
 duty i^ayable 
 at end of 
 lease. 
 
 any inquiry to whom he pays his rent (f) : but where 
 the inquiry is made in connection with the purchase of 
 the reversion, the information sought is in most cases 
 not likely to be withheld. If it should be refused, it is 
 submitted that the vendor would be bound to furnish 
 some other evidence of his receipt of the rent sold. 
 This is merely equivalent to the duty of a vendor of 
 land in possession to produce land corresponding with 
 that described in the contract for sale (d) ; and it is 
 obvious that for the purchaser to dispense with such 
 evidence would be to run the risk of the vendor's title 
 having been extinguished by payment of the rent for 
 twelve years or more to some person wrongfully claiming 
 to be entitled to the land in reversion (e) . 
 
 Where the reversion in fee simple on a lease for years 
 is sold free from incumbrances as a property to be 
 immediately enjoyed and without any special stipula- 
 tion as to payment of succession duty, and it turns out 
 that the property will be subject to a liability to pay 
 succession duty on the expiration of the lease (,/), the 
 vendor must (if he can) procure the duty to be com- 
 muted at his own expense, or the purchaser will be at 
 liberty to reject the title (g) ; and the purchaser is not 
 
 chain between the vendor and 
 the occupant have been dis- 
 covered. 
 
 (c) Hnntv. Luck. 1901, 1 Ch. 
 45, 53. 
 
 {d) See above, pp. 33, 43. 
 
 {e) Stats. 3 & 4 Will. IV. c. 27, 
 ss. 9, 34: 37 k 38 Vict. c. .57, 
 ss. 1, 9 ; see I)oe d. AnqeU v. 
 Angell, 9 Q. B. 328, 355—359; 
 JFiUtams v. Tott, L. R. 12 Eq. 
 149. But in the case of mere non- 
 payment of the rent for twelve 
 years or more the vendor's title 
 will not have been affected, though 
 tlie arrears recoverable will be 
 limited : see Grant v. H/lis, 9 M. 
 & W. 113, 126, 127; Archbold v. 
 Scullij, 9 H. L. C. 360, 375; 
 Wms. Real Prop. 581, 583. and 
 
 n. (A), 21st ed. As to the case in 
 which a good title has been ac- 
 quu'ed under the Statute of 
 Limitations as against the lessee, 
 see Walter v. YalrJen, 1902, 2 
 K B. 304. 
 
 (/) Where a succession con- 
 sists of a beneficial interest m 
 possession in lands let at a ground 
 rent by a lease not granted by the 
 successor himself, the succession 
 duty in respect of the increased 
 value accruing on the determina- 
 tion of the lease need not be paid 
 till then ; stat. 16 k 17 Vict. c. 51, 
 s. 20 ; see the chapter on the 
 Death Duties in vol. ii. 
 
 ((/^ Re Kidrl and Gibhon'n Con- 
 tract, 1893, 1 Ch. 695.
 
 OF PARTICULAR TITLES. 401 
 
 obliged to accept the vendor's covenant of indemnity 
 against this liability, however small it may be (h). 
 Whenever it appears, on the investigation of the title Purchaser 
 to lands let at a ground rent, that succession duty has t^in whether 
 become payable since the commencement of the lease, ^^7 4"*^ ^^ 
 the purchaser's advisers should be careful to ascertain payable, 
 whether the Crown's claim has been entirely satisfied or 
 whether the duty payable in respect of the increased 
 value to accrue on the determination of the lease has 
 been left outstanding till then (i). When the reversion 
 on a lease at a ground rent is subject to such a liability 
 and is proposed to be sold, special stipulation must be 
 made, if it be intended that the purchaser shall himself 
 discharge the duty to become payable on the expiration 
 of the lease. The purchaser of the reversion on a lease Reversion 
 will of course have to bear any reversion duty which " ^' 
 may become payable on the determination of the 
 lease (k) ; and there is no need for the vendor of such a 
 reversion to make any mention of this liability, which 
 is now a legal incident of such property, like land tax 
 or tithe rentcharge (/). 
 
 Here the reader may be reminded that by a grant of Effect of 
 the freehold reversion on a lease for years the rent reversion, 
 reserved (which is incident to the reversion) passps to 
 the grantee at common law, and, since statute 4 & 5 
 Anne, c. 3 {m), without the necessity of any attornment 
 by the tenant ; and tlio grantee may distrain or sue for 
 the rent accordingly {»). By statute ••52 Hen. YIII. 
 
 (h) lie WcKton and Thomas's the mineral rights duty ; .see 
 
 Contract, 1907, 1 Ch. 244; see sects. 20-24. 
 below, Chap. XII. J 4. (/) See above, p. 176. 
 
 (i) See the three preceding {m) [C. 16 in Rutthoad] s. it : 
 
 notes. see AUcock v.Moor/iouse, 9 Q. B. D. 
 
 {k) See Stat. 10 Edw. VII. 366. 
 c. 8, 88. 13, 14, 22 (1). And the (w) Litt. ss. 58, 72. 213, 214, 
 
 purchaser of the reversion on a 228, 229, 572 ; Sug. V. & P. rtS'S ; 
 
 mining lease will have to bear Dart, V. & P. 812, 6th ed. ; 914, 
 
 w. 26
 
 402 
 
 OF PARTICULAR TITLES. 
 
 Grantee's 
 right to 
 enforce 
 lessee's cove- 
 nants and 
 conditions. 
 
 c. 34, the grantee of such a reversion is enabled to sue 
 upon such of the lessee's covenants contained in the 
 lease as "touch or concern " the land demised (o), and 
 also to take advantage of any condition of re-entry 
 contained in the lease for non-payment of rent or 
 breach of covenant (/?). This statute, however, does not 
 enable the grantee of the reversion to sue upon any 
 covenant by the lessee which is collateral, and does not 
 touch or concern the land demised (q) , or to sue at law 
 upon any agreement to be performed by a lessee and 
 contained in a lease not made by deed (r). But in 
 consequence of the doctrine introduced since the com- 
 mencement of the Judicature Acts (s) that, where land 
 is held under an agreement for a lease of which either 
 landlord or tenant can enforce specific performance, the 
 party so entitled is to be treated, in all Courts having 
 jurisdiction to decree specific performance of the con- 
 tract, as holding the land as landlord or tenant thereof 
 at law upon the terms of the agreement (t), it has 
 been decided that, where land is held for a term of years 
 under a contract not made by deed but specifically 
 enforceable by the landlord, and the landlord assigns 
 the reversion with the benefit of the contract, the 
 assignee is entitled to enforce all stipulations by the 
 lessee contained in the contract and relating to the 
 land demised as effectually as if such stipulations 
 
 6th ed. ; 822, 7th ed. ; Wins. 
 Real Prop. 340, 2l8t ed. 
 
 (o) Sfipncn'''s case, 5 Eep. IG, 18; 
 Sug. V. & P. 582, 583; 2 Dart, 
 V. & P. 814, 5th ed. ; 916, 6th 
 ed. ; 824, 7th ed. 
 
 {p) Co. Litt. 215; Wms. Real 
 Prop. 338, 512, 513, 21st ed. 
 
 (q) 6 Rep. 18 ; Sug. V. & P. 
 583 ; and see Webb v. Russell, 
 3 T. R. 393 ; Bewar v. Goodman, 
 1909, A. C. 72 ; Ricketts v. Eti- 
 field Churchwardens, 1909, 1 Ch. 
 544. 
 
 (r) Standen v. Christmas, 10 
 Q. B. 135; Bickford v. Parson, 
 5 C. B. 920. 
 
 (*) Stats. 36 & 37 Vict. c. 66 ; 
 37 & 38 Vict. c. 83 ; 38 & 39 Vict, 
 c. 77. 
 
 {t) Walsh V. Lonsdale, 21 Ch. D. 
 9 ; Furness v. Bond, 4 Times L. R. 
 457 ; Loicther v. Heaver, 41 Ch. D. 
 248, 264 ; Crumj) v. Temple, 7 
 Times L. R. 120 ; Foster v. Reeves, 
 1892, 2 Q. B. 255; Wms. Real 
 Prop. 503, 21st ed.
 
 OF PARTICULAR TITLES. 403 
 
 had been expressed in covenants contained in a lease by 
 deed (w). 
 
 As regards leases made after the year LS81, the Rights ^ven 
 Conveyancing Act of 1881 (r) provides that the rent veyancing ' 
 thereby reserved and the benefit of the lessees' cove- -^<^* '*/ ^^^^ 
 
 1 • -Til' p 1 *'° eufoi'ce 
 
 nants therein contained and having reierence to the lessees' cove- 
 subject-matter thereof, and every condition of re-entry co^^tfong 
 and other conditions therein contained shall be annexed 
 to the reversionary estate in the land, immediately 
 expectant on the term thereby granted (notwithstand- 
 ing severance of that reversionary estate), and shall be 
 capable of being recovered and enforced by the person 
 from time to time entitled, subject to the term, to the 
 income of the whole or any part of the land leased. 
 The chief effect of the first part of this enactment is to In leases 
 enable the person seised of the legal estate in reversion statutory 
 in land leased under some statutory power to sue upon powers. 
 the lessee's covenants or a condition of re-entry con- 
 tained in the lease. Thus where land is leased by a 
 mortgagor under the power of leasing given by the 
 Conveyancing Act of 1881 (?/), the mortgagee is enabled 
 to sue on the lessee's covenants and conditions contained 
 in the lease (s). So where a lease is granted by a legal 
 or an equitable tenant for life under the Settled Land 
 Act, 1882 (a), the right to recover the rent and sue on 
 the lessee's covenants and conditions is annexed to the 
 legal estate in revertiion on the term granted. And the in other 
 enactment quoted applies equally to leases made in ^^^■■^^^• 
 exercise of the right of alienation incident to the 
 lessor's estate (h), and to those granted under express 
 
 (//) Maiwhestrr Breucry Co. v. («) Stat. 45 & 46 Vict. c. 38, 
 
 Coombs, 1901,2 Ch. 608; Itkkett ss. 6—12, 20; see Wms. Real 
 
 V. Green, 1910, 1 K. B. 253. Prop. 121—123, 125, 189, 403, 
 
 [x) Stat 44 & 45 Vict. c. 41, 404, I'lst ed. 
 
 8. 10. (A) Rickett V. Green, 1910, 1 
 
 ((/) Stat.44&45Vict.c.41,s. 18. K. B. 253; see Wms. Real 
 
 (z) Municipal, ^-c. liuildtug Prop. 74, 108, 118, 218, 513, 
 
 Society v. Smith, 22 Q. B. D. 70. 2l8t ed. 
 
 26 (2)
 
 404 
 
 OF PARTICULAR TITLES. 
 
 powers of leasing conferred by means of the Statute of 
 Uses (c) or by will : tbougli as to these it hardly seems 
 to have extended the previous law (d). But the last 
 part of this enactment invests the person for the time 
 Remedy given being entitled to the income of the land leased (in that 
 enmfedTo"the capacity) with a new and independent remedy ; and it 
 income of the has been held that it enables a mortgagor in possession 
 (who has received no notice from the mortgagee of 
 intention to enter into receipt of the rents) to sue upon 
 the lessee's covenants contained in a lease made by him 
 before the mortgage {c). The same construction has 
 been placed on this enactment with respect to agree- 
 ments for leases (/) as has been applied to the statute 
 of Henry YIII. (g). 
 
 land leased. 
 
 The assignee of the reversion on a lease cannot sue 
 
 covenant committed previously to the assignment (/) 
 
 Assignee of 
 
 rcvGrsion *^ 
 
 cannot sue for the lessee for any rent due {//) or for any breach of 
 
 rent due or 
 
 breach of 
 
 covenant And he is not entitled to exercise any right of re-entry 
 
 before Ms gi"^'en by the lease in respect of any breach of covenant 
 time. committed previously to the assignment (/.•) ; nor can 
 
 {c) Stat. 27 Hen. VIII. c. 10 ; 
 see Wms. Real Prop. 392, 554, 
 21st ed. 
 
 [d] See Whitlock^s case, 8 Rep. 
 69b, 71a ; Ishencood v. Oldknow, 
 3 M. & S. 382 ; Greenmcay v. 
 Hart, 14 C. B. 340; Yellouly v. 
 Goxcer, 11 Ex. 274 ; Davidson, 
 Prec. Conv. vol. iii. pp. 484 and 
 n. (x), 491—500, 3rd ed. ; vol. ii. 
 pt. ii. p. '■'>?>&, n., 4th ed. ; Sug. 
 Pow. 7^2, 813—815, 8th ed. ; 
 Williams on Settlements, 36 — 39, 
 311—313. 
 
 {e) Turner v. Walsh, 1909, 2 
 K. B. 484. 
 
 (/■) Rickett V. Green, 1910, 1 
 K. B. 2o3. 
 
 [g) Above, pp. 402, note [t), 
 403, note [n). 
 
 (/() Flight V. Bentley, 7 Sim. 
 149, 151. 
 
 (i) Johnsony. St. Peter'' s Church- 
 wardens, 4 A. & E. 520 ; Martyn 
 V. Williams, 1 H. & N. 817 ; 
 
 cf. MaseaVs case, 1 Leon. 62 ; 
 Brown v. Trumper, 26 Beav. 11, 
 16. The statement to the con- 
 trary made in Sug. V. & P. 181 
 and adopted in 2 Dart, V. & P. 
 814, 5th ed. (916, 6th ed. ; 824, 
 7th ed.) seems to be incorrect. 
 The mere right to sue for 
 damages for a past breach of 
 covenant, other than a covenant 
 to pay money, appears not to be 
 assignable : see Torkington v. 
 Magec, 1902, 2 K. B. 427, 434 ; 
 jDanson v. Great Northern and 
 City Rail., 1905, 1 K. B. 260, 
 270, 271. 
 
 [k] Fenn v. Smart, 12 East, 
 444 ; Ru7it v. Bishop, 8 Ex. 675, 
 6^0 ; Hutit V Remnant, 9 Ex. 635, 
 G40 ; Crane v. Batten, 2 Com. Law 
 liep. 1696; 23 L. T. (O S.) 220; 
 Williams on Seisin, 12-5 ; Cohen 
 V. Tannar, 1900, 2 Q. B. 609 ; cf. 
 Bennett v. Herring, 3 C. B. N. S. 
 370.
 
 OF PARTICULAR TITLES. 40' 
 
 the right to re-enter for any such past breach of cove- 
 nant be effectually assigned to him, as a right of entry 
 for condition broken is not assignable in law (/). It 
 does not appear that the law has been altered in any of 
 these respects by the provisions of the Conveyancing 
 Act quoted in the preceding paragraph (/«). 
 
 Where land has been let for a term of years and the Severance of 
 reversion of part only of the land is assigned over, the ^ ^^^^^ f^j. 
 rent is apportionable at common law {n), and the years, 
 assignee can sue on the lessee's covenants under the 
 statute 32 Hen. VIII. c. 34, with respect to that part 
 of the land of which the reversion has been assigned to 
 him (o). But the assignee of the reversion of part Its effect on 
 of lands demised could not, under the statute of re-entry. 
 Henry VIII., take advantage of any condition of 
 re-entry contained in the lease ; for the condition was 
 destroyed by the severance of the reversion and was no 
 longer enforceable even by ihe original landlord as to 
 that part of the reversion which he retained (p). By 
 Lord St. Leonards' Act (y), where the reversion 
 upon a lease is severed and the rent is legally 
 apportioned (>•), the assignee of each part of the re- 
 version is allowed to take the benefit of a condition 
 of re-entry for non-payment of rent in respect of the 
 apportioned rent so belonging to him. And under the 
 Conveyancing Act of 1881 (s), on severance of the 
 reversion on a lease made after that year every condi- 
 tion of re-entry or other condition therein contained 
 
 (l) See cases cited in presious 48 ; 1 Davidson, Prec. Couv. 546, 
 
 note ; Jen/dm v. Jones, 9 Q. B. D. 4th ed. ; 452, 5th ed. 
 
 128, 131 ; below, Chap. XV. (o) Twi/nam v. Pickard. 2 B. 
 
 (hi) See Cohen v. Tannar, 1900, & A. 105 ; Badeley v. Vignrs, 4 
 
 2 Q. B. G09 ; Morris v. Komedr/, E. & B. 71 : Mai/or of ^Swansea v. 
 
 1896, 2 Ir. R. 247. Thomas, 10 Q. B. D. 48. 
 
 («) 2 Inst. 504. Rout can (;;) Winter^ s case. Dyer, 308; 
 
 only be legally apportionod with Co. Litt. 215a. 
 
 the con.sent of the tenant to (v) Stat. 22 & 23 Vict. c. 35, s. 3. 
 
 the apportiouinont, or by the (») See above, n. («). 
 
 verdict of a jury : Bliss v. Col- (.<) Stat. 44 & 45 Vict. c. 41, 
 
 lins, 5 B. «fc A. 876 ; Mayor of s. 12 ; see also s. 10, above, 
 
 Swansea v. Thomas, 10 Q. B. D. p. 403.
 
 406 
 
 OF PARTICULAR TITLES. 
 
 Notice to quit 
 where the 
 reversion has 
 been severed. 
 
 Stipulation 
 precluding 
 legal appor- 
 tionment of 
 rent. 
 
 Reversions 
 or remainders 
 on an estate 
 of freehold — 
 
 (including, of course, any condition of re-entry for 
 breach of covenant) is apportionable, and may be 
 enforced by the assignee or other person entitled to 
 each part of the reversionary estate. But the assignee 
 of the reversion of part of the land demised by a lease 
 made before the year 1882 cannot take advantage of a 
 proviso for re-entry on breach of covenant : though the 
 condition is apportionable if the reversion were severed 
 by act in the law, or by the involuntary act of the 
 reversioner, as where part of the land leased has been 
 taken compulsorily under the Lands Clauses Act, 
 1845 {f). Where lands have been let to a tenant from 
 year to year, and the reversion of part of the lands is 
 assigned, a valid notice to quit can only be given by 
 the persons for the time being entitled to the reversion 
 of the whole of the demised premises, and the assignee 
 of the reversion of part cannot give notice to determine 
 the tenancy as to his part {u) . It does not appear that 
 in this respect the law has been altered by the Convey- 
 ancing Act of 1881 {x). As already mentioned (y), 
 when the reversion of part of lands leased for years is 
 sold by auction, it is usual to stipulate that the pur- 
 chaser shall be entitled to some specified portion of the 
 rent, and shall not require the rent to be legally 
 apportioned. 
 
 We have seen {z) that on the j^iu-chase under an open 
 contract of a reversion or remainder expectant on an 
 estate of freehold, the title must be carried back to the 
 instrument creating the same, whatever be its date ; 
 and proof must be given that the possession of the land 
 
 {t) Stat. 8 & 9 Vict. c. 18 ; 
 Pigott v. Middlesex County Council, 
 1909, 1 Ch. 134, 142, 143. The 
 common law iiile (above, p. 405, 
 and n. (jw) ) is also subject to an 
 exception in favour of the Crown ; 
 Uniffht's case, 5 Rep. 54 ; Co. 
 Litt. 215a. 
 
 (it) Prince v. Evans, 29 L. T. 
 N. S. 835 ; see dl&oBoe d. Prichitt 
 
 V. Mitchell, 1 Brod. & Bing. 11 ; 
 Eight d. Fisher v. Cuthell, 5 East, 
 491, 498, per Grose, J. ; Doe d. 
 Aslin V. Summcrsett, 1 B. & Ad. 
 135, 141. 
 
 [x) Stat. 44 & 45 Vict. c. 41, 
 see ss. 10, 12. 
 
 iy) Above, p. 81. 
 
 [z) Above, pp. 97, 101, 102.
 
 OF PARTICULAR TITLES. 407 
 
 has been in accordance with that instrument. The main 
 
 difficulty in establishing the title to sucli interests arises 
 
 from the fact that, as the tenant of the particular estate 
 
 is entitled to the custody of the title deeds, no proof can 
 
 be given, beyond the vendor's affirmation, that the 
 
 reversion or remainder sold has not been previously 
 
 disposed of by way of sale or mortgage (a). Purchasers 
 
 and mortgagees of reversions or remainders expectant Are subject to 
 
 on estates for life or other interests conferring the power powers o-iven 
 
 of sale and other powers given by the Settled Land ^y Settled 
 
 Acts, 1882 to 1890 (h), take subject to the subsequent 
 
 exercise of such powers by the particular tenant, and 
 
 their estates are liable to be divested accordingly, and 
 
 in the case of sale to be transferred to the purchase 
 
 money (c). Purchasers and mortgagees of such estates 
 
 also take subject to the liability to pay any succession and to 
 
 or estate duty which shall be charged thereon when the and'est'ate 
 
 same shall fall into possession (d) ; and in the case of a ^^^y- 
 
 sale the purchaser cannot (unless he specially stipulate 
 
 therefor) require the vendor to procure such duty to be 
 
 commuted or to discharge it when it falls due ; for the 
 
 tax is regarded as an incident of the estate and not as 
 
 an incumbrance (c). But where such estates have been 
 
 {a) Wms. Real Prop. 463, 13th 47 & 48 "Vict. c. 18; 50 & 51 
 
 ed. ; 599, 2l8t ed. The pur- Vict. c. 30 ; 52 & 53 Viet. c. 30 ; 
 
 cha.ser can of course iucjuire of 53 & 54 Vict. c. 69. 
 
 the person entitled to the custody , , jrr, , ■ , . tt^ ,, ^r, 
 
 r A ...1 1 1 1 ., ■. ■ (c) Wheelwright v. Walker, 23 
 
 01 the title deeds whether he is ^/ t\ - .. n n- i ■ j V- i 
 
 c \ I ix ■ ^h- J-'- '■''2 : lie JJic/cin and E.el- 
 
 awareoi any sale 01 the reversion, „, /, ^ ', ,nr,o i /-m_ .tk. 
 
 1 T, i.u ' ii, ] 1 I, 1, sails Contract, 1908, 1 Ch. 213; 
 
 and whether the deeds have been on- j r- \y r, . . 
 
 J 1 . -1 i £ 4.1, D.C navies and Kvut .s Contract, 
 
 produced at the request of the mm .i /-.i ..^ i. ' 
 
 ^ -.1 *■ . 1910, 2 Lh. 35 ; see above, pp. 
 
 reversioner with a view to any ■>iq_1.-).;)o ^* 
 
 sale or mortgage by him ; but the " ' 
 
 person internjgated is not bound ('^ Stats. 16^ & 1_7 Vict. c. 51, 
 
 to answer, and an answer in the **''• '^> '^^' ^'^ J ^7 & 58 Vict. c. 30, 
 
 negative is no certain protection, s^. 1, 2, 9 ; eee the chapter on the 
 
 as the reversion may have been Death Duties in vol. ii. 
 
 disposed of by way of sale or («) Cooper v. Treubi/, 28 Beav. 
 
 mortgage without tlie knowledge 194 ; He Kidd and Gibbons^ Con- 
 
 of the particular tenant, and tract, 1893, 1 Ch. G9-t, (i98 ; lie 
 
 without production of the title Itepington, 1904, 1 Ch. 811, 814; 
 
 deeds. see also Re Langhani, 1890, W. N. 
 
 (*) Stats. 45 & 46 Vict. c. 38 ; 213 ; 60 L. J. Ch. 110.
 
 408 
 
 OF PARTICULAR TITLES. 
 
 Sales of 
 reversionary 
 interests at 
 an under- 
 value. 
 
 Time of 
 essence of 
 contract on 
 sale of 
 reversionary 
 property. 
 
 bona fide sold or mortgaged for full consideration in 
 money or money's worth, before the 2nd of August, 
 1894 (the date of the commencement of the Finance 
 Act, 1894), no other duty will be payable by the pur- 
 chaser or mortgagee, when the estates fall into posses- 
 sion, than would have been payable if that Act had not 
 passed ; and in the case of a mortgage, any higher duty 
 payable by the mortgagor shall rank as a charge subse- 
 quent to that of the mortgagee ( /). Sales of rever- 
 pionary interests were formerly liable to be set aside in 
 equity on the ground of mere inadequacy of considera- 
 tion {g). But this rule was abolished by statute as 
 from the 1st of January, 1868, since when no purchase 
 made bond fide and without fraud or unfair dealing of 
 any reversionary interest in real or personal estate is to 
 be opened or set aside merely on the ground of under- 
 value (//) . On the purchase of reversionary property, 
 time is of the essence of the contract {i), and as the 
 wearing out of the interest of the particular tenant is 
 considered equivalent to perception of the profits, interest 
 is payable on the purchase money from the date of the 
 contract, if no time be specified for completion (/.•) ; 
 
 (/) Stat. 57 & 58 Vict. c. 30, 
 s. 21 (3). By Stat. 7 Edw. VII. 
 0. 13, 8. 12 (whicli increased the 
 scale of rates of estate duty), 
 where such estates have been 
 sold or mortgaged as above men- 
 tioned before the 19th April, 
 1907, no other duty will be pay- 
 able by the purchaser or mort- 
 gagee, when the estates fall into 
 possession, than would have been 
 payable if that section had not 
 passed ; and in the case of a 
 mortgage any higher duty pay- 
 able by the mortgagor shall rank 
 as a charge subsequent to that of 
 the mortgagee. Stat. 10 Edw. 
 VII. 0. 8 (which further increased 
 the scale of rates of estate duty) 
 contains a similar provision (sect. 
 64) as to sales and mortgages 
 
 made as above mentioned of such 
 estates before the 30th April, 
 1909. 
 
 {g) See 2 Dart, V. & P. 750 
 sq. oth ed. ; 844 sq. 6th ed. ; 749 
 sq. 7th ed. 
 
 (70 Stat. 31 & 32 Vict. c. 4 ; see 
 below. Chap. XIV. § 2, as to the 
 construction of this Act. 
 
 (i) Above, pp. 58, 59 ; New- 
 mati V. Rogers, 4 Bro. C. C. 391 ; 
 Sug. V. & P. 262 ; 1 Dart, V. & 
 P. 419, 5th ed. ; 484, 6th ed. ; 
 497, 7th ed. ; helow, Chap. XII. 
 
 [k) Ex parte Manning, 2 P. W. 
 410; Child v. Abingdon, 1 Ves. 
 jun. 94; Cha?npernoume v. Brooke, 
 3 CI. & Fin. 4, 23; Brooke v. 
 Champernoicne, 4 CI. «&: Fin. 589 ; 
 Enraght v. Fitzgerald, 2 Dr. &
 
 OF PARTICULAR TITLES. 
 
 409 
 
 under an 
 Inclosure Act. 
 
 or if a time be fixed for completion, then from that 
 time (/). 
 
 Where land sold consists of an allotment acquired Allotments 
 under an Inclosure Act (m), the title material to be 
 investigated, prior to the award made pursuant to the 
 Act, is that under which all the lands, in respect of 
 which the allotment was awarded, were held (n). It is 
 also material to ascertain that the powers given by the 
 Act were not exceeded in making the award, for no 
 title is confeiTed by the award of any allotment made 
 ultra vires (o). 
 
 Where the title to land sold is made under an ex- Exchange 
 change effected in the manner which has now long been ^'^'^*^'^«^^ ^y 
 usual, — namely, by deeds of mutual conveyance con- conveyances, 
 taining vendor's covenants for title, but no provision 
 for mutual re-entry in case of eviction (/;), — the title to 
 
 War. 43, 47 ; Veneij v. Elwood, 
 3 Dr. & War. 74, 82 ; Wallis v. 
 Sarel, 5 De G. & S. 429. 
 
 (l) Bailey v. Collett, 18 Beav. 
 179; Sug. V. & P. 628 ; 1 Dart, 
 V. & P. 630, 631, 5th ed. ; 712, 
 6th ed. ; 654, 7th ed. 
 
 {m) As to the inclosure of com- 
 mon fields and commons, see 
 Wms. Real Prop. 62, 424, 2l8t 
 ed. ; Williams on Commons, 77 — 
 79, 246 sq. 
 
 iti) Major V. Ward, n Hare 
 598, 604 ■; Sug. V. & P. 372, 373 
 1 Dart. V. & P. 164, 286, oth ed. 
 186, 326, 6th ed. ; 181, 322, 7th 
 ed. ; 1 Davidson, Prcc. Conv. 527, 
 4th ed. Inclosure Acts usually 
 provided that the tenure of the 
 lands allotted should bo the same 
 as that of the lauds in respect of 
 which the allotment was made, 
 and reserved the minerals under 
 the lands allotted to the persons 
 previously entitled to them : but 
 where no su(!h provisions were 
 made the tenure of the allotments 
 was freehold and the mines under 
 them passed with the soil to the 
 
 allottees ; see Davidson, Prec. 
 Conv. vol. ii. part i. p. 491, n., 
 4th ed. ; Toivnleyv. Gibson, 2 T. R. 
 701 ; Doe d. Zotvesv. Davidson, 2 M. 
 & S. 175 ; Doe v. Hellard, 9 B. & 
 C. 789 ; Wakejield v. Bucclciigh, 
 L. R. 4 Eq. 613, 627; 4 H. L. 
 377 ; Butterknowle Colliery Co., 
 Ltd. V. Bishop Auckland, S;c. Co., 
 Ltd.. 1906, A. C. 305; Williams 
 on Commons, 223, 224, 250, 251 ; 
 Inclosure Act, 1845 (stat. 8 & 9 
 Vict. c. 118), ss. 94, 98. As to 
 the question whether the right of 
 sporting over allotments of waste 
 land has been reserved by an 
 Inclosure Act to the lord of the 
 manor, see Williams on Commons, 
 240 — 243 ; Devonshire v. (P Connor, 
 24 Q. B. D. 468; Ecroyd v. 
 Coulthard, 1898, 2 Ch. 358. 
 
 (o) Winyfield v. Tharp, 10 B. & 
 C. 785 ; Casamajor v. Strode, 2 
 My. & K. 706, 718—722; Sug. 
 V. & P. 375. 
 
 (p) See Da\ad8on, Prec. C«mv. 
 vol. V. pt. ii. pp. 77—81, 3rd ed. ; 
 1 Key & Elph. Prec. Conv. 700 — 
 713, 4th ed.
 
 410 
 
 OF PARTICULAE TITLES. 
 
 be investigated prior to the exchange (q) is the previous 
 title to the land faken in exchange alone, and the title 
 ^^chaugeby to the land given 'vix exchange is immaterial (>•). But 
 the Inclosure where land sold has been acquired through an exchange 
 Act, 1845. effected by an order of exchange made under the 
 Inclosure Act, 1845, and the Acts amending it {s), it 
 is unnecessary for the purchaser to investigate the title 
 to the land so acquired prior to the order of ex- 
 change {t) ; for unless the order were made without 
 jurisdictiou, that land thenceforward became irre- 
 vocably subject to the title, under which the land 
 given in exchange was held [u). The prior title to the 
 land given in exchange is, therefore, the only title 
 which it is material to investigate (,r) ; but as it appears 
 that the order of exchange would be invalid if made 
 without jurisdiction, and such jurisdiction arises on the 
 application of the persons interested in the land pro- 
 
 iq) If the exchange were made 
 at least forty years befoi'e the 
 sale, it would of course be a good 
 root of title; see above, pp. 100, 
 106. 
 
 (r) The acquisition of laud in 
 this way is exactly similar to its 
 acquisition on sale, and if the 
 title to the land given in exchange 
 were bad, the party who took it 
 in exchange would, in the absence 
 of fraudulent misrepresentation, 
 have no right to recover posses- 
 sion of the land which he ex- 
 changed for it, but could only 
 pursue his remedy in damages 
 under the covenants for title ; 
 Bartram v. Whichcotc, 6 Sim. 86, 
 92 ; see below. Chap. XII. ^ 3 ; 
 Chap. XIV. § 1 ; Chap. XIX. 
 § 5. But where an exchange of 
 lands was effected at coiitinon laio 
 before the year 1845, a mutual 
 right of re-entry on eviction was 
 implied, and so the title both to 
 the land given and to the land 
 taken in exchange was material ; 
 see BustarcVs cane, 4 Rep. 121a; 
 Sug. V. & P. 372 ; 1 David.son, 
 
 Prec. Conv. 528, 4th ed. ; Wms. 
 Real Prop. 160, and n. (c), 217, 
 610, 611, 2l8t ed. ; stats. 7 & 8 
 Vict. c. 76, s. 6; 8 & 9 Vict, 
 c. 104, s. 4. 
 
 (.v) See above, i^p. 147 and 
 n. (9), 152 and n. (;•) ; Wms. 
 Real Prop. 143, 217, 21st ed. 
 
 [t) 1 Davidson, Prec. Conv. 
 529, 4th ed. ; 1 Dart, V. & P. 
 287, 5th ed. ; 328, 6th ed. ; 324, 
 7th ed. 
 
 («) Stat. 8 & 9 Vict. c. 118, 
 s. 147 ; Jfiiief V. Leinan, 20 Beav. 
 269, 279, 7 De G. M. & G. 340 
 (deciding that gavelkind land 
 may well be so exchanged for 
 land held in free and common 
 socage) ; Collins, J., Jacoinb v. 
 Turner, 1892, 1 Q. B. 47, 51, 52 ; 
 Davidson, Prec. Conv. vol. ii. 
 pt. i. pp. 94, 95, n., 100, n., 
 4th ed. 
 
 {x) Such an order of exchange 
 is not in itself a good root of 
 title, as it affords no evidence of 
 the validity of the title to the 
 laud given in exchange ; see 
 previous note ; above, p. 106.
 
 OF PARTICULAR TITLES. 411 
 
 posed to be exchanged (?/) , it seems that the purchaser 
 would be entitled to require proof that the person who 
 applied for the order iu respect of the land taken in 
 exchange was in fact interested therein within the 
 meaning of the Acts (s). 
 
 A sale as well as a conveyance of land includes the Mines and 
 right to all mines and minerals in and under the 
 land (a) ; except only gold and silver mines, which Royal mines, 
 belong to the Crown (h). If, therefore, the vendor 
 desire to reserve any minerals or have no title to the 
 mines, he must be careful to provide by express stipula- 
 tion that the minerals he desires to retain shall be 
 excepted from the sale and sufficient working powers 
 reserved to him, or that he is selling the surface only {a) . 
 Whenever mines and minerals are excepted from a con- What is 
 veyance of land by the agreement of the parties thereto, ^^le term 
 it appears that the word minerals, unless limited by the mi'i'erais. 
 
 (v) Jacomb v. Turner, 1892, 1 in exchange from a charity under 
 
 Q. "B. 47, 52. Stat. 1 & 2 Geo. IV. c. 92, re- 
 
 {z) See Stat. 8 & 9 Vict. c. 118, pealed by 36 & 37 Vict. c. 91, 
 S8. 16 sq., 147 ; above, p. 409, the title to the land given and 
 note [p) ; Davidson, Free. Conv. to that taken in exchange was 
 vol. ii.pt. i. pp.9.), u., 100, n., 4th material; 1 Dart, V. & P. 288, 
 ed So also after exchanges made 5th ed. ; 328, 6th ed. ; 325, 7th 
 under most local Inclosurt- Acts, ed. ; 1 Davidson, Prec. Conv. 
 upon inclosureuurler the Inclosui'c 530, 4th ed. But where an ex- 
 Act, 1845 (see Jacomb v. Turner, change of charity land has been 
 1892, 1 Q. B. 47, 50), of lands effected under the Charitable 
 lying in common fields, under Trusts Act, 1853 (stat. 16 & 17 
 Stat. 4 & 5 Will. IV. c. 30, or Vict. c. 137), ss. 24, 26, the 
 under the Acts authorising the tran8acti(in stands on the same 
 exchange of ecclesiastical pro- footing as an exchange by deed 
 perty (stats. 55 Geo. III. c. 147 ; of mutual conveyance : see above, 
 56 Geo. III. c. 52; I Geo. IV. p. 409; beh)w. ^^ 7 of this chapter : 
 c. 6 ; 6 Geo. IV. c. 8), the title, 1 Dart, V. & P. 329, 6th ed. ; 
 prior to the exchange, of the 325, 7th ed. 
 
 land taken in exchange is not i \ a r> „ n i. i 
 
 . • , J .. • 1 " («) bee Belldini/ v. Deoenliani, 
 
 material and it is only necessary ^^^{ ^ ^ ^^.^ ; Re Jackson and 
 
 toascerainthat^ the jurisdiction ^^^^^^,^ Contract, 1906, iCh. 
 
 or right to make the exchange , , „ , , „- ' 
 
 1 1 ■* c Tr I D 412; above, p. 167. 
 
 duly arose ; see Suir. V. «.v P. ' ^ 
 
 373 ; 1 Dart, V. & P. 287, 5th (A) The case of Minen, Plowd. 
 
 ed. : 327, 6th ed. ; 323, 7th ed. ; 310, 336, 337 ; 1 Black. Com. 
 
 1 Davidson, Prec. Conv. 529, 295 ; A.-G. v. Morgan, 1891, 
 
 4th ed. Where laud was taken 1 Ch. 432.
 
 412 
 
 OF PARTICULAR TITLES. 
 
 Working 
 powers im- 
 plied on an 
 exception of 
 mines and 
 minerals. 
 
 context, will include every substance embedded in or 
 forming part of the land and having a value of its own 
 apart from its worth as a portion of the soil (c). Thus 
 the term minerals, when used in such a conveyance (d), 
 has been held to include china clay (e), coprolites (/), 
 and brick earth and clay {(j), and would certainly com- 
 prise slate, freestone and limestone {h), and every other 
 kind of stone (/), besides coal and ironstone {k). It 
 appears that the term minerala would have the same 
 meaning in a contract of sale as in a conveyance of 
 land (/). A landowner who has sold and conveyed 
 away the surface excepting the mines and minerals, but 
 without reserving any express power to enter and get 
 them, retains by implication of law all necessary powers 
 
 (c) Komilly, M. E,., Midland 
 Ey. Co. V. (Jheckley, L. K. 4 Eq. 
 ly, -lb ; Hext v. GM, L. E,. 7 Ch. 
 699, 712, 719 ; Kay, J., Midland 
 Ry. Co. V. Haunchwood, ^-c. Co., 
 20 Ch. D. 552, 555 ; Jemey v. 
 JS'eath Poor Laic Union, 22 
 Q. B. D. 555, 559, 561, 563 ; 
 Johnstone v. Crompton, 1899, 2 
 Ch. 190 ; Great (Festern Rail. Co. 
 V. Blades, 1901, 2 Ch. 624, 631, 
 636, 638; Re Todd, Birleston ^' 
 Co. and North Eastern Ry., 1903, 
 1 K. B. 603, 606, 607 ; Great 
 Western Ry. v. Carpalla, ^-c. Co., 
 Ltd., 1909, 1 Ch. 218, 226, 229, 
 231, 237; affirmed, 1910, A.C.83. 
 
 (d) As to the meaning of the 
 term minerals in the Railways 
 Clauses Act, 1845 (stat. 8 & 9 
 Vict. c. 20), 8. 77, and the Water- 
 works Clauses Act, 1847 (stat. 
 10 & 11 Vict. c. 17), s. 18, which 
 except from conveyances of any 
 land acquired subject to the pro- 
 visions of those Acts ' ' all mines 
 of coal, ironstone or other mine- 
 rals " under such laud, unless 
 expressly named and conveyed ; 
 see Lord Froiost, ^c. of Glasgow 
 v. Fairie, 13 App. Cas. 657 ; 
 Midland Ry. Co. v. Robinson, 15 
 App. Cas. 19; Great Western Ry. 
 V. Blades, 1901, 2 Ch. 624 ; Re 
 
 Todd, Birleston ^- Co. and North 
 Eastern Ry., 1903, 1 K. B. 
 603 ; Great Western Ry. v. Gar- 
 palla, i-e. Co., Ltd., 1909, 1 Ch. 
 218 ; 1910, A. C. 83, 85 ; from 
 which it appears that in such 
 cases the actual surface soil of 
 the lauds conveyed is not ex- 
 cepted, though it may have a 
 vaiuo independently of its worth 
 as mere soil. 
 
 («) Hext v. Gill ; Great Western 
 Ry. V. Carpalla, ^c. Co., Ltd., 
 ubi sup. 
 
 ( /■) A.-G. V. Tomline, 5 Ch. D. 
 750, 762. 
 
 ((/) Jersey v. Neath Poor Law 
 Union, ubi sup. 
 
 (A) Bell V. Wilson, L. R. 1 Ch. 
 303 ; Watson, L. A., Lord Provost, 
 ^'•c. of Glasgow v. Fairie, 13 App. 
 Cas. 657, 679. 
 
 (i) Midland Ry. Co. v. Chcckley, 
 L. R. 4 Eq. 19, 25. 
 
 [k) Moultou, L. J., Great 
 Western Ry. v. Carpalla, ^-c. Co.. 
 Ltd., 1909, 1 Ch. 218, 231 ; and 
 see Midland Ry. Co. v. Robinson. 
 15 App. Cas. 19, 26, 33. 
 
 (/) See cases cited, above, 
 note (c) ; Newton, Chambers ^• 
 Co., Ltd. V. Rail, 1907, 2 K. B. 
 446, 452.
 
 OF PARTICULAR TITLES. 413 
 
 for working the same : but the powers so reserved to 
 him aie only such as are strictly necessary for the 
 purpose (w) ; and it is usual on such sales for the vendor 
 to stipulate expressly for the reservation of larger 
 powers, including the liberty of using the surface for 
 works connected with the mines, such as the deposit of 
 rubbish, the erection of engines and other works, or of 
 cottages for workpeople, and the making of tramways, 
 railways, &c. hi). If a contract of sale of land should No larger 
 provide for the mines and mmerals being excepted, but be reserved 
 not for the reservation of any express powers of working *^^ ^j^^^d 
 them, the vendor would not be entitled to require the for in the 
 reservation to him, in the conveyance to the purchaser, 
 of any larger powers than he would retain by implica- 
 tion of law ; and if the contract should expressly provide 
 for certain powers of working, the vendor could not 
 require any larger powers to be reserved to him by the 
 
 conveyance (o). In the absence of express or implied Surface can- 
 
 . , . •, , ro 1 ... V^, not be let 
 
 stipulation to that ettect, a vendor retaining the down or 
 
 mines and minerals mil have no right to let down ^^!^°^f*^ 
 
 the surface by his workings ( /;), or, where the ex- special power 
 
 cepted minerals can only be gotten by surface work- 
 
 (w) Cardigan v. Armitage, 2 v. White, 8 App. Cas. 833, 842, 
 
 B. & C. 197, 207, 208, 211; 843; Love v. Bell, 9 App. Ciis. 
 
 affirmed in D. P., Sugd. Law of 286 ; Greemccll v. Loiv liccchburn 
 
 Property, S8— 91. ' Coal Co., 1897, 2 Q. B. 16.5 ; New 
 
 («) Williams on Commons, 221 ; Sharhton Collieries Co., Ltd. v. 
 
 see Davidson, Prec. Conv. vol. ii. Westmorland, 1904, 2 Ch. 443, n. ; 
 
 pt. i. 484 sq. and note ; 1 Key & Jiittterknowlc Colliery Co., Ltd. v. 
 
 Elph. Prec. Conv. 310, 311, 4th Bishop Auckland, ^-c. Co., Ltd., 
 
 ed. ; 314, 315, 8th ed. 1906, A. C. 30o ; Markham v. 
 
 («) The rule is that the rights Paget, 1908, 1 Ch. 697, 710. As 
 
 to be defined in the conveyance to what provi.xions will confer the 
 
 are those conferred by th(> con- right to let down the surface, see 
 
 tract ; see lie i'eck and London Rowbothum v. Wilson, ubi sup. ; 
 
 School Board, 1893, 2 Ch. 315; 5//it<A v. />ar/<i/, L. K. 7 Q. B. 716; 
 
 Re Huqhes and As/ilei/'s Contract, Aspden v. Seddon, L. R. 10 Ch. 
 
 1900, 2 Ch. 595 ; below, Chap. 394 ; Butterley Co., Ltd. v. Xew 
 
 XII. § 3. Hncknall Cullicry Co., Ltd., 1909, 
 
 {p) Humphries v. Brogden, 12 1 Ch. 37 ; affirmed, 1910, A. C. 
 
 Q. B. 739; Rowbotham v. Wilson, 381 ; lireu-ir v. Rhyinnei/ Lron Co., 
 
 8 H. L. C. 348, 360; Davis v. 1910, I Ch. 766, 770. 
 Treharne, 6 App. Cas. 460 ; Dixon
 
 414 
 
 OF PARTICULAE TITLES. 
 
 Mines and 
 minerals go 
 along with 
 the surface 
 until severed. 
 
 Mines once 
 severed 
 remain dis- 
 tinct from 
 the surface. 
 
 ings, to work them in sucli a way as will utterly 
 destroy the surface soil of the land (q). So long 
 as the ownership of any mines or minerals is en- 
 joyed as an incident of the ownership of the surface, 
 they pass, as a rule, without express mention (unless 
 specially excepted) upon any conveyance or disposition 
 of the surface (r) ; and where a title has been acquired 
 ander the Statute of Limitations {s) by adverse posses- 
 sion of the surface, a similar title to the mines and 
 minerals thereunder will have been equally obtained (f). 
 But after mines have once been severed from the 
 surface, they remain distinct therefrom as separate 
 corporeal hereditaments [u), the title thereto is no 
 longer affected by any act of disposition or possession 
 of the surface ; and it is not lost by any mere omission 
 to enter upon or work the mines {.r) . In such case the 
 
 {q) Bell V. Wilson, L. R. 1 Gh. 
 303 ; Hext v. Gill, L. R. 7 Ch. 
 699, 713 aq. 
 
 [r) 2 Black. Conim. 18; Newton, 
 Chambers ^- Co., Ltd.Y. Hall, 1907, 
 2 K. B. 446, 452; above, p. 411. 
 Exceptions occur (1) upon con- 
 veyances of lands acquired subject 
 to the provisions of the Railways 
 Clauses Act, 1845, or the Water- 
 works Clauses Act, 1847 (above, 
 p. 412, n. {d)) ; (2) upon the en- 
 franchisement of copyholds when 
 effected by virtue of the powers 
 given by the Copyhold Acts, 1841, 
 1852, 1858, or 'l894 (see stats. 
 4 & 5 Vict c. 35, ss. 13, fi6 sq., 
 82; 15 & 16 Vict. c. 51, s. 48; 
 21 & 22 Vict. c. 94, s. 14; 57 & 
 58 Vict. c. 46, s. 23) ; (3) upon 
 the sale for redeeming laud tax 
 of lands of ecclesiastiial corpora- 
 tions under the Land Tax Re- 
 demption Acts (see 1 Dart, V. & 
 P. 370, 5th ed. ; 422, 6th ed. ; 
 4 25, 7th ed.) ; and (4) where 
 streets or roads vest by statute 
 in some local authority for the 
 pui-poses only of exercising the 
 powers thereby conferred on them 
 in respect of the surface (see 
 below, pp. 417, 418). 
 
 (.s) 3 & 4 Will. IV. c. 27, 
 amended by 37 & 38 Vict. c. 57. 
 
 {t) Theivv. Wingate, 10 B. & S. 
 714, n. ; Seddon v. Smith, 36 L. T. 
 N. S. 168; WiUiams on Com- 
 mons, 1V2— 154. 
 
 {u) The owner of the mines or 
 strata so severed is therefore en- 
 titled to use the spaces left when 
 the minerals have been worked 
 out for any purpose he may 
 please, such as the carriage of 
 minerals gotten from under ad- 
 joining lands ; Proud v. Bates, 
 11 Jur. N. S. 441; Batten Pooll 
 V. Kennedy, 1907, 1 Ch. 256. It 
 should be noted that the reserva- 
 tion, upon a conveyance of land, 
 of the mere light to get the coal 
 or other minerals thereunder, is 
 an entirely different thing from 
 ail exception of the mines and 
 only confers on the grantee a 
 profit a prendre, which is an in- 
 corporeal hereditament ; Suther- 
 land V. Heatheote, 1892, 1 Ch. 475 ; 
 and see Williams on Commons, 
 219. 
 
 [x) Seaman v. J'atrdrei/, 16 Ves. 
 ;i90, 392 ; Norway v. 'Bowe, 19 
 Ves. 144, 156 ; Cardiff an v. Armi- 
 tage, 2 B. & C. 197 : McBonnell
 
 OF PARTICULAR TITLES. 
 
 415 
 
 acquisition, subsequent to the severance, of a new title 
 
 to the surface under the Statute of Limitations, will not 
 
 of itself disturb the title to the mines {if). If, however. Title to 
 
 the mines severed be actually entered upon and held by i^y adverse 
 
 a trespasser in such a way that he keeps possession of possession. 
 
 them, he will in due time obtain a good title under the 
 
 statute (;:). It is not sufficient, however, for a trespasser 
 
 merely to enter on a mine and take coal or other minerals 
 
 away ; he cannot get a title to a mine, as a corporeal 
 
 hereditament, unless he remain in possession of it, as 
 
 such, for the statutory period {a). And the retention of 
 
 possession of some particular mine or seam of coal, or 
 
 some part thereof, will not confer a title under the 
 
 Statute of Limitations to any other mine or seam lying 
 
 beneath the mine so possessed or to any other part of 
 
 that mine than so much thereof as has been in the 
 
 trespasser's actual possession (/^). The reader will ^^^i^es under 
 
 1 1 . , 1 copyholds, 
 
 remember that, in the absence of any custom to the 
 
 contrary, all mines and minerals in and under copyhold 
 lands belong to the lord, thougli the tenant has posses- 
 sion of them, and neither party can work them without 
 the other's consent (e). Such mines and minerals pass 
 to the tenant upon an enfranchisement made by a con- 
 
 V. MrKiiih/, 10 Ir. L. R 514; 
 Smith V. ' IJoi/d, 9 Ex. 562 ; 
 Truntees, c^r. Aqciicy Co., Ltd. v. 
 Short, i;} App Cas. 793, 799; 
 Williams on Commons, 216 — 219 ; 
 Davidson, Preo. Conv. vol. ii. 
 pt. i. p. 4S9, n., 4th ed. 
 
 ()/) Sec previous note; MeSwin- 
 ney on Mines, o84, Srd ed. 
 
 \z) Hall, V.-C, Ashtou V. Stock, 
 6 Ch. D. 719. 726 ; Low M<,or Co. 
 V. StU'lfU Coal Co., 34 L.T. IS6; 
 Oliin v. 'noweU, l!l09, 1 Ch. f.66, 
 675 .sy/. So hIso where minerals 
 are embedded in the surface soil 
 and jrotteii by surface workin<rs, 
 as gravel obtained by diguriiig in 
 fjriivfl pitsorstono by <iuarrvinp, 
 a title undur tlio Statute t)f Limi- 
 tations may be acquired by keep- 
 
 ing possession of them, along 
 with the surface, for the nece.s- 
 sary period ; Smith v. Stocks, 38 
 L. J. Q. B. 30G. 
 
 {n) DartmoiUh v. Spittle, 24 
 L. T. N. S. 67 ; Ashton v. Stock, 
 tihi flip. ; Thompson v. Hickman, 
 1907, 1 Ch. 550. 
 
 (A) I.,on- Moor Co. V. Staiileii Coal 
 Co., 34 L. T. 186, 189; Ghni v. 
 Howell, 1909, 1 Ch. 666. 
 
 {c) intwhesterv.K>iit/ht,l P.W. 
 406 ; Bourne v. Tai/lor, 10 Ea.st, 
 189; Lewi.i v. Bra'nthwaite, 2 B. 
 k Ad. 437 ; Kcyes v. Pon-dl, 2 E. 
 & B. 132; Enrdlri) v. Grauville, 
 3 Ch. D. 826, 832,' 833 ; 1 Scriv. 
 Cr>p. 508 xq . :^rd ed. ; Wms. Real 
 Prop. 355, liSth ed. ; 464, 21st 
 ed. II the lord have by custom
 
 416 
 
 OF PARTICULAR TITLES. 
 
 veyance of the freehold in fee under the general law (d), 
 unless of course they are expressly excepted : but they 
 do not pass upon an enfranchisement (whether voluntary 
 or compulsory) effected under the powers given by the 
 Copyhold Acts, unless specially comprised therein (e). 
 
 Soil of roads. At common law, it is presumed that the soil of all 
 roads, whether highways or private ways, running 
 through and enclosed on both sides by one man's land 
 belongs to him ( /) ; that a conveyance of the lands on 
 both sides of the road includes the soil of the road (g) ; 
 and that a conveyance by him of the land on one side 
 of the road includes the soil of the nearest half, up to 
 the middle of the road (//). Where such roads divide 
 the lands of different owners, the presumption is that 
 the owner of the land on each side of the road is 
 entitled to the soil of that part of the road which adjoins 
 his land up to the middle of the road ; that any strips 
 of waste land lying by the side of the road belong to 
 the owner of the adjoining close (i) ; and that any con- 
 
 a right to enter and get the 
 mines, he is not entitled to 
 use the spaces left where the 
 minerals have been worked out 
 for any other purposes than such 
 as are incidental to exercising this 
 right, without the tenant's con- 
 sent ; Edvdlry v. Granville, 3 
 Ch. D. 826; of. above, p. 414, 
 n. {x). 
 
 {d) 1 Scriv. Cop. 25, 3rd ed. ; 
 above, p. 414 ; and see Davidson, 
 Prec. Conv. vol. ii. pt. i. p. 386, 
 n., 4th ed. 
 
 (e) See above, p. 414, n. (>•). 
 
 (_/) Salisbury v. Great Northern 
 By. Co., 5 C. B. N. S. 174 ; Har- 
 rison V. Rutland, 1893, 1 Q. B. 
 142 ; Hickman v. Maisey, 1900, 
 1 Q. B. 752. 
 
 {(/) See Salisbury v. Great Xor- 
 thern Ity. Co., ubi sup. 
 
 [h) See cases cited in note [k), 
 p. 417. below. 
 
 (J) Due d. Priny v. Fearsey, 7 B. 
 
 6 C. 304; Scoones v. Morrell, 1 
 Beav. 251 ; Holmes v. Bellingham, 
 
 7 C. B. N. S. 329 (as to private 
 roads) . As to cases where a road 
 adjoins an open common, see the 
 first two cases cited in note (w«), 
 below. It should be noted that, 
 where a high road, having un- 
 metalled strips of land on either 
 side of it, runs between fences, 
 and there is nothing to show that 
 the fences are not the boundaries 
 of the highway, the presumption 
 is that the public right of way 
 extends over the whole of the 
 land between the fences ; R. v. 
 United Kingdom Telegraph Co., 
 6 L. T. N. S. 378; Harvei/ v. 
 Truro Rural Council, 1903, 2 Ch. 
 638 ; Offin v. Rochford Rural Dis- 
 trict Council, 1906, 1 Ch. 342; 
 cf. Neeld v. Hcndon Urban District 
 Council, 81 L. T. 406 ; Belmore v. 
 Kent County Council, 1901, 1 Ch. 
 873.
 
 OF PARTICULAR TITLES. 'II" 
 
 veyanee of the adjoining land carries with it the soil of 
 one half of the road (k). And the same presumption 
 arises in the case of a contract of sale of land as in that 
 of a conveyance (l). These presumptions, however, 
 may be rebutted by evidence that the ownership of the 
 soil is not in the person or persons in whom, but for 
 such evidence, it would be presumed to be {m) , or that 
 it was not the intention of the conveying parties to assure 
 any part of the soil of the road (n) . Whenever any con- 
 veyance is to be made of any land adjoining a road, the 
 draftsman should take great care to make it unmistakably 
 plain, whether any part of the soil of the road is intended 
 to pass or not. Under the Public Health Act, 1875 (o), Streets within 
 the surface soil of all streets, which are or become djstnct. 
 highways repairable by the inhabitants at large within 
 any urban district, \ests in the urban sanitary authority 
 to the depth necessary for exercising the powers con- 
 feiTed by the Act : l)ut the sub-soil, including all mines Mines and 
 and minerals therein, remains \ested in the person or thereunder, 
 persons entitled (save as provided by the Act) to the 
 land, which is the site of the street (p). Under the 
 
 (k) Simpson v. ])endij, 8 C. B. 206 ; Leiyh v. Jack, 5 Ex. D. 
 N. S. 433, affd. 7 Jur. N. S. 10.58; 2G4 ; Pryor v. FHrc, 1894, 2 Ch. 
 Jlrrridf/e v. If'ard, 10 C. B. N. S. 11 ; Mappin v. Liberty df- Cu., Ltd., 
 400 (where the land conveyed was 1903, 1 Ch. 118. The above pre- 
 deHcribed by roference to a plan sumptions have no application in 
 not including- any part of the the case where a railway runs 
 road) ; Ite Whiter Charities, 1898, through one man's land, or (as it 
 1 Ch. 659; and see Lo))do>i df- appears) between the lands of dif- 
 North Western Ity. Cu. v. West- ferent owners ; 'Tliompson v. Hick- 
 minster Corptt., 1902, 1 Ch. ^69. man, 1907, 1 Ch. 550, 556. 
 279, afBrmed, 1905, A. C. 426, (o) Stat. 38 & 39 Vict. v. 55, 
 428, 429, 438. s. 149. By s. 4, street includes 
 
 (f) Re Poppli and harratt^i Con- any highway (not being a tum- 
 
 tract, 25 W. R. 248. pike road), and any public bridge 
 
 [in) Grose v. West, 7 Taunt. 39 ; (not being a county bridge), and 
 
 Doe V. Kemp, 2 Bing. N. C. 102 ; any road, lane, footway, square, 
 
 Beckrit V. Leeds Corpn., L. R. court, alley or passage, whether 
 
 7 Ch. 421 ; Hau/h v. West, 1893, a tlioroughfare or not. 
 2Q. B. 19, 20. ' {p) Coverdak v. Charlton, 4 
 
 (w) Salislmrn v. Great Northern Q. B. D. 104, 121 ; Tiotbri/ige 
 
 Ry. Co., 5 C. B. N. S. 174 ; Plum- Wells Corpn. v. Baird, 1896, A. C. 
 
 stead Board of Works v. Britis/i 434 ; Finchley Electric Light (Jo. 
 
 Land Co., L. R. 10 Q. B. 16, 203, v. Finchley Urban Ihstricf Council, 
 
 w. 27
 
 418 
 
 OF PARTICULAR TITLES. 
 
 Streets in the 
 metropolis. 
 
 Public 
 
 convenieuops 
 under roads 
 ill London. 
 
 Main roads 
 
 Metropolis Management Act, 1855 (y), the surface soil 
 of all streets in the metropolis, which are highways, 
 vests in the local authority to the same extent (r). 
 Under the Public Health (London) Act, 1801 (.), 
 however, the suh-soil of any road, exclusive of the foot- 
 way adjoining any building or the curtilage of a 
 building, is vested in the local sanitary authority for 
 the purposes of making such public conveniences as are 
 specified in sect. 44 of that Act. This enactment makes 
 the sanitary authority the owner of such conveniences 
 when made, but does not appear to confer any greater 
 interest in the sub-soil than is necessary for the pur- 
 poses specified (f) . Under the Local Government Act, 
 1888 {((), all main roads within the meaning of the 
 Highways and Locomotives (Amendment) Act, 1878 (j^-), 
 vest in the County Council, except where the ui'ban 
 sanitary authority retain the powers and duties of 
 maintaining and repairing such road {//). It has been 
 held that this enactment does not make the County 
 Council the owner of strips of waste land lying by the 
 side of such roads, so as to entitle them to take the 
 herbage thereof (s) : but it appears to vest in them the 
 surface soil of the metalled road and any footpath 
 
 1903, 1 Ch. 437; IVedmsbury 
 Corpn. V. Lodge Holes Colliery Co., 
 Ltd., 1905, 2 K. B. 823, 826; 
 1907, 1 K. B. 78, 89, 90; 1908, 
 A. C. 323 ; Folefs Charitii Trus- 
 tees V. Dudley Corpn., 1910, 1 K.B. 
 317, 322, 324, 325. 
 
 [q] Stat. 18 & 19 Vict. c. 120, 
 .s. 96. By s. 2o0, street is defined 
 in the same way as in the Public 
 Health Act, 1875 ; see note (o), 
 p. 417, above. 
 
 (»•) Rolls V. iSY. George'' s Vestry, 
 SoHthwark, 14 Ch. D. 785 ; 
 Wandsworth Board of Works v. 
 Vni/ed Telephone Co., 13 Q. B. D. 
 904 ; Battersen Vestry v. County 
 of London, S;c. Lighting Co., lAd., 
 1899, 1 Ch. 474. 
 
 (s) Stat. 54 & 55 Vict. c. 76. 
 (<) London and North Western 
 Ry. Co. V. Westminster Corpn., 
 
 1902, 1 Ch. 269, affirmed 1905, 
 A. C. 426 ; Westminster Corpn. v. 
 Johnson, 1904, 2 K. B. 737. See 
 cases cited in note [p), above, 
 p. 417. 
 
 (?/) Stat. 51 & 52 Vict. c. 41, 
 s. 11 (1,6). 
 
 [x) Stat. 41 & 42 Vict. c. 77, 
 s. 13. 
 
 (y) See Finehley Electric Light 
 Co. V. Finehley Urban Disti-ict 
 Council, 1902, 1 Ch. 866, reversed 
 
 1903, 1 Ch. 437. 
 
 {:) Curtis v. Kesteren Counti) 
 Council, 45 Ch. D. 504. 
 
 i
 
 OF PARTICULAR TITLES. 419 
 
 lying by its side (a), so far as is necessary for the 
 exercise of the powers vested in them {l>). 
 
 The like presumptions are made with respect to the Soil of rivers, 
 soil of rivers (where they are not tidal rivers) as with 
 regard to the soil of roads (c). If the lands on both 
 sides of the river belong to the same owner, it is pre- 
 sumed that he is the owner of the river-bed (r/) ; that 
 the whole of the river-bed passes on any conveyance or 
 sale ((') of the lands on both sides of the river ; and that 
 one-half of the river-bed, up to mid-stream, passes by 
 the conveyauce or sale(^') of the land lying on one side of 
 the river. And if the river divide the lands of different 
 owners, it is presumed that each of them is the owner 
 of that part of the river-bed which adjoins his own 
 land, up to mid- stream, and that a conveyance or 
 sale of the adjoining land carries mth it the ownership 
 of half the river-bed (./'). These presumptions may 
 pqually be rebutted by evidence to the contrary, as in 
 the ease of roads (//). Where there is an ancient island Island in a 
 in the middle of a river, and the lands on either bank 
 of the ri\er belong to different ownors, the presumption 
 that each rijjaiian proprietor is the owner of half the 
 river-bed applies only as far as the middle of the stream 
 running between either bank and the island, and not so 
 as to raise anj' presumption as to the ownership of the 
 
 {a) See Derbi/ Couuty Council v. (e) lie Popplr and Barratt''x 
 
 Matlock Bath, *r. Urbnn District, (Contract, 25 "W. R. 248. 
 
 1896, A. C. ?.U->. (/) Lord v. Sudnnj Vommrs., 12 
 
 (b) Sec ca»p« oited in note (/^), Moo. P. C. 473; Micklethwait v. 
 p. 417, abovL'. Xcuiai/ Bridge Co., 33 Ch. D. 
 
 (c) Above, pp. UG, 417. 133: Kay, J., rUbiir;/ v. 6'i7t'rt, 
 
 (d) As to what is the bed of 4.i Ch. D. 98. 108. These pre- 
 tt river, see TIiuhkw Coiixcreatorx humptious do not apply in the 
 V. Smccd, 1897, 2 Q. B. 3.J4. ea-se of lands abutting on a canal, 
 With respect to the legal results of which the surface soil belongs 
 of a river changing its course, to other owners ; Chambrr Colluri/ 
 see C,irH!<li: Corpn. v. Graham, Cu. v. livc/idale Canal Co.,7'i L.T. 
 L. R. 4 Ex. 3G1 ; Foster v. irri;//,t, 2.i8. 
 
 4C.P. D. 43S: Hituho), \. A>='lili>i, (p) Devonshire v. Pattin.son, 20 
 
 1896, 2 Ch. 1. Q. B. D. 263 ; above, p. 417. 
 
 •>7 {2)
 
 420 
 
 OF PARTICULAR TITLES. 
 
 Owner of 
 
 several fishery 
 presumed to 
 be owner of 
 the soil. 
 
 Soil of 
 tidal rivers. 
 
 Tublio riaht 
 of navigation. 
 
 Seashore. 
 Foreshore. 
 
 island (//). It must not be forgotten that, where there 
 has been a grant of a several fishery in any river, it is 
 presumed, in the absence of evidence to the contrary, 
 that the owner of the fishery is the owner of the soil of 
 the river (/). In the case of tidal and navigable (A-) 
 rivers, estuaries and inland arms of the sea, the pre- 
 sumption is that the soil of the river-bed or sea-bed up 
 to high-w^ater mark belongs to the Crown (/) ; but such 
 ownership is subject to the public right of navigation (;») . 
 The Crown is also presumably entitled to the soil of the 
 seashore below high- water mark of ordinary tides, 
 between the spring and the neap(yO. But a subject 
 may have become the owner of the soil of the foreshore — 
 that is, the land lying between high and low-water 
 mark of medium tides (o) — by grant from the Crown 
 either conveying it in express terms (p), or presumed 
 
 (A) Great Torrington Commons 
 Conservators v. Moore Stevens, 
 1903, 1 Oh. 347. 
 
 (() See Marshall v. Ulleswater 
 Steam Navigation Co., Ltd., 3 
 B. & S. 732; A.-G. v. Emerson, 
 1891, A. C. 649 : Hindson y. 
 Ashby, 1896, 2 Ch. 1, 11, 20; 
 Eckroyd v. Coulthard, 1897, 2 Ch. 
 554, 565, 570; Hanburyx. Jtnkins, 
 1901, 2 Ch. 401, 411 ; Fitzhardinge 
 y.Furcell, 1908, 2 Ch. 139, 146, 161. 
 
 (A-) As to the meaning of navi- 
 f/able, see Ilchesfur x. 2ialshleir/h, 
 61 L. T. 477. 
 
 {I) Colchester Corpn. v. Brooke, 
 7 Q. B. 339, 374 ; Malcomson v. 
 CBea, 10 H. L. C. 593, 618 : 
 Gann v. Free Fishers of Whitstable, 
 11 H. L. C. 192, 207; Lijoti r. 
 Fishmongers^ Co., 1 App. Cas. 662, 
 682 ; N^orth Shore Ry. Co. v. Pion, 
 14 App. Cas. 612, 621 ; A.-G. v. 
 Einerson, 1891, A. C. 649. 653; 
 Fitzhardinge v. Fnrcell, 1908, 2 
 Ch. 139, 146. 
 
 («;) See cases cited in previous 
 note. Inland or non-tidal rivers 
 may by immemorial uf<er or by 
 dedication be subject to a public 
 right of navigation similar lo a 
 
 public right of way along a road : 
 see Orr Eiving v. Colqahoiin, 1 
 App. Cas. 839 ; Bourke v. Davis, 
 44 Ch. D. 110, 120—124; Smith 
 V. Andrews, 1891, 2 Ch. 678, 
 689, n., 695—697; Simpson v. 
 A.-G., 1904, A. C. 476. 
 
 («) A.-G.v. Chambers, 4 De G. 
 M. & G. 206 ; A.-G. v. Emerson, 
 1891, A. C. 649, 653. Where 
 the sea gradually encroaches or 
 recedes, the soil, over which the 
 Crown title extends, is altered 
 accordingly ; but a sudden irrup- 
 tion or dereliction of the sea dues 
 not cause any change of title to 
 the soil so submerged or left dry : 
 2 Black. Comm. 262 ; H. v. Yar- 
 borongh, 3 B. & C. 91, 2 Bligh, 
 N. S. 147, 5 Bing. 163 ; Re Hull 
 and Selby Ry., 5 M. & W. 327 ; 
 Mercer v. Benne, 1905, 2 Ch. 538. 
 579, 582, 584 ; Wms. Real Prop. 
 330, 13th ed. (426. 21st ed.). 
 
 {o) Scratton v. Brown, 4 B. & C 
 485, 495 ; Alderson, B., Re Hull 
 and Selby Ry., 5 M. & W. 327, 
 332; A.-G. v. Emerson, 1891, 
 A. C. 649, 653 ; Mellm- v. TFal- 
 mesley, 1905, 2 Ch. 164, 177—180. 
 
 [p) Mace V. Philcox, 15 C. B.
 
 OF PARTICULAR TITLES. 
 
 421 
 
 from the exercise of long- continued and uninterrupted 
 
 acts of ownership to have included it (q), or to have 
 
 been made (>•). And the owner of a several fishery Several 
 
 extending over the foreshore is presumed to be the foreshore. 
 
 owner of the soil thereof (s). A subject may also have Land below 
 
 derived from the Crown a title to the soil of the sea jnark. 
 
 shore or of a tidal river below low- water mark : but in 
 
 all such cases the owner holds subject to the right of 
 
 public navigation (t). And if stone or shingle on part Foreshore, 
 
 of the foreshore granted to a subject form a natural barrier 
 
 barrier against the incursion of the sea, he is not entitled agamsc the 
 
 o ' _ ^ sea. 
 
 to remove it (u). Where laud conveyed is described as l.^jjJ bounded 
 bounded by the seashore, that means by the inland ^y ^^^ «ea- 
 
 . shore. 
 
 limit of the foreshore, i.e., high- water mark of medium 
 
 tides ; and there is no presumption that any part of the 
 
 foreshore is included in the conveyance U). The owner li«p;'"ii'» 
 
 . • i J J.1 owner s right 
 
 of land abutting on the seashore or situated on the of access to 
 bank of a tidal and navigable river, has the like right *^^ ^^''^' 
 of access over the foreshore to and from the sea or river 
 for the purpose of navigation and otherwise as is 
 enjoyed by the owner of land on the bank of a non- 
 tidal river (//). But the public have no general right to No public 
 use the foreshore 'whether in the hands of the Crown or ©n the fore- 
 of a subject) for bathing or other purposes (save such 
 as may be incident to the proper exercise of the public 
 rights of navigation and fishing), or to pass and repass 
 
 N. S. 600 ; Llandudno Urban Lis- {() See cases cited iu note (/) 
 
 iricl CoHucil V. Woods, 1899, 2 Ch. to p. 420, above; The Swift, 1901, 
 
 705; Liverpool, ^-c. Stenmship Co. P. 168, 173. 
 
 V. Mersnj Trading Co., Ltd., 1909, (?«) A.-G.v. Tomline, 14 Ch. D. 
 
 1 Ch. 209 ; and .see Scratton v. oH, followed Musselburgh jRral 
 
 Broun. 4 B. & C. 485, 495 sij. Estate Co., Ltd. v. Musselburgh 
 
 (q) Calmady v. Rowe, 6 C. B. (Provost), 1905, A. C. 491. 
 861 ; lieaufort v. Suauiea, 3 Ex. (x) Mellor v. Walnieslei/, 190.), 
 
 413; A.-G. of Ireland \. Vande- 2 Ch. 164. 
 
 Ifur, 1907, A. C. 369, 370; Fitz- (y) Lyon v. Fishmongers' Co., 1 
 
 hardingi v. Pnrcrll, 1908, 2 Ch. App. Cas. 662: A.-G. of Straits 
 
 i;^9. Settlements v. Ifemgss, 13 App. 
 
 [r] A.-G. v. Emerson, 1891, Cas. 192 ; Xorth Shore Jtg. Co. v. 
 
 A. C. 649, 6f>'S. J'ion, 14 App. Cas. 612 : Mellor v. 
 
 (s) A.-G. V. Emerson, Fit:- Waltr^ley, 1905, 2 Ch. 164, 181. 
 hardinge v. Farcell, ubi sup. 
 
 shore.
 
 422 
 
 OF PARTICULAR TITLES. 
 
 Inland lake, over it wlieu not covered by the sea (;:) . The Crown 
 is not entitled of common right to the soil of any 
 inland lake, whether navigable or not ; and it is a 
 question whether the presumptions as to the soil of 
 inland rivers (a) apply to inland lakes (6) . 
 
 Water rights 
 in natural 
 rivers. 
 
 The owner of the land forming the bank of any 
 natural river or stream has the right, as incident to 
 such ownership and not as an easement (c), to have the 
 water flow down in its natural state, neither increased 
 nor diminished in quantity (save only so far as may be 
 occasioned by the lawful uses of the owners higher up 
 the stream) (d) and unpolluted (e). But the owner of 
 any land higher up the stream ma}^ enj^y a prescriptive 
 
 [z) Biundell v. Catterall, 5 B. <t 
 A. 268 ; Llandudno Urban District 
 Council V. Woods, 1899, 2 Ch. 705 : 
 Brinekman v. Medley, 1904, 2 
 Ch. 313 ; Fitzhardinge v. Pnrcell, 
 1908, 2 Ch. 139, 165 sq. The 
 foreshore may be subject through 
 immemorial user to the right of 
 the owners of fishing boat.s and 
 other craft to fix moorings in the 
 soil; A.-G. V. Wright, 1897, 2 
 Q. B. 318. And there may be a 
 good custom for fishermen to dry 
 their nets on land near the sea ; 
 Mercer v. benyie, 1904, 2 Ch. 534 ; 
 1905, 2 Ch. 538. 
 
 (a) Above, p. 419. 
 
 (o) Bristow V. Corinican, 3 App. 
 Gas. 641, 658, 665—667. 
 
 (c) Shury v. Piggot, 3 Bulst. 
 339. 
 
 {d) Wright v. Howard, 1 Sim. 
 & St. 190, 203 ; Mason v. Hill, 
 5 B. & Ad. 1, \1 sq.; Emhrey v. 
 Owen, 6 Ex. 353 ; Miner v. Gil- 
 mour, 12 Moo. P. C. 131, 156; 
 Chaseinore v. Richards, 7 H. L. C. 
 349, 382 ; Swindon Waterworks Cu. 
 v. Wil's and Berks Canal Xavi- 
 yition Co., L. R. 7 H. L. 697, 
 704, 709 ; Blackburn, L. A., ')rr 
 Ewing v. Colquhoun, 2 App. Cas. 
 839, 854 ; Orinrrorl v. Todmorden 
 Mill Co., 11 Q. B. D. 155 ; Jioberts 
 
 V. Gwyfai JJistrict Council, 1899, 
 2 Ch. 608 ; Bradford Corpn. v. 
 Ferrand, 1902, 2 Ch. 655, 660 ; 
 McCartney \. Londonderry, ^-c. My. 
 Co., Ltd.. 1904, A. C. 301 ; John 
 White 4- Sons v. /. 4- M. White, 
 1906, A. C. 72, 80. Any riparian 
 owner may take water from the 
 stream for his own domestic pur- 
 poses, such as drinking, washing- 
 and watering liis cattle, and for 
 the reasonable irrigation of his 
 land ; and he is also entitled to 
 divert the water from the stream 
 for such purposes as the supply 
 of water power to a mill erected 
 on his land, provided always that 
 he return the water so used to 
 the stream and do not substan- 
 tially interfere with the rights of 
 the other riparian proprietors to 
 the natui'al flow of the water : 
 but he is not entitled to divert 
 the water to a place outside his 
 riparian tenement and consume it 
 there for purposes unconnected 
 with such tenement : see the cases 
 above cited ; Kensit v. Great 
 Eastern Ry. Co., 27 Ch. D. 122. 
 
 ((>) Wood v. Waud, 3 Ex. 748 ; 
 John Young 4' ^'o. v. Bankier Dis- 
 tillery Co.', 1893, A. C. 691, 697, 
 698, 701 ; and cases cited in pre- 
 vious note.
 
 OF PAKTICULAK TITLES. 423 
 
 right in the nature of an easement to abstract from the 
 stream a larger quantity of water than he is allowed as 
 ri])arian owner to take for his own use (./"), or to dis- 
 charge extraneous water or other matter into the 
 stream {g). But any prescripti^e right to discharge 
 such matter into a stream does not absolve its owner 
 from the necessity of observing the requirements of the 
 Rivers Pollution Prevention Act, 1876 (h). The right Surface or 
 
 •nij 1 underground 
 
 to the natural now of water is confined to such water water not 
 as flows in a known and defined stream or channel, and iJ'^'"^ ^"j* 
 
 ' known and 
 
 does not extend to surface water not so flowing (/), or defined 
 to underground water merely percolating through the 
 strata in no known channels {k). If, however, a stream 
 of water flow underground in a defined and known 
 cliannel and afterwards emerge on to the surface, the 
 o\vners of land lower down the stream will be entitled 
 to the natural flow of W\q water down to them (/). 
 
 The right to the flow of water along an artificial Water rights 
 , , • 1 T r*- • • 1 .in artificial 
 
 watercourse depends on entirely din:erent principles ; it watercourses. 
 
 is not enjoyed of common right as incident to the 
 
 ownership of the land through which the water fiows, 
 
 but is an easement arising by grant or prescription {m). 
 
 Where an artificial watercourse is obviously made for a 
 
 (f) See Wright v. Howard, 1 [k) Chaseinore v. Hichards, 7 
 
 S. & S. I!t0, -203 : Jiace v. JFard, H. L. C. M9 ; Bradford Corpii. v. 
 
 •J K. k B. 702; Williams on Pick/c.s, IH96, A. C. 5^7 ; Bradford 
 
 Commons, 305, 331, 33"2. Corpn. v. Ferrand, 1902, 2 Ch. 655. 
 
 {,,) See Cro.ssh',1 ^- Sons, Ltd. v. . [l) ^eJ)wkh,i^o>iy. Grand June 
 
 Lulhlowla; L. R. 2 cL 478; ^'f Canal, 1 ^^ 282. 300 301: 
 
 BnxendaU v. Mc.Murra,j. ib. 790 ; Chascmore v. Rtchards, > H. L. C. 
 
 Mclntyrr lira., v. McGavin, 1893, t*^' '^'^ ^^^ ' l^'Mford Corpn. y. 
 
 A. C. 268 ; Williams, on Commons, Ferrand, 1902, 2 Ch 6o5, 66o, in 
 
 •jgg which ca^c it was held that there 
 
 .',■, Q. . .,„ 1 ,,, 1-- 4, -- is "o right to the flow of water 
 
 (A) Stat. o9 A: 40 \ ict. c /.., .^^ ^^ underground channel, 
 
 T^ ^' ,i^J ■ T.' ,''■'""" « ''■ ^hich nmy be defined, but is not 
 JVent Ittdtng of Inrkslnrr Jiirers known 
 
 Board 1909, A. C. 45, 48-50. (,„) 'j{u,neshur I'ershad Xaraiu 
 
 .)4, .lb, 57. }^^„g|^ y j^^„j j^^hari Pattuk, 
 
 (i) Raustron v. Tui/lor. 11 Ex. 5 App. Cas. 121, 126—128; 
 
 obi) ; Bradford Corpn. v. Ferrand, Williams on Commons, 305, 311, 
 
 1902, 2 Ch. G55, 6G0. 338, 342.
 
 424 
 
 OF PARTICULAR TITLES. 
 
 particular and temporary purpose only, as for draining 
 a mine or land or for supplying water power to a water 
 mill, the owner of any land lower down the stream, as 
 he takes the water with notice of such purpose, does 
 not acquire by reason of such enjoyment, though long 
 continued, any right to the continuance of the flow of 
 water {n). But where the circumstances are such that 
 it appears that the watercourse must have been con- 
 structed for the mutual benefit of the owners of the 
 lands, through which it flows, a right to the continuance 
 of the water supply may be acquired, as an easement, 
 through long continued enjoyment io). And in the 
 case of an ancient artificial watercourse of which the 
 exact origin is unknown, it will be presumed in such 
 circumstances that it was constructed on the terms that 
 the various riparian owners should enjoy the like rights 
 to the flow of water, and also (it seems) in the bed- of 
 the stream, as they would have if the stream were 
 natural {])). Of course an artificial watercom'se flowing 
 through the lands of more than one owner is in its 
 inception a burdeu as well as a benefit to the landowner 
 lower down the stream ; that is to say, the landowner 
 higher up can have no right to discharge the water on 
 to the land lower down without acquiring an easement 
 for that purpose (</). Where sucli a right exists for 
 pure water, it appears that the landowner higher up 
 can have no right to discharge into the watercourse 
 extraneous matter which pollutes the water, unless he 
 
 («) Arkwriyht v. Gcll, 5 M. & W. 
 203 ; JFood v. TFaHd, 3 Exch. 
 748 ; Grvatrex v. Hayu-ard, 8 Ex. 
 291 ; Burrows v. Lang, 1901, 2 
 Ch. 502. 
 
 (o) Sutclife V. Booth, 9 Jui-. 
 N. S. 1037; Rameslutr Pnshad 
 Narain Singh v. Koonj Behari 
 Fattuk, 4 App. Cas. 121, 128. 
 Such an easement may be gained 
 either by prescription at common 
 Uiw alleging immemorial user, or 
 
 through twenty years' enjoyment 
 from which a lost grant can be 
 presumed, or through twenty or 
 forty years' enjoyment under the 
 Prescription Act (stat. 2 & 3 
 Will. IV. c. 71), s. 2 ; see 
 Williams on Commons, 305 — 310. 
 
 {2)) Baih/ v. Clark, 1902, 1 Ch. 
 (149 ; Whitworefi {Edenhridge), Ltd. 
 V. Stanford, 1909, 1 Ch. 427. 
 
 {q) See Writiht v. WilliaMs, 1 
 M. &W. 77. "
 
 OP' PARTICULAR TITLES. 
 
 42o 
 
 has acquired an enlarged easement entitling- him to do 
 so (/•). And if the circumstances be such that the land- 
 owner lower down has acquired the right to the con- 
 tinuance of the How of water, he will have the like 
 right to have the water come down to him unpolluted 
 as if the stream were natural (s). 
 
 On the pm'chase of landed estates in the country it is 
 of course a matter of great importance to ascertain that 
 the title to the rights of fishing and sporting is clear. 
 The right of fishing in all tidal waters, whether of the 
 sea-coast or of any tidal river, estuary or inlet of the 
 sea, is prinid facie public ij), the public being entitled to 
 exercise this right by virtue of the Crown's ownershi}* 
 of the soil covered by such tidal waters, which owner- 
 ship is subject to the public rights of navigation there- 
 over and fishing therein (^O- But the Crown had power, 
 until deprived of it by Magna Carta U) , to grant to any 
 individual subject a several fishery in such tidal waters, 
 that is, the exclusive right of fishing therein ; and there 
 are many several fisheries existing by virtue of such 
 grants in tidal waters at the present day (//) . The right 
 of fishing in non-tidal waters is an incident of the 
 
 Riglits of 
 fishing and 
 spoi-tiug. 
 
 Rights of 
 fishing iu 
 tidal waters. 
 
 {)•) See Goldsinid v. Tunbridye 
 JFellx Improvement C'omiiiissioners, 
 L. R. 1 Oh. 349 ; Crossley .J- Sons, 
 Ltd. V. Liyhtuu-ler, L. R. 2 Oh. 
 478 ; Baxendale v. McMurrai/, ib. 
 790. 
 
 U) See Mayor v. Cliadwivk, 11 
 A.'& E. .)71 ; Williams ou Com- 
 mons, 341, 342. 
 
 (t) Ward V. Cremvell, Willes, 
 26.) ; Bagoti v. Orr, 2 Bos. & P. 
 472 ; liluudi'U v. Cattrrall, ;"> B. it 
 A. 268, 276, 294, 301. 304 ; Mal- 
 commn v. <rDtn. 10 H. L. C. .)93, 
 ()18 ; t'ar/i.sli' Oorpn. v. Graham, 
 L. R. 4 Ex. 361, 367, 368: 
 lirinckman v. Mnf/,y, 1904. 2 Ch. 
 313, 315, 32o, 327 ; FUzhardiiige 
 V. I'urc-ll, 1908, 2 Ch. 139, 
 166 — 167 ; Williamson Commons, 
 265, 266. 
 
 Several 
 fishery in 
 tidal waters. 
 
 Rights oi 
 fishing in 
 ncm-tidal 
 waters. 
 
 {u) Above, pp. 420, 421. 
 
 {x) Stat. 9 Heu. III. e. 16. 
 
 ((/) Somerset v. Fogaell, o B. A: 
 C. 870, 884 ; Malcom.son v. O'lJcti, 
 10 H. L. C. o93, 618 ; Guiin v. 
 Free Fishem of JFhitslable, 1 1 
 H. L. C. 192, 209 ; Carlisle Cor//n. 
 V. Graham, L. R. 4 Ex. 361 ; 
 Niirthumberlaiid v. Houghton, 
 L. R. 5 Ex. 127 ; NeUl v. Devon- 
 shire, 8 App. Cas. 135, 158, 
 177 — 180; j4.-G. v. Emeison, 
 1891. A. C. 649 : Fifzhardinge v. 
 I'lirrrll, 1908, 2 Ch. 139; Williams 
 on Commons, 268. Several 
 ti.sheries so granted are, however, 
 subject to the public right of 
 navigation ; see cases cit«d above, 
 p. 420, n. (/).
 
 426 
 
 OF rAUTlCULAR TITLES. 
 
 Riglits of 
 fishing 
 severed from 
 the owner- 
 ship of the 
 soil. 
 
 Scvei'iil 
 fishery. 
 
 Cominou of 
 piscary. 
 
 ownorsliip of the soil covered by them (z). If this soil 
 belong entirely to one owner, the right of fishing is 
 prima facie exclusively his; and where the soil belongs 
 to more owners than one (as in the case of the opposite 
 banks of a river and the adjoining halves of the river- 
 bed belonging to different persons {a)), they have 7>r/y;^ri 
 facie the exclusive right of fishing between them, each 
 being entitled (it appears) to fish the waters coA'ering 
 the soil, which he owns {h). The right of fishing in 
 non-tidal waters may, however, have become vested by 
 grant or prescription, either wholly or partially, in some 
 other person than the owner of the soil covered by them. 
 A right of fishing so acquired apart from the ownership 
 of the soil is njJi'ofit a prendre (c), and may take the 
 form either of a several fishery, which is the right of 
 fishing to the exclusion of all others {(/), or of common 
 of piscary, which is the right to fisli in common with 
 others {e) . We have seen that it is presumed that the 
 owner of a several fishery is the owner of the soil 
 covered by the waters over which his right of fishing 
 extends (./) : but there is no doubt that a several fishery 
 may also exist as a separate incorporeal hereditament 
 apart from the ownership of the soil (r/). And it 
 
 {z) Hale de Jure Maris, Ch. 1, 
 p. i (see Hargrave's Law Tracts) ; 
 The Banne, Davis, 55, 56, 57 ; 
 2 Black. Comm. 39 ; Marshall 
 V. Ulletiivater Steam Navigation 
 Co., 3 B. & S. 732, 745, 748 ; 
 Bnstoic V. Cormtcaii, 3 App. Cas. 
 (i4l, 664; Pearce v. Scotcher, 9 
 Q. B. D. 162, 165, 167 ; Bowen, 
 L. J., Blouni V. lai/ard, 1891, 
 2 Ch. 681, D., 689, ii : Hindson 
 V. Anhhy, 1896, 2 Ch. 1, 9, 10; 
 E(kro>id\. I'ouUhard, 1897, 1 Ch. 
 554, 566 ; 1898. 2 Cli. 358. 366, 
 373. 
 
 [a] Above, p. 119. 
 
 [b] See authorities cited iu note 
 (r), above ; Williams ou Commons, 
 269 ; Stuart Moore on Fisheries, 
 113; nanbiiry v. Jenkim, 1901, 
 
 2 Ch. 401. 405, 415, 419, 421 ; 
 Chederfield v. Harrix, 1908, 2 Ch. 
 397. 
 
 (c) Williams on Commons, 18 ; 
 Fitz(/erald \'. Flrhinik, 1897, 2 Ch. 
 96. ■ 
 
 (</) Makviiisuii V. ()'I)e<i, 10 
 H. L. C. 593, 618, 619 ; H,nthin->i 
 V. Jcnhbif:, 1901, 2 Ch. 401, 111.' 
 
 (c) Williams on Commons, 259 ; 
 Stuart Moore on Fisheries, 32 nq. ; 
 Vhesterjield v. Harris, 1908, 2 Ch. 
 397, 412, 418—424, 426—420. 
 
 (/) Above, p. 420. 
 
 \g) Somerset v. Fogurll, 5 B. & 
 C. 875 : Williams on Commons, 
 264 : Hanbnry v. Jetikins, 1901, 
 2 Ch. 4 01. A claim to a several 
 fishery in gross cannot be esta- 
 blished under the Prescription 
 
 I
 
 OF PAKTICULAR TITLES. 427 
 
 appears that, wliere there is a several fishery severed 
 from the ownership of the soil, there may be appur- 
 tenant thereto a right of way ahmg the banks of the 
 river for the purpose of exercising the right of fishing {/i) . 
 The public have no right of fishing in any non-tidal 
 river, though iiavigable (/) , and cannot acquire such 
 right by user, for however long a period (/•). The right ^'»i.'!^ "* 
 of sporting over land, that is, the right of killing and 
 taking away the game and other Avild animals thereon, 
 n\a.y be enjoyed either by virtue of some franchise 
 derived from the Crown (such as a forest, a chase, a 
 park, or a free warren), or as an incident of the owner- 
 ship of the land (/), or as a separate incorporeal 
 hereditament, in the nature of a profif d pinir/rc, enjoyed 
 through grant or prescription, independently of the 
 ownership of the soil (m) . It must not be forgotten Lessee's 
 that all rights of fishing and sporting, whi(,-h are fi^^iiilrimd 
 incident to the 0Avnershi[) of the soil of any land, are sportinjr. 
 exerciseable by a lessee of the land for any term of 
 lives or years or less in virtue of his occupation of the 
 demised premises, unless these rights were expressly 
 reserved to the lessor, his heirs and assigns upon the 
 granting of the lease (ii). A reservation of this kiml 
 
 Act (stat. '2 & 3 Will. IV. c. 71j ; {in) See Wickham v. Hawker, 7 
 
 Shutttni-ortli v. Lr Flemmi), 19 M. & W. 63 ; Ewnrt \. Graham, 
 
 C. B. N. S. 687 : see Williams on 7 H. L. C. 33 1. 334, 33') ; rTooprr 
 
 (Jomraons, 1, 4. u, 9, 11, 26.J. v. (Jlurk, L. K. 2 Q,. B. 200; 
 
 As to tlu' legal effect upon a Webber v. Lee, 9 Q. B. D 315 ; 
 
 several fisliery of a river chaugiug' Lowe v. Adams-, 1901, 2 Ch. 59S. 
 
 its course, see cases cited above. As to the differeuce betweeu a 
 
 p. 419, 11. {(l). mere licence and the gi'ant of a 
 
 (A) Htotbury v. Jenkuis, 1901, profit li prendre, »ee JVocff v, Leail- 
 
 2 Ch. 401. ' hitlr, 13 M. & W 838, 844, 84r) : 
 
 (t) See above, p. 420, n. /w). Holford v. Batleii, 13 Q. B. 426, 
 
 [k] Jfadsou V. Macrae, 4 B. & S. 446 ; Lowe v. Adams, 1901, 2 Ch. 
 
 •)8.5 ; Ifar(frea>'en v. Diddams, ,')98, 601 ; and see (froi'r v. 
 
 L. R. 10 Q. B. 082 ; Pearce v. P„rtal, 1902, 1 Ch. 727. 
 
 Scotcher, 9 Q. B. D. 162 ; Smifh [ii) Except, howiver, as to 
 
 V. Andrea-s, 1891, 2 Ch t)78. .iramo, in the case of leases made 
 
 J) See Case of jrono/nd,. ■,. 11 before the 5th Oct., 1831; sec 
 
 Rep. 84b, 87b; Williams on stat. 1 i: 2 Will. IV. c 32, 
 
 Commons, 18, 82, 152. 228 sij.. ss. (i— 8; Coleman v. Bathnrxt, 
 
 ■2i0— 2 i3: Ltevon-shirev. O'Connor, L. R. 6 Q. B. 366; Poc/iln v. 
 
 24 Q. B. D. 468. :Smif/i, 52 J. P. 4 ; Jones v.
 
 428 
 
 OF PARTICULAR TITLES. 
 
 Waste laud 
 of a manor. 
 
 ill a lease is not an exception or a reservation in the 
 strict legal sense of these words, but operates as a grant 
 from the lessee of the profit a prendre specified (o) ; and 
 such a grant, being of an incorporeal hereditament, is 
 required at common law to be made by deed (7;). It 
 is therefore necessary that the lease should be by deed, 
 and the lessee should execute it in order that the lessor 
 may obtain the Jegdl right to the privilege so purported 
 to be reserved {q) : though the lessor would enjoy the 
 like right in eqtiifi/ without such execution (r). And it 
 is requisite that the privilege should be expressed to be 
 reserved to the lessor (irnJ //is //eirs or to him in fee 
 ■simp/e in order that the /)ivfif a prendre so granted shall 
 endure beyond the lessor's own life (.s). 
 
 In buying a manor or any waste land of a manor, it 
 should be borne in mind that the lord of the manor is 
 entitled to the soil of any waste land of the manor, 
 including any mines or minerals thereunder, and is con- 
 sequently entitled to the right of sporting thereover if), 
 but such ownership is subject to all rights of common 
 thereover of the freehold and copyhold tenants of the 
 
 Davies, 86 L. T. 447 ; Wins. Pers. 
 Prop. 21—27, 11th ed. ; 47, 
 141-143, 16th ed. 
 
 (o) It is the general practice so 
 to reserve the rights of sporting 
 in granting leases of agricultural 
 land : see Davidson, Prec. Conv., 
 vol. v., pt. i., pp. 87, 215, 227, 
 228, 243, 260, 3rd ed. ; David- 
 son's Concise Precedents, 390, 
 398, 1 8th ed. Such reservations 
 are subject to the provisions of 
 the Ground G-ame Acts, 1880 and 
 1906, stats. 43 & 44 Vict. c. 47 ; 
 
 6 Edw. VII. c. 21 ; see Wms. 
 Pers. Prop. 141, leth ed. 
 
 [))) Bird V. Hlggiyimn, 2 A. & 
 E. 696, 704, 6 A. & E. 824 ; 
 JJriffstockeY. Er<>/>in\ 40 J. P. 245. 
 
 [q) iJoe V. Lock, 2 A. & E. 705, 
 710, 743 : IFickham v. Hairker, 
 
 7 M. & W. 63, 70, 77 ; Ewart v. 
 
 Griihom, 7 H. L. C. 331, 334, 
 335; Proud v. Batrs, 11 Jur. 
 N. S. 441 ; see however as to a 
 reservation of the right to kill 
 game, R. v. Thurhtone, 1 E. & E. 
 502. 
 
 [r] See Lour v. Adaiita, 1901, 2 
 Ch. 598 ; 3Iatj v. Belleville, 1905, 
 2 Ch. 605 ; Laws of England, x., 
 377, 401, §^ 678, 721 (by the 
 writer) . 
 
 (6) Litt. s. 1 ; Co. Litt. 9 a, b, 
 307 a ; Heulins v. Shippam, 5 
 B. & C. 221, 228, 229. 
 
 [t) Bract, fo. 227, 228 ; Tounley 
 V. Gibson, 2 T. R. 701; Williams 
 on Commons, 103 sq., 150—152, 
 212, 213, 240 — 243; Lancashire 
 V. Hunt, 10 Times L. R. 310; 
 above, pp. 409, n. (w), 427, and 
 n. U).
 
 OF PARTICULAR TITLES. 429 
 
 manor (//). Since the 21st of September, 1893, the Approvement 
 lord's right of ap])roveraent under the Statutes of |.'ommoTi° 
 Merton aud Westminster the Second {j) of any part of 
 a common is only exercisable with the consent of the 
 Board of Agriculture (//). The lord of a manor has 
 no right to enter upon any lands held by his freehold 
 or copyhold tenants for the purpose of sporting there- 
 over (~) , or for any other purpose {a) . 
 
 Every landowner is entitled of common right, and Right of 
 as a natural incident of his ownership, to have his support, 
 soil supported in its natural state by the soil of tlie 
 adjacent lauds (/>). Tliis right does not, however, 
 entitle him to any additional support required for any 
 buildings which he may erect on his land (c) : but he 
 may by grant, express or implied (d), or through long 
 continued enjoyment become entitled to such further 
 support. The right to further lateral support for any 
 buildings or additional buildings erected on any land 
 may be acquired by twenty years' open and uninter- 
 rupted enjoyment : but conflicting opinions have been 
 given by the judges and in the House of Lords on tlie 
 question whether this right is a positive easement 
 invohing an actual physical burden on the supporting 
 soil, a negative easement merely restricting the use of 
 that soil, or simply an enlargement of the riglit of 
 lateral support arising from the ownersliip of the land 
 supported [r). When land is sold with any buildings 
 
 (m) See WilliHtns ou Commons, {/>) See lJa/to>i v. Angus, 6 App. 
 
 2.V/.. 17, 24, 31 sq., 103 .vy., 123. Ca.s. 740; Nrw Moss Colltf., Lid. 
 
 l.iO .v(/., 1G8 .ty.. 170. 212 .sy. v. Manchester Corpii., 1908, A. C. 
 
 [x) Stats. 20 Hen. III. r. 4 ; 117: Gale on Easements, 21G 
 
 13 Ethv. I. f. 46 ; see Williams (33.i, 4th ed.). 
 on Commons, 103 sq. (c) Wyatt v. Hnrriioti, 3 B. & 
 
 ((/) Stat. 56 & 57 Vict, c 57, Ad. 871 ; Fartridije v. Scott, 3 
 
 8. 2, passed 22nd Sept. 1893. M. & W. 220 : Gale on Ease- 
 
 (s) Pickering v. N'-ges, 4 B. & C. ments, 218 (343, 4th ed.). 
 639. {d See ca.'4e8 cited iji note (/■ , 
 
 («) See Wms. Real Prop. 7. 17, l)elow, p. 430. 
 27, 36, 38 and n. (r), 58, «4 — 66, (e)I)aUo}i v. Atiqiis, C App. 
 
 460—462, 464, 2l8t ed. CaH. 740.
 
 430 
 
 OF PARTICULAR TITLES. 
 
 Sale of land 
 with build - 
 iDgs or for 
 building' 
 purposes. 
 
 erected thereon or for the purpose of erecting any 
 buildings or additional buildings thereon, the vendor 
 impliedly agrees to confer upon the purchaser the right 
 of support for such buildings by any adjoining lands, 
 which the vendor retains, and the purchaser is entitled 
 to such right of support accordingly (/). 
 
 Support of 
 buildings 
 b)^ buildings 
 on adjoining- 
 land. 
 
 Party walls. 
 
 It appears that the right of support of some 
 building by another building erected on adjoining land 
 and not belonging to the owner of the building so 
 supported is an easement to be acquired by grant or 
 prescription (g). The common user, for the purposes of 
 support, of a wall separating the houses or buildings of 
 two different owners is evidence prima facie that the 
 wall and the land on which it is erected belongs to 
 them as tenants in common in equal shares (/^). But 
 this presumption may be rebutted by evidence that the 
 wall was actually built half on one owner's land and 
 half on the other's at their joint expense, or entirely on 
 one owner's land or otherwise ; and in such case the 
 o\^'nership of the wall and the rights of support thereby 
 will be according to the facts proved (?). The term 
 " party wall " may be applied in any of such cases, but 
 its primary meaning appears to be that of a dividing- 
 wall held in common (//). In the metropolis the rights 
 of landowners, whose properties are divided by a party 
 
 (/) North Eastern Ry. Co. v. 
 Elliot, I J. & H. 14.'), 153 ; 
 affirmed, 2 De G. F. & J. 423 ; 
 and nom. Elliot v. North Eastern 
 Ry. Co., 10 H. L. C. 333, 356, 
 362 ; Siddons v. Hhort, 2 C. P. D. 
 572 ; Lalton v. Angus, 6 App. 
 Cas. 740, 792, 826; Rigby v. 
 Bennett, 21 Ch. D. 559 ; Orosvenor 
 Hotel Cv. V. Hamilton, 1894, 2 
 Q. B. 836, 841, 842. 
 
 {y) Lemaitrev. Davis, 19 Ch. D. 
 281; Tone Y. Preston, 24 Ch. D. 
 739, 742 ; and see Union Lighter- 
 aye Co. V. London Granny Buck 
 
 Co., 1902, 2 Ch. 557. 
 
 (h) Cuhitt V. Porter, 8 B. & C. 
 257 ; and see Watson v. Gray, 14 
 Ch. D. 192; Mayfair Property 
 Co. V. Johnston, 1894, 1 Ch. 508. 
 At common law, either owner has 
 the right to repair such a pai'ty 
 wall; Coleheck v. Girdlers' Co, 1 
 Q. B. D. 234, 243. 
 
 (;) Matts V Hawkins, 5 Taunt. 
 20 ; and see TFatsnn v. Gray, 14 
 Ch.D. 192, 195 ; Jonesv.Pritchard, 
 1908, 1 Ch. 630 ; JIason v. Fiilha/n 
 Corpn., 1910, 1 K. B. 631, 637. 
 
 (/i) See Watson v. Gray, iibi sup.
 
 OP^ PARTICULAR TITLES. 431 
 
 wall, are regulated by tli<^ London Building Act, 
 1894 (/). 
 
 Where thp lands of two ditferent owners are separated Boundary 
 by a ditch nnd a bank or hedge, it is presumed, in the aitrhos. 
 absence of evidence to the contrary, that the bank or 
 liedge and also the soil of the ditch belong to the owner 
 of the land on the side where the ditch is not : but no 
 such presumption arises where there is a ditch on both 
 sides of a hedge (in). 
 
 If an undivided share in land be sold, which is held Undiviaed 
 under a tenancy in common created less than forty 
 years before the sale, tlie title to be shown, in the 
 absence of special stipulation, is the title to the entirety 
 fi'om a date forty years at least before the contract down 
 to the creation of the tenancy in common, and thence- 
 forward the title to the share sold only (n). But where 
 the share sold has been held as an undivided share for 
 more than forty years, only forty years' title to the 
 shart^, as such, can be required. Of course in either 
 case the abstract must commence with a good root of 
 title (o). If one tenant in common buy the share of Tenant in 
 another, and stipulate generally for the delivery of an buyinjf i.tlier 
 abstract of title or stipulate expressly that a good title shares. 
 shall be sho^\^l, he is entitled to production of the same 
 title as if he were a stranger (p). But if he make no 
 
 (/) Stat. 57 & 58 Vict.c. ccxiii. ; Laurence, J., Vowles v. Mrllor, 
 
 see Druri/ v. Armi/ and Xavif, ^c. 3 Taunt. 137, 138 ; Holroyd, J., 
 
 Siipph/, 1896, 2 Q." R. 271 ; ITobbg Doe v. Pearsey, 7 B. & C. 304, 
 
 V. Graver, 1899. 1 Ch. 11; lie 307, 308; Marshnll v. Taxflur, 
 
 Stone and Hastir, 1903, 2 K. B. 1895, 1 Ch. 6-11, 644, 647, (349; 
 
 463; Carlixhv. Salt, 1906, 1 Ch. (haven v. Pridmore, 18 Times 
 
 335 (a.s to which see above, p. 177 L. R. 282 ; H'-nniker v. Ilotrard, 
 
 andn.(o)) ; Leivixv. CharitK/ Cross, 90 L. T. 157. 
 S;c. Rij.,ib.bm\Crosbii\. Alhambrn (n) Sug. V. & P. 377. 
 
 Co., Ltd., 1907, 1 Ch. 295; Maxon (o) Above, pp. 94—100, 106 — 
 
 V. Fulham Corpu., 1910, 1 K. B. 108, 192, 20«— 210. 
 ()31. [p) Morris v. Kearsiti/, 2 Y. i^' 
 
 (w) Baylev, J.. Om/ v. U'c^t, C. 139; Sug. V. & P. 377, 428. 
 2 Sel. N. P. 1244, 13th ed. ; ■
 
 version. 
 
 482 OF PARTICULAR TITLES. 
 
 such stipulation, and the tenancy in common were 
 created less than fort}'^ years before the sale, it appears 
 that he can only demand production of the title to the 
 share sold since the creation of the tenancy in common (q) . 
 The vendor of an undivided share in land must of 
 course be careful to describe it as such and to state 
 accurately the proportion to which he is entitled ; as if 
 he should purport to sell the entirety or a larger share 
 than he has (r), the purchaser would be entitled at his 
 option either to reject the title altogether (.s), or to take 
 what the vendor could convey and demand compensa- 
 tion for the deficiency (f). 
 
 Title under Whenever a vendor claims to have become entitled to 
 
 trust for con- , ■,, li. j i. j. £ 
 
 some property as realty or personalty under a trust tor 
 conversion of money into land, or piee versa (it), the 
 purchaser's advisers should be careful to ascertain that 
 there is or has been an effective trust for conversion as 
 alleged. And it must be borne in mind that, except in 
 the two cases of a term of years attendant upon the 
 inheritance {x) and capital money actually arising under 
 the Settled Land Acts (//), personalty can only acquire 
 in equity the character and incidents of realty by 
 means of an imperative trust for investment in the 
 purchase of real estate (s). Thus it has been held that 
 a direction, that money shall be held and applied upon 
 the same trusts and in the same manner as if it were 
 capital money arising under the Settled Land Acts 
 
 {q) Law V. Lau\ 9 Jur. 74/J ; Ch. D. 180 ; see above, p. 43 : 
 
 Phipps V. Child, 3 Drew. 709 ; below. Chap. XII. § 4. 
 
 Brooke v. Garrod, 2 De G-. & J. (m) See Wms. Real Prop. 186, 
 
 62, 68 : Dart, V. & P. 286, .5th 187, 21st ed. ; Wms. Pers. Prop, 
 
 ed. ; 326, 6th ed. ; 322, 7th ed. ; 381, 382, 407, 16th ed. 
 
 but see Sug. V. & P. 377, 428. [x) Wms. Real Prop. 420, 13th 
 
 (r) Rofey v. Shal/cross, 4 Madd. ed. ; 541, 21sT, ed. 
 
 227. iv) Stat. 45 & 46 Vict. c. 38, 
 
 (,9) JRe ArnoU, 14 Ch. D. 270 ; s. 22 (5, 6). 
 
 see above, pp. 33, 43, 167. [z) Re Walker, 1908, 2 Ch. 
 
 (t) Hooper v. Rmart, L. R. IS 705, 712; Re Gihbon, 1909, 1 CL. 
 
 Eq. 683 ; Horrocks v. Rigby, 9 " 367, 378. 
 
 il
 
 OF PARTICULAR TITLES. 433 
 
 from the sale of certain freehold lands limited in strict 
 settlement, is insufficient to invest the money with the 
 quality of real estate in equity ; and in such case the 
 absolute property in the money will vest, as personalty, 
 in the person entitled to the fii'st estate tail under the 
 settlement {a) . So also, where a purchaser of land keeps 
 on foot for his own benefit a mortgage affecting it, he 
 remains entitled to the mortgage as his personal pro- 
 perty (h). Similarly, in order to invest land in equity 
 with the character of personalty, there must be an 
 imperative trust for sale. Where land is given to 
 trustees on trust for certain persons, with a mere power 
 of sale at the trustees' discretion, and a direction that 
 the beneficiaries shall at once be entitled to their 
 respective interests as personalty (a mode of disposition 
 by no means infrequent in ill-drawn wills), the direc- 
 tion is entii'ely ineffective, and until actual sale the 
 beneficiaries take the property as realty (c) . 
 
 § 6. — Sale of purely Incorporeal Hereditaments. 
 
 Upon the purchase of purely incorporeal heredita- sale of purely 
 ments, the general rule as to the title required to be jncorporeivl 
 shown is the same as upon the jnirchaso of land, tliat is ments. 
 to say, if the incorporeal hereditament be sold in fee 
 and under an open contract, forty years' title, com- 
 mencing witli a good root of title, must be shown {d). 
 This applies equally to the sale of a seigniory, a rent- 
 charge, a profit a prendre, a franchise, or an easement. 
 The exceptions are tliose already noted {c) of the sale of 
 
 (ff) ;?« /raWvr, 1908, 2 Ch. 70,); v. Smith, 1 Macq. 760. Cf. 
 
 and see above, pp. 369. 870 and IFatson v. lihick, 16 Q. B. D. 
 
 n. (»•). 270. 
 
 [b) Re Gihbon, 1909, 1 Ch. 367. (rf) See above, pp. 98, and n. 
 
 ((■) See authorities cited in (m), 100, 100, 107 ; Itr Enrmhaic 
 
 note (c), above, p. 432 ; A.-G. v. Wall, 1894, 3 Ch. 156, 158. 
 
 Mangh's, ,5 M. & W. 120 ; A.-G. {c) Above, pp. 97, 101. 
 V. Simcox, 1 Ex. 749 ; Adr.-Gen. 
 
 w. 28
 
 4M 
 
 OF PARTICULAR TITLES. 
 
 Contract to 
 grant an 
 incorporeal 
 hereditament 
 de novo. 
 
 tithes or other property held under a grant from the 
 Crown, and of an advowson. Upon a contract to grant 
 in fee a new incorporeal hereditament to be exercisable 
 over or issue out of the grantor's land, such as a right 
 of way or a rent-charge, the same title must be shown 
 to all the land, which will be subject to the grant, as 
 upon a sale thereof (/). 
 
 >v':; 
 
 Perpetual 
 rents, when 
 redeemable. 
 
 Rent-charge. On the sale of a rent-charge in fee, besides the docu- 
 mentary title, evidence must be given that the vendor is 
 in actual receipt of the rent sold, as in the case of a sale 
 of ground rent (g). This is the more necessary on the 
 sale of a rent-charge, in that such a rent may be barred 
 and extinguished after twelve years' non-payment 
 under the Statute of Limitations (/?). The purchaser 
 should inquire of the terre-tenant whether he pays the 
 rent in question to the vendor (/). Purchasers of 
 perpptual rents, whether rents service, rents-charge or 
 rents seek, should not forget that a rent in fee, not 
 being a tithe rent-charge or a rent reserved on a sale or 
 lease or made payable under a grant or licence for 
 buiLling purposes, is redeemable on the requisition of 
 any person interested in the land, out of which the rent 
 issues, at an amount of money to be certified by the 
 Board of Agiinultnre (/.•). "With regard to the remedies 
 to which a purchaser of a rent in fee will become 
 entitlnd, rents seek are of course now recoverable by 
 distress equally with rents-charge (/) ; owners of rents 
 
 {f) Bi'd,r>ngt<n v. Atlee, R5 Ch. 
 D. 317. 3.-9, 3.n : R^ steirait, 41 
 Ch I >. 494. -^Oii. The principle of 
 this is tlie samp which was applied 
 ill d'cidintr that one, who con- 
 tracted to grant a lease for years, 
 WHS hinmd to show a irood title to 
 the freehold of the lauds to be 
 leased: above, p 97, n. [in) ; 
 Fildes V. Booker, 2 Mer. 421. 
 
 (r/) Above, p 39s. 
 
 {h'\ See Janie-1 v. Snltfir, 3 Bing. 
 N. C. 544 : Grant v Ellis, 9 M. & 
 W. 113; Le Beaiivoir v, Ou-en, 
 
 Remedies of 
 owners of 
 rents. 
 
 o Ex. IfiR ; Bean of Ehi v. , 
 
 2 De G. M. & G. 4.59, 472 ; Irish 
 Land Commrs. v. Grant, lOApp. 
 Cis. 14. 2f'.. 27: Ho'itt v. Hnr- 
 rini/ion, 1R93, 2 Ch. 497, .504, 507 ; 
 Sha>v V. CromptoH, 1910, 2 K. B. 
 370. H76. 
 
 (i) See above, p. 3^9. 
 
 [k) Stats 4t & 45 Vict. c. 41, 
 8. 45 ; 5i & 53 Vict. c. 30, s. 2. 
 
 (/) Stat. 4 Geo. II. c. 28, s. -5 ; 
 Wrus. Real Prop. 428, 429, 
 21st ed. 
 
 I
 
 OF PARTICULAR TITLES. 435 
 
 have, since the abolition of real actions, been allowed a 
 
 remedy by suing the terre-tenant personally (m) ; and 
 
 they may apply to a Court of Equity to order any 
 
 arrears of the rent to be raised by sale or mortgage of 
 
 the land, out of which it issues, the granting of such 
 
 relief being discretionary (;?). Where the rent sold is a Covenant to 
 
 rent-charge in fee created on a grant of land for charo-e. 
 
 building purposes in consideration of a rent-charge, it 
 
 ■will of course be borne in mind that any covenant 
 
 contained in the deed of grant that the grantee, his 
 
 heirs and assigns will pay the rent or build on the land 
 
 is only a personal covenant and will not run with the 
 
 land, either at law or in equity, so as to be enforceable 
 
 against the grantee's assigns (o) . Where on such a Pro\'iso for 
 
 grant the rent-charge and the grantee's estate have been non-payment 
 
 limited by way of use to be executed by the Statute of °* rent-charge. 
 
 Uses (p), and there has been a proviso allowing the 
 
 grantor, his heirs or assigns, on non-payment of the rent 
 
 or breach of covenant to re-enter and hold the land 
 
 charged in fee, it appears, according to modern 
 
 doctrine (q), that the right of re-entry is void, at least 
 
 as regards the gi'antor's heirs and assigns, unless it 
 
 were so limited that it must necessarily arise within the 
 
 period allowed by the rule against perpetuities. But a 
 
 power given on such a grant of a rent-charge in fee for 
 
 the gi-antee, his heirs or assigns, to enter on the land 
 
 charged, in case of non-payment of the rent, and hold 
 
 (m) Thomai< v. Si/hr-iffr, L. R. (ii) Hambro v. Hamhro, 1894, 
 
 8 Q B. 368; Rr Blackburn, ^c. 2 Ch. 564. 
 
 Building Sociefi/, Ex parte Grn- {o) Tfai/tvood v. Brim^tcick, &c- 
 
 ham, 42 Ch. D. 343; f^earle v. Bnildinfj'Sociefif, S Q. B. D. 403; 
 
 Cookfi, 43 Ch. D. 519; Perfu-ee v. Austerbn-rtj y. Oldham, 29 Ch. D. 
 
 Tou-nsend, 1896, 2 Q. B. 129 ; Re 750. 
 
 Herbage Rents, 1«96. 2 Ch. 811 ; {p) Stat. 27 Hen VIII. c. 10. 
 
 Frdeu's Chnritii Trustees v. Ihid'ey (q) Dunn v. Flood, 2.') Ch. D. 
 
 Corpn., 1910, 1 K. B. 317. The 629. 28 Ch. D. 586. .592 ; Re 
 
 defi.«ir)n in Thomas v. Sglres/er is HoUis\s Hnspitnl ar,d Hague's Con- 
 
 critifised by the author in L.Q.R. trnet, 1899. 2 Ch. 540. 554 ; Gray, 
 
 xiii. 288. Rule afrainst Perpehiities, § 303. 
 
 See below, Chap. XII. Sect 3. 
 
 28 (2)
 
 436 
 
 OF PARTICULAR TITLES. 
 
 Release of 
 part of land 
 subject to a 
 rent - char o-e. 
 
 Release of 
 part of land 
 subject to a 
 rent-seek. 
 
 the land until all arrears of the rent and all expenses 
 shall have been discharged, appears to stand upon a 
 different footing. Such a power is regarded as remedial 
 only and as being part of the estate which the grantee 
 has in the rent ; and whether the power be conferred in 
 express words or by virtue of the 44th section of the 
 Conveyancing Act of 1881 (r), there appears to be no 
 good reason for supposing that the same is invalid, if 
 not limited to arise within the period allowed by the 
 rule against perpetuities (x). Here the reader may be 
 reminded that, before the 1-Hh of August, 1859, a 
 release by the owner of a rent-charge of part of the 
 lands, out of which the rent issued, had the effect of 
 entirely extinguishing the rent-charge {f). Since then, 
 if such a release be made, the right only to recover any 
 part of the rent-charge out of the lands released is 
 barred ; and the lands not included in the release 
 remain liable, not to the whole rent-charge, but only to 
 a part thereof proportionate to their value (»). It 
 appears, however, that this alteration of the law does 
 not extend to a rent seek, which seems to remain on the 
 same footing, in respect of apportionment, as a rent- 
 charge stood at common law (,r). 
 
 Registration No registration is required to perfect in any way the 
 of a rent- grant of a rent in fee or in tail. But an annuity or 
 
 charge, where & _ , "^ 
 
 necessary. rent-charge granted, otherwise than by marriage settle- 
 ment or will, for a life or lives or for any estate 
 
 (>•) Stat. 44 & 45 Vict. c. 41. 
 
 (s) Havergill v. Bare, Cro. Jac 
 510 ; Sugd.'Gilb. Uses, 178, 179 : 
 Lewis on Perpetuities, 618 ; Da 
 vidson, Prec. Conv. vol. ii. part i 
 508, 511, and notes, 4th ed. , 
 Gray, Rule against Perpetuities, 
 ^ 303. See below. Chap. XII. 
 Sect. 3. 
 
 {t) Litt. ss. 2'22, 2-24 ; Bennett 
 V. Pern, 1 Bing. N. C. 388 ; 
 Wms. Real Prop. 437, 438, 
 2 1st ed. 
 
 (m) Stat. 22 & 23 Vict. c. 35, 
 s. 10 ; Booth V. Smith, 14 Q. B. 
 D. 318. 
 
 {x) See Litt. ss. 217— 227; Co. 
 Litt. 147 b, 150 b; Gilb. Tenui-es, 
 402 and n. Ivii., 4th ed. All rent 
 service payable in money, whether 
 incident to a seigniory or re- 
 served on a lease for years, is 
 apportionable at common law ; 
 Litt. ss. 222, 223 ; Co. Litt. 
 148 a, 149 b.
 
 OF PARTICULAR TITLES. 437 
 
 determinable on a life or lives, must be registered in 
 the Office of Land Kegistry against the name of the 
 person, whose estate is intended to be affected, other- 
 wise the same will not affect any lands, tene- 
 ments or hereditaments, as to purchasers, mortgagees 
 or creditors {y). Purchasers, however, who take with 
 notice of such annuities or rent-charges, are bound by 
 them in equity, although they be not registered (s). 
 Rent-charges coming within the definition of a land 
 charge contained in the Land Charges Act, 1888, and 
 created after that year, must be duly registered at the 
 Office of Land Registry, or they will be void as against 
 a purchaser for value of the land charged, or any 
 interest therein {a). And similar rent-charges pre- 
 viously created but assigned by act niter rii-on after 
 that year must be duly registered at tlie Office of Land 
 Registry. For the same Act further provides that, 
 after the expiration of one year from the first assign- 
 ment made by act inter viron after the year 1888 of a 
 similar rent-charge previously created, the person 
 entitled thereto shall not be able to recover the same as 
 against a purchaser for value of the land charged, or 
 any interest therein, unless the charge be so registered 
 
 (y) Stat. IS & 19 Vict. c. lo, ments, or otherwise, with or 
 
 88. 12, 14, passed 26th April, without interest, charged other- 
 
 185.5, and applyinir to annuities wise than by deed upon land 
 
 or rent- charges granted after the under the provisions of any Act 
 
 passing of the Act. The regis- of Parliament for securing to 
 
 tration was fomu^rly required to any person either the moneys 
 
 be made in the Court of Common spent by him, or the costs, charges 
 
 Pleas, and afterwards in the Cen - and expenses incurred by him 
 
 tral Office of the Supreme Court ; under such Act, or the moneys 
 
 see stat. 42 & 43 Vict. c. 78 ; advanced by hini for repaying 
 
 R. S. C. 1883, Ord. LXI. ; stat. the moneys spent, or the costs, 
 
 63 & 64 Vict. 0. 26. s. 1, and charges and e.xpenses incurred by 
 
 Order thereunder, W. N. 18th anotlier person under the autho- 
 
 Aug. 1900. rity of an Act of Parliament, 
 
 (z) Greaves v. Tojicld, 14 Cli. D. and a charge under the 35th 
 
 663. secticm of the Land Drainage 
 
 (fl) Stat. 61 & 52 Vict. c. 51. Act, 1861, or under the 29th sec- 
 
 8. 12. By sect. 4. " land charge " tion of the Agricultural Holdings 
 
 means a rent, or annuity or prin- (England) Act, 1883, but does 
 
 cipal moneys payable by instal- not include a rate or scot.
 
 438 OF PARTICULAR TITLES. 
 
 before the completion of the purchase (6). The rent- 
 charges, to which these provisions apply, are mainly 
 those created under the Improvement of Land Act, 
 1864 ((?), or other Land Improvement Acts {d). By 
 the Improvement of Land Act, 1899 (e), rent-charges 
 created either before or after that Act under the 
 Improvement of Land Act, 1864, or any special 
 Improvement Act, shall be recoverable, as regards any 
 instalment accruing due after the year 1899, by the 
 like remedies as are provided by the Conveyancing Act 
 of 1881 in respect of rent-charges thereafter created, 
 and not otherwise. This appears to preclude the owners 
 of such rent- charges from recovering such arrears by 
 personal action against the terre-tenant under the 
 doctrine laid down in Thomas v. Sylvester {f). When 
 a rent-charge sold is of such a kind that it requires 
 registration, the conveyancer advising the purchaser 
 should of course inquire whether the necessary registra- 
 tion was duly made. If not, he should object to the 
 title, unless the defect should be removable by subsequent 
 registration, as it might be if since the grant of the rent- 
 charge there had been no dealing for value with the 
 land charged. 
 
 Tithe rent- An impropriate tithe rent-charge, being of course a 
 
 '' " rent-charge in commutation of tithes {g), is subject to 
 
 the rules already mentioned as to proof of title on the 
 
 Lands sold as sales of tithes {h) . And when lands are sold as tithe- 
 free owing to the merger of the tithe rent-charge 
 therein (?), the title to the tithes prior to the merger 
 
 {b) Stat. 51 & 52 Vict. c. 51, {e) Stat. 62 & 63 Vict. c. 46, 
 
 s. 13. By sect. 4, in this Act s. 3. 
 
 "purchaser for value " includes (_/') Above, p. 435, n. («)). 
 
 a mortgagee or lessee or other (r/) "Wms. Real Prop. 448, 21st 
 
 person who for valuable con- ed. 
 
 sideration takes any interest in [h) Above, p. 101. 
 
 land or a charge on land. (i) A tithe rent-chai-ge can only 
 
 (c) Stat. 27 & 28 Vict. c. 114. be merged by the execution of 
 
 {d) See Wms. Real Prop. 12fi, some instrument under stats. 6 & 
 
 21st ed. 7 Will. IV. c. 71, s. 71 ; 1 & 2 
 
 tithe- free.
 
 OF PARTICULAR TITLES. 439 
 
 must be shown in the absence of stipulation to the 
 contrary. If the tithes should have been merged more 
 than forty years before the sale, the grant of the tithes 
 fi'om the Crown and, apparently, the instrument of 
 merger must still be produced (/>•). If lands be sold as 
 tithe-free, and the exemption be alleged to arise from 
 other cause than merger (/), the facts giving rise to the 
 exemption must be strictly proved (w). And if hmd 
 sold as tithe-free should not be free from tithe, the 
 purchaser will not be compelled to take the title {u). 
 
 The length of title which must be shown on a sale of Advowson. 
 an advowson under an open contract has been already 
 noticed (o). On the sale of an advowson, the abstract 
 of title should be accompanied with or comprise a list 
 of the presentations made during the time for which 
 title has to be deduced, so as to show that enjoyment 
 has gone along with the title (/?). The purchaser should 
 verify this list of pres^-ntations by examination of the 
 bishop's institution book or diocesan regi.^ter of institu- 
 tions, the entry in which is, next to the presentation 
 itself (if in writing), good evidence of the presenta- 
 
 Vict. c. 64 ; 2 & 3 Vict. c. 62, dnetion of snch an instrumpnt 
 
 8. 1 ; 9 & 10 Vict. c. 7-^ S8. 18, appeais. tlieretore, to lie sufficient 
 
 19. It does not nierfi-e by the proof of tbe ineiyer of the tithe. 
 mere fact of the union iu the (/) See Burton's Compendium, 
 
 same person of the estate in the ch. 6, sect. 4 ; stats. 2 A: 3 ^ViH. IV. 
 
 land and in the tithes: Shelford c. 100; 4 & 5 WUl IV. c. 83 ; 
 
 on Tithes, 292, n., 3rd ed. Salkcld v. Johmton, 1 Mac. & G. 
 
 (A-) Su^. V. & P. 367 ; 1 Dart, 242. 
 V. &P. 29.^, 5thed.; 336, 6th ed.; {>») Dart, V. & P. 3.54— 3o6, 
 
 331, 7tb ed. But any instru- 1075, n. (/.), .5th ed. ; 401. 402, 
 
 ment purp«)rtin>^ to merge any 1201, n. ((/), 6th ed.; 396, 397, 7th 
 
 tithes or rent-charge, and exe- ed. ; above, p. 170, and n. (<•). 
 cuted with the consent of the («) Ker v. Clobunj, Sug. V. & 
 
 Tithe Commissioners before the P. 321 ; ^imAs v. J?oAt^y, 2 Swanst. 
 
 passing of stat. 9 & 10 Vict. c. 73, 222. 
 s. 19 (2(;th August, 1816), is (o) Above, p. 101. 
 
 valid and effectual to merge the {p) Sug. V. «!c P. 367 ; 1 Dart, 
 
 tithes, although the person pur- V. k P. 293, 5th ed. ; 334, 6th 
 
 porting to merge the tithes had ed. ; 329, 7ih ed. ; 1 David.son, 
 
 no estate therein : Walkei- v. Prec. Couv. 527, 4th ed. ; 439, 
 
 Bentley, 9 Hare, 629. The pro- 5th ed.
 
 440 OF PARTICULAR TITLES. 
 
 tion (q). The law relating to the sales of advowsons is 
 now regulated by the Benefices Act, 1898 (r). Prior 
 to that Act, an advowson was as freely saleable and 
 transferable as any other real property, subject only to 
 the laws by which any presentation made to an eccle- 
 siastical benefice in consideration of any profit or benefit 
 was void as simoniacal (.s). With respect to this, the 
 following distinctions were established : — It was not 
 simoniacal for any person, whether layman or clerk, to 
 purchase an advowson, either in fee or for any less 
 estate, while the church was full ; and the conveyance 
 on such a purchase would carry with it the right of next 
 presentation, however immediate were the prospect of a 
 vacancy at the time of sale, provided that the vacancy 
 were not occasioned by some agreement or arrangement 
 between the parties {f). And if a clerk so purchased an 
 estate in fee or for life in an advowson, he might present 
 himself to the living [ii). But any agreement or 
 arrangement between the parties to the sale of an 
 advowson for causing the living to become vacant was 
 simoniacal ; and a presentation made upon any vacancy 
 so caused was void, and the right of presentation for the 
 next turn became forfeited to the Crown [x). A sale of 
 an advowson made while the church was vacant did not 
 carry with it the right of next presentation (i/), but was 
 in other respects perfectly valid and passed the right of 
 presentation for all subsequent turns. And if an 
 
 [q) See Tillard v. Shebbeare, 2 H. L. 17, 45, 52 ; Walsh v. Lin- 
 
 Wils. K. B. 366. The register coin, L. R. 10 C. P. 518; see 
 
 appears to be such a public docu- Bac. Abr. Simony. 
 
 ment as is admissible in evidence [i) See preceding note. 
 
 on mere productiou from its [ii) See JFalsh v. Lincoln, L. R. 
 
 proper custody : 1 Phillimore, 10 C. P. 518 ; lour v. Chester, 
 
 Eccl. Law, 354, 355, 2ud ed. ; 10 Q. B. D. 407. 
 
 Ii. V. Bishop of Ely, 8 B. & C. [x) Stat. 31 Eliz. c. 6, s. 5 ; 
 
 112; see above, pp. 122, 123. Abbott, C. J., Fox v. Chester, 2 
 
 (>•) Stat. 61 & 62 Vict. c. 48. B. & C. 635, 660; Cripps' Laws 
 
 (a) Barret v. Glubb, 2 W. Bl. of the Church, 475, 476, 6th ed. 
 
 1052 ; Fox v. Chester, 3 Bli. N. S. (y) Alston v. Atlaij, 7 A. & E. 
 
 123 ; Exeter v. Marshall, L. R. 3 289.
 
 OF PARTICULAR TITLES. 441 
 
 advowson were sold and conveyed while the church was 
 full and at the same time a simoniacal arrangement 
 were made for causing a vacancy, the next presentation 
 only was forfeited to the Crown, and the conversance 
 was otherwise good and passed the right of presentation 
 for the succeeding turns (z). And the sale of the right 
 of next presentation only was valid if made while the 
 church was full (a), though not if it were vacant ; but 
 a clerk was prohibited from purchasing a next presenta- 
 tion in order to present himself to the living (/>). 
 
 By the Benefices Act, 181)8 {c), a transfer of a right Benefices Act, 
 of patronage of a benefice shall not be valid unless 
 
 (1) it is registered in the prescribed manner (d) in the 
 registry of the diocese within one month from the date 
 of the transfer, or within such extended time as under 
 special circumstances the bishop may think fit to allow ; 
 
 (2) it transfers the whole interest of the transferor in the 
 right except as thereinafter provided ; and (3) more than 
 twelve months have elapsed since the last institution or 
 admission to tlie benefice. The expression frai/sfer here 
 includes any conveyance or assurance passing or creating 
 any legal or equitable interest infer vivos, and any 
 agreement for such conveyance or assurance ; but does 
 not include a transfer on marriage, death, or bankruptcy, 
 or otherAvise by operation of law, or a transfer on the 
 appointment of a new trustee where no beneficial 
 interest passes {e) . And nothing in this enactment 
 shall prevent the reservation or limitation in a family 
 settlement of a life interest to the settlor, or in a mort- 
 gage the reservation of a riglit of redemption (./'). 
 
 (s) Greennood v. London, 5 (c) Stat. 61 i!c (JJ Vict. c. 48, 
 
 Taimt. 727. s. 1 (1). 
 
 [a) Fox\. Ch'ntcr, 3 Bli. N. S. (rf) Sec Benefices Rules, 1898, 
 
 l'2;i. W. N. 7th Jan. 1899. 
 
 (A) Stat. 12 Anue, st. 2, c. 12, (<•) Sect. 1 (6). 
 
 8.2. (/■) Sect. I (7).
 
 442 
 
 OF PARTICULAR TITLES. 
 
 The Act also invalidates (p) any agreement for any 
 exercise of a right of patronage of a benefice in favour 
 or on the nomination of any particular person, and any 
 agreement on the transfer of a right of patronage of a 
 benefi.ce for the resignation of a benefice in favour of 
 any person. Any conveyance either of an advowson or 
 a next presentation must now conform with the require- 
 ments of this Act or it will be invalid. Thus it appears 
 that the conveyance of an advowson by way of family 
 settlement must be registered and must in other 
 respects conform with the provisions of the Act : whilst 
 a conveyance of an advowson by way of marriage 
 settlement remains exempt from the requirements of 
 the Act as to transfer, including the necessity of regis- , 
 tration. And it seems that these rules apply equally to 
 the transfer of an advowson appendant or in gross. 
 The second requirement imposed by the Act appears to 
 invalidate sales or grants by the owners of an advow- 
 son (A) of the next presentation or any less estate or 
 interest than the whole fee simple in the advowson ; 
 except only by way of reservation or limitation in a 
 family settlement of a life interest to the settlor, or of 
 reservation in a mortgage of an equity of redemption. 
 And it is to be noted that, even in a family settlement, 
 only the limitation of a life interest to the settlor is 
 allowed ; so that the limitation in such a settlement of 
 an advowson by a settlor entitled in fee simple to the use 
 of himself in tail or for any term of years appears to be 
 invalid. If, however, the grantor transfer the whole of 
 his own estate in the advowson by way of family settle- 
 
 (.17) Sect. 1 (3). By sect. 2 (la), fice, unless it be proved that the 
 a bishop may refuse to institute transfer was not effected in view 
 or admit a presentee to a benefice of the probability of a vacancy 
 if at the date of the vacancy not within such year, 
 more than one year has elapsed (A) The right of next presen- 
 since a transfer as defined by the tation obviously remains trans- 
 first section of this Act of the ferable where it constitutes the 
 right of patronage of the bene- whole interest of the transferor.
 
 OF PARTICULAR TITLES. 443 
 
 ment, the limitation of estates for years, for life, or in 
 tail, with an iiltiraate remainder in fee simple to other 
 persons than himself, does not appear to offend against 
 the statute. But where the ultimate remainder in fee 
 simple is limited to the use of the grantor, the Act 
 seems to be infringed and the transfer to he invalid. 
 And this seems to be the case where a life interest is 
 reserved to the grantor, with intermediate limitations 
 to others and an ultimate remainder in fee to him- 
 self. The Act also provides (/) that it shall not be Prohibition 
 lawful to offer for sale by public auction any right of advowsom by 
 patronage, except in the case of an advowson to be sold auction. 
 in conjunction with any manor, or with an estate in 
 land of not less than one hundred acres situate in the 
 parish in which the advowson is situate, or in an 
 adjoining parish and belonging to the same owner as 
 the advowson. 
 
 Upon the sale of an advowson when the church is Right of 
 full, the legal right to present on the next vacancy ^5^^°*^*'*^^ 
 remains with the vendor until the salt^be completed by completion of 
 conveyance (/.•) ; but in equity the right of presentation advowson. 
 belongs to the purchaser as from the date of the contract 
 for sale, subject to the condition of liis accepting the 
 title. If, therefore, a vacancy occur before completion, 
 the purchaser, having first accepted the title, may 
 require the vendor to present to the living such perspn 
 as the purchaser may select (/). But if the living 
 became vacant by the promotion of the incumbent to 
 
 (t) Sect. 1 (2), whereby also (A) 17 Vin. Abr. Presentation, 
 
 any person offering any right of ."519, pi. 11. 
 
 patronage for sale by auction in (/) Fox v. Chestei-, 3 Bli. N. S. 
 
 contravention thereof, or bidding 123, 15.") — 157; Nichohon v. 
 
 at any such sale, is rendered Liable Knapp, 9 Sim. 326; Bowling v. 
 
 on summary con%'ictiou to a fine Magiiire, LI. & G. t. Plunk. 1, 
 
 not exceeding 100/. 30; Greenslade \. Dare, 17 Beav. 
 
 50*2.
 
 441 OF PARTICULAR TITLES. 
 
 the bishopric of a see in England, the Crown is entitled 
 to present for that turn {in). 
 
 Devices When an advowson or a next presentation was sold 
 
 on sale in in expectation of an earlj^ avoidance of the living, 
 
 expectation of various devices were resorted to in order to protect the 
 a vacancy. . ^ /^ 
 
 purchaser in case the expected avoidance did not take 
 place. Thus it was sometimes provided in the contract 
 for sale that the purchase money should on completion 
 be deposited with trustees to be paid over to the vendor 
 if the vacancy occurred within a specified time, but 
 otherwise to be returned to the purchaser and the ad- 
 vowson to be reconveyed to the vendor (ii). Or it was 
 stipulated that the voir/or should pay interest on the 
 purchase money from the date fixed for completion 
 until the benefice should become vacant (o) ; and such a 
 stipulation was held not to be void as simoniacal on the 
 sale of an advowson, where the vendor was not the 
 incumbent (p). Or it was agreed that the vendor should 
 re-pm^chase the advowson, if the living were not avoided 
 within a certain time. But now, by the Benefices Act, 
 1898 (q), any agreement on the transfer of a right of 
 patronage of a benefice either (i) for re-transfer of the 
 right, or (ii) for postponing payment of any part of the 
 consideration for the transfer until a vacancy or for more 
 than three months, or (iii) for payment of interest until a 
 vacancy or for more than three months, or (iv) for any 
 payment in respect of the date at which a vacancy 
 occurs, shall be invalid. 
 
 {m) Grocers'' Co. v. Archbp. of vul. ii. part i. 37, 41, 4th ed. ; 
 
 Canterbury, 3 Wils. K. B. 214, 1 Key & Elphinstone, Prec. Conv. 
 
 232, 233 ; Ii. v. Eton Colleye, 8 E. 632, n., 4th edit. 
 
 & B. 610. {p) Sweet v. Meredith, 3 Giff. 
 
 («) Davidson, Prec. Conv. 610, 8 Jur. N. S. 637. 
 
 vol. ii. parti. 30, 35, 4th ed. [q) Stat. 61 & 62 Vict. c. 48, 
 
 (o) Davidson, Prec. Conv. s. 1 (3).
 
 OF PARTICULAR TITLES. 445 
 
 § 7. — Sale of Charity Lands. 
 
 On the sale of any hereditaments whicli are or liave Charity lands. 
 been subject to any charitable uses or trusts (r), there 
 are two main points to be considered b}^ the conveyancer 
 advising on the title ; first, whether the hereditaments 
 were duly assured in accordance with Part II. of the 
 Mortmain and Charitable Uses Act, 188>-S (.s), or the 
 statutes now replaced by that enactment {t), to the 
 charitable uses on which it is alleged that they are or 
 were held ; and secondly, whether any conveyance 
 of such hereditaments agreed by the contract of sale to 
 be made or purported to be made by any of the docu- 
 ments of title is or was subject to the restrictions 
 imposed by the 29th section of the Charitable Trusts 
 Amendment Act, 18o5 (/<), and if so, whether the condi- 
 tions thereby imposed have been complied with. The 
 first of these requirements must also be observed on the 
 purchase of any hereditaments to be assured to any 
 charitable uses. Besides which, if the title should 
 comprise a conveyance to a corporation for charitable 
 purposes, it must be ascertained that the same was made 
 in conformity with the law of conveyance to a corpora- 
 tion into mortmain, now contained in Part I. of the 
 Mortmain and Charitable Uses Act, 1888. 
 
 By Part II. of the Mortmain and Charitable Uses Requisit&s of 
 Act, 1888 (j^-), subject to the savings and exceptions in anceof land 
 
 to charitable 
 , uses. 
 
 (>•) As to what uses or trusts (commonly called the Mortmain 
 are charitable, see Income Tax Act) ; 9 Geo. IV. c. 85 ; 24 & 25 
 Comtnrs. v. Pcmstl, 1891, A. C. Vict. c. 9 ; 25 & 20 Vict. c. 17; 
 531,588; jrunter \. A.-G .,\md, 27 & 28 Vict. o. 13 ; 29 & 30 Vict. 
 A. C. 309 ; Tndor's Charitable c. 57 ; 31 & 32 Vict, c 44 ; 34 & 
 Trusts, Chap. I. : 1 Jarm. Wills, 35 Vict. o. 13; 35 & 3() Vict. 
 160, 5th ed. c. 24. 
 
 (,v) Stat. 51 & 52 Vict. c. 42, (m) Stat. 18 & 19 Vict. c. 124. 
 
 amended by 54 & 55 Vict. c. 73. [x) Stat. 51 & 52 Vict. c. 42, 
 
 (<) Stats. 9 Geo. II. o. 36 s. 4.
 
 446 OF PARTICULAR TITLES. 
 
 the Act contained, and to the amendments now made (//) 
 as stated below with respect to assurances by will, every 
 assurance (s) of land to or for the benefit of any charit- 
 able uses shall be made in accordance with the require- 
 ments of this Act, and unless so made shall be void (a). 
 These requirements are that the assurance must be 
 made — (1) by deed (2) executed in the presence of at 
 least two witnesses (3) twelve months at least before 
 the assuror's death [b) and (4) enrolled in the Central 
 Office of the Supreme Court within six months after 
 the execution thereof ; and (5) must be made to take 
 effect in possession for the charitable use intended 
 immediately from the making thereof, and (6) must, 
 except as in the Act provided (c) , be without any power 
 
 (y) By stat. 54 & 55 Vict. of statute, any transaction which 
 e. 73; seep. 454, below. operates to transfer the property 
 Assurance. {z) By stat. 51 & 52 Vict. c. 42, in lands or goods and any docu- 
 s. 10, in this Act, unless the con- ment evidencing such a trans- 
 text otherwise requires, " assur- action is an assurance ; see Shep. 
 ance " includes a gift, convey- Touch. 1 ; 2 Black. Coram. 294; 
 ance, appointment, lease, transfer, Me Roberts, 3S Ch. D. 196; Re 
 settleme.it, mortgage, charge, R^!/, 1896, 1 Ch. 468, 476. Cf. 
 incumbrance, devise, bequest, above, p. 377, n. (z). 
 and every other assurance by (a) See Churclier v. Martin, 42 
 deed, wall or other instrument ; Ch. D. 312. 
 
 and "assure" and "assuror" {h) Including in those twelve 
 
 have moHnings corresponding months the days of the making 
 
 with assurance. Independently of the assurance and of the death. 
 
 (c) Bj' stat. 51 & 52 Vict. c. 42, s. 4 (4), the assurance, or an^- in- 
 strument formiug part of the same transaction, may contain all or 
 any of the following provisions ; .so, however, that they reserve the 
 same benefits to persons claiming under the assuror as to the assuror 
 himself, namely — 
 
 (i.) The grant or reservation of a peppercorn or other nominal 
 
 rent ; 
 (ii.) The grant or reservation of mines or minerals ; 
 (iii.) The grant or reservation of any easement ; 
 (iv.) Covenants or provisi(m8 as to the erection, repair, position, or 
 de.scription of buildings, the formation or repair of streets or 
 roads, drainage "r nuisances, and covenants or provisions of 
 the like nature for the use and enjoyment as well of the land 
 comprised in the assurance as of any other adjacent or 
 neighbouring land ; 
 (v.) A right of entry on non-payment of any such rent or on breach 
 
 of any such covenant or provision ; 
 (vi." Any stipulations of the like nature for the benefit of the 
 assuror, or any person claiming under him.
 
 OF PARTICULAR TITLES. "^"^^ 
 
 of revocation, reservation, condition or provision for the 
 benefit of the assuror or any person claiming under 
 him. The first and second of these requirements do 
 not apply to assurances of land of copyhold or customary 
 tenui-e (d) . The third requirement, whereby any assur- 
 ance of land to any charitable uses may become void 
 by reason of the assuror's death within a year after the 
 execution thereof, is not imposed on assurances of land 
 made in good faith for full and valuable consideration ; 
 and this is equally the case whether such consideration 
 be actually paid upon or before the making of the 
 assurance, or be reserved or made payable to the vendor 
 or any other person by way of rent, rent-charge or 
 other annual payment in ]ierpetuity, or for any term 
 of 3^ears or other period, with or without a right of 
 re-entry for non-payment thereof, or partly paid and 
 partly reserved as aforesaid {r). Any assurance of land. Assurance by 
 which is by the Act required to be made b}' deed, may disposition 
 be made by a registered disposition under the provisions LandVransfer 
 of the Laud Transfer Acts, 1875 and 1897, and if so Acts, 
 made shall be exempt from tbe requirements of the 
 Act of 1888 as to execution in the presence of witnesses 
 and as to enrolment (./'). And enrolment is not 
 required of an assurance of land to or for the benefit of 
 any charitable uses, if those uses are declared by a Enrolment of 
 separate instrument, but in such case that separate deed'^onrust. 
 
 By sect, l (o), if the as-iurance is made in jrood faith on a sale for 
 full and valuable consideration, that consideration inay consist wholly 
 or partly of a rent, rent-charge, or other annual payment re-iorved or 
 maile ]>ayable to the vendor, or any other person, with or without a 
 right of re-entry for n(m-i>ayinent thereof : see also sect. 10 (iv.). 
 
 These enactments replace stat. '14 & '2/J Vi(!t. c. (', s. 1 (passed 17th 
 May, 1861), by which e.\c«'ptions were first introdu'^ed to the rule of 
 stat. 9 (Jeo. II. c. Ii6, that the assurance xnust be without any provi- 
 .sion for the bcTiefit of the grantor. This must not be forgotten in 
 considering the effect of a?suraaces to charitable uses made before 
 that date. 
 
 (d) See stat. 51 & 52 Vict. c. -12, placing stats. 9 Geo. II. c. 36, 
 8. 4 (6). 8. 2 ; 27 & 28 Vict. c. 13, s. 4. 
 
 (f) See sects. 4 (7), 10 (iv.), re- (/) Stat. 51 & 52 Vict. c. 42, 
 
 • 8. 9.
 
 448 
 
 OF PARTICULAR TITLES. 
 
 instrument must be enrolled in the Central Office within 
 
 six months after the making of the assurance of the 
 
 Power to land (q). Where any such assurance or instrument has 
 
 enrol mstru- ^' ' "^ , . . . . , 
 
 iiients not uot been dulj^ enrolled within the requisite time, the 
 within due High Court of Justice, or the officer having control 
 time. over the enrolment of deeds in the Central Office, is 
 
 empowered to order or cause the same to he subsequently 
 enrolled ; but this power is only exercisable where the 
 Court or officer is satisfied, first, that the omission to 
 enrol in proper time has arisen from ignorance or 
 inadvertence, or through the destruction or loss of the 
 document {h) ; and, secondly, that the assurance was of 
 a nature to be validated under the enabling enactment 
 in that behalf. This provides that if the assurance to 
 be validated was made in good faith and for full and 
 valuable consideration, and was made to take effect in 
 possession immediately from the making thereof without 
 any power of revocation, reservation, condition, or ]3ro- 
 vision, except such as is authorised by the Act (/) , and 
 if, at the time of the application for enrolment, posses- 
 sion or enjoyment was held under the assurance, then 
 such subsequent enrolment shall have the same effect as 
 if it had been made within the requisite time ; but such 
 subsequent enrolment shall not give any validity to the 
 assurance if at the time of such application any pro- 
 ceeding for setting aside the assurance or for asserting 
 any right founded on the invalidity of the assurance is 
 pending, or any decree or judgment founded on such 
 invalidity has been obtained (Z-). Where an assurance 
 of land to any charitable uses has not been executed in 
 the presence of two witnesses, or has otherwise failed 
 
 {;i) Stat. 51 & 52 Vict. c. 42, trusts sufficiently appear, may be 
 
 s. 4 (6), replacing' 24 & 25 Vict. enrolled. 
 
 c. 9, s. 2. (() Above, p. 446, n. {e\. 
 
 [h) In such case some copy or [k] Stat. .Jl & 52 Vict. c. 42, 
 
 abstract thereof, or some subse- s. 5, replacing 35 & 36 Vict. c. 24, 
 
 quent instnuiicnt by which the s. 13 ; 29 & 30 Vict. c. 57.
 
 OF PAETICULA.R TITLES. 449 
 
 to comply with the requirements of the Act, except No power to 
 
 only in respect of want of due enrolment, there is no defects than^ 
 
 power subsequently to amend the defect and the assur- "^^^^ o^ ^n- 
 
 ance remains altogether void(/). And an assurance The assurance 
 
 failing to comply with the requirements of the Act is "^^ ^e void 
 
 equally void whether the intended charitable uses or charitable 
 
 trusts appear from the assurance itself, from some *,^"8ts be not 
 
 ^ ^ . ' disclosed, 
 
 separate instrument or from other circumstances ; so 
 
 that if the trustees of a charity buy land with money 
 belonging to the charity and take a conveyance to 
 themselves, not disclosing their trust, the conveyance 
 will be void unless made in accordance with the Act. 
 And it must not be forgotten that conveyances of land 
 to a charity for valuable consideration are void, as well 
 as voluntary conveyances, if not made in accordance 
 with the statutory requirements (w). If, however, the 
 grantees imder any assurance which is void for non- 
 compliance with the present or fomier Mortmain Act (n) 
 should have entered into possession of the land purported 
 to be thereby assured, and remained in such possession The charity 
 long enough for the assuror's title to be extinguished ^def th^ 
 under the Statutes of Limitation (o), they "v\dll have a Statutes of 
 
 1 • ^ 1 1 1 \ mi 1 • Lumtation. 
 
 good title to the land(7>). ihe above-mentioned -j.^ ^j^^^. 
 restrictions of the Mortmain and Charitable Uses Act, interests in 
 1888 (q), and the Mortmain Act of George II. (r) were extends, 
 imposed on the assurance to any charitable uses not 
 only of land, but also of any tenements or heredita- 
 ments, corporeal or incorporeal, of whatsoever tenure, 
 
 {I) See Wickham w.Bath, L. R. (;;) Above, p. 445, notes (», t). 
 
 1 Eq. 17 ; Webster- v. Soitthey, 36 (o) Stats. 3 & 4 "Will. TV. c. 27 ; 
 
 Ch. D. 9. 37 & 38 Vict. c. 57. 
 
 {/«) See Lord. Wellardv. Haw- (p) See A.-G. v. Gardner, 2 
 
 thorn, 2 B. & A. 96, 101 — 103; De G. & S. 102 ; A.-G.v. ^fl(nro, 
 
 Doe d. Preece v. Honelh, 2 B. & ib. 122 ; Churcher v. Martin, 42 
 
 Ad. 744; A.-G. v. Gardner, 2 Ch. D. 312. 
 
 De U. & S. 102; A.-G.v. Munro, {</) Stat, ol & 52 Vict. c. 42, 
 
 ib. 122 ; Bunting v. Sarqent, 13 s. 10 (iii.). 
 
 Ch. D. 330 : Webster v. 'Southey, (r) Stat. 9 Geo. II. c. 36. 
 36 Ch. D. 9.
 
 450 
 
 OF PARTICULAR TITLP:S. 
 
 Assurance of 
 personal 
 estate to be 
 laid out in 
 purchase of 
 land for a 
 charity. 
 
 and any edate or intcred tJiercin. This had the effect of 
 prohibiting the assurance to such uses, except in con- 
 formity with the statutory requirements, of money 
 secured by mortgage of land and other property com- 
 monly called impure personalty (.s). But now by the 
 Mortmain and Charitable Uses Act, 1891 {t), the pro- 
 visions of the Act of 1888, relating to the assurance 
 of land to charitable uses, apply only to land and 
 tenements and hereditaments, corporeal or incorporeal, 
 of any tenure, and no longer extend to money secured 
 on land or other personal estate arising from or con- 
 nected with land. By the Act of 1888, as by that of 
 George II., every assurance {u) of personal estate to be 
 laid out in the purchase of land to or for the benefit of 
 any charitable uses, was subjected to the like restrictions 
 as were thereby imposed on the assurance of land to 
 such uses (r) ; but with respect to the assurance by will 
 of personal estate for such purposes, the law is now 
 altered by the Act of 1891 (//) as stated below. 
 
 Exemptions 
 from the 
 requirements 
 of the Mort- 
 main Acts. 
 
 Part III. of the Mortmain and Charitable Uses Act, 
 1888, makes the following exemptions from the provi- 
 sions of Part II. of the Act : — 
 
 (1.) An assurance of land, or personal estate to be 
 laid out in the purchase of land, to or in trust 
 for any of the Universities of Oxford, Cam- 
 bridge, London, Durham, and the Victoria 
 University, or any of the colleges or houses of 
 learning within any of those Universities, or 
 to or in trust for any of the Colleges of Eton, 
 
 (s) See Wms. Pers. Prop. 46.'J, 
 466, 16th ed. ; 1 Jarm. Wills, 
 177, 5th ed. 
 
 [t) Stat. 54 k 5o Vict. c. 73, 
 s. 3, repealing 51 & 52 Vict. c. 42, 
 s. 10 (iii.). 
 
 («) See above, p. 446, n. [z). 
 
 [x) Except that the transfer of 
 stoclc in the public funds fur such 
 
 purposes is not required to be 
 made by deed executed in the 
 presence oi two witnesses or to 
 be enrolled, and remains valid 
 unless the transferor die within 
 six months thereafter : stat. 51 & 
 52 Vict. c. 42, s. 4. 
 
 (//) Stat. 54 & 55 Vict. c. 73, 
 s. 7 ; see pp. 454, 455, below.
 
 OF PARTICULAR TITLES. 451 
 
 Winchester, and Westminster, for the better 
 support and maintenance of the scholars only 
 upon the foundations of those last-mentioned 
 colleges, or to or in triist for the warden, 
 council, and scholars of Keble College (~). 
 
 (2.) An assurance, otherwise than by will, to trustees 
 on behalf of any society or body of persons 
 associated together for religious purposes or 
 for the promotion of education, art, literature, 
 science, or other like purposes, of land not 
 exceeding two acres for the erection thereon 
 of a building for such purposes, or any of 
 them, or whereon a building used or intended 
 to be used for such pui'poses, or any of them, 
 has been erected, so that the assurance be 
 made in good faith for full and valuable 
 consideration (a). 
 
 (3.) An assurance by deed of land of any quantity 
 or an assm-ance by will of land of the quantity 
 therein mentioned (b) for the pui'poses only of 
 a public park, a school-house for an elementary 
 school, a public museum (c), or an assiu'anee 
 by will of personal estate to be appKed in or 
 towards the purchase of land for all or any of 
 the same purposes only ; provided that a will 
 containing such an assurance, and a deed con- 
 taining such an assurance and made otherwise 
 than in good faith for full and valuable con- 
 sideration, must be executed not less than 
 
 (:) Stat. .')1 & rrZ Vict. c. 42, however, be enrolled, if thought 
 
 s. 7. (i.), replaoino; 9 Geo. II. fit. 
 
 (!. 30, s. 4, except as to Loudon, {b) Not exceeding twenty acres 
 
 Durham and Victoria Universities for any one public park, two acres 
 
 and Keble College : see Tudor's for any one public museum, and 
 
 Charitable Trusts, 467 — 470, 4th one acre for any one school-house : 
 
 ed. Stat. 51 & 52 Vict. c. 42, s. 6 (3). 
 
 (a) Stat. 51 & 52 Vict. c. 42, (c) See s. 6 (4) for the defini- 
 
 8. 7 (ii.), replacing 31 & 32 Vict. tion of these terms, 
 c. 44, s. 1. Such assui'ance may, 
 
 29 (2)
 
 452 OF PARTICULAR TITLES. 
 
 twelve months before the death of the assuror, 
 or he a reproduction in substance of a devise 
 made in a previous will in force at the time of 
 such reproduction, and which was executed 
 not less than twelve months before the death 
 of the assuror, and must be enrolled in the 
 books of the Charity Commissioners within 
 six months after the death of the testator, or 
 in case of a deed the execution of the deed {d). 
 (4.) Wliere by any statute in force any provision 
 repealed by the Act of 1888 is excluded either 
 wholly or partially from application or is 
 applied with modification, in every such ease 
 the corresponding provision of that Act shall 
 be excluded or applied in like extent or 
 manner (e) . This refers to the cases in which 
 exemption from all or some of the restrictions 
 imposed by the Mortmain Act of Greorge II. 
 has been granted by statute in favour either 
 of particular charitable institutions or bodies 
 or of assurances for certain particular pur- 
 poses (,/'). 
 
 {d) Stat. 51 & 52 Vict. c. 42, for which such authoiity is em- 
 s. 6, replacing- 34 & 35 Vict. c. 13, powered by any Act of Parlia- 
 and also exempting the assurances ment to acquire land, without 
 therein meutioned from the ope- the requirement that an assur- 
 ration of Part I. of the Act : see ance not made for full valuable 
 above, p. 445. consideration mu.st be executed 
 
 By stat. 55 Vict. c. 11, this not less than twelve months be- 
 exemption is extended to any fore the assuror's death, 
 assurance by deed of land to a {/•) Stat. 51 & 52 Vict. c. 42, 
 
 local authority for any purpose s. 8. 
 
 (/) SeeTudor's Charitable Trusts, 470—476, 4th ed. ; I Jarm. Wills, 
 202 — 204, 5th ed. ; Index to Statutes, Mort.main, 2, 3. With regard 
 to particular charitable institutions specially authorized by statute to 
 take lands, where these are corporations, it must be considered whether 
 they are exempted from the provisions of Part I. only of the Mortmain 
 and Charitable Uses Act, 1888 (above, p. 445), or whether they have 
 been granted a dispensation from the restrictions imposed by Part H. 
 of the Act : see Nethersole v. School fur Indigent Blind, L. R. 11 Eq. 1 ; 
 Chester v. Chestn-, L. R. 12 Eq. 444 ; cf. Perrimj v. Trail, L. R. IS 
 Eq. 88. As to assurances for particular charitable purposes, there 
 nre numerous instances in which the Legislature has exempted the
 
 OF PARTICULAR TITLES. 453 
 
 Besides these exemptions, it was considered that the 
 Mortmain Act of George II. {(j) had no application in 
 ease of land, which was already in mortmain by reason 
 of its being lawfully vested in a corporation ; and it 
 was decided on this ground that the conveyance of land 
 to charitable uses by an ecclesiastical or an eleemosynary 
 corporation was not subject to any of the restrictions 
 imposed by that Act {h). And following the spirit of 
 these decisions, it was further held that, when land had 
 been once duly assured into mortmain by reason of its 
 having been vested in trustees for charitable purposes, 
 the conveyance thereof to other trustees or to another 
 charity did not fall within the purview of the same 
 Mortmain Act, and needed not to be made with any of 
 the formalities therein prescribed (/). And as the 
 Mortmain and Charitable Uses Act, 1888 (/•), is mainly 
 
 iissui-uuce of laud ov of limited quantities of laud for objects rt-garded 
 as laudablp from all or some of the requirements of Part II. of the 
 Act of 1888, and also from tlie pnmsions of Part I. of the Act. 
 Amongst these are the augmentation of benefices, the building of 
 churches (see Tudor's Charitable Trusts, 473, 773. sy., 785 sq., 4th ed.), 
 the provision of public recreation grounds (stat. "22 Vict. c. 27), and of 
 dwellings for the working classes in populous places (stat. o3 & o4 Vict, 
 c. I G), and the acquisition of land by institutions for promoting technical 
 and industrial instruction and training (stat. 55 & 56 Vict. c. 29, s. 10). 
 Other instances, in which also tenants for life or other limited owners 
 are empowered to couvey the whole estate in the laud for the charitable 
 purpose in question are the pro\'ision of sites for schools (stats. 4 & 5 
 Vict. c. 38 ; 7 & 8 Vict. c. 37 ; 12 & 13 Vict. c. 49 ; 14 & 15 Vict, 
 e. 24 ; 15 & 16 Vict. c. 49), for literary, scientific and like institutions 
 (stat. 17 & 18 Vict. c. 1 12), and for places of worship or burial (stats. 
 30 & 31 Vict. c. 133 : 36 & 37 Vict. c. 50 ; 45 & 46 Vict. c. 21). Also, 
 by stat. 33 & 34 Vict. c. 34, the investment on mortgage of land of 
 any money held by any corporation or trustees for any public or 
 charitable purpose is exempted from the restrictions now contained in 
 Part II. of the Mortmain Act of 1888, and also from any forfeiture 
 for alienation of land into mortmain : but in every case in which the 
 ecjuity of redemption of the promises comprised in any such security 
 shall become liable to foreclosure or otlier\\'ise barred or released, the 
 same shall thenceforth be held in trust to be sold and converted into 
 money, and shall be sold accordinglj' ; and in any proceedings for 
 redeeming or enforcing such security the decree shall direct (in default 
 of redemption) a .sale and not foreclosure. 
 
 (ff) Stat. 9 Geo. II. o. 36. (i) A.'</iton v. Jones, 28 Beav. 
 
 {h) Walker v. liichanhun, 2 460. 
 M. & W. 882 ; A.-a. v. Ghfii, 12 (A-) St«t. 51 & 52 Vict. c. 42 : 
 
 Sim. 84. see the title.
 
 454 
 
 OF PARTICULAR TITLES. 
 
 a Consolidation Act (/), it is tliought tliat the exemp- 
 tions so established apply equally under the present law. 
 
 Gift of land 
 by will to a 
 charity. 
 
 The Mortmain Acts obviously prohibited the gift by 
 will to a charity of any interest in land {m). But by 
 the Mortmain and Charitable Uses Act, 1891 (n), land 
 may be assured by will to or for the benefit of any 
 charitable use. In such case, however, the land is, as 
 a rule, required to be sold within one year from the 
 death of the testator, or such extended period (o) as 
 may be determined by the High Court, a Judge thereof 
 at chambers, or the Charity Commissioners (p) ; and if 
 such time shall expire without completion of the sale of 
 the land, it shall forthwith vest in the official trustee 
 of charity lands, and the Charity Commissioners shall 
 take all necessary steps for the sale or the completion of 
 
 Construction 
 of Consoli- 
 dation Acts. 
 
 Codifying 
 Acts. 
 
 {/) Consolidation Acts, which 
 are Acts passed for the purpose 
 of expressing existing statute law 
 in a new form, are construed on 
 principles different from those 
 which govern the construction 
 of statutes enacting new law or 
 codifying the existing common or 
 judge- made law. Thus the 
 provisions of Consolidation Acts 
 are considered to he retrospective, 
 contrary to the general rule ap- 
 plicable to other statutes : Exp. 
 Todd, 19 Q. B. D. 186, 195, 199 ; 
 they are construed with reference 
 to the state of law which existed 
 at the time when the enact- 
 ments consolidated were origin- 
 ally passed : Mitchell v. Simpson, 
 25 Q. B. D. 183 ; Stewart v. 
 Thames Conservators, 1908, 1 K. B. 
 893, 902, 903; their construc- 
 tion -mW be determined by the 
 cases decided upon the con- 
 struction of the original en- 
 actments : Re Budgett, 1894, 2 
 Ch. 557 ; Re Pickard, 1894, 3 Ch. 
 704 ; Norton v. Davison, 1899, 1 
 Q. B. 401 ; The Heather Bell, 1901, 
 P. 143, 272 ; and the Acts con- 
 solidated may be referred to as a 
 
 guide to the meaning of the con- 
 solidating Act, if ambiguous ; 
 R. V. Abrahams, 1904, 2 K. B. 
 859. Statutes purporting to 
 codify the common law are con- 
 strued primarily according to 
 the expressions used therein, and 
 not by reference to the previous 
 law ; Bank of England v. Vag- 
 liano, 1891, A. C. 107, 120, 144, 
 145, 160, 161. 
 
 (;«) Above, p. 446. 
 
 («) Stat. 54 & 55 Vict. c. 73 
 (passed 5th August, 1891), s. 5 ; 
 see Re Bridgev, 1894, 1 Ch. 297 ; 
 Re Hume, 1895, 1 Ch. 422. The 
 Act only applies to wills of tes- 
 tators dying after the passing 
 thereof (sect. 9), and is not to 
 limit or affect the exemptions 
 contained in Part III. of the 
 Mortmain and Charitable Uses 
 Act, 1888 (above, p. 450), or to 
 apply to any land or personal 
 estate to be laid out in the purchase 
 of land acquired under any assur- 
 ance to which such exemptions 
 or any of them apply (sect. 10). 
 
 (o) See Re Sidcbottom, 1901, 2 
 Ch. 1. 
 
 [p) See note («), above.
 
 OF PARTICULAR TITLES. 
 
 the sale thereof {q). And the assurance by will of any 
 personal estate to be laid out in the purchase of land to 
 or for the benefit of any charitable uses is no longer 
 rendered void ; for the Act provides that any personal 
 estate so assured shall be held to or for the benefit of 
 the charitable uses specified as though there had been no 
 direction to lay it out in the purchase of land (r). But 
 the High Court, a Judge thereof at chambers, or the 
 Charity Commissioners may, if satisfied that any land 
 assured by will to or for the benefit of any charitable 
 uses or proposed to be pm-chased out of personal estate 
 by will directed to be laid out in the purchase of land 
 is requii'ed for actual occupation for the purposes of the 
 charity, and not as an investment, by order sanction 
 the retention or acquisition, as the case may be, of such 
 land (s). As we have seen {i), the Act also exempted 
 money secured on land or other personal estate arising 
 from or connected with land from the requirements of 
 the Act of 1888 {u), thus allowing for the future the 
 bequest to charities of impure personalty. It has been 
 held that, where land is devised to trustees on trust to 
 sell the same and hand over the proceeds of the sale to 
 a charity, the bequest to the charity is of personal 
 estate arising from land, and the case is governed by 
 the last mentioned provision of the Act of 1891, and 
 not by the provisions (.r) relating to the devise of land 
 to or for the benefit of any charitable use. In such 
 case, therefore, the land is not required to be sold within 
 a year after the testator's death ; and the time for 
 exercising the trust for sale is decided by the rules 
 generally applicable to such trusts {//) ; but the trustees 
 are bound to seU within a reasonable time, and cannot, 
 
 ((/) Sect. 6 ; lie liylaml, lUO:j, l'J03, 1 Ch. 467, 474. 
 1 Ch. 4G7. (<) Above, p. 450. 
 
 (*•) Sect. 7 ; see lie Sutton, 1901, (m) Sect. 3. 
 
 •2 Ch. 640. {x) Sects. 5, 6, 8, above. 
 
 (.v) Sect. 8 ; see lie liyland, [y) Above, p. 256. 
 
 455
 
 456 
 
 OF PARTICULAR TITLES. 
 
 with the consent of the charity, postpone the sale 
 indefinitely (s). 
 
 Contract to 
 sell land for 
 the use of 
 a charity. 
 
 It is a question whether a contract to sell land to be 
 assured to some charitable use is affected by the provi- 
 sions contained in Part II. of the Mortmain and 
 Charitable Uses Act, 1888 (a). This depends on the 
 question whether such a contract is an assurance of the 
 land within the meaning of that Act (b) ; for every 
 miiiiranee (in the ordinary legal meaning of the word, 
 apart from statute) of land to any charitable uses must 
 be made in conformity with the Act and, unless so 
 made, is void. Such a contract is not of course an 
 assurance of any legal estate in the land : but it has 
 the effect in equity of an immediate conveyance to the 
 purchaser of the whole equitable estate in the land 
 purchased (c) ; it operates in fact as a transfer of the 
 equitable ownership of the property sold, and seems 
 therefore to come within the definition of an assurance, 
 unless the term, as used in the Act, is to be confined to 
 conveyances of some legal estate or interest (d), or is 
 not to extend to conveyances of the equitable estate 
 effected by the rule of equity, that what is agreed to be 
 done shall be treated as actually accomplished (e). 
 Such a restriction of the term would have the remark- 
 able result that, whilst an actual conveyance of land on 
 the completion of a sale to a charity would be void (say) 
 if it were attested by one witness only(/'), a sale 
 effected by a written contract and subsequent payment 
 
 {z) Be Wilkimon, 1902, 1 Ch. 
 841 ; Be SideboUom, 1902, 2 Ch. 
 389 ; see also Be Byland, 1903, 
 1 Ch. 467. 
 
 {a) Stat. 51 & 52 Vict. c. 42 ; 
 above, p. 445. 
 
 [b) See above, p. 446, aud 
 n. (z). 
 
 (c) Above, p. 49 ; below, Chap. 
 XI. § 1. 
 
 (f/) The Act originally extended 
 in express terms to assurances of 
 land or any hereditaments, or any 
 estate or interest therein, but was 
 restricted by the Act of 1891 to 
 assurances of land and heredita- 
 ments ; see above, p. 450. 
 
 (e) See Wms. Real Prop. 183, 
 186, 187, 21st ed. 
 
 (/) See above, pp. 446—449.
 
 OF PARTICULAR TITLES. 457 
 
 of the purchase money without further conveyance 
 would be unimpeachable, though the contract were not 
 made by deed, nor attested by any witness, nor enrolled. 
 A door would in fact be left open for evasion of the 
 Act (g). It has been held that, where a contract for 
 the sale of land to some charitable use had been actually 
 completed by a deed of conveyance, which was void for 
 non-compliance with the old Mortmain Act, the whole 
 transaction was void in equity as well as at law, and 
 the land was not subject to the charitable trusts as 
 having been effectually appropriated thereto by the 
 contract of sale (//). This seems to show that the contract 
 for sale could not have had the usual effect of trans- 
 ferring tlie equitable ownership of the land sold to the 
 purchaser ; for if it had had that effect, the land would 
 have remaiued subject to the charitable trusts, though 
 the subsequent conveyance of the legal estate were void. 
 But if the equitable ownership of the land were not 
 transfeiTcd by the contract, that could only be because 
 the contract was an assurance thereof not made as 
 required by the Mortmain Act and therefore void (?'). 
 
 {ff) As to the way in which the wise than as directed by the Act, 
 
 Court has dealt with an attempted of any hereditaments or any 
 
 evasion of the Act, see Wickham estate or interest therein to any 
 
 V. Bath, L. R. 1 E(i. 17. charitable use. The Actof 1888, 
 
 (A) A.-G. V. Gardner, 2 De though purporting to be a con- 
 
 G. & S. 102, 116, 118; ci. A.-G. solidating Act, does not repro- 
 
 V. Munro, \h. 122, as to enforcing duce in express terms the exact 
 
 charitable trusts against persons prohibition contained in sect. 1 of 
 
 who have taken and remained in the old Act ; see above, pp. 44.5, 
 
 possession of land, as tru.stees for 4.54, and n. (J). It is thought 
 
 a charity under a conveyance th&t the dictum in A.-G. v. Dai/, 
 
 void for non-compliance with the 1 Ves. sen. 218, 222, that a sale 
 
 Mortmain Act. effected by a written contract and 
 
 (i) See stat. 9 Geo. II. c. 36, payment (before conveyance) of 
 ss. 1,3. It should be observed the purcha.se money is sufficiently 
 that sect. 1 of this Act contained taken out of the Act, is not an 
 an absolute prohibition against in authority foranj-thing more than 
 any ways conveying to any that the transaction is not liable 
 charitable use any hereditaments to be avoided bj- the vendor's 
 for any estate or interest what- death within a year ; for it seems 
 ever unless with the formalities indisputable that if in such case 
 therein spotdKed, and sect. 3 made the sale were completed by a con- 
 void all assurances, made other- veyance attested by one \\ntness
 
 458 OF PARTICULAR TITLES. 
 
 On the other hand, it has heen decided that an ordinary 
 contract for the sale of land is neither an assurance 
 within the meaning of the Yorkshire Kegistries Act, 
 1884 (k), nor a conveyance within the meaning of the 
 Stamp Acts (/), on the ground, partly, that the contract 
 does not operate as an immediate and unconditional 
 transfer of the equitable estate to the purchaser, because 
 such transfer is conditional on the vendor showing a 
 good title. To this it may be replied that in the 
 Yorkshire Registries Act, 1884 (ui), the term assurance 
 is specially interpreted, and has not its ordinary legal 
 meaning apart from statute ; that in the Stamp Acts a 
 clear distinction is drawn between the stamps required 
 for a contract and those necessary for a conveyance (n) ; 
 and that, though the transfer of the equitable estate 
 effected by a contract of sale is conditional on a good 
 title being shown, the condition is in substance sub- 
 sequent rather than precedent. If the contract be not 
 rescinded or broken, the equitable estate vests in the 
 purchaser as from the date of his entering into the 
 contract (o) ; and if a good title be shown, he has no 
 option of rejecting it{p). The real effect of the con- 
 tract appears to be that the equitable ownership of the 
 property sold is at once transferred to the purchaser, 
 subject to the vendor being restored to his former 
 ownership in case (contrary to the parties' main inten- 
 tion in making the sale) the contract be rescinded or 
 broken {q). In this view of the transaction, the contract 
 does appear to be an assurance to the purchaser of the 
 equitable estate in the land sold. But it is certainly 
 
 only, the conveyance would be v. Anyus, ubi sup. ; above, p. 28 
 
 void. 3,nd n. («) ; below, Chap. XII. § 3. 
 
 {li) Rodger v. Harrison, 1893, (o) Above, p. 49, and n. (/() ; 
 
 1 Q. B. 161 ; above, p. 377, n. (s). below, Chap. XI. § 1. 
 
 11) Inland Revmnv Coinmrs. v. {p) Above, pp. 35, 4G ; Re 
 
 Anym, '23 Q. B. D. 579. Taylor, 1910, 1 K. B. 562, 571, 
 
 Uii) Stat. 47 & 48 Vict. c. 54, 572, 580 ; below, Chap. XII. 
 
 s. 3; above, p. 377, n. (s). (?) See below, Chap. XIX. 
 
 (w) &QQ Inland Revenue Uonuurs. §§ 1, 2.
 
 OF PARTICULAR TITLES. 459 
 
 open to argument that the amendment made by the 
 Act of 1891 (;•) in restricting the Act of 1888 to 
 assurances of any lands, tenements or hereditaments, 
 and expressly repealing the old provisions applying to 
 assurances of " any estate or interest therein," has the 
 effect of confining the operation of the Act of 1888 
 to assurances of the legal estate in hereditaments (.s). 
 If however this argument should prevail, a simple 
 declaration of trust made gratuitously in favour of a 
 charity and evidenced by signed writing (/) would be 
 sufficient to transfer to the charity the whole equitable 
 estate in the lauds affected ; and the Courts would 
 certainly struggle against this conclusion. 
 
 By sect. 29 of the Charitable Trusts Amendment Restriction 
 Act, 1855 in), it shall not be lawful for the trustees or ^"tl^esale, 
 
 . . ... . mortgage, or 
 
 persons acting in the administration of any charity to leasing of 
 make or grant, otherwise than with the express autho- '' "'^^ ^ 
 rity of Parliament, under any Act already passed or 
 which may hereafter be passed, or of a Court or Judge 
 
 (r) Stat. 54 & 55 Vipt. c. 73, the Court or any such express 
 
 8. 3 ; above, pp. 450, 456, n. (d). powers, the burden lay on the 
 
 («) See Gcntk v. Faulkner, 1900, purchaser or other person taking 
 
 '1 Q. B. 267. under the disposition of proving 
 
 {t) See Wms. Real Prop. 190, that the transaction was provi- 
 
 21st ed. ; Adliiigton v. Can>t, 3 dent and beneficial to the charity ; 
 
 Atk. 141, 150; Boson v. Statham, and if he failed to establish this 
 
 1 Eden, 508, 513. the disposition would be set 
 
 (m) Stat. 18 & 19 Vict. c. 124, aside, unless the defence of pur- 
 passed 14th August, 1855. Ac- chase for value without notice of 
 cording to the previous law the the trust or of tho Statute of 
 alienation of charity lands was Limitations could be maintained, 
 not absolutely prohibited, but See A.-G. v. Wdrren, 2 Swanst. 
 was liable to be set aside if not 291, 302 ; A.-G. v. Rumjerford, 
 provident and beneficial to the 2 CI. & Fin. 357 ; A.-G. v. Brct- 
 charity. And a sale or other tingham, 3 Beav. 91 ; A.-G. v. 
 alienation of charity lands might South Sea Co., 4 Beav. 453 ; Mag- 
 well be made under the direction dalen Colkge, Oxford v. A.-G., 6 
 of the Court of Chancery, or by H. L. C. 189, 205, 213 ; Re Ash- 
 the trustees of a charity acting ton Charity, 22 Beav. 288 ; Re 
 under express powers conferred Chrgy Orphan Corp., 1894, 3 Ch. 
 by the author of the trust. But 145, 154 ; Re Maxon's Orphanage 
 if a sale or other disposition of and London and North Western Rail. 
 charity lands were made by the Co., 1896, 1 Ch. 54, 59, 603, 604. 
 trustees without the authority of
 
 460 OF PARTICULAR TITLES. 
 
 of competent jurisdiction, or according to a scheme 
 legally established, or with the approval of the Board 
 of Charity Commissioners, any sale, mortgage, or charge 
 of the charity estate, or any lease thereof in reversion 
 after more than three years of any existing term, or for 
 any term of life, or in consideration wholly or in part 
 of any fine, or for any term of years exceeding twenty- 
 one years. It is held that this enactment absolutely 
 prohibits any disposition of charity lands in contraven- 
 tion of the restrictions thereby imposed (.r) ; and any 
 such disposition is altogether void (//). And it has 
 been held that the expressions in the Act authorising 
 alienation under a scheme legally established relate 
 only to schemes for the administration of charities made 
 under the jurisdiction in that behalf inherited by the 
 High Court from the Court of Chancery or conferred 
 by the Charitable Trusts Acts [z) ; so that the trustees 
 of charities are no longer at liberty to exercise express 
 powers of alienation conferred on them by the author of 
 the trust, except in accordance with the restrictions of 
 the Act of 1855 {a). The word " charity" in this Act 
 includes every institution in England or Wales endowed 
 for charitable purposes, but not any charity or institu- 
 tion expressly exempted from the operation of the 
 Charitable Trusts Act, 1853 ; and the Act of 1855 does 
 not extend to any case excepted by sect. 62 of the Act 
 of 1853 from the operation thereof (b). These ex- 
 ceptions are stated in the note (c), and regard must of 
 
 {x) Re Maso}i''s Orphanage, ^-c, Vict. c. 137, ss. 28, 29, 32, 43 ; 
 
 1896, 1 Ch. 54, 596 ; Fell y. OJfi- 23 & 24 Vict. c. 136, s. 2. 
 
 cial Trustee of Chariti/ Zands, \S98, («) Re Maso)i's Orphanage, ^-c., 
 
 2 Ch. 44. 1896, 1 Ch. 54, 596: A.-G. v. 
 
 (y) Bangor v. Farri/, 1891, 2 National Epileptic Hospital, 1904, 
 
 Q. B. 277. ' 2 Ch. 252; A.-G.\. Mathieson, 
 
 (2) See Tiidor's Charitable 1907, 2 Ch. 383. 
 
 Trusts, 3, 181 sq., 184 sq., I'dbsq., {b) Stat. 18 & 19 Vict. c. 124, 
 
 593, 596 .sry., 4th ed.; stats. 10 & 17 ss. 47, 48. 
 
 (c) By sect. 62 of the Charitable Trusts Act, 1853, this Act shall 
 uot extend to — 
 
 (1) The Universities of Oxford, Cambridge, Loudon or Durham, or
 
 OF PARTICULAR TITLES. 
 
 course be had to them in advisinj^ on the title to any 
 land sold by charity trustees. 
 
 any colleg'o or hall in the said Universities of Oxford, Cam- 
 bridge and Durham ; or to 
 
 (2) Any cathedral or collegiate church (see Rf Dod's Charity, 1905, 
 1 Ch. 442) : or to 
 
 (;i) Any building registered as a place of meeting for religious 
 worship with the Registrar-General of Births, Deaths or 
 Man-iages in England or Wales, and bond Jldv used as a 
 place of meeting for religious worship (see stats. 18 & 19 
 Vict. c. 81, s. 9 ; 32 & 33 Vict c. 110, s. lo) ; or to 
 
 (4) The Commissioners of Queen Anne's Bounty ; or to 
 
 (5) The British Museum : or to 
 
 (6) Any friendly or benefit society or savings bank ; or to 
 
 (7) Any institution, establishment, or society for religious or other 
 
 charitable purposes, or the auxiliary or branch associations 
 connected therewith, whollij maintained by voluntary contribu' 
 tions ; or to 
 
 (8) Any bookselling or publishing business carried on by or under 
 
 the direction of any society wholly or partially exempted 
 from this Act, so far as such business is or shall be carried 
 on by me.ans of voluntary contributions only, or the capital 
 or stock of such business ; and 
 
 (9) Where any charity is iticintaiiti-d pertly by voluntary subscriptions 
 
 and partly by income arising from any endowment, the power.'^ 
 and provisions of the Act shall, with respect to such charity, 
 extend and apply to the income from endowment only, to 
 the exclusion of voluntary subscriptions, and the application 
 thereof ; aud no donation or bequest unto or in trust for any 
 such charity as last aforesaid, of which no special application 
 or appropriation shall be directed or declared by the donor 
 or testator, and which may legally be applied by the govern- 
 ing or managing body of such charity as income in aid ot 
 the voluntary subscriptions, shall be subject to the jurisdic- 
 tion or control of the Board of Charity Commissioners or the 
 powers or provisions of this Act ; and no portion of any such 
 donation or bequest as last aforesaid, or of any voluntary 
 .subscription, which is now or shall or may from time to time 
 be set apart or appropriated and invested by the governing 
 or managing body of the charity, for the purpose of being 
 held and applied or expended for or to some defined and 
 specific object or purpose connected with such charity, in 
 pursuance of any rule or resolution made or adopted by the 
 governing or managing body of such charity, or of any 
 donation or bequest in aid of any fund so set apart or appro- 
 priated for any such object or purpose as aforesaid, shall be 
 subject t<) the jurisdiction or contiol of the said Board or the 
 powers or provisions of this Act : and 
 
 (10) Nothing in this Act shall subject the funds or property of 
 
 any missionary or other similar society, or the missionaries, 
 teachers, or otticcrs of such society, or of any branch thereof, 
 which funds or pnipcrty shall nut be within the limits of 
 P^nglaud or Wales, to the jurisdiction of the said Boai-d : 
 Trovidixl always, that the said exemption shall not extend to any 
 cathedral, collegiate, chapter, or other schools, See also sect. 66. 
 
 461
 
 462 
 
 OF PARTICULAR TITLES. 
 
 Dispositions 
 of charity 
 lands by 
 authority of 
 the Charity 
 Commis- 
 sioners. 
 
 Under the Charitable Trusts Act, 1853 {d), the 
 Cliarity Commissioners may authorise the sale, ex- 
 change, mortgage {c) , or leasing of charity lands, where 
 advantageous to the charity ; and leases, sales, exchanges, 
 and other transactions so authorised shall have the like 
 effect and validity as if they had been authorised b}' 
 the express terms of the trust affecting the charity ( /') . 
 Thus, where express powers of alienation have not been 
 conferred on the trustees of charity lands, the Charity 
 
 It has been held that, by charities wholly maintained by voluntary 
 contributions, it is intended to describe charities which have no invested 
 endowment yielding an income for their support, or other property 
 permanently available for the purposes of the charity (as freehold 
 land owned and occupied for such purposes), but are entirely depen- 
 dent on the gifts of the benevolent, whether recurrent or occasional, 
 and whether infei- vivos or by will; A.-G. v. Mathieson, 1907, 2 Ch. 
 383. With regard to charities maintained partly by voluntary sub- 
 scriptions and partly by income arising from any endowment, it has 
 been held that the income of any endowment prima facie means income 
 derived from any invested funds ; that in the case of such charities, 
 bequests and donations for the general purposes of the charity, which 
 may be lawfully applied as income consistently with the terms of the 
 gift, are exempt from the operation of the Acts ; and that, so 
 long as they remain so applicable as income, such gifts and the 
 income thereof are not brought within the operation of the Acts 
 by being invested, even in the purchase of land. So that in the case 
 of the last-mentioned charities, land bought by the trustees with the 
 produce of such gifts can be disposed of without the consent of the 
 Charity Commissioners, and, further, appears to be alienable by the 
 trustees at their discretion without subjecting the jiurchaser to the 
 burden of proving that the alienation was beneficial to the charity ; 
 above, p. 459, n. [n) ; see Re Clergy Orphan Corporation, 1894, 3 Ch. 
 145, 150, 154 ; Royal Society of London and Thompson, 17 Ch. D. 407 ; 
 Finnis and Younq to Forbes and Pochin, 24 Ch. D. 587, 591 ; Re Gilchrist 
 Educational Trust, 1895, 1 Ch. 367; Re Stockport, ^-c. Schools, 1898, 2 Ch. 
 687 ; Re Church Army, 1906, W. N. 73 ; 94 L. T. 559 ; A.-G. v. 
 Mathieson, 1907, 2 Ch. 383, 393 ; Re Society for traitting Teachers of the 
 Leaf and Whittle^ s Contract, ib. 486 ; Re Wesleyan Methodist Chapel, 
 South Street, Wandsu-orth, 1909, 1 Ch. 484 ; see also Corporation of Sons 
 of Clergy and Skinner, 1893, 1 Ch. 178 ; sed qncere whether this case 
 is consistent with Re Mason^s Orphanage, S;c., 1896, 1 Ch. 54, 596. If 
 however any land so purchased be by deed or othei-wise so settled or 
 appropriated to some particular charitable purposes that it is no longer 
 competent for the governing body of the charity to apply the proceeds 
 of a sale thereof as income, it will become an endowment and be 
 subject to the jurisdiction and control of the Charity Commissioners ; 
 A.-G. V. Mathieson, ubi sup. 
 
 {d) Stat. 16 & 17 Vict. c. 137, 
 ss. 21, 24. 
 
 {e) See also stats. 18 & 19 Vict. 
 
 c. 124, s. 30 ; 23 & 24 Vict. c. 136, 
 s. 15. 
 
 (/) Stat. 16 & 17 Vict. c. 137, 
 s. 26.
 
 OF PARTICULAR TITLES. 463 
 
 Commissioners may authorise provident dispositions 
 thereof {(j) ; and where such express powers have been 
 conferred, the approval of the Charity Commissioners is 
 generally necessary to their exercise (//). Wliere the 
 title to any land sold depends on any disposition of 
 charity lands, to which the authority or approval of the 
 Charity Commissioners is necessary, the order of the 
 Commissioners giving such authority or approval should 
 be abstracted and produced ; and if this be not done, 
 the order should be inquired for, and in default of the 
 production of such an order, objection should be taken 
 to the title. The order of the Charity Commissioners 
 authorising a disposition of charity lands does not of 
 course operate as a conveyance of the legal estate therein ; 
 that must be duly assured in order to give effect to the 
 disposition authorised (/ ) . Such assurance may be made Assurance of 
 either by the person or all the persons seised of the estate in 
 legal estate, or else under sect. 12 of the Charitable charity lands. 
 Trusts Act, 1869 (A), providing that, where the trustees 
 or persons acting in the administration of any charity 
 have power to determine on any sale, exchange, parti- 
 tion, mortgage, lease, or other disposition of any property 
 of the charity, a majority of those trustees or persons 
 who are present at a meeting of their body duly con- 
 stituted and vote on the question shall have and be 
 <ieemed to have always hud full power to execute and 
 do all such assurances, acts and things as may be requisite 
 for canying any such sale, exchange, partition, mort- 
 gage, lease, or disposition into effect, and all such 
 
 ((/) The jurisdiction of tlie (A) Above, pp. 4')9, 460. 
 
 Hififh Court to authorise such ,■■ -kt ^ r i, •■. i i 
 
 v -t- I \ 4-1. / ,> (' Mortsraarees of chanty lands, 
 
 dLspositions (above, p. 4oy, n. (m i, * * i^ ^ ^- n \ 
 
 ^ • > \ 1 ^.1 ,,1 ■'' however, are i!renerallv satished 
 remains ; but under the Chant- -.i ^. • • r 
 
 . , rp , . . . ,u-.j ,. with the provision for repayment 
 
 able 1 rusts Act, 18.>3, no apiih- , . * ^, /-,. -^ K • 
 
 . • 1 1 * .1 /^ t made by the Chanty Lommis- 
 
 cation can be made to the Court > /^ i t> j . /-n 
 
 tor sucli purpose vs-ithout the cer- ^^""'^^ ^^^^'^^i ,T.Tl! [ ' "'"" 
 
 tificate of the Charity Commis- ^'^^'^ trusts, .r28, 4th ed. 
 sioners: stat. 16 tc 17 Vict. c. 1^7, (/.) Stat. 32 & 33 Vict. c. 110. 
 
 8. 17.
 
 464 OF PARTICULAR TITLES. 
 
 assurances, acts and things shall have the same effect as 
 if they were respectively executed and done by all such 
 trustees or persons for the time being and by the official 
 trustee of charity lands. This section appears to be 
 applicable where the power of determining on a sale or 
 other disposition of the charity lands has been conferred 
 on the trustees by order of the Charity Commissioners ; 
 and it enables the majority of the trustees to convey the 
 legal estate in the land, whether the same be vested in 
 the whole number of trustees or in the official trustee of 
 charity lands (/). But where the title to any land sold 
 depends on an assm-ance executed under this section, 
 proof must be given that the persons who executed the 
 same were the majority of those present at a meeting of 
 their body duly constituted and voting on the question (m) . 
 As the Charitable Trusts Act, 1869 («), is to be con- 
 strued as one with the Charitable Trusts Acts, 1853 and 
 1855, it does not appear to apply in cases excepted from 
 the operation of these Acts (o) . In such cases, therefore, 
 all persons seised of the legal estate in the charity lands 
 must concur in executing any assurance thereof. Where 
 any land sold has been held by a succession of charity 
 trustees, of course the appointments of any new trustee 
 and the conveyances consequent on such appointment 
 form part of the title, and must be abstracted and pro- 
 duced accordingly. Under the Trustees Appointment 
 Acts, 1^50 to 1890 (p), lands held in trust for certain 
 religious or educational purposes vest in new trustees 
 duly appointed, or in such new trustees together with 
 the continuing trustees, without any express conveyance 
 for the purpose. 
 
 {I) See stats. 15 & 17 Vict. (n) Stat. 32 & 33 Vict. c. 110, 
 
 c. 137, ss. 47—50 ; 18 & 19 Vict. s. 3. 
 124, s. 15. {o) Above, p. 460, and u. (c). 
 
 ' Im) 1 Dart, V. & P. 288, 289, [p) Stats. 13 & 14 Vict. c. 28 ; 
 
 r,th pd. ; 329, 6th ed. ; 325, 7tli ed. 32 & 33 Vict. c. 26 ; 53 & 54 Vict. 
 
 c, 19.
 
 OF PARTICULAR TITLES. 465 
 
 Under the Board of Education Act, 1899 (y), and Board of 
 the Orders in Council made thereunder (r), all the SbSut^ 
 powers conferred on the Charity Commissioners by the for Charity 
 enactments ahove mentioned (.s) were, so far as those s^io^fas t« 
 powers relate to endowments held solely for educational endowments 
 purposes, transferred to the Board of Education. fortdS 
 
 tional 
 pui-poses. 
 
 § 8. — Partnership Property. 
 
 Where a purchaser has notice that any land sold is Partnership 
 or has been partnership property, he must ascertain that Property, 
 the same has been or shall be duly assured, not only by 
 all persons seised of the legal estate therein, but also by 
 all persons interested therein in equity under the agree- 
 ment of partnership {f). As is well known, when any 
 land becomes partnership property, the legal estate 
 therein devolves according to the general law applicable 
 to land of the like nature and tenure : but in equity the 
 land is held in trust for the partners, who are entitled 
 thereto, as between themselves and their representatives, 
 as personal estate (//). The devolution at law of real 
 estate, which is partnersliip property, varies, of coui-se, 
 according as it has been dealt with. It may have been 
 con\'eyed to the partners or some of them only, as joint 
 tenants in fee or as tenants in common, or to one partner 
 only in fee, or it may have been vested in trustees, none 
 of whom were ]iartners. But in whatever form tlie 
 
 (7) Stat. 62 & 63 Vict. c. 3.S. him and the plaintiff as partners, 
 
 ^1^]^ were held to have had construc- 
 
 [)■) .See ()rder.s of 7th Aug. tive notice of the firm's title 
 
 1900, 24th July, 1901, 11th because they were aware that the 
 
 Aug. 1902 : Tudor's Charitahlc business of the finn was carried 
 
 Irusts 760-769, 4th ed. on there. And see abi.ve, 
 
 (.«) Above, pp. 455, 460—464. pp. 237 xq. 
 
 (0 See Cavmuler v. Bulteel, L. R. («) See stat. 53 & 54 Vict. c. 39 
 
 ;• < h. 79. where the defendants, .ss. 20—22; Darby v. Darby 3 
 
 having taken from on.- Be w lay a Drew. 495; IFatc'rer \. IVatcrer 
 
 mortgage of land, of which at L. R. 15 Eq. 402 ; A.-O v Hiih- 
 
 law he was solely seised iu fee, b,uh; 13 Q. B. D. 275 ; Rr Bourm- 
 
 but which m equity belonged to 1906, 2 Ch. 427. 429, 432, 433. 
 
 w. 30
 
 466 
 
 OF PARTICULAR TITLES. 
 
 conveyance was taken, the subsequent devolution of the 
 legal estate is to be traced according to the general rules 
 governing the devolution of real estate held upon trust (./') . 
 Prior to the year 1882, therefore, if a person (whether 
 a partner or not) were solely seised in fee of land held 
 in equity as partnership property, the legal estate 
 passed, on his death, to his heir or devisee : but the heir 
 or devisee was held to be a trustee for the persons 
 entitled under the partnership agreement (//). Since 
 the end of the year 1881, it appears that, in the same 
 circumstances, the legal estate passes to the deceased 
 tenant's personal representatives under the Conveyancing 
 Act of 1881 (s). As regards the persons, who should 
 
 (.r) Land, which is partnership Drew. 495 ; A.-G. v. Hubhuclc, 
 property, is in effect held tipon 10 Q. B. D. 488, 13 Q. B. D. 
 trust for sale and conversion into 27.'), 289 ; stat. 53 & 54 Vict, 
 money and application of the c. 89, ss. 20 (2), 22, 44 ; Ite 
 proceeds of the sale, first, in Bourne, 1906, 2 Ch. 427, 432, 
 discharging the partnership lia- 433. 
 
 bihties and subject thereto in {tj) Broom v. Broom, 2>M.j. Sc'K.. 
 
 dividing the same between the 443; West of £vijlimd,^-c. Broil \. 
 partners in proportion to their Murch, 23 Ch. D. 138 ; above, 
 interests : Darby v. Darby, 3 p. 219. 
 
 (j) Stat. 44 & 45 Vict. c. 41, s. 30 ; above, p. 221. It is submitted 
 that the cases cited in the two preceding- notes establish that the 
 estate, even when vested in a partner or in all the partners, is held 
 upon a trust within the meaning of this enactment. Where land has 
 been vested in partners as joint tenants in fee, but as part of their 
 partnership estate (see 1 Key & Elph. Prec. Conv. 4 38, 4th ed. ; 436, 
 8th ed.), or as tenants in common in equal shares, the case of Re Stloim, 
 1901, 1 Ch. 921, may perhaps be thought to raise a doubt whether 
 the partners can have different interests in the land in equity from 
 what they have at law. In that case, one who was a trustee of lease- 
 holds for two ladies in equal shares, by deed reciting that they had 
 requested him to execute to them such assignment thereof as was 
 thereinafter expressed, assigned the same to them as joint tenants, 
 and they jointly covenanted to indemnify him against the rent and 
 lessee's covenants. On the death of one of the ladies her executors 
 claimed her share on the ground that in equity the ladies had remained 
 tenants in common. Farwell, J., decided against this claim, liolding 
 that the case came within the rule in Selby v. Alston, 3 Ves. 339, that 
 where eqiutable and legal estates, equal and co-extensive, unite in the 
 same person, the fomier merges, or in other words, that a person 
 cannot be a trustee for himself. Ho said: "The only doubt I felt 
 was whether the advantage of a tenancy in common over a joint 
 tenancy raised any presumption against merger. But the difference 
 in interest between these two estates is so smnll unci shadowy that I do 
 not think it would be sirfficient to raise that presumption. I hold that 
 two or more persons cannot be trustees for themselves for an estate
 
 OF PARTICULAR TITLES. 467 
 
 conciu' in a disposition of land, which is partnership 
 property, as being entitled nnder the partnership agree- 
 
 co-extensive with their legal estate." It is respectfully submitted 
 that the learned judge rightly rejected the executors' claim, but for 
 the wrong reasons. The deed of a.ssignment was a conveyance by a 
 trustee under a simple trust, who had been requested by his ccstiti que 
 tntsfs to execute the estate to them. In such conveyance the limita- 
 tion of the estate was expressly made to the cestui que tntsts as joint 
 tenants at theu- own request ; their intention to take as such was 
 plainly evidenced by the deed which they executed themselves. Why, 
 then, shoidd there be any equity to preserve theii' estate in common 
 contrary to their expressed intention? (See Fotckes v. Pascoc, L. R. 10 
 Ch. 343.) Suppose, however, that they had taken the assignment to 
 themselves jointly on trust as to one moiety for the one and as to the 
 other moiety for the other, or, which is the same thing, on trust for 
 themselves as tenants in common in equal shares. Would the Court 
 then have rejected the executors' claim? I think not. It is respect- 
 fully submitted tl)at the learned Judge's dict/nn as to the difference 
 between joint tenancy and tenancy in common being small and shadowy 
 was an incautious utterance. There is nothing to prevent a man from 
 being a trustee for himself and others, or from being one of several 
 trustees for him.self . If lands are conveyed to the use of A. and B. in 
 fee as joint tenants on trust for them in fee in equal shares, each 
 undivided moiety is, in equit}-. held by a several title: see Litt. s. 292. 
 At law A. and B. are joint tenants in fee ; each is therefore sensed of 
 the whole. But in equity A. and B. have no interest in each other's 
 shares ; each has a several titli^ to one half only. In all except unity 
 of posses.sion the case is the same as if two separate pieces of land had 
 been assured to the use of A. and B. in fee on trust, as to one for A. 
 in fee, and as to the other for B. in fee. How, then, can it possibly 
 be maintained that their estates in equity are co-extensive and com- 
 mensurate with their estates in law ? And where the equitable estate 
 ia not commensurate with the legal estate in the .same person, there is 
 no merger: see Ih-ydgcs v. Bryih/es, 3 Ves. 120, which was not cited 
 in Ite Si'loHs. The rule in Sclbij v. Ahton has never been supposed to 
 apply to land assured to the use of partners in fee as part of their 
 partner.ship estate ; and the case of Re Seluus certainly affords no good 
 reason why the construction previou.sly placed on such a.ssurances 
 should be in any way disturbed. The interest which the partners 
 take in equity by reason of their interest in the partnership is altogether 
 different from that which they have by reason of their tenancy at law: 
 see note {c) above. And it is contrary to the principles of equity that 
 an equitable interest in any property, whicli interest has become 
 vested in the legal or equitable owner of the property, but is not of 
 exactly the same nature as his ownership, shall merge in the owner- 
 ship if it were not intended that such merger should take place : see 
 Forbes V. Mnfatl, 18 Ves. 3S4 ; Adams v. Angell, H Ch. D. 634; Re 
 Pnd<; 1891, "2 Ch. 13'); Minler v. Vnrr, 1894,'3 Ch. 49S ; Thome v. 
 Caiin, 1895, A. C. 11 ; Ingle v. Vaughan Jenkins, 1900, 2 Ch. 368; 
 Thelliisson v. I.iddard, ib. 635. The' cases of Re Wra>i, 1905, 2 Ch. 
 349, 352, Re Bourne, 1906, 2 Ch. 427, 432, 433, and Re Kent Count;, 
 Gas, ^T. Co., Ltd.. 1909, 2 Ch. 195, show clearly that, where real 
 e.state is vested in partners a.s joint tenants, their beneficial interests 
 therein are personalty in i>quity, and are according to their interests 
 in the partnership property. 
 
 30 (2)
 
 468 OF PARTICULAR TITLES. 
 
 ment, it is to be observed, first, that one partner has no 
 general authority arising from the. relation of partner- 
 ship to bind the firm or the other partners b}^ deed or to 
 execute a deed on their behalf (a) ; and, seeondl_y, 
 that one partner may, it seems, make an equitable 
 mortgage of the firm's land to secure the firm's debt (b) ; 
 but, except where the ordinary business of the firm is to 
 sell land {(■) , he has no general authority arising out of 
 the relation of partnership to sell the firm's land {</). All 
 dispositions, therefore, required by law to be made by 
 deed of a partnership firm's estate or interest in any 
 land must be executed by all the partners either person- 
 ally or by attorney acting under an express power of 
 attorney given by deed ; and except in the case of an 
 equitable mortgage to secure the firm's debt or a sale or 
 lease by a firm whose ordinary business it is to sell or 
 let land, all dispositions of the firm's equitable interest 
 in any land, which is partnership property, must be 
 made by all the partners ; as, for instance, a contract 
 for the sale or letting of the land where the business is 
 carried on. After the dissolution of a partnership, 
 whether by death or otherwise, the authority of each 
 partner to bind the firm continues, notwithstanding the 
 dissolution, so far as may be necessary to wind up the 
 affairs of the partnership and to complete transactions 
 begun but unfinished at the time of the dissolution, but 
 not otherwise : provided that the firm is in no case 
 bound by the acts of a partner who has become bank- 
 rupt (r). It has been held that the survivor of two 
 partners may make a good equitable mortgage by 
 
 (a) Harrison v. Jackson, 7 T. R. [c] See stat. 53 & 54 Vict. 
 
 207 ; Steiglitz v. Egginton, Holt, c. 39, ss. 5, 6. 
 
 141 ; Marchant v. Morton, 1901, [d) See Biitchart v. Dn-sser, 10 
 
 2 K. B. 829, 832. Hare, 453, 4.50, 4 Do G. M. & 
 
 ib) See Re Vloiiyh, 31 Cli. D. G. 512. 
 
 324; Lindley on Partnership, 16G, [e) Stat. 53 & 51 Viet. c. 39, 
 
 7tli ed. ; Pollock on Partnership, .s. 38, 
 35, 8th ed.
 
 OF PAKTICULAK TITLES. 469 
 
 deposit of the title deeds of the firm's land to secure a 
 firm debt (./), and that such a mortgage has priority 
 over any lien of the deceased partner's executors on 
 the surplus assets for his share in the partnership {g) . 
 And it has been laid do^\^l by the Court of Appeal that, Power of 
 on the dissolution of a partnership by the death of one ^'^^7°^) sell 
 of two partners, it is the duty of the surviving partner or mort<rage 
 to realise all the assets of the firm, including its real lands, 
 estate, for the purpose of winding up the partnership 
 affairs, and the sm'viving partner has for this purpose 
 full power, not only to mortgage, but also to sell such 
 real estate {//). Haviug regard to this pronouncement, 
 it appears that, where the sur\avor of two partners sells 
 the real estate sufficiently soon after the other partner's 
 death to make it apparent that he is selling to wind up 
 the partnership affaii-s, he can make a good title to the 
 equitable interest (/) in the land and give a good dis- 
 charge for the pm-chase money without the concurrence 
 of the deceased partner's legal personal representatives. 
 And it is thought that this rule applies to partnerships 
 entered into under an open contract (where the assets 
 belong in equity to the sur\iving partner and the dead 
 partner's personal representatives in equal shares), and 
 to those under which the surviving partner is given an 
 option to take over at a ^•aluation the deceased partner's 
 share of the assets of the firm (/,), as well as to partner- 
 ships regulated by a stipulation that the surviving 
 
 (/) Hi Clough,:\\ Ch. U. 324. [k] See Da%-idson, Prec. Conv. 
 
 («/) Jle Bourne, 1906, 2 Ch. 427. vol. o, pt. ii. p. 355, 3rd ed. 
 
 (A) S. C, 1906, 2 Ch. 430 — Such options must be exercised 
 
 433. precisely according to their temis ; 
 
 (i) The title to the legal estate Vijse v. Fonlrr, 7 H. L. 3 IS, 329 : 
 depends of course on the manner but it is thought that, if so exer- 
 in which it was hold on trust for cised, they relate back to the time 
 the finu ; see above, p. 465. If of their creation and amount to 
 the land had been vested at law absolute <ontracts, deriving their 
 in the two partners as joint effect from the articles of partner- 
 tenants in fee, the surviving ship, to purchase the deceased 
 partner alone could convey the partner's share, 
 entire legal estate.
 
 470 
 
 OF PARTICULAR TITLES. 
 
 partner shall take over the dead partner's share at a 
 valuation payable by instalments (/). But where a 
 surviving partner has continued to carry on the business 
 of the firm and remained in possession of land, which 
 belonged to the firm, for a long time after the disso- 
 lution of the partnership and then sells the land, it is 
 thought that he would have to prove, as part of his 
 title, that he purchased the deceased partner's share of 
 the assets of the firm from the dead man's personal 
 representatives, either under a contract to that effect con- 
 tained in the articles of partnership or otherwise, and that 
 the purchase money therefor has all been duly paid. 
 
 Title iiuder au 
 order for sale 
 made by the 
 Court. 
 
 § 9. — Sale bij Order of the Court. 
 
 Where the title to any land sold depends on au order 
 for sale made by the Court [m), the principal points, on 
 which the purchaser's advisers must satisfy themselves, 
 are these : first, that the whole legal estate in the land 
 
 (/) The effect of such a stipu- 
 lation is that, on the death of a 
 partner the entire property in all 
 the assets (including any real 
 estate) belonging to the firm 
 passes at once in equity to the sur- 
 viving member of the firm ; Vyse \. 
 Foster, L. R. 8 Ch. 309, 328, 7 H. 
 L. 318, 330, 334, 335, 341, 345; 
 Kordcrn v. Hordern, 1910, A. C. 
 465, 473 ; and that the surviving 
 partner has authority, for the 
 purpose of winding-up the affairs 
 of the partnership, to sell or 
 mortgage such assets free from 
 any lien of the personal repre- 
 sentatives of the dead partner for 
 the amount so payable to them ; 
 see Ec £aiiffiticad\s Trn.stn, 20 
 Beav. 20, 7 De G. M. & G. 353 ; 
 Ee Bomw, 190G, 2 Ch. 427. In 
 Ec Bourne the partnership con- 
 tract contained such a stipula- 
 tion (see 1906, 1 Ch. 113): but 
 the case was decided on the foot- 
 ing of its being a partnership 
 
 under an open contract, and the 
 judgments delivered apply to a 
 partnership of that kind. Before 
 this decision, it was the practice 
 of conveyancers, on the sale of 
 partnersliip land by the siu-viving 
 partner under an open contract 
 of partnership, to require the 
 personal representatives of the 
 dead partner to concur in the 
 conveyance and give a receipt 
 for their share of the purchase 
 monev ; see Bntchart v. Dresser, 
 10 Hare, 453, 456, 4 De G. M. 
 & G. 542, 544 ; TFcst of England, 
 d|V. Bank v. Mtirch, 23 Ch. D. 
 138 ; 50 Sol. J. 307 (by the 
 writer) . 
 
 [ill) As to sales of land by the 
 Court, see 2 Dart, V. & P. 1190 
 sq., 5th ed. ; 1313 svy., 6th ed. ; 
 1151 sq., 7th ed. ; 1 Dan. Ch. Pr. 
 872 sq., 7th ed. ; 1 Seton on Judg- 
 ments, 333 sq., 338, 6th ed. ; 1 
 Davidson, Prec. Couv. 499 sq., 
 5th ed. 
 
 J
 
 OF PAUTICULAK TITLES. 
 
 471 
 
 has beeu conveyed to tlie person asserting title under 
 the order, or will be conveyed to the purchaser, either 
 by the assm-ance of all persons interested therein or by 
 vesting order ; secondly, that the order for sale was 
 duly made and properly carried out, or if not, that the 
 defect is one which may bo disregarded in reliance on 
 sect. 70 of the Conveyancing Act of 1881 {n) ; and 
 thirdly, that all persons interested in the property sold 
 for any equitable estate or interest were or are either 
 parties to or otherwise bound by the proceedings in 
 which the order for sale was made ; or if not, that all 
 estates or interests of all persons not so bound have 
 been or will be expressly assured to the person asserting 
 title under the order or to the purchaser. The jurisdic- Jiu-i.sdictiou 
 
 . , „ 01 the Court 
 
 tion of the High Court of Justice to order a sale ot to order a 
 land (o) is either derived from the general equitable or '"^'^'^ ""^ l^"*!- 
 
 {,i) Stat. 44 & 45 Vict. c. 41. 
 
 (o) The original jurisdictiou of the Court of Chancery to order a 
 !salo of land appears to have been confined to cases where such a 
 sale was uc(jcssary in order to satisfy creditors' claims enforceable 
 a,'>-ainst the land in that Court, or where a trust for sale of the land 
 had been created and was exercisable : Lechmere v. Brasier, 2 J. & W. 
 •2S7 : Calvert v. Godfrey, 6 Beav. 97 ; Carhjon Y.Truscott, L. R. 20 Eq. 
 348 ; Re Staines, 33 Ch. D. 172. Thus in suits for the administration 
 of the estates of deceased persons the Court might order a sale of 
 chattels real, and might, if there was jurisdiction to administer the 
 real estate, either bv reason of the s;ime haA-ing been charged with the 
 payment of debts or under stat. 3 .Sc 4 Will. IV. c. 104, order a sale 
 of real estate. The Court might also order a sale of land in a suit to 
 enforce an equitable hen in the nature of an equitable mortgage of 
 land, as in the case of a vendor's lien for unpaid purchase money : 
 Mackreth v. Sijnimonii, 15 Ves. 329 ; Nente v. Marlboroiujh, 3 My. & Cr. 
 407 417- Governors of Gmjcoat Hospital v. ll'rstmiu.ster Improvement 
 Commrs., 1 De G. & J. 531 ; Skene v. Vook, 1902, 1 K. B. 682, 688, 
 689 ; Seton on Judgments, 2054, 6th ed. And lands forming part of 
 the assets of a partnership firm might be ordered to be sold under the 
 general jurisdiction of the Court to order the sale of the firm's pro- 
 perty on a dissolution of partnership : FcatIicrstotihau(jh v. Fenwick, 
 17 Ves. 298 ; Darbij v. Durlnj, 3 Drew. 495 ; Tai/lor v. Kenle, 39 Ch. D. 
 538. The principal statutory jurisdiction of the High Court of Justice 
 to order a sale of land is tlic following :— (1) That conferred by sect. 25 
 of the Conveyancing Act of 1881 (stat. 44 & 45 Vict. c. 41) to order a 
 sale in redemption or foreclosure actions. This was new as to redemp- 
 tion actions, while as to foreclosure actions it replaced and extended 
 the jurisdiction given by .sect. 48 of the Chancery Trocedure Act, 
 1852 (stat. 15 & 10 Vict. c. 86). (2) That conferred by the Partition 
 Acts, 1868 and 187G (stats. 31 & 32 Vict. c. 40 ; 39 & 40 Vict. c. 17).
 
 472 
 
 OF PARTICULAK TITLES. 
 
 What in- 
 terests are 
 bound by 
 an order for 
 sale. 
 
 the statutory jurisdiction of the Court of Chancery 
 transferred by the Judicature Acts to the High Court 
 of Justice and for the most part exercisable in the 
 Chancery Division {j>), or else has been expressly con- 
 ferred on the High Coiu't since the Judicatui-e Acts, so 
 that such orders have been made in the past either by 
 the Court of Chancery or by the High Court acting as 
 a Court of Equity. When such an order is made, it 
 binds the equitable interests iu the land sold of all 
 persons, who are either parties to or bound by the pro- 
 ceedings in which the order is made {q). There is 
 therefore no need, when land is sold in pursuance of 
 such an order, for any such persons to join in the con- 
 veyance to the purchaser ; and where there are no other 
 equitable interests existing iu tlie property sold, all that 
 is necessary is that the legal estate should be duly con- 
 veyed to liim (;•) . But an order for the sale of any land 
 does not affect either the legal or the equitable interests 
 therein of any persons who are neither parties to nor 
 bound by the proceedings in which the order was made ; 
 so that if any such interests should be outstanding, a 
 good title is not made (s) . As a rule, a purchaser of 
 
 (3) That conferred by the Settled Estates Act, 1877, replacing a 
 similar Act of 1856 (stats. 40 & 41 Vict. c. 18 ; 19 & 20 Vict. c. 120). 
 
 (4) That conferred by the Confirmation of Sales Act, 1862 (stat. 2") & 
 26 Vict. c. 108). (5) That conferred by the Judgments Act, 1864, 
 enabling the Coiu-t to order the sale of a judgment debtor's interest 
 in land taken in execution by a judgment creditor. This superseded 
 the former proceedings under the Judgments Act, 1838, to realise the 
 charge given by that Act (see stats. 27 & 28 Vict. c. 112, s. 4 : 1 & 2 
 Vict. c. 110, s. 13 ; Wms. Real Prop. 275, 21st ed.). (6) That con- 
 ferred by R. S. C, Nov. 1893, r. 18 (Ord. LI. r. 1b), to order a sale in 
 debenture holders' actions: and see R. S. C. 1883, Ord. LI. r. 1, 
 which has been held not to extend the jurisdiction of the Court so as 
 to enable it to make an order for sale of real estate, where none could 
 have been made before : Jic- Jivbiiiso)/, 31 Ch. D. 247. 
 
 [p) Stats. 36 & 37 Vict. c. 66, 
 S8. 16, 34 ; 37 & 38 Vict. c. 83 ; 
 38 & 39 Vict. c. 77 : Wms. Real 
 Prop. 167, 21st ed. 
 
 {g) Cole v. Sm-eU, 1 7 Sim. 40 ; 
 He Williams, 5 De G. & S. 515 ; 
 Bamictt v. 3fo.io)i, L. R. 20 Eq. 
 182, 184. 
 
 (>•) 2 Hayes's Conveyancing, 
 104, n. ; Davidson, Prec. Con v. 
 vol. ii. pt. i. 270, n. {ir), 283, 
 n. (/;), 4th ed. 
 
 (.s) See Cradduclc v. F'qier, 14 Sim. 
 310, 312; Govrs. of Greycoat IIon- 
 pital V. Westminster Imprortmeht 
 Commrs., 1 De G. t!c J. 531 ;
 
 OF PARTICULAR TITLES. 47;j 
 
 land under an order for sale made by the Court is What estates 
 entitled to require that the legal estate shall be duly shoidiUx-quku 
 
 conveyed to him (f) : thoue-h the Court of Chancery, in *« ^e c<jn- 
 ^1111 IP T n 1 . ■. , '^■eyed to him. 
 
 the old days before power had been given by statute to 
 
 dispose of estates vested in infants as trustees {u), would 
 oblige a purchaser under a decree for sale of lands 
 vested at law in an infant to accept the equitable title 
 conferred by the order only, as the purchaser had notice 
 from the record of the infancy, and therefore of the 
 impossibility of conveyance before tlie infant attained 
 full age {jc). The occasion for this exception was 
 removed by statutes of Will. IV. (//) ; and by the 
 Trustee Acts, 1850 and 1852 (;;), now replaced by 
 the Trustee Act, 189-j {a), power was given to 
 the Court, where a complete assurance of the whole 
 legal estate in any lands sold under its order 
 could not be obtained by reason of the disability 
 of some person interested therein or for other causes, of 
 effecting the conveyance of the legal estate by an order 
 vesting the same in. the purchaser. Since this jurisdic- 
 tion was conferred, it has been the regular practice to 
 resort thereto {b) ; and where lands have been sold under 
 an order of the Court and any lega/ estate or interest 
 therein cannot be well assured by the person entitled 
 thereto, whether by reason of his disability or of the 
 same having been limited to some unborn or unascer- 
 
 Knu/h/ V. I'ucov/,-, U Beav. 430 ; (y) Stats. 1 1 Geo. IV. & 1 
 
 Freeland v. Fearson, L. R. 7 Eq. "Will. IV. c. 47, 8. 11, aud c. GO. 
 
 246 ; Jones v. barnett, 1899, 1 s. 7. 
 
 Ch. 611, 1900, 1 Ch. 370. (;) Stats. 13 & 14 Vict, c GO. 
 
 [t) Noel V. Wiston, G. Coop. ». 29; 15 & 16 Vict. c. oo, s. I. 
 
 138 ; .lf(/>-//s V. <7rt>7.:.«0M, 3Swau8t. («) Stat. 56 & 57 Vict. c. 53. 
 
 558, 564 ; Sug. V. & P. 397, 398 ; a. 30 ; ser also sects. 26—29, 
 
 Freeland v. rearson, L. R. 7 Eq. 31 — 33, 50 ; and .see as to the 
 
 246. orders made and practice there- 
 
 (m) See stat. 11 (tpo. IV. & under, 2 Seton on Judirraents. 
 
 1 Will. IV. o. 47, s. 11 ; Sug. V. 1261 ««/.. 6th -d. 
 
 & P. 397. 398. (A) 2 Dart. V. A: P. 1220, and 
 
 (.'■) H'alt/iaiii'.s nine, cited C. n. 'q), 5tli ed. ; 1347, aud 
 
 Coop. 139. Sug. V. &. P. 397; n. (/;, 6th ed. ; 1184, and n. («), 
 
 Morris V. (Jlarksoii, 3 Swanst. 558. 7th ed.
 
 474 
 
 OF PARTICULAR TITLES. 
 
 The urder 
 should have 
 been rightly 
 made — 
 
 Aud the sale 
 properly 
 carried out. 
 
 taiued person or persons, the purchaser's title will not 
 be complete unless an order vesting the same in him has 
 been duly obtained (c) . As regards the assurance to 
 the purchaser of lands sold under an order of the Court of 
 the equitable estate therein, we have seen {d) that the 
 order for sale binds the equitable interests of all persons 
 who are parties to or otherwise bound by the proceed- 
 ings in which the order was made, and there is no need 
 for any other assurance of such interests to be made. 
 So that where any equitahic estate has been limited to 
 any unborn or unascertained person, there is no occasion 
 to obtain an order expressly vesting the same in the 
 pm'chaser ; the order for sale is sufficient for this purpose. 
 But in order to bind the equitable interests of persons 
 intended to be bound by the proceedings, it was formerly 
 necessary that the order for sale should be dulij made, 
 that is, made on a right exercise of some jurisdiction in 
 that behalf {e) vested in the Court ; and if this were 
 not the case, the Court would not oblige the pm'chaser, 
 if he took the objection, to accept the title, and if he did 
 accept the title, it appears that he would not have been 
 protected by the order (,/). And the same result would 
 follow, if the sale were not properly carried out accord- 
 ing to the order, although the order itself were valid {(j) . 
 Other irregularities in the proceedings, in which the 
 order for sale was made, would not, as a rule, affect a 
 purchaser under the order (A). But, as the order did 
 
 ((■) See Wale v. Wake, 17 Jur. 
 .545 ; Wood v. BrctJcutouc, 1 K. & 
 J. 213 ; Lcvs V. CouUoii, L. R. 20 
 Eq. 20 ; Jjasiictt v. JIoxou, ib. 
 182; Setoii ou Judgments, 1261, 
 12G2, 6th ed. 
 
 {d) Above, p. 472. 
 
 (e) Above, p. 471, u. (w). 
 
 (/) Lechmere v. Brasier, 2 J. & 
 W. 287 ; Blacklow v. Laws, 2 
 Hare, 40 ; Calvert v. Godfrci/, 6 
 Beav. 97 ; 2 Dart, V. & P. 1224, 
 
 5th ed. ; 1351, 6th ed. ; IISG, 
 7th ed. 
 
 ((/) Colcloiujh V. atenuu, 3 Bligh, 
 181 ; Poicell v. Poivell, L. R. 10 
 Ch. 130. 
 
 (A) See Lutwyeh v. Wiiifuvd, 2 
 Bro. C. C. 248 ; Lloijd v. Johnes, 
 9 Ves. 37, 65 ; Curtin v. Biice, 12 
 Ves. 89 ; Bowcu v. Evam, 2 H. L. 
 C. 2.57 ; Beloley v. Carter, L. R. 
 4 Ch. 230, 238 ; Sug. V. & P. 
 110; 2 Dart, V. k P. 1223— 
 1225, 5th ed. ; 1350 — 1352, 6th 
 ed. ; 1185—1187, 7th ed.
 
 OF PARTICULAR TITLES. -175 
 
 not affect the interests, whether legal or equitable, of 
 any persons who were neither parties to nor otherwise 
 bound by the proceedings, it was always necessary for 
 the purchaser to see that all persons interested in the 
 property sold were so bound, or else that he would 
 obtain an express conveyance from them of their 
 respective interests (/). By the Conveyancing Act of Oidoiuftho 
 1881 (k) an order of the Court under any statutory or ^^ invalidated 
 other iurisdiction shall not as against a purchaser be for want of 
 invalidated on the ground or want oi jurisdiction, or 
 want of any eoncun-ence, consent, notice, or service, 
 whether the purchaser has notice of any such want or 
 not. The dicta, if not the decisions, upon the construc- 
 tion of this enactment have been somewhat conflicting (/) ; 
 and it is not easy to state its precise effect. But it is to 
 be observed that it purports to cure one defect of title 
 only, the invalidity of an order of the Court, whether 
 for sale or otherwise ; aud that it does not appear to 
 extend the effect of a valid order so as to bind any 
 persons whose interests would not otherwise have been 
 affected thereby [in). The enactment appears to protect 
 purchasers from disturbance by persons who might 
 otherwise have ejected them or recovered against them 
 on the ground that an order of the Court forming part 
 of their title was invalid for want of jurisdiction or for 
 any other cause therein mentioned. And it has been held 
 
 (t) Colclvtiijh V. iSleiiiiii, 3 Bligh, rised by the Court imdur the Set- 
 
 Ibl, 18G ; JSeiulri/ V. Citrtcr, Li.R. tletl Estates Act, 1877, or the 
 
 •1 Ch. -JoO, -238 ; Siig. V. k P. Act of 18oG, uotwithstandiug the 
 
 111; '2 l)art, V. & P. I'i'i.'), oth exceptions therein meutioued : see 
 
 ed. ; 1352, (ith ed. ; 1187, 7th stats. I'J A: 20 Vict. c. 120, s. 28 ; 
 
 ed. ; and see above, p. 172, aud 40 & 11 Vict. c. 18, s. 40. 
 
 uote (.«). (/) See Jte Hail Darr'-s <'untr<tcl, 
 
 {k) Stat. 44 A: 4.) Vict. c. 41, 21 Ch. D. 41 ; Mustijn v. Moityn, 
 
 s. 70, 8ub-s. 1, extendiu*;- by 1893, 3 Ch. 37G ; Jonexw Barnett, 
 
 sub-8. 3 to past as well as fntim- 1890, 1 Ch. Gil, 1900, 1 Ch. 
 
 orders, except tliose whicli liad 370. 
 
 been already held tn be invalid, («i) It is subiuitted that auy 
 
 or to invalidate which proceed- liu-ta to the contrary etfect iu 
 
 iug's were pendiuy ; aud declared Munfi/ii v. Mustyn (ubi sup.) are 
 
 by siib-s. 2 to have etfect as to erroneous ; see Junes v. Baniett, 
 
 leases, sales or other acts autho- ubi sup.
 
 476 OF PARTICULAR TITLES. 
 
 that purchasers of land under an order for sale made by 
 the Court are no longer at liberty to object to the title 
 on the ground that the order is invalid for any of such 
 causes {ii). But the enactment does not protect a pur- 
 chaser from disturbance by persons whose rights or 
 interests were never intended to be affected by the 
 order ; it has not the effect of conferring on a purchaser 
 under an order for sale a good title as against all the 
 world {(>) . And where the order, being valid, is not 
 properly carried out, the enactment does not appear to 
 have any application. The duties of the conveyancer 
 advising a piu^chaser of land, to which the title depends 
 upon an order for sale made by the Court, remain, 
 therefore, as above stated {p). 
 
 i 10. — Sale of iDi E(piitij of Redemption. 
 
 Risks iu- The purchaser of an equity of redemption is exposed 
 
 purclfasTof ^^ ^^^ following risks :— First, since equitable charges or 
 
 an equity of rights affecting equitable estates in land rank, as a rule, 
 
 iL emp 1011. jj(3QQj.(jiQg iq the order of the times at which they were 
 
 created (y), he takes subject to all equities affecting the 
 
 land purchased in the hands of the vendor at the time 
 
 of sale, whether he have notice of any such equities or 
 
 not. He buys, therefore, subject to all prior equitable 
 
 mortgages of the land, whether made in favour of the 
 
 legal mortgagee on further advances or of any other 
 
 person (r), to any right of consolidation of securities 
 
 which the mortgagee may have already acquired (.s), 
 
 {ii) Re Hall Bares Cvntract, 21 {r) See previous iiote, aiid 
 
 Ch. D. 41. Bailey v. Blchardson, 9 Hare, 734 ; 
 
 (o) Jones V. Uiiriu'tt, 1899, 1 'Tai/lur v. Mii.s.scll, 1892, A. C. 
 
 Ch. 611, 1900, 1 Ch. 370. 244, where the prior equitable 
 
 (p) Pp. 470, 471. mortgage was only excluded by 
 
 [f/) JoiicH V. Jouen, 8 Sim. 633 ; tacking. 
 
 Wilmot V. Pike, o Hare, 14 ; {s) See White v. Hillacre, 3 Y. 
 
 Phillips V. Phillips, 4 De G. P. & & C. Ex. 597, 608, 609 ; Jenninrjs 
 
 J. 208, 215 ; Tai/lury. Londun and v. /«my/«m, 6 App. Cas. 698 ; Har- 
 
 Couniij Bank, 1901, 2 Ch. 231, tcr v. Colinan, 19 Ch. D. 630; 
 
 260; Perham v. Kempster, 1907, Minter v. Carr, 1894, 3 Ch._498. 
 
 1 Ch. 373, 379. These cases establish that, if no
 
 477 
 OF PARTICULAR TITLES. 
 
 and to all other equities affecting the premises, such as 
 any equitable right to set aside the conveyance to the 
 vendor {t), or any claims on the premises arismg from 
 any trust to which the same may have been subject m 
 the vendor's hands (.0- And after completion of the 
 contract by conveyance and payment of the purchase 
 money, he remains subject to such of these prior equities 
 as amount to an infrrext in the land, in distinction to 
 a bare right of suit(..). Secondly, in consequence o Thvou.h 
 the doctrine of tacking equitable charges to the legal 
 estate, the purchaser of an equity of redemption mcurs 
 the danger of being excluded by or postponed to equit- 
 able charges on the land made subsequently to the sale. 
 Thus if the legal mortgagee were to make further 
 advances to the vendor after the sale, but whilst the 
 vendor remained in possession or otherwise m apparent 
 ownership of the land, and without having received 
 notice of the sale, he would be entitled to tack all that 
 mioht become due in respect- of such advances to his 
 original charge (//). And any other person who should 
 make advances to the vendor on the security of the 
 land after the sale and in the same circumstances, 
 
 richtof consolidation shouldhave able right was only defeated by 
 be^en acquired prior to the sale of tacking ^ ^^^^ 
 
 :SXS;^rS;:;':iatonoi 30,Uere^^^tUe^- 
 themortgageandeomesecunty^n ,«. .-^ - TcL" 15 Ch. K 
 
 tbo same inort-'ugor, and at the 639, (.1. —(.49. io a oare n lu 
 the same "^o"" " . ' ^ j.j3^^e„,p. of suit in eciuity. such as a claim 
 
 to ditterent mo „ „ , j_,,^^^ purchase for 
 
 tiuentlv arise : I mt \. i("'!/<', - ']^\ • ' ^tv ^i 
 no P t T 611 ■ Fled,/, v. JrhUe, ^ 1 ; Chap. XIV. ^ 1. 
 
 Ch. '25, where the prior equit-
 
 478 
 
 OF PARTICULAR TITLES. 
 
 Inquiries to 
 be iiiado by 
 purchaser of 
 au equity of 
 redemption. 
 
 might, if lie could obtain a transfer of the legal mort- 
 gage, tack what should be due under such subsequent 
 advances to the original mortgage debt {z). The pur- 
 chaser of an equity of redemption may guard against 
 some of these risks, but against others he has no 
 protection. Thus he may, and of course he always 
 should inquire of the mortgagee, first, as to the state of 
 the mortgage debt and what is owing thereon; secondly, 
 whether the mortgagee has already made any further 
 advances to the mortgagor on the security of the land 
 purchased ; and thirdly, whether the mortgagee has 
 vested in himself any other mortgages or charges which 
 affect any other property of the mortgagor and which 
 he is entitled to consolidate with his mortgage on the 
 purchased land. And the purchaser should give formal 
 notice to the mortgagee of his contract for purchase. 
 It is true that the mortgagee is not bound to answer 
 such inquiries unless an offer to redeem his charge 
 is made (a). And if the mortgagee should decline 
 to answer these inquiries, the purchaser cannot safely 
 proceed with the contract, and would, it is submitted, 
 be entitled to repudiate the same on the ground that 
 the vendor has failed to prove, by the only evidence 
 that can possibly be accepted, facts material to the 
 title. But if the mortgagee do answer such inquiries 
 precisely, after being informed of the pm-pose with 
 which they are made, he will be estopped from deny- 
 ing the truth of his answers, and so cannot afterwards 
 assert his own charges or interests upon the property so 
 as to defeat or postpone the purchaser's interest acquired 
 
 {z) Frere v. Moore, 8 Price, 
 475, 488, 489; Jones v. Powles, 
 ■?, My. & K. 581, 596, 598 ; Baten 
 V. Johnson, Job. 304 ; Baileij v. 
 Barnes, 1894, 1 Ch. 25, 36,' 37. 
 But a person entitled to a charge 
 on the purchase money to be paid 
 under a contract for the sale of 
 
 an equity of redemption, could 
 not tack this charge to the legal 
 mortgage: Lacet/ v. Ingle, 2 Ph. 
 413. 
 
 (ff) BiitjideH V. Bignold, 2 Y. & 
 C. C. C. 377, 390 ; Loir v. Bon- 
 ■verie, 1891, 3 Ch. 82.
 
 OF PARTICULAR TITLES. 479 
 
 on the faitli of the representations so made (/>). And 
 notice to the mortgagee of the sale of the equity of 
 redemption will of course prevent him from tacking 
 any subsequent advances to his legal security (r). 
 But the purchaser of an equity of redemption in 
 land cannot protect himself against equitable rights, 
 which are prior to his own and are either unknown 
 to or suppressed by the vendor, by any notices or 
 inquiries. Notice of his piux-hase to the mortgagee 
 seised of the legal estate can give him no priority over 
 equitable incumbrancers already existing {d), and will 
 not prevent a subsequent equitable incumbrancer from 
 excluding him by tacking, if the subsequent incum- 
 brancer should procure a transfer of the legal mort- 
 gage {e). The purchaser of an equity of redemption 
 should inquire of the vendor whether he has created or 
 is aware of any equitable charge, incumbrance or riglit 
 which affects the property sold and is not disclosed by the 
 abstract ( /') ; and it is submitted that, as the pm-cliaser 
 is to acquire no legal estate which would protect liim 
 against unknown equities, this question is relevant to 
 the title offered by the vendor, and the vendor cannot 
 vouch the rule in 7iV Ford and Hill {(j) as an excuse for 
 refusing to answer (//). The purchaser should also 
 inquire of the legal mortgagee whether he has had 
 notice or is aware of any sucli equitable charge, incum- 
 brance or riglit. But if these inquii-ies fail to inform 
 
 {h) Ibbottson v. Rhodes, 2 Vern. Rooprr v. Hnrrisov, 2 K. & J. 86; 
 
 .'554 ; Stronge v. Ilaiike-t, 4 De G. Phipps v. Loregrove, L. R. IG Eq. 
 
 M. & G. 186, 196; Lnv v. Bon- 80,91; 7?ei?i<-Afl)v/,s, 4o Ch.D. oSO; 
 
 wnV, 1891, 3 Ch. 82. Hopkins \. Hemsicorth, 18'.)S, _' 
 
 (e) Le Nnr v. Le Xrie, Amb. Ch. 347. 
 
 436, 446 ; Birch v. EUames, 2 {>■) Peacock v. Burt, 4 L. J. 
 
 Anst. 427 ; see sX»o Hopkiimou (N. S.) Ch. 33. 
 
 V. Kolt. ".) H. L. C. ol4 ; Mcnzies (/) Pe^ham v. Kcmpster, 1907. 
 
 V. Lujhffoot, L. R. U Eq. 4')9 ; 1 Ch. 373, 381. 
 
 London and (huutg Pauk v. Itat- {g) 10 Ch. D. 36.'). 
 
 cliff'e, G App. Cas. 722; J/Vv/ v. {/i) See above, pp. 13.'). n. (/), 
 
 iniliams, 1899, 1 Ch. 132. 178. 
 
 {d) Above, p. 476, nn. {q), {r) ;
 
 480 
 
 OF PARTICULAR TITLES. 
 
 Purchaser' 
 right of 
 tacking-. 
 
 the purchaser of some existing equitable incumbrance, 
 and he only discover tlie same after payment of his 
 purchase money, he will have no remed}^ but to procure, 
 if he can, a transfer of the legal mortgage, and so fore- 
 stall the other incumbrancer in using the resource of 
 tacking. If he can accomplish this, he Avill be entitled 
 to hold the land free from the claims of all persons 
 entitled thereto or interested therein under any equit- 
 able rights of which he had no notice at the time when 
 lie paid his purchase money ; and any subsequent notice 
 of any such right will be immaterial (i) : but he cannot 
 so avoid any equities of which he /lad notice, either 
 actual or constructive (/.•), before he actually paid the 
 price agreed upon for the land (/). If, therefore, he 
 receive notice of any such eqviities after the contract for 
 sale, but before completion, of course he cannot safely 
 proceed with the purchase unless the equities are 
 released or the persons entitled thereunder concur in the 
 conveyance to him (m). 
 
 Purchaser of 
 equity of 
 redemption 
 paying off 
 the first 
 mortgage — 
 
 It has been held that if the purchaser of an equity of 
 redemption pay off the first mortgage when he has 
 notice of an intermediate charge, the first mortgage is 
 extinguished and the intermediate incumbrancer is en- 
 titled to enforce his security as the first charge on the 
 land without redeeming the mortgage so paid off (;/). 
 
 {}) See the cases cited above, 
 pp.476, 477, and notes. But where 
 the legal estate is held on an ex- 
 press trust for the prior incum- 
 brancer, the pui-chaser cannot 
 obtain any advantage by getting 
 in the same after he has had 
 notice of the prior incumbrance : 
 Sannrlers v. Beheiv, 2 Vem. 271 ; 
 Muniford v. Stohtcaxscr, L. R. 18 
 Eq. 556 ; Harphum v. Sharkhck, 
 19 Ch. D. 207 ; Taylor v. Loi>don 
 and County Bank,' 1901, 2 Ch. 
 231, 2.56, 257. 
 
 (/.) Le I\'cve v. Lc Neve, Amb. 
 
 436, 446 ; Birch v. Ellames, 2 
 Anst. 427 ; Potter v. Sanders, 6 
 Hare, 1 ; Bailey v. Richardson, 9 
 Hare, 734. 
 
 [l) Tuurville v. Naish, 3 P. "W. 
 306 ; Story v. Windsor, 2 Atk. 
 630 ; Hardinqham v. NichoUs, 3 
 Atk. 304 ; MaimdreU v. 3Iann- 
 drcU, 10 Ves. 246, 271 ; Taylor v. 
 Baker, b Price, 306 ; Raync v. 
 Baker, 1 Giff. 241. 
 
 {m) Above, pp. 170, 238. 
 
 (h) Toulmin v. Steere, 3 Mer. 
 210.
 
 OF PARTICULAR TITLES. 481 
 
 This doctrine has been frequently mentioned with dis- 
 approval, though never precisely overruled (o). It has 
 however been established that if, when the first moi-t- 
 gage is so got in, an intention be shown to keep the Keeping the 
 charge on foot, the purchaser will be entitled to the change on 
 benefit thereof, and the intermediate incumbrancer 
 cannot then enforce his security without redeeming the 
 charge. And it is not necessary for this purpose that 
 the mortgage should be transferred to a trustee for the 
 purchaser ; it Avill not merge if the intention to keep it 
 alive appear either by express declaration or by inference 
 from the surrounding cii'cumstances, notwithstanding 
 that the mortgage and the equity of redemption be 
 both vested in the same person (/?). 
 
 If the mortgagee under a legal mortgage of land Purchase by 
 purchase the equity of redemption, he will be entitled, ^g'^equfty'of 
 under the doctrine of tacking, to hold the land free redemption. 
 from all intermediate equitable incumbrances of which 
 he had no notice at the time when he paid his purchase 
 money [q). But with regard to mesne incumbrances 
 of which he had notice and which were not discharged, 
 it was formerly considered that, unless his mortgage 
 
 (o) See Wattxy. Symes, 1 De G. siib.sequent incumbrancers by pur- 
 
 M. & G. 240, 244 ; Adaiii.s v. chasing the property at a sale 
 
 Angell, 5 Ch. D. 634, 641, 645, thereof under a power of sale 
 
 647 ; Thome v. Cann, 189-5, A. C. given by such first mortgage : 
 
 11, 16—18; Li(/iii(f(itio)i Estates Otter v. Vaux, 2 K. & J. 650, 6 
 
 Purchase Co. v. WUloiifihbij, 1896, De G. M. & G. 638. But if a 
 
 I Ch. 726, 1898, A. C. 321. man become entitled to an equity 
 
 ( p) See cases cited in preceding of redemption by descent or de- 
 note ; and liailey v. Itichardsoii, vise, he may keep alive for his 
 9 Hare, 734 ; Phillips v. Gultc- own benefit any charge made by 
 ridi/t\ 4 De G. & J. 531 ; Hayden his predecessor which he chooses 
 V. Kirkpatriik, 34 Beav. 645; Re to pay off: Daris v. Barrett, 14 
 P;iVfe,1891, 2Ch. 135. Of course, Beav. 542; or if he be hitn.self 
 a mortgagor paying off a first the mortgagee under any such 
 mortgage created by himself can- previous charge, the same will 
 not by any means set up the charge not merge if such be not his in- 
 to defeat or hinder his own sub- tention : Forbesv. Mofatt, 18 Ves. 
 sequent incumbrancers : Watts v. 384. 
 
 Symes, 1 De G. M. & G. 240, 244. (q) Above, pp. 477, 480, and 
 
 Neither can he defeat his own notes. 
 
 w. 31
 
 482 OF PARTICULAR TITLES. 
 
 were transferred to a trustee for himself for the purpose 
 of keeping it alive, it merged in his ownership of the 
 premises, with the consequence that the mesne incum- 
 brances became first charges thereon, and the incum- 
 brancers could enforce their securities without redeeming 
 the legal mortgage (r). But it is now established in 
 this case, as well as that of the redemption of a first 
 mortgage by the purchaser of an equity of redemption, 
 that if an inteution to keep the mortgage on foot be 
 shown, either by express declaration or by implication 
 from the surrounding circumstances, the mortgagee 
 purchasing the equity of redemption may avail himself- 
 of the charge as a protection against mesne incum- 
 brancers, of whose claims he had notice, notwithstanding 
 that the first mortgage, as well as the equity of redemp- 
 tion, be vested in himself alone ; and when such an 
 intention is shown the mesne incumbrancers must 
 redeem the first mortgage if they wish to enforce their 
 securities (.v). Both a mortgagee purchasing the equity 
 of redemption, and the purchaser of an equity of 
 redemption redeeming the mortgage, should be careful 
 to take a conveyance in such form that there can be no 
 doubt whether it is intended to keep the charge alive or 
 not (t). A charge so kept on foot remains the personal 
 estate of the party, for whose benefit it is preserved : 
 but it may subsequently be merged by any assurance 
 of the land which would make it a fraud to keep the 
 charge alive (u). 
 
 Marshalling In connexion with the sale of an equity of redemption, 
 securities. -^ ^^^ -^^ useful to mention the rules as to marshalling 
 
 (}•) 2Dart, V. &P. 917,5thed.; sup.; Davidson, Prec. Conv. */' 
 
 1040, 6th ed. ; 952, 7th ed. ; vol. ii. pt. i. 324, n., 327, n., 4th 
 
 Touhnin v. Steere, 3 Mer. 210, ed. ; 1 Key & Elph. Prec. Conv. 
 
 224. 490, 531, and notes, 4th ed. ; 
 
 is) Adams v. AiiffeU, 5 Ch. D. 486, 525, and notes, 8th ed. 
 634; above, p. 481,' note (^;). {n) fie Glbhon, 19('9, 1 Ch. 367 ; 
 
 [t) See Adams v. An^ell, ubi above, p. 433.
 
 OF PARTICULAR TITLE;S, 483 
 
 securities. Where two properties belonging to the same 
 owner have been mortgaged by him to the same mort- 
 gagee or are otherwise subject to some paramount 
 charge affecting both of them (.r), and he has subse- 
 quently assigned over one of them for valuable con- 
 sideration, whether on sale, mortgage, or settlement {y), 
 then if the paramount incumbrancer satisfy his security 
 out of the property so assigned {z), the assignee is 
 entitled in equity, as against the owner, the trustee in 
 his bankruptcy {a), and his representatives taking by 
 succession after his death and subject to any agreement 
 to the contrary (i), to have the securities marshalled, 
 that is, to stand in the place of the paramount incum- 
 brancer with regard to the other property to the extent 
 of the value of the property taken (c) to satisfy the 
 paramount charge. The assignee is in fact entitled, in 
 equity, as against the owner, his trustee in bankruptcy, 
 heirs, executors, administrators and devisees, and in 
 default of agreement to the contrary, to have the pro- 
 perty so assigned to \\\m exonerated from the charge (r/). 
 
 {x) See Wchh v. Smith, oO Ch. [z) The paramount iiicum- 
 D. 192. 200, 202; The Chioggia, brancer is entitled to sati.sfy his 
 189S, P. 1, 6. Mar.shalling i.s security out of whichever "^pro- 
 also permitted where s -veral pro- perty he may choose fir.st to resort 
 pertie.s have by consolidatiou of to, aud the Court will not inter- 
 mortgages become subject to the fer(> with the exercise of this 
 entire claim of oue mortgagee ; right : Wallis v. JCoodgetn; 2 Jur. 
 above, pp. 476, -177, and note (.») ; N. S. 179. 
 
 where properties belonging to (n) See Krpfe. Hartle,/, I Deac. 
 
 different owners are pledged for 288 ; BaMwiu v. Belcher, 3 Dru. 
 
 the same debt; Going \. Farrcll, & War. 173, 176; Gtbuot, v. Sca- 
 
 Beatt. 472; ami in favour of a grim, 20 Beav. 614; llci/min v. 
 
 surety; Hi^ymaii v. Dubois, L. R. Dubois, L. R. \.<, Eq. 158. 
 ' ■■' I^q- 158- {!>) See Re Jfo,rer\s Trust,, L. R. 
 
 (//) Marshalhng has been 8Eq. 110. 
 allowed in favour of the grantees {c) See Craduck v. Ptper, lo 
 
 under a voluntary settlement Sim. 301, 302. 
 containing covenants that the {d) Hardwicke, C, I.anog v. 
 
 land settled .should remain to the Athol, 2 Atk. 444. 446: Eldon, 0.^ 
 
 uses assured, and for quiet en- Aldrich t. Oooper, 8 Ve.s 382' 
 
 joyment: Hales v. Coj; 32 Beav. 395; Averall v. U'ad<; LI. & G.' 
 
 118: but not wliere there was a t. Sugd. 252. 259; Uuglies v. 
 
 covenant for fuither assurance iniliams, 3 Mac. & G. 683 mn 
 
 only; Ker v. Kcr, I. R. 4 Eq. 691; Uaiidcock y. Haudrork' ] Ir' 
 
 15; Re Jone.s, 1893. 2 Ch. 461, (,'h. 444, 474 ; Tidd v. Li.strr 10 
 
 "^"3- '•'•*• Hare, 140, 157, 3 De G. il". & 
 
 31(2)
 
 484 
 
 OF PARTICULAR TITLES. 
 
 This equity is however enforced only against the 
 l^ersons above specified and not against any assignees 
 by act into' vii'os, whether taking for value or 
 gratuitously, of the other property [e). If therefore 
 in the case put the owner assign to different persons 
 both of the properties subject to the paramount charge, 
 the assignee who is prior in time will lose the right, 
 which but for the subsequent assignment he would have 
 enjoyed, to have the property assigned to him entirely 
 exonerated from the charge. But he will not be 
 deprived of all right of marshalli ug ; for if the para- 
 mount incumbrancer exhaust that property, he will 
 still have the right to have the securities marshalled by 
 apportioning the paramount charge on both properties 
 rateably according to their respective values, and 
 standing in the paramount incumbrancer's place as 
 against the other property in respect of that proportion 
 of the paramount charge which according to such 
 apportionment it ought to bear (_/) , and to the extent 
 of the property, which according to such apportionment 
 was that assigned to him ; that is to say, up to the 
 value of the property exhausted after deducting its 
 due proportion of the paramount charge (g). Thus if 
 Blackacre, worth 2,000/., and Whiteacre, worth 1,000/., 
 belonging to A. be mortgaged to B, for 2,100/., and 
 then Blackacre be mortgaged to C. for 900/., and B. 
 sell Blackacre for 2,000/. and so repay himself to that 
 extent, C. is entitled to stand in B.'s place as against 
 Whiteacre ; and if Whiteacre should sell for 1,000/., 
 
 Gr. 8.57, 872 ; Gibson v. Seagrim, Strange v. Hawkes. 4 De G. & J. 
 
 20 Beav. 614 ; Kay, L. J., i?'(!Jrt< 632, 641, 651—653; Wellesley 
 
 y. Howard, 1893, 2 Ch. 54, 72; v. Mornington, 17 W. R. 355; 
 
 Re Jones, 1893, 2 Ch. 461, 470 sq. Moxonv. Berkeley, %c. Bdg. Socg., 
 
 {e) See Dolphin v. Aglward, 59 L. J. Ch. 524, 526 ; Flint v. 
 
 L. R. 4 H. L. 486, 501 ; Flint v. Hoivard, 1893, 2 Ch. 54 ; Woody. 
 
 Howard, 1893, 2 Ch. 54, 61, 72, hVest, 40 Sol. J. 114 ; Baglioni v. 
 
 73. Camlli, 49 W. R. 236. 
 
 (/) Barnes v. Bacster, 1 T. & [q) See note [c] to p. 483 
 
 C. C. C. 401, 410; Barden v. above. 
 Bignold, 2 Y. & C. C. C. 377 ;
 
 OF PARTICULAR TITLES. 
 
 C would be entitled to the balance after satisfying the 
 remainder of B.'s charge. But if before the sale of 
 Blackacre A. had sold Whiteacre to D., then in adjust- 
 ing the equities between C. and D. after the sale of 
 Blackacre, the paramount charge of 2,100/. w^ould have 
 to be apportioned between Blackacre and "Whiteacre 
 according to their values, 1,400/. being attributed to 
 Blackacre and 700/. to Whiteacre, and C. would only 
 be entitled to stand in B.'s place as regards Whiteacre 
 in respect of the 700/. so apportioned. Out of this sum 
 B. would first take his remaining 100/., then C. would 
 have bOO/. and subject thereto Whiteacre or the proceeds 
 of sale thereof would belong to D. (//). It does not 
 appear that in these cases the rights of the assignees are 
 altered by the circumstance that the second assignee 
 took with notice, either express or implied, of the first 
 assignment (/) : but the second assignment may of 
 course be made on the terms that the assignee shall 
 take subject to the satisfaction or full enforcement of 
 the first assignee's right to have the property assigned 
 to him entirely exonerated from the paramount charge, 
 and if so, the second assignee's rights will be determined 
 by such agreement (/.•). It seems, however, that if the 
 paramount charge were a legal mortgage and either 
 assignee should get it in, the parties' rights might be 
 varied by the doctrine of tacking (/). Thus in the Tacking. 
 example given, if D. had purchased Whiteacre without 
 
 (h) Sec cases cited in the last assignment, or subject generally 
 
 note but one. to all equities previously created, 
 
 (i) See Kay, L. J., F/int v. he takes subject to the first 
 
 Howard, 1893', 2 Ch. .it, 7:<. aud assignee's original equity to 
 
 other cases cited in the last note marshal. It is thought that the 
 
 but two. It is thought that propositions stated in Dart, V. & 
 
 these authorities have overruled P. 914, 5th ed. (lO^o, 6th ed., 
 
 the doctrine laid down in Hamil- and still retained, 947, 7th ed.), 
 
 ton V. Rui/sr, 2 Sch. & Lef. 'ilr), in reliance on these cases cannot 
 
 327 — 329, and Aicken v. Mack/in, now be maintained. 
 1 Dru. & Walsh, 621, 634, C3.'), (X) See Jie Moiver's Trusts, 
 
 that, where the second assignee L. R. 8 Eq. 110. 
 takes with notice of the first (/) Above, pp. 477, 479, 480. 
 
 485
 
 486 
 
 OF PARTICULAR TITLES. 
 
 notice of C.'s charge on Blackacre, and had afterwards 
 taken a transfer of B.'s mortgage, D. might sell Black- 
 acre in satisfaction, so far as it would extend, of that 
 mortgage, and then tack his interest in Whiteacre to 
 B.'s charge thereon and so exclude any equity of C. 
 against Whiteacre. Or if C. had first obtained a 
 transfer of B.'s mortgage, he might have sold Whiteacre 
 to satisfy that mortgage jrro tanto (m) and then tacked 
 his own charge on Blackacre thereto (n). 
 
 Interest now 
 chargeable on 
 a mortgage. 
 
 Mortgage 
 cannot 
 be made 
 irredeemable. 
 
 Since the repeal of the Usury Laws (o), any rate of 
 interest that the parties may agree to may be taken on 
 a mortgage debt and secured on the mortgaged pro- 
 perty ; a commission stipulated for by the mortgagee 
 and deducted from the loan will, in the absence of any 
 fraud or undue influence, be allowed in taking the 
 accounts {p) ; and agreements for charging compound 
 interest, or capitalising interest which nuxy fall into 
 arrear, are no longer invalid ((/). The Court however 
 strenuously upholds the rules that no stipulation form- 
 ing part of a contract or transaction of mortgage, that 
 the security shall not be redeemable according to the 
 rules of equity, shall have any effect in equity (r) ; and 
 
 («*) See note (z) to p. -183, 
 above. 
 
 (w) Titlri/ V. Davics, 2 Eq. Ca. 
 Abr. 604, "pi. 35, 36, 2 Y. & C. 
 
 C. C. 383, n., 393—395; Sober v. 
 Kemp, 6 Hare, 155 ; Liverpool 
 Marine Credit Co. v. Wilson, L. E. 
 7 Oh. 507. 512 ; Flint v. Howard, 
 1893, 2 Oh. 54, 68, 69 ; Dart, 
 V. & P. 914, 915, 5th ed. ; 1036, 
 6th ed. ; 947, 948, 7th ed. 
 
 (o) By Stat. 17 & 18 Vict. c. 90 ; 
 see Wms. Real Prop. 645, n. {e), 
 21st ed. 
 
 (p) Mainland v. Upjohn, 41 Oh. 
 
 D. 126. As to undue influence, 
 see below, Ohap. XIV. § 2. 
 
 (q) Clarl-soit v. Henderson, 14 
 Oh. D. 348 ; Davidson, Prec. 
 Oonv. vol. ii. pt. ii., p. 360, n., 
 
 4th ed. ; Mainland v. Upjohn, 40 
 Oh. D. 126, 136, 142, 143 ; 
 Wrigley v. Gill, 1906, 1 Oh. 165. 
 In the absence of agreement to 
 the contrary, simple interest only 
 is chargeable in respect of a mort- 
 gage debt carrying interest ; 
 Daniell v. Sinclair, 6 App. Oas. 
 181 ; Ainsivorth v. Wilding, 1905, 
 1 Oh. 435. 
 
 (r) Price v. Prrrie, 2 Freem. 
 258 ; Salt v. Xorthampion, 1892, 
 A. 0. 1. Thus a stipulation in 
 the mortgage contract that the 
 mortgagee shall or may purchase 
 the mortgaged property is void ; 
 Samuel v. Jarrah, S;c. Corpn., 
 1904, A. 0. 323. But the mort- 
 gagee may by an agreement 
 made subsequently to the mort-
 
 OF PARTICULAR TITLES. 
 
 487 
 
 that any agreement to fetter the equity of redemption 
 with some other condition than the payment of the 
 principal, interest and costs due under the mortgage is 
 invalid (*), It may be mentioned here that, under the 
 Mone_y lenders Act, 1900 {t), a mortgage of land to a 
 moneylender {ii) is void, if not made to him in his 
 registered name {x) or if in other respects the transaction 
 were not carried out in conformity with the require- 
 ments of the Act (//) . 
 
 Equity of 
 redemption 
 not to be 
 clogged. 
 
 Mortgages 
 to money- 
 lenders. 
 
 gage purchase the equity of re- 
 demption ; Seeve v. Lis/c, 190'2, 
 A. C. 641 ; above, pp. 481, 482. 
 (*) Jenniitffs V. IFard, 2 Vem. 
 520 ; James v. Kerr, 40 Ch. D. 
 449, 459 (agreement for .subse- 
 quent payment of a bouus to the 
 mortgagee hold void) ; Field v. 
 Hopkins, 44 Ch. D. 524 (agree- 
 ment for adding to the security a 
 solicitor-mortgagee's profit costs 
 held void ; since allowed by stat. 
 58 & 59 Vict. c. 25) ; Noakes S; 
 Co., Ltd. V. Rice, 1902, A. C. 24 
 (covenant on mortgage of a lease- 
 hold public -house to take beer 
 during the term from the mort- 
 gagee only held not to bind the 
 mortgagor after redemption) ; 
 Bradley v. Carritt, 1903, A. C. 
 253 (agreement on mortgage of 
 shares in a tea company that the 
 mortgagee should have the sale 
 of all the company's teas as 
 broker held no longer binding 
 after redemption) ; British South 
 Africa Co. v. Be Beers, ^-c. Ltd., 
 1910, 1 Ch. 354 (agreement 
 to grant an exclusive licence to 
 the mortgagee to work certain 
 diamondiferous ground held void 
 as a fetter on the equity of re- 
 demption) ; Morgan v. Jcffrei/n, 
 1910, 1 Ch. 620 (stipulation that 
 the mortgage should not be paid 
 off for twenty-eight years with- 
 out the consent of the mortgiigee 
 held void). Cf. Bii/g-s v. Iloddi- 
 ttott, 1898, 2 Ch. 307, where on a 
 
 mortgage of an hotel to a brewer 
 covenants to take beer from the 
 mortgagee only during the con- 
 tinua)icc of the seckrity and for 
 the continuance of the loan for 
 five years were upheld ; Santley 
 V. IFUdc, 1899, 2 Ch. 474 (where 
 an agreement to pay to the mort- 
 gagee of a leasehold theatre one- 
 third of the' profit rental thereof 
 during the term was held valid by 
 the C. A.). The latter decision 
 was however criticised adversely 
 in Noakes (f- Co., Ltd. v. Rice, 
 1902, A. C. 24, 28, 31, 32, 31 ; 
 and Bradley v. Carritt, 1903, A. C. 
 253, 255 sq. 
 
 (0 Stat. 63 & 64 Vict. c. 51, 
 s. 2 (1). 
 
 (») See sect. 6 ; Sadler v. 
 Whiteman, 1910, 1 K. B. 868, re- 
 versed, 1910, "W. N. 193. 
 
 {x) Chapmax v. Michaelson, 
 1908, 2 Ch. 612, 1909, 1 Ch. 
 238 ; see also Bonuard v. Dott, 
 
 1906, 1 Ch. 740: Slafordshire 
 Financi'il Co. v. Valentine. 1910, 
 2 K. B. 233 ; and cf. Lodge v. 
 National Union Investment Co., 
 
 1907, 1 Ch. 300. 
 
 (y) See Gadd v. Provincial 
 Union Bank, 1909, 2 K. B. 353 ; 
 reversed, nom. Kirkiroodv. Gadd, 
 1910, A. C. 422 ; Jackson v. I'rice, 
 1910, 1 K. B. 143; Re Seed, ib. 
 661 ; Re a TJehtor (No. 2 of 1910), 
 1910, W. N. 70 ; Ruetei- v. Brad- 
 ford Advance Co.. 26 Times L. R. 
 533.
 
 488 
 
 OF PARTICULAR TITLES. 
 
 Sale of 
 
 licensed 
 
 property. 
 
 ^ 11. — Sa/e of Licensed Property. 
 
 On the sale of a public-house or other licensed pro- 
 perty as a going concern, the vendor is bound, on the 
 day fixed for completion, to produce a valid and effectual 
 licence of the kind promised by the contract, and to 
 indorse or to procm-e the holder thereof to indorse the 
 same to the purchaser, so that the purchaser may be 
 enabled to apply at once for interim authority to carry 
 on the business until the next special sessions, and to 
 apply at such sessions for a transfer of the licence (s). 
 And on the sale of such property, time is of the essence 
 of the contract ; so that if the vendor cannot perform his 
 obligation in this respect on the very day fixed for com- 
 pletion, the purchaser is entitled to repudiate the con- 
 tract {(i). But in the absence of special stipulation to 
 the contrary, the vendor is not bound to do more than 
 this, or to procure for the purchaser a transfer of the 
 licence or even interim authority to carry on the 
 business, and does not warrant that such transfer or 
 interim authority shall be procured ; and the purchaser 
 buys subject to the risks that the licence will not be 
 renewed at the next annual Brewster sessions {b), that 
 the transfer of the licence to him will be refused at the 
 special sessions, and that interim authority will not be 
 accorded to him (c). 
 
 {z) Tadcaster Tower Brewery Co. 
 V. IVilson, 1897, 1 Ch. 705. As 
 to the duties now imposed on 
 liquor licences, see stat. 10 Edw. 
 VJL c. 8, ss. 43—53. 
 
 («) Scaton V. Mapp, 1 Coll. 
 556 ; Day v. Luhke, L. R. 5 Eq. 
 336 : r la yd on v. Green, L. R. 3 
 C. P. 51l"; Cowles v. Gale, L. R. 
 
 7 Ch. 12 ; Powell v. Marshall, 
 Parkes6;Co.,\?,99, I Q. B. 710, 712. 
 
 [b] See Sharp v. Wakefield, 
 1891, A. C. 173 ; stat. 4 Edw. 
 VI [. c. 23, s. 1; Grimsdick v. 
 Sweetman, 1909, 2 K. B. 740 ; 
 below, p. 490 and n. («). 
 
 (r) Tadcnaiev Ton-er Brewery Co. 
 V. Wilson, 1897, 1 Ch. 705. 
 
 M
 
 OF PARTICULAR TITLES. 
 
 489 
 
 By the Licensing Act, 1904 (d), where Quarter Compensation 
 
 ' „ . . T for non- 
 
 Sessious refuse the renewal of an existing oii-lioence renewal of 
 
 under that Act, the amount therein specified (represent- licence. 
 
 ing the difference between the value of the licensed 
 
 premises with and without the licence {e) ) is to be paid 
 
 as compensation to the persons interested in the licensed 
 
 premises. And the Act authorised a compensation ^jJ^^Pg^'^^^'^"'' 
 
 charge at the rates therein specified to be imposed by licences. 
 
 Quarter Sessions in respect of all existing on-licences 
 
 renewed in each year {/). This charge is imposed for 
 
 the period from April 5th of the year in which it is 
 
 payable until April 5th of the succeeding year ; and on 
 
 the sale of any licensed property during such period the 
 
 amount of the charge is an outgoing apportionable 
 
 between the vendor and purchaser accordingly (//). The 
 
 Act further provides {Ji) that such deductions from rent 
 
 {d) Stat. 4 Edw. VII. c. 23, 
 s. 2 (1) ; see the Licensing Rules, 
 1904, Nos. 21—34, W. N. 14th 
 Jan. 1904. Under these rules 
 the persons interested are the 
 licensee, the registered owner of 
 the premises, and any other 
 person duly claiming and deter- 
 mined to be entitled to compensa- 
 tion thereunder ; and the amount 
 of compensation, when deter- 
 mined, is divided between those 
 persons in the shares settled by 
 the compensation authority, or 
 otherwise as therein provided ; 
 see Liverpool Corpn. v. Peter 
 Walker ^- Son, Ltd., 1908, 2 K. B. 
 33. Any compensation money 
 so awarded to any person in- 
 terested in the premises as owner 
 (whether he be freeholder or 
 lessee) stands in the place of his 
 interest therein, is equivalent to 
 the proceeds of a compulsory sale 
 thereof, and is payable, where he 
 has mortgaged that interest, to the 
 mortgagee ; Law Guarantee, ^c. 
 Socy. V. Mitcham, ^-e. Co. Ltd., 
 
 1906, 2 Ch. 98 ; Noakea v. 
 Noakes S; Co. Ltd., 1907, 1 Ch. 
 64 ; Daicson v. Braime's, i^Jr. Ltd., 
 
 1907, 2 Ch. 359; Re Bentley's 
 Yorkshire Breweries, Ltd., 1909, 
 2 Ch. 609. And where his in- 
 terest in the premises is subject 
 to any triist or equity, or his 
 claim ot compensation was made 
 as agent for others, the compen- 
 sation money awarded to him is 
 subject to the same trust or 
 equity or to his principals' rights : 
 Birkin v. Smith, 1909, 2 K. B. 
 112 ; see also Bent's Brewery Co. 
 Ltd. V. Dykes, 1909, W. N. 51, 
 100 L. T. 476. 
 
 ((■) See Be Ashby's, i;c. Co., 
 1900, 2 K. B. 754 ; Liverpool 
 Corpn. V. Peter Walker ^- Son, 
 Ltd., 1908, 2 K. B. 33. 
 
 (/) Stat. 4 Edw. VII. c. 23, 
 s. 3 (1). 
 
 («7) Hortoii v. Penn, 1907, I 
 K. B. 561 ; see above, pp. 50, 
 67, 74. 
 
 (A) Sect. 3 (3).
 
 490 
 
 OF PARTICULAK TITLES. 
 
 Effect of 
 refusal to 
 renew licence 
 in case of a 
 leasehold 
 licensed 
 house. 
 
 as are set out in the Second Schedule thereto (/) may, 
 notwithstanding any agreement to the contrary (/r), be 
 made by any licence-holder who pays the charge and 
 also by any person fi'om whose rent a deduction is made 
 in respect of the payment of the charge. The deduc- 
 tions so authorised constitute a charge upon the rent as 
 against the person, who would otherwise be entitled to 
 receive it (/) ; and regard must of course be had to this 
 liability on the purchase of the freehold or leasehold 
 reversion on a lease of licensed property. When a 
 licensed house has been demised for a term of years by 
 a lease containing a covenant by the lessee to use the 
 premises as a licensed house and not otherwise, and 
 the renewal of the licence is afterwards refused, the 
 covenant is discharged for impossibility of perform- 
 ance {in), but in other respects the lease remains valid 
 and the lessee is accordingly bound to pay the rent 
 reserved without any deduction on that account (n) . 
 
 (i) The amount which may be 
 so deducted varies by degrees 
 from 100 per cent, of the charge 
 where the tenant's unexfdred 
 term does not exceed one year 
 down to 1 per cent, of the charge 
 where the unexpired term ex- 
 ceeds 5.') but does not exceed 60 
 years : but the amount to be de- 
 ducted is in no case to exceed half 
 the rent. The unexpired term 
 is to date from the day on which 
 the compensation chai-ge is pay- 
 able by the licence-holder; Lnndon 
 County CoioicUy. Watney, ^-c. Ltd., 
 lyO'.i,! K. B. 637. It has been 
 ^eld that the word term is here 
 used in its proper legal meaning, 
 so that a tenant holding under an 
 unexpired term of not more than 
 two years was entitled to deduct 
 the amount allowed (88 per cent.) 
 in respect of that term, notwith- 
 standing that he also had a re- 
 versionary lease (which only gave 
 
 him H.n ititt:ressc termini at law) 
 for a further period of years 
 from the day but one after the 
 date of the expiration of his 
 existing term ; Llatigattork v. 
 Watneti. 6fC. Ltd., 1910, 1 K. B. 
 236, affirmed, 1010, A. C. 394 ; 
 see above, p. 372. 
 
 (A) Whether made before or 
 after the Act ; Wooler v. North 
 Emtern Breweries, 1910, 1 K. B. 
 247. 
 
 [1) Re Smith, 1906, 1 Ch. 799, 
 803, deciding that, where the 
 person entitled to the rent is a 
 tenant for life, lie is not entitled 
 to have the amount of the charge 
 raised out of capital. See also 
 Hancock v. Gillard, 1907, 1 K. B. 
 47 ; Smith V. Lion Brewery Co. 
 Ltd., 1!^09, 2K. B. 912. 
 
 [m) See below, Chap. XVITI. 
 §1. 
 
 {n) Grim.sdick v. Sweetman, 
 1909, 2 K. B. 740.
 
 OF PARTICULAR TITLES. 491 
 
 ?} 12. — L«))d mbjcd to Redrictive Covenants. 
 As we have seen (o) , the fact that au y laud purchased Land ^subject 
 
 to restricth 
 covenants. 
 
 is subject to restrictive covenants is such a defect of 
 
 I 
 
 title as justifies the purchaser in refusing to perform the 
 contract ; unless the vendor should have expressly stipu- 
 lated that the purchaser shall make no objection to the 
 title on that account. And <t fortiori, any statutory Statutory 
 restriction on the use of land furnishes a like objection ^''^ ^'^ '^^"' 
 to the title {p). A vendor of land subject to such cove- 
 nants or restriction must, of course, be careful to make a 
 special condition of sale to the above effect. It is now 
 settled, with regard to covenants relating to land and 
 entered into by a tenant in fee with a former owner, fi'om 
 whom he purchast-d, or with an adjoining landowner (7), 
 that in so far as such covenants bind the covenantor to 
 some forbearance restrictive of the free use of his land (>•), 
 and were made with the object of benefiting the owners 
 and occupiers of some other land retained by the former 
 owner or belonging to the adjoining landowner, as the 
 case may be {s), the burthen thereof runs with the 
 land in equity, though not at law ; that is to say, the 
 restrictions are enforceable in equity by action for an 
 injunction against all persons who acquire the land 
 from the covenantor, either by act of law or assign- 
 ment {t)^ except only (as in the case of other equities) 
 
 (0) Above, pp. 107, 195—197. to submit plans before com- 
 
 { p) Bird V. EggktoH, 29 Ch. D. mencing- any building implied au 
 
 1012; lie Punsjurd and Xcwport obligation not to build without 
 
 School Board, 1894, 1 Ch. 454; first submitting plans, ^estric- 
 
 Re BosworthandGravcsiud Corpu., tive covenants are however cun- 
 
 1905, 1 K. B. 403, -1 K. B. 426. strued strictly, and not so Jis to 
 
 [q) The law is the same where create a wider obligation than is 
 
 the adjoining landowner is the imported by the words actually 
 
 covenantor's lessee ; BrUjg v. used ; Brig(i v. Ttiornton, 1904, 
 
 Thornton, 1904, 1 Ch. 386 ; 1 Ch. 386. " 
 
 liicketts v. Eiifeld Churchwardens, (») See Formby v. Barlcer, 1903, 
 
 1909, 1 Ch. 544. 2 Ch. 539 ; lieid v. Bickrrstaff, 
 
 (r) Secl'otrenv.iremsle!/, 1909, 1909, 2 Ch. 305, 320, 325—328. 
 1 Ch. 680, 2 Ch. 252, where it (t) Tu!k v. Moihay, 2 Ph. 774 ; 
 
 was considered that a covenant Renals v. Coiclishaic, 9 Ch. D.
 
 *92 
 
 OF PARTICULAR TITLES. 
 
 Formby v. 
 Barker. 
 
 such assigns as have acquired the legal estate in the 
 land as purchasers for value in good faith, without 
 notice of the covenant {h). But the burthen of cove- 
 nants by a tenant in fee to do some positive act upon 
 or relating to his land, as to repair a road or build a 
 house or a wall, does not run with the land either at 
 law or in equity. And where a landowner enters into 
 restrictive covenants with some person, but not with 
 the object of benefiting the owners and occupiers of 
 some other land belonging to the covenantee, as where 
 a vendor sells all his land in some particular place, 
 retaining no adjoining or neighbouring land, and the 
 purchaser enters into covenants restrictive of the use 
 
 125, 11 Ch. D. 866; Austerberry 
 V. Oldham, 29 Ch. D. 750 ; S2nc('r 
 V. Martin, 14 App. Cas. 12 ; Mac- 
 kenzie V. ChiJders, 43 Ch. D. 265 ; 
 Rogers v. Hosegood, 1900, 2 Ch. 
 388. In Re Ni.sbet and Fotts' Con- 
 tract, 1905, 1 Ch. 391, 1906", 
 1 Ch. 386. it was held that the 
 burthen of restrictive ooveiiants 
 is incumbent on a person, who 
 has wrongfully ejected the cove- 
 nantor or his successor in estate 
 bound by the covenants. This 
 decision is however inconsistent 
 with the rule laid down in Finch\'< 
 Case, 4 Inst. 85 (which was not 
 cited to the Court), that a dis- 
 seisor is not bound by a ti'ust 
 incumbent on the disseisee ; and 
 it is respectfully submitted that 
 the case of Re Nisbet and Potts was 
 decided on erroneous principles ; 
 see the writer's criticism in 51 
 Sol. J. 141, 155 ; Wms. Real 
 Prop. 181—183, 21st ed. 
 
 [n) Carter v. Williamx, L. R. 9 
 Eq. 678 ; London 4" South Tf'ei>(ern 
 Rail. Co. V. Gomm, 20 Ch. D. 
 562. 583 : Notthuiham, l^-c. Co. v. 
 Bntler, 16 Q. B. D. 778, 787, 788 ; 
 Rouell V. Satchell, 1903, 2 Ch. 
 212,221. Notice may, of course, 
 be either actual or constructive : 
 Wilson V. Hart, L. R. 1 Ch. 463 ; 
 Pat man v. Harland, 17 Ch. D. 
 353 ; above, pp. 246 sq. Where 
 
 land subject to the burthen of 
 restrictive covenants is taken 
 under the Lands Clauses Act, 
 1845 (stat. 8 & 9 Vict. c. 18), and 
 the parties entitled to the benefit 
 uf the covenants receive compen- 
 sation, the burthen is extin- 
 guished. If however such parties 
 be not compensated, the burthen 
 of the covenants continues to 
 affect the land ; although, so long 
 as the land is used in accordance 
 with the statutory powers, under 
 which it was taken, the rights 
 given b) those powers are para- 
 mount to the obligation of the 
 covenants • Kirby v. Harrogate 
 School Board, 1896, 1 Ch. 437; 
 Lony Eaton, i^r. Co. v. Midland 
 Ry., 1902, 2 K. B. 574. But if 
 the land be sold or disposed of as 
 superfluous, the burthen (if not 
 extinguished by payment of com- 
 pensation) will revive ; Ellis v. 
 Royers, 29 Ch. D. 661 ; Bird v. 
 Eyy/eton. ih. 1012. With respect 
 to the powers of a corporation, 
 which has been authorised by 
 statute to acquire land for some 
 special purpose, to enter into 
 covenants restrictive of its use, 
 see Re South Eastern Ry. Co. and 
 Wijfin's Contract, 1907, 2 Ch. 366 ; 
 Stourcliffe Estates Co. Ltd. v. 
 Bournemouth Corpn., 1910, 2 Ch. 
 12; below. Chap. XVI. 
 
 I
 
 OF PAKTICULAR TITLES. 493 
 
 thereof with the vendor, the burthen of the covenants 
 does not run in equity with the covenantor's land, and 
 the covenantee cannot enforce them by action for an 
 injunction against the covenantor's assigns, whether 
 they had notice of the covenants or not ; for the burthen 
 imposed in equity by restrictive covenants is analogous 
 to the burthen of an easement, which cannot exist in the 
 absence of a dominant tenement (.r). In such cases the 
 covenantors and their representatives in law are liable 
 personally upon such covenants ; but their assigns of 
 the laud, as such, do not come under any liability in 
 respect thereof (//). It is therefore no objection to the 
 title to land that the owner or his predecessor seised 
 thereof in fee has entered into some covenant relating 
 thereto, either of a positive and not of a restrictive 
 natui'e, or of a restrictive nature but not made with the 
 object of benefiting some other land. With respect to How restric- 
 stipulations restrictive of the use of land, they may be x,se^of°land^ 
 attached to land as a burthen thereon in equity, not ^'W be 
 only by express covenant, but also by an express or 
 implied contract entered into, without deed, by the 
 tenant in fee simple of the land (z). Thus, where 
 lands nre laid out and sold in plots as a building estate, 
 and b}^ the conditions of sale the purchasers are required 
 for their mutual benefit to observe stipulations restric- 
 tive of the use of the ])lots purchased, the burthen of 
 
 (x) Form/);/ v. Barker, 1903, than he has assumed by the 
 
 2 Ch. 530. terms of the covenant, and he is 
 
 (y) Haywood v. Brunswick, <Sic. not so liable for breaches of cove- 
 
 Society, 8 Q. B. D. 403 ; Auster- nant committed by his assigns 
 
 berry v. Ohlham, 29 Ch. D. Ihi) : without his assent. "unless lie has 
 
 Hol/ord V. Actou, 4r., 1898. 2 expre>sly undertaken such lia- 
 
 Ch. 240 , Formhy v. Barker, ubi bility : see linily v. I)e (Jrftipiqntf, 
 
 sup. The personal liability to L. R. 4 Q. B. 180, 186, ist ; 
 
 damages at law for breach of a Jfull v. J-.'aen, 37 Ch. D. 74, 82 ; 
 
 restrictive covenant exists e(Hially J'oicel/ v. Jfems/ri/, 1909, 1 Ch. 
 
 where the covenant was expressly 680, 688, 689, 2 Ch. 2.52, 256 — 
 
 made for the benefit of some jiar- 258. 
 
 ticular land: but the covenantor (i) Ta/k y. Morfxri/, 2 Ph. 774, 
 
 is under no greater liability at 778 ; Carter v. fFi//i<imx, L. R. 9 
 
 law for the acts of bis assies Eq. 678.
 
 ■494 OF PARTICULAR TITLES. 
 
 these stipulations will be attached ia equity to the 
 purchased lands, although the purchasers should not 
 enter into any deed of covenant to observe the same. 
 And if in such case it appear from the conditions or the 
 circumstances attending the sale that the intention is 
 that the purchasers shall have the benefit of the 
 restrictive stipulations as regards all the lands offered 
 for sale, the burthen of these stipulations will attach to 
 any of the lands which may remain unsold, and will be 
 enforceable accordingl}' against the vendor, his repre- 
 sentatives in law and assigns taking with notice 
 thereof (a). And not onlj' may lands be subjected to 
 the burthen of restrictive stipulations by contract implied 
 on the part of the tenant in fee from the terms on 
 which he has offered the same, together with adjoining 
 lands, for sale and has sold the adjoining lands to 
 purchasers, but if a block of lands or houses be offered 
 to be let on lease on the terms that all the tenants 
 sliall enter into the same restrictive covenants, so that 
 each tenant is offered the advantage to be gained from 
 the other tenants' covenants, any of the lands or houses 
 remaining unlet will be subject, in the hands of the 
 lessor, his representatives in law and assigns with 
 notice, to the burthen of the restrictive stipulations [b). 
 And in such cases it appears that the agreement giving 
 rise to an equitable right to enforce the restrictions may 
 be established by parol evidence, notwithstanding the 
 Statute of Frauds (r), imder the doctrine of part per- 
 formance (d). It follows that anyone who is about to 
 
 («) See Menals v. Coulinhaw, v. Bickerstaf, 1909, 2 Ch. 30;") ; 
 
 9 Ch. D. 125, 11 Ch. D. S66 ; ini/v v. St. John, IQIO, 1 Ch. 84, 
 
 Spicer v. Martin, 14 App. Cas. 325. 
 
 12 ; Machcnzie v. Childtrs, 4 3 {b) Spicer v. Jfariin, 14 App. 
 
 Ch. D. 265 ; Me Biniiinyham. ^-c, Cas.' 12. 
 
 Co. and AUday, 1893, 1 Ch. 342 ; [c) Stat. 29 Car. II. c. 3, s. 4 ; 
 
 Holford V. Acton, <S;c., 18.)S, 2 Ch. above, p. 3. 
 
 240. 246 ; Ituwell v. Satchell, 1903, [d) Above, pp. 12, 13; PlgijottY. 
 
 2 Ch. 212: Elliatou v. Rmchcr, Stratton, 1 De G. F. & J. 33, 49 ; 
 
 1908, 2 Ch. 374, 665; cf. Tucker aud see Lord Macnaghten'sjudjir- 
 
 V. rallies, 1893, 1 Ch. 195; lidd ment in Spicer v. Martin, H Ap^.
 
 OF PARTICULAR TITLES. 495 
 
 sell or let lands in lots, subject to restrictive covenants 
 to be entered into by the various purchasers or lessees, 
 should be careful, unless he is willing that the unsold 
 or unlet land shall be affected with the same burthen, 
 to stipulate expressly that, as regards any of the lots 
 which shall not be sold or let, he shall not stand in the 
 place of a purchaser or lessee thereof so as to be bound 
 by the eoveuauts [c). If land subject to any stipulation 
 restrictive of the user thereof come to the hands of any- 
 one who takes the legal estate as purchaser for value in 
 good faith without notice of the restriction, he is, as we 
 have seen (./'), entitled to hold the land free from the 
 restriction, and any purchaser from him will enjoy the 
 same immunity, even though such pui'chaser bought 
 with notice of the restriction. But if a man's title to 
 hold land free from some such restriction depend on 
 proof of the fact that he so purchased the same without 
 notice as above mentioned, he will not be able to oblige 
 a purchaser from him under an open contract to specific 
 performance of the agreement for sale (r/) ; for the 
 Court considers that a litle depending on proof of such 
 a fact is too doubtful to force upon an unwilling pur- 
 chaser (//). In such a cise, theiefore, the vendor must be 
 careful to protect himself by a special condition of sale. 
 
 Cas. 12, 20 — 25, where he con- had bought and subsequently let 
 
 sidered that though the appellant the lands iu question, 
 
 might not have incurred any con- (c) See 1 Davids^on, Prcc. Conv. 
 
 tractual liability on the construe- 712, 4th ed.; o7G, 5th ed.; David- 
 
 tion of the correspondence between sou's Concise Precedents, 123, 
 
 the parties aud had not made any 124, 18th ed. ; Osborne v. liradhij, 
 
 false representation which he was 1903,2 Ch. 446; JJ'/iifrhoiise v. 
 
 estopped from disputiutr, as to au Hu(//i, 1906, 2 Ch. 283, where 
 
 existing fact, he had nev(>rtheless power was reserved on a sale of 
 
 " invited the public to come iu allowing a variation of the plans 
 
 and take a portion of an estate aud conditions ; and of. Ellistoti 
 
 which was bound by one general v. R>mliet\ 1908, 2 Ch. 374, 66.5. 
 
 law." This invitation or offer. (/} Above, p. 491. 
 
 however, could only be established (g) Xo(fin(//iam, ^r. Co. v. liiitln; 
 
 by admitting evidence, outside the 16 Q. B. D. 77S. 
 
 written memorandum of the con- [h) F,rrr v. Jfrxsr, 4 De G. M. 
 
 tract for letting, of the circum- & C 495 ; lie Haiulmiin and JFi/- 
 
 stances uuder which the appellant cox's Contract, 1902, 1 Ch. 599.
 
 496 OF PARTICULAR TITLES. 
 
 Devolution of With respect to the devolution of tlie benefit of a 
 the^beiiefit of covenant or contract restrictive of the use of the land 
 
 restrictive 
 
 covenants. and entered into by a tenant in fee with a vendor or an 
 adjoining landowner, the question to be considered is 
 whether the parties to the contra(;t intended that the 
 benefit thereof should eniu-e to the person originally 
 entitled to enforce the obligation in his capacity of 
 owner of some neighbouring land and should be 
 annexed to the ownership of that land (i). If this be 
 the case the benefit of the contract will pass, without 
 express mention, by a conveyance of that land, in the 
 same manner as an easement appurtenant thereto will 
 pass therewith at law (/.) ; and any assign, whether in fee 
 or for any less estate (/), of the neighbouring land will be 
 entitled in equity to enforce the restrictions [m). And 
 for this purpose it is not necessary that the assign 
 should he it/ of the same estate as the original con- 
 tractor had {n). If the restrictions be created by 
 covenant, it appears that the benefit of the covenant 
 will run at law with the land, for the advantage of 
 which the restrictions were imposed ; but that an 
 assignee of the land could not sue on the covenant at 
 law unless he took the original covenantor's estate 
 therein (o) . On the other hand, an assign of the person, 
 in whose favour the covenant or contract was made, will 
 have no right to enforce the restrictions if he cannot 
 prove either (I) that he is an express assignee of the 
 benefit of the covenant, or (2) that the covenant was 
 
 (i) See FMstov v. Reacher, (/) Taifr \. Gosling, 11 Ch. D. 
 
 1908, 2 Ch. 374, 384, f.G5 ; Reid 273. 
 
 V. Bickerstaff, 1909, 2 Ch. 305, [m) Wlialma)i v. Gibsoti, 9 Sim. 
 
 319, 320 .S(?."; Willi v. .S7. John, 196: Mnnn v. Stephcnx, 15 Sim. 
 
 1910, 1 Ch. 84, 325; and other 377; Coles v. Sims, 5 De G. M. 
 
 cases cited above, pp. 491, nn. & G. 1 ; and cases citt'd in the 
 
 («), {t), 494, B. (ff). two preceding notes. 
 
 (^-) Child V. JJovff las; Kay, F)60, («) See note (A-), above. 
 
 568; Rogers v. Hoser/ood, 1900, 2 (o) Rogers v. Hosegood, 1900, 2 
 
 Ch. 388; EUiston v.' Rccchcr, ubi Ch. 388, 404, 
 sup.
 
 OF PARTICULAR TITLES. 
 
 made for tlie benefit of some particular land, to which 
 the benefit of the covenant was thus annexed and of 
 which he is the assign, or (3) that there was a building 
 or similar scheme annexing restrictions on certain pieces 
 of land for the benefit of all purchasers or lessees 
 thereof (/?), and he derives title to one of those pieces 
 of land as or through such a purchaser or lessee {q) . 
 When the benefit of such a covenant or contract 
 has passed to an assign of the land, for the advan- 
 tage of which the restriction was created, the burthen 
 of the contract cannot, of course, be effectually 
 released by any act or any deed of the person 
 originally entitled to enforce the agreement (y). If a 
 landowner entitled to the benefit of a contract re- 
 stricting the use of adjoining land make or permit 
 such use of his own land that it would be unreasonable 
 for him to insist any longer on the observance of the 
 restrictions with respect to the adjoining land, he will 
 lose his equitable right to enforce such restrictions 
 specifically by action for an injunction (s). Such a 
 landoAvner may also lose this equitable right by 
 acquiescence in breach of the restrictions or delay in 
 asserting the right {t). These facts mil not, however, 
 deprive him of any riglit he may have to enforce the 
 contract at law, although the}' may be taken into con- 
 
 {]}) See above, pp. 493, 494. any particular property) appears 
 
 (7) EUisto)! V. Jieachev, 1908, to bo taken away by the dcciaion 
 
 2 Ch. 374, 384, 665 ; Iteid v. in Foritibi/ v. Barker, above, 
 
 liickn-Htntf, 1909, 2 Ch. 305, 319, p. 492 ; ElUston v. Reachcr, 1908, 
 
 320 sq. : JFiHc v. St. John, 1910, 2 Ch. 374, 393, 665. 
 
 1 Ch. 84, 325. (<) Roper v. Williams, T. & R. 
 [r) Rogcm v. Hosegood, 1900, 1 8 ; Pcr^ v. J/^ffW/jcM-s, L. R. 3 Eq. 
 
 2 Ch. 388. 515 ; Gaskin v. Balls, 13 Ch. D. 
 (.«) Brrtfordv. Trustees of British 324 ; Sayers v. Colhjcr, 28 Ch. D. 
 
 Mmmm, 2 My. & K. 552. See 103 ; see German v. Chapman, 7 
 
 Osborne v. Bradley, 1903, 2 Ch. Ch. D. 271 : Knight \. Simmonds, 
 
 446, but note that the ground un 1896, 2Ch.294; Rouellv.Satchell 
 
 which that decision is founded 1903, 2 Ch. 212 ; Osborne v! 
 
 (viz., that the restriction was Bradley, \Wi, 2 Ch. \A&\ Elliston 
 
 created for the benefit of the v. Reacher, 1908, 2 Ch. 374, 392, 
 
 vendor, but not as the owner of 665. 
 
 w. 32 
 
 497
 
 498 
 
 OF PARTICULAR TITLES. 
 
 Title to 
 benefit of 
 restrictive 
 covenant. 
 
 sideration in assessing the amount of damages recover- 
 able (ii). But after long acquiescence by the covenantee 
 in a breach of the covenant, a waiver of the covenant 
 will be presumed {x). If land be sold together with 
 the benefit of any covenant or contract restricting the 
 use of any adjoining land, the vendor must, of course, 
 prove his title to this advantage, as in the case of his 
 selling any easement or other legal right exercisable 
 over any land of which he is not the owner. And if a 
 man sell land together with the advantage of some 
 restriction to be newly created as to the use of other land 
 of his own, he must show a good title to the latter 
 piece of land as well as the former (p). 
 
 Investigation 
 of title in 
 view of 
 mortgage. 
 
 § 13. — Investigation of Title in View of a Mortgage. 
 
 A few words may be added on the investigation of 
 title in view of taking a mortgage of land. When it is 
 proposed to obtain a loan of money on the security of a 
 mortgage of land, the title is usually investigated even 
 more strictly than on a sale (z) : but the parties stand 
 in a very different position from that of a vendor and 
 purchaser. In the first place, it is not usual for persons 
 proposing to lend money on a mortgage of lands to bind 
 themselves by contract to make the loan («). They are, 
 therefore, generally in a position to exact any evidence 
 of title which they may choose to demand, as they can 
 at any time decline to proceed with the transaction, if 
 the title produced is in any respect insufiicient. They 
 should, however, before commencing the investigation 
 of the title to the lands proposed to be mortgaged or 
 incurring any other trouble or expense in the matter, be 
 careful to stipulate expressly that the mortgagor shall 
 
 (ii) See Bedford v. Trustees of 
 British Museum, 2 My. & K. 552 ; 
 Sayers v. Colkjcr, 28 Ch. D. 103. 
 
 {x) Hepworth v. Pickles, 1900, 
 1 Ch. 108. 
 
 (y) Above, p. 434, and n. (/). 
 
 (s) Wms. Real Prop. 449, 13th 
 ed. ; 596, 2l8t ed. 
 
 (rt) Davidson, Prec. Conv. vol. ii. 
 pt. i. p. 104, n. {a), 4th ed. 
 
 i
 
 OF PARTICULAR TITLES. 
 
 pay all their costs and expenses of and incident to the 
 transaction proposed in any event, whether they choose 
 to make the loan or not. For although the regular 
 course of practice, where a mortgage is completed, is for 
 all costs incurred by the mortgagee in investigating the 
 title, valuing the land, and otherwise preparing for the 
 loan, to be paid by the mortgagor (^), yet where the 
 parties are not bound to each other by any contract, 
 there is no obligation on the mortgagor to discharge 
 such costs, if the loan be not made (c). Unless, there- 
 fore, an intending mortgagee make the above-mentioned 
 express stipulation, he runs the risk of being out of 
 pocket by the transaction, if he should be obliged to 
 decline the loan on account of some defect in the title. 
 If an agreement should be made that one shall lend and 
 another borrow money on mortgage of some particular 
 land, it is not an implied term of the contract tliat the 
 borrower shall prove his title to the land for the last sixty 
 or forty years, or any other particular period ; as the trans- 
 action of borrowing implies that securities of every degree 
 of safety may be made available, any risk run with regard 
 to the title being compensated by the terms agreed upon 
 as to the rate of interest to be paid or otherwise (d). It 
 is not, therefore, a breach of such a contract for the 
 borrower to fail to show a good marketable title to the 
 land : although the contract would appear to be broken 
 if the borrower should fail to produce any property of 
 his corresponding with that described in the contract. 
 
 (Ii) If the loan be made without where the Court sanctioued a 
 
 such costs beinjr paid, they cannot mortgage of an infant's estate, 
 
 be added as mortgagee's (losts to and the matter went off without 
 
 the security : but they arc re- the proposed mortgagee's default, 
 
 coverablc by the mortgagee from he was allowed his costs of in- 
 
 the mortgagor personally under vestigatlng the title out of the 
 
 an implied contract of indemnit}' : infant's estate : Craggs v. Oray, 
 
 ir,tltx V. Can; 1902, 1 Ch. 8G0. 35 Beav. 166. 
 
 (r) Rlglnj v. Dagkln, 2 Y. & J. (rf) Melbourne v. Cottrell, ubi 
 
 83; IFilkimoti v. Grant, 18 C. B. sup. ; and see National Provincial 
 
 Z\'d\ Melbouriic\. Cottrell, aW.'R. Bank of England v. Games, 31 
 
 884, 29 L. T. 0. S. 293. But Ch. D. 582. 
 
 32 (2) 
 
 499
 
 500 
 
 OF PARTICULAR TITLES. 
 
 The Court will not, however, specifically enforce a con- 
 tract to lend money on mortgage of some particular 
 property at suit of either the borrower or the lender (c) ; 
 unless the money should have been first actually advanced 
 by the lender on the borrower's promise to give the 
 particular security (,/') : but the person aggrieved by a 
 breach of such a contract may recover damages pro- 
 portionate to the loss he has sustained {g) . It follows 
 that, if an intending mortgagee of land should contem- 
 plate entering into a contract to make the loan, he 
 should expressly stipulate that the borrower shall first 
 show a good marketable title to the land to the satisfac- 
 tion of the lender's counsel, that the lender shall be at 
 liberty to rescind the contract if his counsel shall not 
 accept the title, and that the borrower shall pay all the 
 lender's costs (h) and expenses of and incident to the 
 transaction in any event, whether the loan be made or 
 not. If it be intended that the lender shall recover any 
 compensation beyond expenses out of pocket in the event 
 of the loan not being made, such as interest for his 
 money whilst lying idle, this must be the subject of 
 express stipulation (?'). 
 
 What title In advising on title on behalf of an intending mort- 
 
 required on g^gee, it must be remembered that the object of the 
 
 behalf of a transaction proposed is very different from that of a 
 
 morts:a2:ee. ^ ^ "^ 
 
 (e) Rogers t. Challis, 27 Beav. 
 175 ; Sichel v. Mosenthal, 30 Beav. 
 371 ; South African Territories, 
 Ltd. V. Wallington, 1897, 1 Q. B. 
 692, 1898, A. C. 309. 
 
 (/) Ashton V. Oorrigan, L. R. 
 13 Eq. 76 ; Hermann v. Hodges, 
 L. R. 16 Eq. 18 ; Taglor v. Eck- 
 ersley, 2 Ch. D. 302. 
 
 [g) See Western Wagon, ^-c. Co. 
 V. West, 1892, 1 Ch. 271, 277 ; 
 South African Territories, Ltd. v. 
 Wallington, ubi sup. Wliere the 
 borrower under such a contract 
 breaks off the transaction without 
 
 reason, the lender can recover his 
 solicitor's costs as damages: Car- 
 ter V. Merrion, 32 L. T. N. S. 
 663. 
 
 (/*) Where an intending bor- 
 rower agreed to pay the lender's 
 reasonable costs in case the loan 
 went off, it was held that this 
 did not include the commission 
 charged by the lender's bankers 
 for withdrawing his money from 
 deposit : He Blakesley and Ber- 
 wick, 32 Beav. 379. 
 
 (j) Sweetland v. Smith, 3 Tyrw, 
 491.
 
 OF PARTICULAR TITLES. 501 
 
 sale. Purcliasers generally buy land with the view of 
 occupying or enjoying it ; they seldom buy it for 
 immediate re-sale. But the object of a mortgagee is 
 simply to obtain good security for the repayment of 
 his money, whenever he may desire to call it in. And, 
 assuming that the valuation of the land is satisfactory, 
 what conduces most to this end is that he should be 
 able at any time to exercise effectually his best and 
 most convenient remedy, which is his power of sale. 
 While purchasers, therefore, so long as they can obtain 
 a good holding title, are often willing to waive defects 
 of title which will be cm-ed by lapse of time or may be 
 covered by special conditions on a re-sale, a mortgagee 
 will always desii'e to get a good marketable title ; for 
 he contemplates the possibility of having recourse to a 
 forced sale, when special conditions, in spite of the 
 avidity with which they are usually swallowed at the 
 auction mart, may be depreciatory. The conveyancer 
 advising an intending mortgagee should therefore see 
 that his client Avill obtain a good marketable title, that Good market- 
 is, a title under which the property can be put up for 
 sale without any special conditions restricting the pur- 
 chaser's rights, or which an unwilling purchaser under 
 an open contract would be obliged to accept (k). As 
 we have seen (/), an intending mortgagee is not usually 
 bound, as a purchaser very commonly is, by any con- 
 tract requiring him to accept less than a good market- 
 able title. If it should be proposed that an intending 
 mortgagee should accept a title less than this, the 
 question, whether lie may reasonably concede what is 
 asked, should be determined by considering whether the 
 suggested concession will practically hamper the exer- 
 cise of his power of sale. And as a mortgagee on com- 
 pletion gets only a parchment security, and does not, 
 
 (^•) Pi/rke V. Waddingham, 10 Hare, 1, 8. 
 [l) Above, p. 498.
 
 502 
 
 OF PARTICULAR TITLES. 
 
 like a vendor, enter into possession of the land, there is 
 the more reason for seeing that the evidence of the 
 mortgagor's title is in every respect complete. The 
 title deeds especially should be examined with most 
 particular care (m) ; for frauds and forgeries have been 
 far more frequently effected in connection with the 
 mortgage of land, where there is no transfer of the 
 actual possession, than upon sale. As regards the 
 evidence both of any facts material to the title and the 
 identity of the premises, a mortgagee will, as a rule, 
 require strict proof according to conveyancing prac- 
 tice (n) . We have seen (o) that purchasers, who have to 
 pay out of their own pockets the expense of procuring 
 evidence not in the vendor's possession, often content 
 themselves with informal evidence, or sometimes waive 
 proof of such matters, especially where the vendor and 
 his predecessors have long been known as the o^vners of 
 the land. But an intending mortgagee cannot safely 
 dispense with good evidence in these respects. With 
 these differences, the investigation of title in view of a 
 mortgage of land is carried out in like manner as 
 upon a sale. 
 
 Transfer of 
 mortgage. 
 
 Investigation of title prior to taking a transfer of a 
 mortgage is, of course, governed by the same con- 
 siderations as arise on a proposal for a new mortgage. 
 On the transfer of a mortgage, made without the 
 privity of the mortgagor, the transferee takes subject to 
 the state of account then existing between the mort- 
 gagor and the mortgagee (p). And if the transferee 
 omit to give to the mortgagor notice of the transfer, he 
 will not be entitled to hold his legal estate in the 
 mortgaged property as security for any sums of money 
 
 (m) See above, pp. 143, 144. 
 (m) Above, pp. 131 sq., 143. 
 (o) Above, p. 142. 
 (p) Matthews v. TVaUwyn, 4 
 
 Ves. 118; cf. Biekertony. Walker, 
 31 Ch. D. 1.51 ; Bateman v. Hunt, 
 1904, 2 K. B. 530.
 
 OF PARTICULAR TITLES. 503 
 
 paid since the transfer by the mortgagor to the original 
 mortgagee on account either of interest or principal (q) . 
 A transfer of a mortgage cannot therefore he safely 
 taken from the mortgagee alone wdthout first inquiring 
 of the mortgagor as to the state of the mortgage debt 
 and the interest thereon and obtaining a favourable 
 reply, and giving notice of the transfer to the mort- 
 gagor. In practice the mortgagor is always made a 
 party to a transfer of the mortgage whenever his con- 
 currence can be procured (r). 
 
 (q) Williams v. Sorrell, 4 Ves. 213 ; see Dixon v. Winch, 1900, 
 
 389 ; Re Lord Southamjyton'' s Us- 1 Ch. 736. 
 
 tate, 16 Ch. D. 178, 185, 187; {>■) See Davidson, Free. Conv., 
 
 Turner v. Siiiith, 1901, 1 Ch. vol. ii. part ii. p. 264, 4th ed.
 
 504 
 
 CHAPTER XI. 
 
 OF THE EFFECT OF THE CONTRACT PENDING 
 COMPLETION. 
 
 § 1. Of the Eights and Liabilities of the Parties 
 
 pending Completion in respect of the 
 
 Property sold. 
 § 2. Of the Transfer pending Completion of 
 
 the Rights and Liabilities under the 
 
 Contract. 
 
 § 1. — Of the Rights and Liabilities of the Parties jjending 
 Completion in res^ycct of the Projierty sold. 
 
 The effect of the contract upon the position of the 
 parties has already been shortly stated {a). Unlike the 
 case of goods, the legal estate in land can never pass 
 by the contract itself ; a conveyance distinct from the 
 contract is always requii-ed {h). But there is a con- 
 siderable likeness between the effect of the unconditional 
 sale of a particular chattel at law and the effect in 
 equity of the sale of lands. For in equity, subject to 
 the vendor's duty of showing a good title, to his lien 
 for the price, and to his right to the rents and profits 
 up to the proper time for completion, the whole estate 
 contracted for in the lands sold is considered as belong- 
 ing to the purchaser as from the date of the contract for 
 sale (c). As from that date, therefore, the vendor is 
 
 («) Above, pp. 49, 50. U) Above, pp. 49, and n. (/*), 
 
 ib) Wms. Pers. Prop. 65, 72, 50. 
 KJth ed. 
 
 !
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 505 
 
 bound to use the same care in preserving or managing 
 the property sold as a trustee must use with regard to 
 the property subject to his trust id). As from that 
 date the property stands at the purchaser's risk as 
 regards all losses caused without the vendor's fault, as 
 through tempest, flood, fii'e, or fall in prices {e) ; and 
 the purchaser takes the benefit of all improvements 
 casually happening thereto, such as tlie death of the 
 tenant for life on the purchase of the reversion (./'). 
 And as from that date in equity the lands sold are the 
 purchaser's lands, and, if freehold or copyhold, are the 
 purchaser's real estate {g), and are in the vendor's hands 
 converted into personalty {h) . But this passing of the 
 equitable estate in the lands sold to the purchaser is 
 subject to the condition that the contract be such as can 
 be specifically enforced in equity ; and if this condition 
 fail, as by the want of a good title on the vendor's part, 
 the lands remain the vendor's property in equity as 
 well as at law [i). It is, of course, by reason of the 
 doctrine that, as regards the consequences of any act 
 contemplated by a binding agreement, equity regai'ds 
 what ought to be done as actually accomplished (/.) , that 
 in the interval between contract and conveyance the 
 
 {(l) Above, p. 50 and n. [k). 518, 526— 529 ; Potter v. rotter, 1 
 
 {e) Foolcv. tiheryold,\Cox,'l~r6\ Ves. sen. 437; Vupcl v. Girdler, 
 
 Paine V. Jlel/er, 6 Ves. 349. 352 ; 9 Ves. 509, 510 ; Mamton v. Roe d. 
 
 Harford v. Furrier, 1 Madd. 532, Fox, 8 A. & E. 14, 63 ; Sug. V. & 
 
 539 ; Itobertson v. Skelton, 12 P. 175, 183 xq. ; lie Kenxoifftoii, 
 
 Beav. 260; Sug. V. A: P. 291 ; 1902, 1 Ch. 203 ; Fe Tai/lor, 1910, 
 
 RatjHer V. Frestoii, 18 Ch. D. 1 ; 1 K. B. 562, 671, 572, 580. 
 
 Castellain v. Frcnton, 11 Q. B. D. ,is j y~f .. • 
 
 ogQ [n) A. -It. v. lirunmiKj, 8 
 
 (/) White V. Nnttx, 1 P. W. ^' ^' ^- '■^^=^' 2^^' -^'^■ 
 
 61, Gl; Kr parte MaHni>7>/,2F.'W. (') £>oo>nc v. Monek, 10 "Ves. 
 
 410; Sug. V. & P. 291, 292; ^97; Sug. V. & P. 191, 193; 
 
 Dart, V. & P. 248, n. (w), 649, Lyswjht v. Edtcards, 2 Ch. D. 
 
 5th ed. ; 286, n. («), 732, 6th ed. ; 4^9, 506—508 ; Fe T/ioma,s, 34 
 
 672 7th ed. ^'h- D. 166 ; Ridout v. Fowler, 
 
 (^) Thus,' the lauds sold will 1904, 1 Ch. 658, 2 Ch. 93; see 
 
 pass under a devise of all the above, pp. 456, 458. 
 
 purchaser's lands or real estate : {k) Re Canj - Fltces' Contract, 
 
 Grecnhill v. Gretiihill, Prec. Ch. 1906, 2 Ch. 143, 149; Wma. 
 
 320; Atcherlcyy. Vertion, 10 Mod. Real Prop. 187, 2l8t ed.
 
 '^OQ EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 property belongs in equity to the purchaser, for whom 
 the vendor is constructively a trustee. This trusteeship 
 is not absolute, for the vendor has a personal and sub- 
 stantial interest in the property, which he is entitled to 
 protect (/). As a trustee for the piu-chaser, the vendor 
 is bound, as we have seen, to take proper care of the 
 property. His beneficial interest in the land sold con- 
 sists, first, in his lien thereon for the price, involving 
 the right to hold possession of the land until the whole 
 purchase money be paid {m) ; and secondly, in the right 
 to take for his own use the rents and profits up to the 
 proper time for completion, that is, the time fixed by 
 the contract for completion or, under an open contract, 
 the time when a good title shall have been shown (;?). 
 And the vendor lies under the obligation, correlative to 
 the latter benefit, of discharging all outgoings due in 
 respect of the property sold up to the same time (o). 
 We will first consider the rights of the purchaser, and 
 the vendor's consequent liability to him, and will then 
 examine the vendor's rights. 
 
 We have seen (p) that from the date of the contract 
 the purchaser is in equity the owner of the property 
 sold, though not absolutely, but subject to the condition 
 that the contract be specifically enforceable. The lands 
 sold are in equity his lands ; he can sell, charge or 
 devise them ; if of inheritance, they are his real estate 
 descendible to his heir, and are applicable as such for 
 payment of his debts {q) . He therefore bears all 
 
 (/) Shaw V. Foster, L. E.. 5 continues after he has let the 
 
 H. L. 321, 338 ; Lysaght v. Ed- purchaser into possession or exe- 
 
 tvards, 2 Ch. D. 499, 606 ; Mayncr cuted a conveyance to him, without 
 
 V. Preston, 18 Ch. D. 1, 6; lie recei\-ing payment of the whole or 
 
 Stuclei/, 1906, 1 Ch. 67, 78. part of the price; see below, 
 
 {m) Acland v. Gaisford, 2 Chap. XVIII. § 1. 
 
 Madd. 28, 32 ; Phillips v. Sil- (w) Above, pp. 26, 46, 50. 
 
 vaster, L. R. 8 Ch. 173, 176—178. (o) Above, p. 50. 
 
 It should be noted that the {p) Above, p. 605, and notes 
 
 vendor's equitable hen on the land (e), (/), {g). 
 
 sold for unpaid purchase money {q) Paine v. Meller, 6 Ves. 349,
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. -^07 
 
 losses and takes the advantage of all additions or im- 
 provements which casually happen or are made to the 
 property after that date. Thus, if after the signing of 
 the contract, but before its completion, a house or any 
 other building erected on the land sold be accidentally 
 destroyed by fire, the purchaser remains none the less 
 liable to perform the contract without any abatement of 
 the price, and this liability may be enforced, not only 
 at law but by a decree for specific performance in 
 equity (>•). The same rule is applicable if the lands 
 sold be devastated by tempest, earthquake, or volcanic 
 eruption, or be flooded, or suffer an irruption of the 
 sea (s), or lose in value by reason of a fall in prices (t). 
 On the other hand, the purchaser takes the advantage 
 of all imj)rovements effected in the property sold 
 through extraneous causes, such as any exertion of 
 natural forces, the dropping of lives on sale of a 
 reversion or remainder (ii), the death of the incumbent 
 on the purchase of an advowson (.r), a general rise in 
 the price of land, or the making of any road, railway, 
 or other public work or undertaking, through or near the 
 property (//) . And it appears that if the vendor himself 
 make permanent improvements, as by building after the 
 contract, the purchaser will be entitled to the benefit 
 
 352; St'ton v. Slade, 7 Ves. 265, P. C. 83, 104, 105; below, 
 274; Broomr v. Moitc/c, 10 Ves. Chap. XVIII. § 1. 
 597, 614, 620, 621. (.v) Sug. V. & P. 291, 293, 294 ; 
 (»•) Tduir V. Mellrr, 6 Vea. 'i-19, Jessel, M. R., Li^saght v. Ed- 
 '652; Mai/nciv.r>rs(o>i,lSCh.D.l. wards, 'l Ch. D. 499, 507. The 
 This is undoubtedly so in the case case is parallel to that of the 
 of an absolute s:ile ; but if persons absolute destruction before de- 
 contract on such terms that the livery and payment of the price 
 continued existence of the object of a particular chattel so sold as 
 of the contract is a condition pre- to pass the property to the pur- 
 cedeut to the performance of the chaser : see Taylor v. Caldwell, 3 
 agreement, they are discharged B. & S. 826, 833, S37. 
 from their respective obligations (<) Poole v. Sheryold, 1 Cox, 
 by the destruction of the object 273. 
 without their fault : Taylor v. («) Above, p. 505. 
 Caldwell, 3 B. & S. 826 ; and see {x) Above, p. 443. 
 Counter v. Macpherson, 5 Moore, (y) Paine v. Meller, 6 Ves. 349, 
 
 352.
 
 508 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 thereof without further payment (s) . The purchaser is 
 also entitled in equity to all things which belong to the 
 owner of the inheritance as against a tenant for life im- 
 peachable for waste, such as timber trees blown or cut 
 down (a), or minerals gotten after the contract either 
 by a trespasser or by the vendor otherwise than in 
 working, up to the proper time for completion, mines or 
 quarries open at the time of sale [h). 
 
 Destruction 
 by fire pend- 
 ing comple- 
 tion of a 
 house insured 
 by the vendor. 
 
 In connection with the destruction of a house sold by 
 fire occurring before the completion of the contract, it 
 should be mentioned that, where the house has been in- 
 sured by the vendor, the benefit of the policy of insurance 
 will not pass to the purchaser under the contract for sale 
 of the house, unless expressly assigned to him ; for the 
 policy of insurance was altogether a collateral contract (c) . 
 And it should be especially noted that the benefit of a 
 policy of insurance against fire is not, as a rule, assign- 
 able without the insurer's consent, for such policies 
 usually take the form of a contract to indemnify the 
 insured personally or his representatives in law, but not 
 his assigns otherwise than by will (d). A vendor of 
 
 (s) Clare Hall v. Harding, 6 
 Hare, 273, 296 ; 3Ionro v. Taylor, 
 8 Hare, 5). 60; Sug. V. & P. 
 304 ; 1 Dart, V. & P. 248, n. («), 
 253, 5th ed. ; 286, n. {u), 291, 
 6th ed. ; 294, 7th ed. 
 
 (^7) Poole V. Shergold, 1 Cox, 
 273 ; Magcnnis v. Fallon, 2 Moil. 
 561, 591. 
 
 ( J) See Nelson v. Bridges, 2 Beav. 
 239 ; Broini v. Lihbs, 25 W. E. 
 776, 37 L. T. N. S. 171 ; Lepplnq- 
 ton V. Freeman, 40 W. R. 348, 
 66 L. T. N. S. 357. As to the 
 damages recoverable where mine- 
 rals have been wrongfully gotten 
 by wilful trespass or under a 
 hona fide claim of title, see Jegon 
 V. Vvcian, L. R. 6 Ch. 742; 
 Livingstone v. Eawyards Coal Co., 
 5 App. Cas. 25 ; Bulll, ^c. Co. v. 
 Osborne, 1899, A. C. 351. 
 
 ((■) Paine v. Meller, 6 Ves. 349, 
 352, 353 ; Poole v. Adams, 12 
 W. R. 683 ; Rayner v. Preston, 
 14 Ch. D. 297, 18 Ch. D. 1. 
 The vendor remains entitled to 
 recover the insurance money until 
 the contract is executed by pay- 
 ment of the purchase money : 
 Collinyridge v. Royal Exchange 
 Assurance Corpn., 3 Q. B. D. 
 173. 
 
 [d) Lynch v. Dalzell, 4 Bro. 
 P. C. 431 ; Saddlers' Co. v. Bad- 
 cock, 2 Atk. 554 ; Barrell v. Tib- 
 bitts, 5 Q. B. D. 560 ; Castellain 
 V. Preston, 1 1 Q. B. D. 380 ; West 
 of England, ^-e. Co. v. Isaacs, 1897, 
 1 Q. B. 226 ; Phoenix Assurance 
 Co. V. Spooncr, 1905, 2 K. B. 
 753 ; Bunyon on Fire Insur- 
 ance, 11, 182, 303, 304; Porter 
 on Insurance, 300, 2nd ed. There
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 509 
 
 land should, therefore, be very careful neither to assign 
 to the purchaser the benefit of any existing contract of 
 insurance against fire of any building thereon, nor to 
 agree to hold any such policy on trust for the purchaser, 
 except subject to the consent of the insuring office {e). 
 For if the vendor make such an assignment or agree- 
 ment without the consent of the office, and pending 
 completion the house be barnt down, and he receive the 
 insurance money and hand it over to the purchaser, or 
 lay it out in rebuilding at the purchaser's request, he 
 will be liable on receiving the full purchase money at 
 the completion of the sale, to refund to the insurance 
 office the amount paid by them (./') ; but it does not 
 appear that he will have any cause of action to recover 
 anything from the purchaser. And if the vendor, 
 without having entered into any agreement with the 
 purchaser, apply the money received under a policy of 
 insurance against fire of a house bui-nt down pending 
 completion in rebuilding or reinstating the house, it 
 does not appear that he will be entitled to claim any 
 increase of the purchase money on that accoimt (//), 
 and he will be equally liable to repay the amount of the 
 insurance money to the insuring office on receiving the 
 full price of the property sold (//). By a provision of 
 
 is nothing iu the nature of a con- & Elph. Prec. Conv. 299, 8th ed. 
 
 tract of fire insurance which makes (/) CatiieUain v. Preston, 11 
 
 it impossible to assign over the Q. B. D. 380 ; Phwiiix Assurance 
 
 benefit thereof ; policies of marine Co.\. Spooner, 1905, 2 K. B. 7o3. 
 
 insurance, which arc equalh' con- (y) Above, p. 507. 
 
 tracts of indemnity, have always (A) CasteUauix. Preston; Phoenix 
 
 been made in favour of the iu- Assurance Co. \. Spooner, iibi sup. 
 
 sured and his assigns and have The principle is that a contract 
 
 been assignable accordingly ; al- of insurance is a contract of in- 
 
 though, of course, at common law demnity, and the insurer, having 
 
 they were only indirectly assign- made good the loss, is entitled by 
 
 able by means of a jiower of subrogation to tlic riglits of the 
 
 attorney : see Amould on INIarine insured to the benefit of any 
 
 Insurance, i. 10", 112, 'I'M, 2;M, compensation which the insured 
 
 6th ed. ; Wms. Pers. Prop. 33, luis a legal claim to exact from 
 
 34 and n. ((/), 282, 283, Kith ed. other sources. See also JFest of 
 
 ((') For a form of stipulation England Fire Insurance Co. v. 
 
 appropriate to the case, see 1 Key Isaacs, 1897, 1 Q. B. 226. It la
 
 510 
 
 EFFECT OF THE CONTKACT PENDING COMPLETION. 
 
 the old Metropolitan Building Act, still remaining 
 unrepealed, insurance offices are required, at the instance 
 of any person interested in or entitled unto any houses 
 or buildings damaged by fire, to cause the insurance 
 money to be laid out in rebuilding or reinstating the 
 same, unless within sixty days after the claim is ad- 
 justed the parties claiming the insurance money give 
 security that the same shall be so laid out, or the money 
 be disposed of among the contending parties to the satis- 
 faction of the office (/). It has been held that the 
 operation of this provision is general, and is not con- 
 fined to houses or buildings within the limits of the 
 metropolis (/••), but the' correctness of this decision has 
 been questioned in the House of Lords (/). It seems 
 very doubtful whether this enactment enables any 
 person who has an interest in the building damaged, 
 but has no independent claim to have the insurance 
 money applied in reinstatement, to require the office to 
 lay out the insurance money in rebuilding. Thus, 
 where a lessee under covenant with his lessor to insui'e 
 in their joint names to three-fourths of the value of the 
 premises and to apply the insurance money in re- 
 instatement, effected such insurance, but subsequently 
 improved the premises and effected a further insiu-ance 
 
 not, however, the usual policy of 
 insurance offices to stand upon 
 their strict legal rights where 
 such a course would involve hard- 
 ship to the iusured : see David- 
 son's Concise Precedents, 117, 
 118, n. (b), 18th ed. 
 
 (i) Stat. 14 Geo. III. c. 78, 
 s. 83. The person interested, 
 desiring the insurance money to 
 be applied in reinstatement must 
 make a distinct request to that 
 effect to the insurauce office ; 
 otherwise the office may pay the 
 'money to the person who effected 
 the insurance. The office is the 
 proi)er j^arty to rebuild, and a 
 person interested, not being the 
 
 person who effected the insur- 
 ance, cannot after he has himself 
 rebuilt claim the insurance money 
 by virtue of this enactment : 
 Simpsun v. tScottixh Union Insur- 
 ance Co., 1 H. & M. 618. 
 
 {k) Ex parte Gorelij, 4 De G. J. 
 & S. 477. 
 
 [1) Westminster Fire Office v. 
 Glasgow, S;c. Soci/., 13 App. Cas. 
 699, 716. The rule in Ex parte 
 Gorehj was followed by Swinfen 
 Eadv, J., in Re Q,Hicke''s Trusts, 
 1908, 1 Ch. 887, 893 and n. (1), 
 but apparent ly without the opinion 
 expressed in the House of Lords 
 liaving been cited to him.
 
 EFFECT OF THK CONTRACT PENDING COMPLETION. 511 
 
 in his own name, it was held that the money payable 
 under such further insurance must be laid out at the 
 lessor's request in reinstating the property (;«) . But it 
 has been doubted by Lord Selborne in the House of 
 Lords whether this enactment gives a mortgagor or 
 subsequent incumbrancer any claim to require the money 
 paid imder an insurance made by a mortgagee to be 
 applied in reinstatement (ii), and the doubt apparently 
 extends to question the claim of a mortgagee to require 
 reinstatement, where the insurance was effected b}' the 
 mortgagor before the mortgage, and the mortgagor has 
 not expressly agreed to apply the insurance money in 
 reinstatement (o). If this doubt be well founded, it 
 does not appear that where a house sold has been insured 
 by the vendor and burnt down pending completion of 
 the contract, the purchaser can under the above-men- 
 tioned enactment require the insurance money to be 
 laid out in rebuilding, unless the vendor has expressly 
 agi-eed to give him the benefit of the insurance or to 
 lay out the money in reinstatement (p). It follows 
 
 (m) Hx parte Gorehj, 4 De G. gagor has contracted that the 
 J. & S. 477. money shall be so applied and the 
 
 in) Wentiiiumter Fire Oj/ire v. benefit of that contract in effect 
 Glasgow, ^-c. Socy., 13 App. Cas. forms part of the mortgagee's 
 699, 714. security, as where a lessee bound 
 
 (o) It is submitted that, inde- by covenant with the lessor to 
 pendently of the enactment in insure and apply the insurance 
 question, a mortgagee has no money in reinstatement, insures 
 right or equity to require any accordingly and afterwards mort- 
 money received under an insur- gages the demised premises : see 
 ance effected by the mortgagor Garden v. Ingram, 23 L. J. Ch. 
 prior to the mortgage to be ap- 478 ; Lce>i v. Whitcleg, L. R. 2 
 plied in making good the damage Eq. 143 ; Wms. Conv. Stat, 
 done, except where the mort- 156 — 159. 
 
 {p) The contrary is maintained in 1 Dart, V. & P. 197, 6th ed. 
 (of. 193, 7th ed.), written, however, before the case of Westminster 
 Fire Office v. Glasgow, «Jc. Soeg. It is there suggested that, unless 
 the vendor expressly stipulate that, as regards all insurable loss 
 or damage, the property shall bo at the sole risk of the purchaser, 
 as from the date of the contract, the vendor is liable to have 
 the insurance monej' applied against his will at the purchaser's 
 request in rebuilding and yet to refund the amount of the 
 insurance money to the office on completion. It is, however, sub- 
 mitted that, even if the above enactment should bo held to enable a 
 person, interested in the buildinjj burnt but having no independent
 
 512 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Purchaser 
 should him- 
 self insure 
 ao-ainst fire. 
 
 that where the property sold comprises valuable buildings, 
 the purchaser should himself insure against fire as from 
 the date of the contract for sale, unless it be arranged 
 with the consent of the office that he shall have the 
 benefit of the existing insui'ance. 
 
 Vendor's ^g ^j^g result of the purchaser's equitable ownership 
 
 care of the of the property sold and the vendor's consequent 
 propel J so c . tr^gteeship for the purchaser, the vendor is bound, 
 while he remains in possession of the property sold, to 
 take reasonable care to preserve the property in the 
 same condition in which it was at the date of the con- 
 tract for sale (q). He must use the same care that a 
 trvistee ought to use with regard to the trust property, 
 of which he is in possession ; that is to say, he must take 
 the same care as a prudent owner would take of his own 
 property (r). Thus he must cultivate the lands, if in 
 hand, in a husbandlike manner (s), keep the property in 
 a reasonable state of repair {t) and take proper pre- 
 cautions against inj ury to the lands by trespassers (n) ; 
 and if he fail in any of these duties, the purchaser will 
 
 claim on the insurance money or its application, to require the office 
 to lay out the money in reinstatement, in such case there would in 
 effect be a statutory modification of the contract of insurance to the 
 prejudice of the insurers. They would be under a statutory duty to 
 lay out the money in rebuilding, which would indeed discharge them 
 from the obligation of paying the vendor. But as the vendor, having 
 previously parted with his beneficial interest in the property insured, 
 would derive no benefit from the reinstatement, it is submitted that 
 the principle of subrogation would not apply, and the vendor could 
 not be called upon to refund on completion a simi of money which 
 was neither paid to him nor laid out on /lis property : see above, p. 506 ; 
 Davidson's Concise Precedents, 117, n. {I>), 18th ed. (but the present 
 writer doubts the safety to the vendor of the clause there suggested). 
 It is submitted that there is no necessity for the vendor to make the 
 stipulation suggested as above in Dart, V. & P., 6th ed. 
 
 (q) Above, p. 50, and n. (/.;). Y. & C. 222 ; Townsend v. Chaiii- 
 
 (;■) Wilson V. Claphaiii, 1 J. & pernoivne, 3 Y. & C. 505, 508 ; 
 W. 36, 38; S/trriviH v. Sfiakspear, Eegcnfs Canal Co. v. Ware, 
 
 & G. 517, 537. 
 
 V. Beacon, 3 Madd. 
 
 5 De G. M. 
 
 (s) Foster 
 394. 
 
 {t) Binks V. Moke!);/, '2 Swanst. 
 222, 226 ;j Lord v. Stephens, 1 
 
 23 
 
 575, 588 ; Royal Bristol, 
 i^r. Bdq. Socy. v. Bomash, 35 
 Ch. D."390, 397, 398. 
 
 («) Clarke v. Maimz, 1891, 2 
 Q. B. 456.
 
 EFFECT OF THE CONTRACT FENDING COMPLETION. 513 
 
 be entitled to an allowance by way of compensation to 
 be deducted from the purchase money (,r), or in case of 
 his completing the purchase in ignorance of the vendor's 
 breach of duty he may sue the vendor for damages for 
 the loss sustained thereby (//). As a rule, the vendor is 
 boimd to execute at his own expense such repaii's as are 
 necessary in order to preserve the property sold from 
 deterioration until the proper time for completion of 
 the contract (z). We have seen (a), that this time is, 
 under an open contract, the time at which a good title 
 shall have been shown ; and the vendor's obligation of 
 keeping the property in a good state of preservation up 
 to that time at his own expense appears to fall on him 
 because until then he remains entitled as owner to the 
 ordinary profits and must discharge the current out- 
 goings {b). When the contract has fixed a particular 
 day for completion, and completion is delayed beyond 
 that time by reason of the title not having been made 
 out, the vendor is bound, as a rule, to preserve the 
 property from deterioration at his own expense until the 
 time when the purchaser may reasonably take possession, 
 that is, until a good title be shown (r) . The vendor is Vendor not 
 not, however, bound to improve the property, and he improve the 
 should be careful not to e.\i)end money on improvements, property, 
 as he will have no right to recover any sums so ex- 
 pended from the purchaser, unless the purchaser shoidd 
 have authorised such expenditure (d). If the state of 
 the property sold be such that an extraordinary outlay, 
 beyond Avhat may properly be regarded as current out- 
 
 (j) See note {t), above, p. iil'l. be bound to pay for any repairs 
 
 (//) Clarke v. lOnnii:, 1891, "2 out of his own pocket, if he had 
 
 Q. B. 456. no trust money in hand available 
 
 [z) See note {t) above, p. 512 ; for the purpose : see Bridye v. 
 
 Sherwin v. Shakspmr, 6 De G. Jirown, 2 Y. & C. C. C. 181, 191, 
 
 M. & G. 517, 582, 534, 539. 192 ; FazakerU-y v. Cuhhaw, 19 
 
 (fl) Above, pp. 26, 46. W. R. 793 ; Ee l)c Tri.ssier's Sttllcd 
 
 (6) Above, pp. 49, 50. An ubso- Estates, 1893, 1 Ch. 153; Re 
 
 lute trustee would, of course, been- Monlaffu, 1897, 2 Ch. 8. 
 
 titled to be reimbursed all moneys [c) Sherwin v. IShakupear, 5 De 
 
 properly expended in preservinir G. M. & G. 517, 532, 539. 
 
 the trust property, and would not (>/, Above, p. 507. 
 
 w. 33
 
 514 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 goings, should be necessarj^ to be. made in lasting repairs 
 in order to preserve the property from deterioration, it 
 appears that the vendor ought to be allowed his expenses 
 properly incurred for such purpose (r) . If by reason of 
 tlie purchaser's default in completing the contract the 
 property remain in the vendor's possession after the 
 time when the purchaser might reasonably have taken 
 possession, the purchaser will not be entitled to an}^ 
 allowance or compensation for any deterioration which 
 the property may have suffered since that time (./'). If 
 the property sold be let to yearly or other tenants, the 
 vendor must manage the same as a prudent owner 
 would in the interval between the making of the con- 
 tract and its completion, and see that the tenants duly 
 perform their obligations {[/). He should not allow the 
 rents to fall into arrear (//) : but he may reduce them, 
 where a prudent owner would find it necessary to do 
 so («'). If any tenancy of lands usually let determine 
 during the interval in question, the vendor ought to 
 notify the vacancy so occurring to the purchaser, and 
 unless the purchaser should express a wish that the 
 lands should remain unlet and promise to indemnify 
 the vendor against loss on this account in case of the 
 purchase going off, the vendor ought to take steps to re-let 
 the lands. And the vendor should do this, whether the 
 tenancy expired by effluxion of time or by reason of a 
 notice to quit served by the vendor at the purchaser's 
 request {k). So the vendor should not, as a rule, 
 determine any existing tenancy, unless the purchaser 
 desire it (/). When a sale of land is not actually com- 
 
 {e) Sheru'in v. Shakspcar, 5 De W. 36, 38; Flews v. Samuel, 1904, 
 
 G. M. & G. 517, 532 ; F/iillips v. 1 Ch. 464. 
 Silvester, L. R. 8 Ch. 173, 176. (i) Sherwin v. Shakspear, 5 De 
 
 (/) Binks V. Fokehi/, 2 Swanst. G. M. & G. 517, 537. 
 222, 226; Minchln v. Naiwe, 4 ik) Egmont \. Smith, G Ch. D. 
 
 Beav. 332. 469 ; and see Bennett v. Stone, 
 
 (ff) Foster v. Deacon, 3 Madd. 1902, 1 Ch. 226, 237, affirmed, 
 
 394, 395. 1903, 1 Ch. 509. 
 
 (h) Aclandv. Gaisford,2MaM. [1) Bafety v. Schofield, 1897, I 
 
 28, 32; Wilson v. Ciapham, 1 J. k. Ch. 937," 944, 945.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 015 
 
 pleted, under an open contract at the proper time for Vendor 
 completion {iii), or otherwise on the day fixed for com- retain posses- 
 pletion (;?), the vendor is entitled to remain in possession si^n ^"^til 
 until the sale is actually completed by payment of the pietion. 
 purchase money (o) , whether the delay in completion be 
 due to the state of the title or to the purchaser's default 
 in payment ; unless, of course, the contract be that the 
 purchaser shall have possession on a day named irrespec- 
 tively of the completion of tlie purchase {p). But, as 
 we have seen (q), when the purchase is not completed 
 at the proper time or appointed day, the purchaser is 
 entitled to the rents and profits, and is bound to pay 
 interest on the purchase money, if he bought under an 
 open contract, from the time when a good title was 
 shown and verified (r) ; if he bought under a contract 
 fixing a day for completion, but not expressly pro- 
 viding for payment of interest, from that day, where 
 the delay is attributable to liis own fault, and other- 
 wise from the time when he took or might safely 
 have taken possession ; and if he bought under a con- 
 tract to pay interest on failure f'ro)/) an// cauHO wliot- 
 evcr to complete on the appointed day, as from that day. 
 In such cases, therefore, the vendor must account to the Vendor's 
 purchaser for the rents and profits received by him from account for 
 the date when the purchaser so became entitled to them t'lo rents. 
 until the date of actual completion, and the amount so 
 received must be deducted from the amount of purchase 
 money and interest payable (.s) . In taking such account 
 the vendor is, as a ride, chargeable only with the amount 
 of the rents actually received by him or for his use (/) : 
 
 (w) Above, pp. 26, 46. re.spectfuUy maintained that the 
 
 (w) Above, p. 57. decision of Parker, J., in Halkefl 
 
 (o) Above, p. ;')0(;. v. liudley, 1907, 1 Ch. r)90, 60G, 
 
 [p) See (jcihjf V. Montrose, 26 was erroneous. 
 
 Beav. 4/). W See M'Nainara v. iniluiDis, 
 
 {q) Above, pp. TiO, 60, 67, 6 Ves. 143; P/ews v. Samuel, 
 
 6S. 1004, I Ch. 464. 
 
 ()•) See above, pp. 46, TiO, 166, [t) Shirtviti v. Shakspcny, !) De 
 
 n. («), 186, n. {!), whore it is G. M. & G. .')17: Setoji on Judsr- 
 
 33 (2)
 
 516 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 but he may in a special case be chargeable with the 
 amount which, but for his wilful default, he might have 
 received, as where he has allowed the rents to fall into 
 arrear (?/), or neglected to let the land(a:;), or has 
 wantonly abandoned the property sold (i/). 
 
 The vendor's As we have seen (::), the vendor's beneficial interest 
 
 rio-hts. • 
 
 ° ' in the property sold between the making of the contract 
 
 for sale and its completion consists, first, in his lien for 
 the price, involving the right to hold possession of the 
 land sold until the whole purchase money be paid ; and 
 secondly, in his right to take the ordinary rents and 
 profits for his own use up to the proper time for com- 
 pletion. As to the first of these rights, the vendor is 
 entitled to retain possession until the whole price is 
 paid, unless the contract contain an express or implied 
 stipulation that the purchaser shall have possession on a 
 particular day without making such payment (a). And 
 where the contract provides, as upon a sale by auction 
 under the usual conditions (b), that the balance of the 
 
 ments, 2237, 6tli ed. ; Bennett v. home's remarks comparing the 
 
 Stone, 1902, 1 Ch. 226, affirmed, position of a vendor retaining 
 
 1903, 1 Ch. 509. possession until completion to 
 (u) Wilson V. Clapham, 1 J. & that of a mortgagee in posses- 
 
 W. 36 ; and see Pleivs v. Samuel, sion are dii-ectly opposed to the 
 
 1904, 1 Ch. 464, where rent was grounds of the decision in Sher- 
 in arrear at the time of the sale iriti v. Shakspear, 5 De G-. M. & 
 and on the day fixed for com- G. -517. It is submitted that 
 pletion, and the vendor was not these remarks of Lord Selbome 
 allowed to appropriate moneys were not necessary to his decision 
 received by him from the tenant and are not good law, although, 
 after that day (when the pur- in other respects the decision ap- 
 chaser became entitled to the pears to have been right. See 
 rents) in discharge of the arrears 2 Dart, V. & P. 650, 651, 5th ed. ; 
 due before that day. 733—735, 6th ed. ; 673—675, 7th 
 
 (x) Bennett V. Stone, 1902, 1 Ch. ed. ; Eoi/al Bristol, ^r. Bldg. Socy. 
 
 226, 237. V. Bomash, 35 Ch. D. 390, 397, 
 
 [v) Phillips V. Silvester, L. R. 398; Clarke v. Ramuz, 1891, 2 
 
 8 Ch. 173. In that case there Q. B. 456. 
 
 certainly appears to have been [z) Above, p. 506. 
 
 such wanton negligence on the («) Above, p. 515 ; Lysaght v. 
 
 vendors' part as justified a decree Echrards, 2 Ch. D. 499, 506. 
 
 against them on the footing of {b) Above, pp. 57, 67, 73, 74. 
 wilful default ; but Lord Sel- 
 
 I
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 517 
 
 purchase money shall be paid on a particular day, and 
 also that possession shall be taken by the purchaser on 
 that day, it is held that such possession is intended as 
 may be safely taken on the one hand and given on the 
 other, and time is not, as a rule, of the essence of the 
 contract ; and as the purchaser is not bound to take 
 possession until he can safely do so, that is, until a good 
 title has been shown and verified, so the vendor cannot 
 be compelled to deliver up possession without receiving 
 payment of the whole price (<:•) . If, however, the con- 
 tract provide in such manner that time is either expressly 
 or impliedly of the essence of the stipulation, that 
 possession shall be given to the purchaser on a certain 
 day, the purchaser is entitled to take possession on that 
 day without paying the purchase money (d) . 
 
 The profits wliich the vendor is entitled to take up to Vendor's 
 the proper time for completion are the ordinary casual p^fits^ ^ 
 profits arising in the course of the proper management of 
 the estate — those which a tenant for life impeachable for 
 waste would be entitled to take as against the remain- 
 derman (e). Thus, if the land sold be in hand, the 
 
 (c) TUlei/ V. Thomas, L. R. 3 been said that the same principle 
 Ch. 61 ; Fhillips v. Hilreiter, L. R. is applicable on a sale made out 
 8 Ch. 172, 176 — 178. of Court: Ci(ddon v. life, 1 Giff. 
 
 (d) Gedye v. Montrose, 26 Beav. H95, where, however, the admis- 
 45. sion was taken before the date 
 
 {e) This comparison appears to fixed for completion. It is sub- 
 be correct as a general rule. But mitted that the principle laid 
 it has been held, where a manor down in Garrick v. Camden is 
 containing copyholds was sold by anomalous and ought not to be 
 order of the Court of Chancery followed in a case where copy- 
 and copyhold tenants died w holders have died or alienated in 
 alienated before the date on whicli the lifetime of a tenant for life of 
 it was ordered tliat tlie purchaser the manor, but the admissions 
 should bo lot into possession, but consequent thereon have not been 
 the admissions so rendered neces- granted until after his death. For 
 sary were not granted until after it is well settled that, as between 
 such date, that the fines upon copyholder and lord, no fine is 
 such admissions were to be con- due until iulmittance, and admit- 
 sidered as having accrued before tance is the act of the lord for the 
 that date and were therefore pay- time being and is compellable by 
 able to the vendor: (jarrick v. him: Hobart and Hammond' s case, 
 Camden, 2 Cox, 231. And it has 4 Rep. 27b; E. v. Hendon, 2 T. R.
 
 518 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 vendor is entitled to gather in the crops in the due and 
 proper course of husbandly, and to dispose of them for 
 his own benefit (_/') ; and if the land be let, he is entitled 
 to receive the rents as they become payable {y) . And, 
 usually by express contract {h), but, if not, under the 
 Apportionment Act, 1870 («), he is entitled to an 
 apportioned part, up to the proper time for completion, 
 of the cmTcnt rents which will become payable after 
 that time. So the vendor may work mines and quarries 
 open at the time of sale (/.) . But he is not otherwise 
 entitled to take any profit or benefit which forms part 
 of the inheritance (/), and if he diminish the value of 
 the inheritance by committing any voluntary waste, as 
 by felling timber or working an unopened mine, the 
 purchaser may claim compensation for the damage ; 
 or, if the waste be such as affects a material alteration 
 in the property sold (for example, the felling of orna- 
 mental timber), the purchaser may repudiate the con- 
 tract altogetlier {m). It appears that if the purchaser 
 sue for specific performance of the contract, he may 
 obtain an injunction restraining the vendor from the 
 commission, pending completion, of any act tending to 
 destroy or depreciate the inheritance of the land sold {u). 
 Thus, on the sale of an advowson, if the church became 
 
 484 ; Graham v. Sinie, 1 East, 464; above, p. 516, u. (?<). 
 
 63'2 ; E. V. Wclhdcy, 2 E. & B. (/*) Above, pp. 67, 74. 
 
 924 ; Momkton v. Payne, 1899, 2 [i) Stat. 33 & 34 Vict. c. 35, 
 
 Q. B. 603 ; 1 Wat. Cop. 317, s. 2. 
 
 346, 347, 7th ed. ; 1 Scriv. Cop. [k) Above, p. 508, and n. {b). 
 
 Ill, 118, 283, 3rd ed. (Q Above, p. 507. 
 
 (/) Webster v. Donaldson, 34 {m) Magennis v. Fallon, 2 Moll. 
 
 Beav. 451, 11 Jur. N. S. 404 ; 561, 590 ; 1 Dart, V. & P. 248, 
 
 it appears from the latter report 441, 5th ed. ; 286, 507, 6th ed. ; 
 
 that the stipulation that the 290, 519, 520, 7th ed. 
 growing crops should be included («) See Shrewnbury and Chenter 
 
 in the sale was held to be con- Rail. Co. v. ahreinbary and Birm- 
 
 trolled by the provision that the ingham Kail. Co., 16 Jvu\ 548, 
 
 purchaser should be entitled to 550 ; Hadley v. London Bank of 
 
 the profits only as from the day Scotland, 3 De G. J. 6: S. 63, 7U, 
 
 fixed for completion. 71 ; Londoni^- Counti/Bank v. Lewis, 
 
 iff) Above, p. 49. aud n. (A) ; 21 Ch. D. 490; Siig. V. & P. 228,. 
 
 see Flews v. Samuel, 1904, 1 Ch. 229.
 
 EFFECT OF THE CONTKACT PENDING COMPLETION. 519 
 
 vacant pending completion, the vendor may be restrained 
 from presenting his own nominee to the living (o). 
 i\jid the vendor may be so restrained from selling the 
 land to another, or from making any disposition of the 
 legal estate therein to the prejudice of the purchaser (p). 
 And on the same principle it would appear that the 
 vendor may be restrained from wasting the property 
 sold pending completion. But if the vendor dispute 
 the fact that any contract for sale was made as alleged 
 by the purchaser, the Court will not grant an injunction 
 restraining the vendor from the exercise of any of his 
 legal rights of ownership, unless the balance of conve- 
 nience be obviously in favour of such a coui'se (q). 
 
 If, as is frequently the case, there be a day fixed for Veudor 
 completion and a contract to pay interest on failure po,s.se!^sion 
 to complete on that day, either from any cause whatever '^^*^^ '^^ ^^^ 
 or from any other cause than the vendor's wilful completion, 
 default, and the vendor remain in possession after the 
 time fixed for completion because a good title has not 
 yet been shown, he ought, as we have seen (/■), to 
 cultivate the land sold, gather in the crops, and 
 generally manage the property with the care of a 
 prudent owner, but must account to the purchaser for 
 the profits from the time fixed for completion until the 
 date of actual completion, receiving instead interest on 
 the purchase money. And where he is in actual occu- 
 pation of any part of the property, he is chargeable with 
 a fair occupation rent (s). Dui'ing this period the out- 
 
 (o) Nichuhun v. Kiiupp, 'J Sim. .505, 511 ; Shcnvin v. Shakapcar, 
 
 326; above, p. 443, ami n. (/). 5 De G. M. & G. 517, 532, 533, 
 
 {p) EchUfw.nulflirui, 16 Vcs. 538, 539; above, p. 51. It appears, 
 
 267 ; Curtis v. Biwhini/hdni, 3 V. however, that in an action for 
 
 & B. 168; SpilU)- V. iSpilhi, o speciiii! performance of a contract 
 
 Swaust. 556. under which the vendor has so 
 
 (y) Tiinier v. IFight, 4 Beav. remained in actual occtipatiou of 
 
 40 ; Hadleij v. London Bunk of the land .sold, the order should 
 
 Scotland, 3 De G. J. & S. 63. direct an inquiry whether ho ha« 
 
 {>•) Above, pp. 512 — 51''>. so occupied, and if so, that an 
 
 («) Dj/vr V. Uaiijraic, 10 Ves. annual value by way of rent
 
 520 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Outgoings. goings, including the expenses of cultivation or manage- 
 ment, fall upon the purchaser in the absence of express 
 stipulation to the contrary, and the vendor is entitled to 
 charge them against the purchaser in account {t). But 
 if the vendor so remain in possession after he has shown 
 such a title as the purchaser ought to accept, because of 
 the purchaser's default in completing the contract, the 
 
 Deterioration, vendor will not be liable for any subsequent deterioration 
 of the property sold, though he must, of course, still 
 account for the rents and profits until the actual com- 
 pletion of the sale {u). Where, however, completion is 
 delayed by the purchaser's default, and the vendor is, 
 on that account and to his own inconvenience, obliged 
 to remain in actual occupation of any part of the pro- 
 perty sold, the vendor will not be charged with any 
 occupation rent therefor, and the purchaser is never- 
 theless liable to discharge the outgoings and to pay 
 interest {x). 
 
 As we have seen (y/) , the vendor is, usually by express 
 contract, but if not, by law, liable to discharge all out- 
 
 The vendor's 
 duty to dis- 
 charge the 
 outa:oinsrs. 
 
 should be set thereou : Shcrwtji 
 V. Shnl-sprar, 5 De G. M. & G. 
 517, 538, 539; Seton on Judg- 
 ments, 2244, 6th ed. If this be 
 omitted the vendor cannot be 
 charged with an occupation rent 
 under the usual order for an 
 account of the rents and profits 
 received by him or for his use 
 (see above, p. 515) ; but where 
 the land so occupied is in culti- 
 vation, he is chargeable with the 
 proceeds of crops sold, less the 
 expenses of realizing the same : 
 Bennett v. Stone, 1902, 1 Ch. 226, 
 237, 238, affirmed, 1903, 1 Ch. 
 509. 
 
 [t) Above, pp. 506, 513; Ban^ht 
 V. Tacjg, 1900, 1 Ch. 231, 235; 
 Bennett v. Stone, 1902, 1 Ch. 226, 
 1903, 1 Ch. 509. But the vendor 
 cannot, under the account usually 
 directed in actions for specific 
 performance of rents and profits 
 received by or for him (not upon 
 
 the footing of wilful default), 
 charge the purchaser with losses 
 incurred in carrying on farming 
 business on a farm which was let 
 at tlie date of the contract, but 
 afterwards fell vacant and was 
 occuf)ied and farmed by the ven- 
 dor : Bennett v. Stone, ubi sup. 
 
 ('«) Above, pp. 513, 514 ; Ben- 
 nett V. Stone, 1902, 1 Ch. 226, 
 affirmed, 1903, 1 Ch. 509. 
 
 (.(■) Dakin v. Hope, 2 Euss. 170 ; 
 Leyyott v. MetropoJitem Rail. Co., 
 L. E.. 5 Ch. 716 ; also deciding 
 tliat in such circumstances the 
 purchaser cannot be charged with 
 the vendor's losses, and the ven- 
 dor is not liable to account for 
 his profits in respect of a busi- 
 ness carried on by him on the 
 premises diu-ing such occupation 
 thereof. 
 
 (y) Above, pp. 50, 67, 74, 506, 
 513.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 521 
 
 goings payable in respect of or charged upon the 
 property sold up till the time for completion of the 
 purchase, and this obligation appears to be correlative 
 to his right to enjoy the profits up till that time. He 
 must therefore pay out of his own pocket all rates, taxes, 
 tithe rent-charge and rent (whether quit-rent of free- 
 holds or copyholds or rent of leaseholds sold), accruing 
 due in respect of the property sold before the time for 
 completion of the pm'chase, also all ordinary expenses 
 of cultivating or managing the property and keeping 
 the same in a due state of preservation, including the 
 cost of ordinary repairs (s). The outgoings so payable 
 by the vendor also include all sums of money which, 
 before the time for completion, have become charged 
 by statute upon the property sold or recoverable by 
 distress or otherwise from the owner or occupier thereof 
 for the time being {a) ; and this is the case whether the 
 vendor have expressly contracted to discharge the out- 
 goings or not (b) . Thus, it has been held that the 
 vendor must pay the expenses so charged on the 
 property sold of paving, draining, or lighting the ad- 
 joining street under a local Improvement Act(c), the 
 Public Health Act, 1875 (d), or the Private Street 
 Works Act, 1892 (e), or of removing a dangerous 
 structure under the Metropolitan Building Acts, 1855 
 and 1869 (./'), or the London Building Acts, 1894 and 
 1898 {(j), and tlie same law seems applicable to the 
 
 (z) C'arrof/u-s v. Sharp, 20 Beav. S( DiiscolVit Contract, 1904, 2 Ch. 
 
 56 ; above, p. ol3. 226 ; Millard v. Balhi/, ^-c. Council, 
 
 [a) Above, pp. 50 and n. [1), 1906, 1 K. B. 60 ; East Ham 
 
 177, 178 : Stock- V. Meakin, 1900, Council v. Aylelt, 1905, 2 K. B. 
 
 1 Ch. 683 ; Stockdalf v. Ascher- 22. 
 
 berff, 1904, 1 K. B. 447, 449. (e) Stock v. Meakin, 1900, 1 Ch. 
 
 (6) J{r Btttexworth and Richir, 683 ; see West Ham Corpn. v. 
 
 37 Ch. D. 535 ; liarsht v. Ta(i;i, Sharp, 1907, 1 K. B. 445, as to 
 
 1900. 1 Ch. 231, 234, 235. the powers of enforcing the 
 
 (c) Midqlniv. Coppock, 4 Ex. I). charjfo >;ivon by thi.s Act. 
 
 309. " ■ (/•) Tnhhs V. U'lmne, 1897. 1 
 
 (rf) Rr Bettesivorth and Richer, Q. B. 74. 
 
 37 Ch. D. 536 ; and see Re Allen (y) Re Highett and Bird's Con-
 
 522 
 
 lOFFKCr OF THE CONTRACT PENDING COMPLETION. 
 
 cost of abating a nuisance under the Public Health 
 (London) Act, 1891 {//). Outgoings so charged by 
 statute upon the land sold, whether by express words 
 or impliedly by reason of theii' being recoverable by 
 distress upon or other process of law against the land, 
 are payable by the vendor if the statutory charge arise 
 before the time for completion, even though the money 
 secured by the charge should not become actually pay- 
 able until after that date (/) ; and if the purchaser be 
 obliged to pay the same after completion, he can 
 recover the amount from the vendor either under an 
 e.t'pre-sii stipulation in the contract for sale that the 
 vendor shall discharge the outgoings up to the 
 time fixed for completion (A) or under the covenant 
 against incumbrances implied by statute (/) in the 
 conveyance {m). Where such outgoings are not so 
 charged by statute upon the property sold, but are 
 merely recoverable by suing the owner thereof for the 
 time being personally, it appears that the vendor ought 
 to pay them if they fall due before the time for com- 
 pletion ; but if he do not, and the purchaser be obliged 
 to pay, the amount paid cannot be recovered from the 
 vendor after completion under a covenant by him 
 against incumbrances, as there is no liability affecting 
 the land(//). It appears, however, that the purchaser 
 is entitled to refuse to complete the contract until such 
 outgoings are paid (o) , and that he can recover any 
 money which he is obliged to pay on this account after 
 completion if the contract for sale contained an express 
 stipulation that the vendor should discharge all out- 
 
 tract, 1902, 2 Ch. 214, 190a, 1 
 Oh. 287 ; as to -which case, see 
 above, p. 354. 
 
 (A) Barsht v. Taffc/, 1900, 1 Ch. 
 231, 234, 235. 
 
 (t) As to the times wheu the 
 charges given by the above-iueii- 
 tioued Acts attach, see the cases 
 cited in the six preceding notes. 
 
 (/j) Mid(ileij\. Uoppock, 4 Ex. D. 
 309; Tuhhsx. TFi/i/nr, 1897, 1 Q. B. 
 74. 
 
 (l) Stat. 44 & 45 Vict. c. 41 , s. 7. 
 
 (;«) Stock y.Meakiu, 1900, 1 Ch. 
 683. 
 
 (w) Eijy v. Hlmincii, 21 Q. B. D. 
 107. 
 
 (o) See Re Bettcsworth and 
 Richer, 37 Ch. D. 535.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 523 
 
 goings up to the time fixed for completion {p) . If, how- 
 ever, the contract for sale contain no such express 
 stipulutiou and be completed without the vendor dis- 
 charging such outgoings, it is a question whether the 
 purchaser, being subsequently obliged to pay them, 
 have any remedy to recover the amount expended from 
 the vendor [q). 
 
 As we have seen (/), contracts for the sale of land Appurtiuu- 
 
 meut iif 
 outj?oiui<-.s. 
 
 usually contain an express stipulation that the out ^^^^ "^'^ 
 
 goings shall, if necessary, be apportioned between the 
 vendor and purchaser up to the time fixed for com- 
 pletion. Where this is the case, all such outgoings as 
 in their nature extend over and are attributable to a 
 definite period of time, such as yearly taxes or half- 
 yearly rates, should, it appears, be apportioned, even 
 though they may not be apportionable by law (v). If 
 the contract contain no such stipulation, such outgoings 
 only can be apportioned between the parties as are 
 apportionable by law [t). 
 
 {p) Midfflei/ V. Coppock,4Ex.D. purchaser; it would certainly 
 
 309; Ttihbs v. Wynne, 1897, 1 survive if put iuto ^.Cyw^r.v.s words. 
 
 Q. B. 74. Why, theu, should it be e.xfciu- 
 
 ((/) Sec Eijf/ V. lilayiiey, 21 guished merely because it is ini- 
 
 Q. B. D. 107, whore it seems plied by law ':" See Pw/wo- v. /«/(><- 
 
 that the vendor ought to have ^on, 13 Q. B. D. 3.31, ooG, 357, 
 
 paid the amount claimed as out- 359. In Clarkv v. Rainnz, 1891, 
 
 goings; but the only point argued 2 Q. B. 456, an action was suc- 
 
 and decided was that the pur- cessfully maintained by a piu-- 
 
 chaser could not recover under chaser against a vendor after 
 
 the vendor's covenant against in- completion for a breach before 
 
 (Unibrances. (liucre whether, completion of the vendor's ini- 
 
 whon land is sold under an open plied duty to take proper care of 
 
 contract, the contract is so en- the laud sold : above, p. 512. 
 
 tirely merged in the convej'ance And see below. Chap. XVIII. 
 
 as to prevent the purchaser from § 1 . 
 
 recovering after completion out- (r) Above, pp. 67, 74. 
 
 goiugs which th«; vendor ought (s) See Lmvcx v. Gihuon, L. R. 
 
 to have, but has not paid, under 1 Eq. 135, as to rent before the 
 
 the implied sti|iulation tliat Xhv .Vpportionmeut Act, 1870 (it is 
 
 vendor shall discli.irge all our- presumed that a stipulation for 
 
 goings up to the time for com- apportiomnent was implu'd from 
 
 pletiou. This stipulation is not the contract to clair the out- 
 
 in any way carried out, nor is the goings) ; MtdyUy v. Voppuck, 4 
 
 object thereof performed by the Ex. D. 309, 313. 
 
 conveyance of the property to tlie [tj Midgley v. Cuppock, 4 Kx.. D.
 
 524 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Purchaser 
 taking posses- 
 sion before 
 completion. 
 
 If the purchaser take possession of the property sold 
 before completion of the contract, either in pursuance uf 
 a stipulation to that effect expressed or implied in the 
 contract or with the vendor's consent given after the 
 contract, he will, unless the contrary he expressly 
 agreed, as from the time of his entry into possession, 
 be entitled to take the ordinary rents and profits for his 
 own use, and be liable to bear the outgoings and to pay 
 interest on the purchase money {it). But as we have 
 seen {x), where there is no express contract to pay 
 interest, the purchaser may, in case of delay attributable 
 to the vendor in completing the purchase, discharge 
 himself from his liability to pay interest by appropriat- 
 ing his money to the purchase and giving the vendor 
 notice of such appropriation. Where the purchaser is 
 so let into possession before completion, the vendor, of 
 coiu-se, retains his legal estate in the propertj^ sold until 
 he parts with it by conveyance to the purchaser ; but 
 his only beneficial interest in the property sold is his 
 equitable lien for the price, and in equity he holds his 
 legal estate as security only for payment of the pur- 
 chase money {>/) . In equity, the purchaser is the owner 
 of the property, subject to the vendor's lien and to the 
 condition that a good title shall be shown (s) . It appears, 
 therefore, that in such case the purchaser is, as a rule, 
 entitled to exercise all ordinary acts of ownership over 
 the property sold ; for the very purpose of putting the 
 purchaser into possession is to enable him to act as 
 owner («). But he may be restrained by injunction 
 
 309, 313. And see below, Chap. 
 XII. § 4, as to apportionment of 
 the outgoings. 
 
 (?«) Powell \. Martyr, 8Ves. 146, 
 149 ; Fludycr v. Cocker, 12 Ves. 
 25 ; A.-G. V. Christ Church, 13 
 Sim. 214 ; Birchv. Joy, 3 H. L. C. 
 565, 591 ; Ballard v. Shutt, 15 
 Ch. D. 122 ; Fletcher v. Lanca- 
 shire, i-c. Rail. Co., 1902, 1 Ch. 
 
 901, 908. 
 
 (a-) Above, pp. 51, 68. 
 
 (y/) Smith v. Hibbard, 2 Dick. 
 730 ; Ecclesiastical Commrs. v. Fin- 
 ney, 1899, 2 Ch. 729, 1900, 2 Ch. 
 736. 
 
 [z) Above, pp. 504-506. 
 
 [a) Burronghs v. Oakley, 3 
 Swanst. 159, 170.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 525 
 
 from the commission or continuance of any such act of 
 waste as will depreciate the vendor's security for pay- 
 ment. In this respect the purchaser's position resembles 
 that of a mortgagor in possession (h). If the purchaser 
 take possession before completion without the vendor's 
 leave, he may be ejected and restrained by injunction I 
 from re-entry, or from the commission of waste, as a 
 mere trespasser may (c). The question to what extent 
 the purchaser's entry into possession before completion 
 may be a waiver of objection to the title has already 
 been considered (d). 
 
 If at the date of the contract for sale the purchaser Purchaser 
 be in possession of the property sold as tenant to the '^""^''^'^y. ^ 
 vendor from year to year or for any other term, and the vendor's 
 contract is subject to the usual condition that the vendor 
 shall show a good title, the tenancy is not determined 
 at law pending completion of the contract (c) ; though 
 in equity the purchaser, of course, has the rights inci- 
 dent to his position under tlie contract ( /'). And it 
 appears that in such case, in the absence of stipulation 
 to the contrary, the purchaser will be entitled to the 
 rents and profits and liable to pay interest on the 
 purchase money as from the date of the contract, not- 
 withstanding that the contract be conditional on the 
 vendor's showing a good title (g). If at the date of the 
 contract the purchaser be in possession as tenant at will 
 to the vendor, it appears that the tenancy is determined 
 by the contract, and that thenceforth the purchaser is 
 
 (J) Crockford v. Alcxmider, 15 (c) Boc d. Gray v. Staniou, 
 
 Ves. 138 ; Humphreys w. Harrison, 1 M. & W. 695 ; Tarte v. Darby, 
 
 1 J. & W. 581 ; Kiny v. Smith, 15 M. & W. 601. 
 
 2 Hare, 239, 244; Goodman v. (/) Above, p. 604; Daniels v. 
 Kinc, 8 Beav. 379 ; Wms. Real Davison, 16 Ves. 249, 253. 
 Prop. 552, 21st ed. (y) Townky v. BedweU, 14 Ves. 
 
 (c) See Crockford v. Alexander, 590, 597 ; Daniels v. Davison, 16 
 
 15 Ves. 138. " Ves. 249, 253 ; see M,IU v. Hay- 
 
 {d) Above, pp. 188—190. u-ood, 6 Ch. D. 196.
 
 526 EFFECT OF TTTE CONTRACT PENDING COMPLETION. 
 
 to be treated as being in possession under the con- 
 tract (//). 
 
 Orders for If an action be brought for the specific performance (?') 
 
 possession to of a contract for tlie sale of land and the purchaser be 
 pay price into j^ possession, he may be ordered, pending the trial of 
 
 Court or give ^ ' -^ • T m , 
 
 up possession, the action, to pay the purchase money into bourt, or at 
 his election either to pay the money into Court or to 
 give up possession. The Coiu't makes such orders for 
 the preservation of the property, which is the subject of 
 the action, considering it unjust to allow the purchaser 
 to have both the land and the purchase money in his 
 possession pending the trial. Thus, if the purchaser 
 exercise any act of ownership, such as felling timber or 
 working mines, which impairs the vendor's seciuity for 
 payment of the price, he will be ordered to pay the 
 purchase money into Court without having the option 
 of giving up possession instead ; and this is the case, 
 whether the purchaser were put into possession pursuant 
 to the contract or with the vendor's consent given after 
 the contract (/.•). And where the vendor has shown 
 such a title as the pm-chaser ought to accept, or the 
 purchaser has accepted the vendor's title, the purchaser 
 being in possession will be ordered to pay the piu'chase 
 money into Court (/) . Where the purchaser being in 
 . possession has done nothing to diminish the value of 
 I the property, he will not be ordered to pay the pm-chase 
 money into Court without being offered the alternative 
 
 {h) Daniels V. Davison, l6Yes. 564:, 1 Mev. IS3; Cutler Y.Simons, 
 
 249 252, 253. 2 Mer. 103 ; Bradshaw v. Brad- 
 
 (i) The orders here mentioned shaw, ib. 492 ; Bramley v. Teal, 
 
 will not be made at the instance 3 Madd. 219 ; Pope v. Great Eas- 
 
 of a vendor suing for rescission tern Rail. Co., L. R. 3 Eq. 171 ; 
 
 of the contract ; but other proper Lewis v. James, 32 Ch. D. 326, 
 
 ordei's for the preservation of the 330. 
 
 property in dispute may be made (/) Bradshaw v. Bradshaw, 2 
 
 in such an action: Cook v. An- Mer. 492, 493; Crutchley v. Jer- 
 
 drews, 1897, 1 Ch. 266. ni»ghaw, ib. 502; Wood v. Ed- 
 
 [k) Dixon v. Astley, 19 Ves. n-ards, 1876. W. N. 15.
 
 527 
 
 EFFECT OF Till': CONTRACT PENDING COMPLE'I'TON. 
 
 of giving up possession (ni) ; but it appears that, where 
 he has been let into possession with the vendor's leave 
 but not under the contract, he will, as a rule, be ordered 
 to elect within a specified time whether he will pay the 
 money into Court or give up possession, not\vithstan ding- 
 that a good title has not yet been shown (n), unless 
 there be delay in making out the title attributable to 
 the vendor's lar/ifs (o) . Where the purchaser has been 
 put into possession pursuant to the contract for sale, the 
 Court will not, in general, so put him to his election (p). 
 And where the purchaser's right to possession is refer- 
 able to some other title than that conferred by the 
 contract or the vendor's leave given after the contract, 
 as where he entered imder a lease granted to him prior 
 to the sale, there appears to be no ground for requiring 
 him to elect as above mentioned (q). 
 
 § 2. — Of fJic Tramfer pending Compfrfion of the RUjhtx 
 (Did Liahilifirfi under the Contrnet. 
 
 We will now consider the effect of the transfer of the Transfer 
 rights and liabilities created by the contract pending pietion'^of tli<> 
 the completion thereof. This may take place either J'.'-'''.^:' :""^ 
 
 . .,. -ii PI liabilities 
 
 involuntarily, which is mainly by act of law, or volun- nudcr tlio 
 tarily, that is, by act of the parties. The former case 
 occurs upon the death, bankruptcy or personal inca- 
 pacity supervening since the contract of either party 
 thereto, and on the land sold being taken in execution 
 
 (w) Greenwood v. Tnmcr, 1891, 500, oOl ; Morqan v. Shaiv, 2 
 
 2 Ch. 144. Mer. 138 ; Grli v. Walxon, 3 
 
 («) (Jlatke V. in/xon, 15 Ves. Madd. 225; Prif.sr v. Cninhrinii 
 
 317 ; Gihmn v. (JIarkc, 1 V. & B. Rail. Co., L. R. 2 Cli. 444. 
 
 500; Smith V. IJoi/d, 1 Madd. 83 ; (//) Bonner v. Jolinnton, 1 Mer. 
 
 irick/iain V. Erenil, 4 Madd. 53 ; 36G ; Frcehody v. Pcrri/, G. Coop. 
 
 Yoiingew. Diuuombi,Yo\x\\^c,'nb\ 'Jl. Note that in GreenuuoJ v. 
 
 Ttnd^il V. CoMum, 2 My^ & K. Turner. 1891, 2 Cli. 144. tlic 
 
 385; Foirfer V. Word, (J Jiir. .')47. lease under wliich the purehasor 
 
 (o) Fox V. liirc/i, I Mer. 105. claimed to be in possession had 
 
 Ip) Oihsonv. Clarke, 1 V. & B. expired at the time of tlie motion. 
 
 eontraet.
 
 528 
 
 EFFECT OF THE CONTEACT FENDING COMPLETION. 
 
 of a judgment against the vendor ; the latter upon the 
 assignment inter riros by either party of his rights 
 under the contract. We will consider each of these 
 eases in turn, first, as regards the vendor, and, secondly, 
 with respect to the purchaser, premising that the con- 
 tract, once validly concluded, is not avoided by the 
 death, bankruptcy, or supervening incapacity of either 
 party thereto, and remains, as a rule, enforceable not 
 only at law but specifically in equity at suit of either 
 party thereto, his representatives in law or assigns, 
 against the other party or his representatives in law (r) . 
 The contract is also specifically enforceable against the 
 vendor's assigns infer vivos of the land other than those 
 who have taken the legal estate therein as purchasers in 
 good faith for valuable consideration actually paid or 
 executed without notice of tlie contract (.s). 
 
 Death of the Qn the vendor's death, his rights under the contract 
 
 ^'^^ °^" pass to his executors or administrators, who are the 
 
 proper persons to sue upon the contract either for 
 
 damages at law or for specific performance in equity {f). 
 
 But in order to reap the benefit of the contract, the 
 
 personal representatives must, of com-se, procure the 
 
 performance of the vendor's part of the agreement — 
 
 that is, the conveyance to the purchaser of the land 
 
 Devolution of sold — and it is therefore necessary to consider upon 
 
 2tlte°'^°'^'^ what persons the vendor's estate in the land sold 
 
 ()•) Saden v. Fembroke, 2 Vem. 
 213; Otven v. Davics, 1 Ves. sen. 
 82 ; Hinton v. Hinfon, 2 Ves. sen. 
 631, 633 ; Taylor v. Stibbert, 2 
 Ves. jun. 437, 439 ; Brooke v. 
 Hewitt, 3 Ves. jun. 253 ; Sug. 
 V. & P. 175, 208 ; 1 Dart, V. & P. 
 255, 995, 99G, 5th ed. ; 291, 1114, 
 1115, 6th ed. ; 296, 1029, 1030, 
 7th ed.; Fry, Sp. Perf. §§ 211, 
 212, 241, 274, 275, 3rd ed. ; 
 Tearce v. BastaUc's Trustee, 1901, 
 2 Ch. 122. 
 
 (s) Daniels v. Davison, 16 Ves. 
 
 249, 17 Ves. 433 ; Potter v. 
 Sanders, 6 Hare, 1 ; 2 Dart, V. & 
 P. 823, 824, 996, 5th ed. ; 927, 
 928, 1115, 6th ed. ; 836, 837, 
 1030, 7th ed. 
 
 {t) Baden v. Pembroke, 2 Vem. 
 212 ; Eaton v. Sanxter, 6 Sim. 
 517; Roberts v. Marehant, 1 Ph. 
 370 ; Hoddel v. Pugh, 33 Beav. 
 489; Sug. V. &P. 177; 1 Dart, 
 V. & P. 256, 1008, 5th ed. ; 293, 
 1130, 6th ed. ; 296, 1029, 7th ed.; 
 Fry, Sp. Perf. § 212, 3rd ed.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 529 
 
 devolves upon his death pending completion. This 
 depends upon the nature of the property sol<L Tf it Freeholds 
 were freehold in fee the vendor's estate therein formerly 
 passed, on his death before completion, to his heir or 
 devisee, according as he had left the same to descend 
 or disposed thereof by his will ; and the heir or devisee 
 was obliged to convey the estate to the purchaser (?y). 
 The vendor's estate would not only go to a specific 
 devisee thereof, but might also pass under a general 
 devise of all his real estate, if the purposes of such a 
 devise were not inconsistent with this consti-uction (.r). 
 If, however, the vendor had devised all his real estate 
 generally to one, and all estates held by him upon any 
 trust to another, it was a question how far the estate 
 sold was held by the vendor upon a trust so as to pass 
 under the devise of his trust estates. Where the title 
 had been accepted prior to the vendor's death, it was 
 held tliat the property was vested in him upon a trust, 
 and so passed under a devise of his trust estates ; but 
 it appears that if the vendor had died prior to the 
 acceptance of the title, the property sold would not have 
 been lield by him upon an absolute trust, for the con- 
 tract had not yet become unconditionally binding on 
 him, and so the land would have passed to his general 
 devisee (//). Under the Land Transfer Act, 1875 [z), 
 freeholds or copyholds held in fee and sold might have 
 ])assed, on the vendor's death and intestacy, to his legal 
 personal representative, if he had been a hare trustee 
 thereof ; but this would only have been the case where 
 the title had been accepted and the purchase money 
 
 (it) The heir or devisee was a Wills, 693, 703 — 706, 4th ed. ; 
 
 necessary party to a suit for .spe- 647, 654 — 657, oth ed. 
 
 cific perforinauce of the contract, (//) Lysayht v. Bdward.s, 2 Ch. 
 
 both ou this iicc.ount and as hav- D. 499. 
 
 iujr au interest in disputiu;; the (s) Stat. 38 & 39 Vict. c. 87, 
 
 contract : see previous note. s. 48, replacing 37 & 38 Vict. 
 
 (x) See H'a// v. Bright, 1 J. & c. 78, s. 5 (above, p. 220), and re- 
 
 W. 494 ; Li/saght v. Edwards, 2 pealed by 44 & 45 Vict. c. 41, 
 
 Ch. D. 499, 510—513 ; 1 Jarm. s. 30. 
 
 w. 34
 
 530 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 paid(fl'). Under the Conveyancing Act of 1881 (ft), 
 freeholds held in fee and sold may pass, on thfi vendor's 
 death before completion, to his legal personal repre- 
 sentatives, notwithstanding any testamentary disposition 
 thereof, if they were vested in the vendor upon a trust 
 within the meaning of sect. 30 of that Act. This is the 
 case if the title had been accepted and the purchase 
 money paid before the vendor's death (e) ; and appa- 
 rently it is so, if before his death the contract had 
 become unconditionally binding on the parties by 
 reason of the purchaser's acceptance of the title {(/), but 
 this point has not been precisely so decided. Under 
 the same Act (e), however, where at the death of any 
 person there is subsisting a contract enforceable against 
 his heir or devisee for the sale of the fee simple or other 
 freehold interest descendible to his heirs general in any 
 land, his personal representatives shall, by virtue of this 
 Act, have power to convey the land for all the estate 
 and interest vested in him at his death in any manner 
 proper for giving effect to the contract. Under this 
 Act, therefore, the legal personal representatives of a 
 vendor of freeholds in fee, or a freehold estate pur autre 
 vie (/), who has died since the commencement of the 
 Act, and pending completion, have been enabled to 
 complete the contract by conveying the legal estate to 
 the purchaser in all cases in which the vendor had in 
 his lifetime entered into a valid contract for sale. But 
 it is to be observed that the power of conveyance given 
 by the 4th section of the Act depends on the existence 
 
 (a) Morgan v. Swansea Urban, 
 ^c. Authoritij, 9 Ch. D. 582 ; Re 
 Cunningham and Frayling, 1891, 
 2 Ch. 567 ; see Re Cuming, L. R. 
 5 Ch. 72. 
 
 (h) Stat. 44 & 45 Vict. c. 41, 
 s. 30; above, p. 221. 
 
 [c] Re Cuming, L. R. 5 Ch. 72. 
 
 {d) See Lysaght v. Eduards, 2 
 Ch. D. 499 ; Re Fagani, 1892, 
 1 Ch. 236. 
 
 [e) Stat. 44 & 45 Vict. c. 41, 
 s. 4, applying only in cases of 
 death after the 31st December, 
 1881, and pioviding that a con- 
 veyance made thereunder shall 
 not affect the beneficial rights of 
 any person claiming under any 
 testamentary disposition, or as 
 heir or next of kin of a testator 
 or intestate. 
 
 (/) Above, p. 216. 
 
 M
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 at the vendor's death of a contract for sale cnforceahk 
 ag-ainst his heir or devisee. It seems, therefore, that the 
 power does not arise where the contract for sale was 
 oral only, or put into writing but not signed by the 
 vendor {()), unless this objection to the enforcement of 
 the contract should have been removed under the 
 doctrine of part performance or otherwise (//). And 
 where a conveyance has been made in pursuance of this 
 enactment, it appears to be a necessary part of the title 
 to prove that the power so exercised duly arose ; and for 
 this purpose production of a contract for sale, duly put 
 into -^Titing and signed, ma}", it seems, be required (/). 
 As we have seen, under the Land Transfer Act, 
 1897 (/.•), a deceased person's freehold estate of inherit- 
 ance now passes, notwithstanding any testamentary 
 disposition thereof, to his personal representatives, as 
 trustees for the persons by law beneficially entitled 
 tliereto. It appears, therefore, that if a vendor of 
 freeholds in fee die since the commencement of that 
 Act, and pending the completion of the contract, his 
 estate therein must devolve upon his executors or 
 administrators in any event. If the contract sliould 
 have been so far performed that the vendor was, at the 
 date of liis deatli, an absolute trustee of the land for the 
 purchaser, tlie vendor'r^ estate appears to pass to his 
 executors or administrators, under sect. 30 of the Con- 
 veyancing Act of 1881 (/); otherwise they appear to 
 take the estate under tlic Land Transfer Act, 1897 {ni). 
 
 (t/) Above, p. 11. (in) It appears, however, that 
 
 (/() Above, pp. li — 14. the vendor's heir or devisee should 
 
 (i) See 1 Key & Elph. Prec. still be made a party to any action 
 
 Couv. n44, n., 4th ed. ; alM, fi'il^ for specific performance of the 
 
 and notes, Hth ed. contract, as having' an interest in 
 
 (/.) Stat. 60 & Gl Vict. c. 0-5, di.spiitiug the contract : above, 
 
 s. 1 (1) : above, pp. 2'IH, -i'ig. pp. o2«. n. {f), 529, n. («) ; Raw- 
 
 (/) Above. ]). 'jiiO. lins, Sp. Perf. 83. 
 
 531 
 
 34(2)
 
 532 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Estate tail. If the vendor were seised of the property sold for an 
 
 estate tail, it appears that his estate therein still passes, 
 on his death pending completion and without having 
 barred the entail, to the heir in tail (w), or if there be no 
 such heir, to the reversioner or remainderman. And 
 the contract is not enforceable against these persons (o) , 
 notwithstanding that the vendor in his lifetime could 
 have made a good title by barring the entail (p), and 
 might have been decreed to perform the contract speci- 
 fically (q). But if the vendor, being a tenant in tail 
 only, had entered into an absolute contract for sale of 
 the fee simple, his death without having barred the 
 entail causes a breach of the contract to show a good 
 title, and for this his executors are liable in damages at 
 
 Sale by tenant jrj^^ If the tenant in tail should have contracted to 
 
 in tail under ■,, ,^ •iiii- • en ci 
 
 the Settled sell the entailed lauds m exercise oi the power oi sale 
 given to him by the Settled Land Act, 1882 (r), and 
 died pending completion, the contract would be enforce- 
 able against all persons entitled to the lands after his 
 death under the settlement by virtue of which he held 
 the same (s). Such a contract is quite different from a 
 contract to exercise the power of disposition annexed 
 by law to the ownership of his estate. In the one case 
 
 Land Acts. 
 
 (h) Above, p. 234. 
 
 (o) Stat. 3 & 4 Will. IV. c. 74, 
 8. 40 ; Sug. V. & P. 427 ; 2 Dart, 
 V. & P. 998, 5th ed. ; 1117, 6th 
 ed. ; 1032, 7th ed. As to the 
 old law, see A.-G. v. Buy, 1 Ves. 
 218, 224 : FranJc v. Mainwar'iru/, 
 2 Beav. 115, 126. 
 
 {p) Cattell V. CorraU, 4 T. & C. 
 228 ; see above, p. 385. n. (j»). 
 Here it may be noted that under 
 stat. 3 & 4 Will. IV. c. 74, ss. 1, 15, 
 a tenant in tail, who has by deed 
 unenrolled conveyed away all his 
 estate in the lands entailed, 
 whether to a purcha.ser for value 
 or to a volunteer, may neverthe- 
 less subsequently bar the entail, 
 by a proper disentailing assur- 
 ance duly executed and enrolled 
 
 under the Act. In such case, if 
 the prior conveyance were made 
 in favour of a purchaser for 
 valuable consideration, the subse- 
 quent assurance will (unless it 
 were itself made to a purchaser 
 for value not having- express 
 notice of the prior conveyance) 
 operate to confirm the prior con- 
 veyance ; see sect. 38 ; StHrgift v. 
 Morse, 2 De G. F. & J. 223 ; 
 Hankey v. Martin, 49 L. T. 560 ; 
 Cotton, L. J., Bankes v. Small, 
 36 Oh. D. 716, 721 ; Re Gmkell ^• 
 Walters'' Contract. 1906, 2 Ch. 1. 
 
 {q) Sug. V. & p. 205 ; Bankes 
 V. Small, 36 Ch. D. 716. 
 
 (r) Stat. 45 & 46 Vict. c. 38, 
 .s. 58 (1) (i). 
 
 (,s) Sect. 31 (2).
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 533 
 
 tlie pm-cliase money is intended to be paid, not to the 
 vendor, but to trustees or into Court in trust for the 
 persons entitled under the settlement (f), and it is not 
 intended to bar the entail : in the other, the vendor 
 proposes to bar the entail and to take the purchase 
 money for himself [ii). It appears that an open contract 
 to sell the fee made by a tenant in tail would be refer- 
 able to the power of disposition annexed to his owner- 
 ship of the estate (^), as the purchase money would be 
 payable to himself. If the property sold were copyhold Copyholds, 
 held for a customary estate in fee and the vendor had 
 been admitted tenant, his estate will not pass, on his 
 death pending completion, to his executors or adminis- 
 trators, either under sect. 30 of the Conveyancing Act 
 of 1881 (//), or under the Land Transfer Act, 1897 (;:), 
 but will go to his customary heir or devisee, according 
 as he died intestate or testate in respect thereof, pur- 
 suant to the old law formerly affecting freeholds (a). 
 If the property sold were copyhold, in which the vendor 
 had an equitable estate in fee or of which he was an 
 unadmitted surrenderee in fee, it appears that, on his 
 death before completion, his estate would pass to his 
 executors or administrators if he were then a trustee 
 thereof within the meaning of sect. 30 of the Convey- 
 ancing Act of 1 88 1 (0) ; and if not, it would appear 
 to pass to them under the Land Transfer Act, 1897 {(■). 
 The 4th section of the Conveyancing Act of 1881 (d) 
 relates only to tlie case of the sale of the fee simple 
 or other f'rce/ioid interest descendible to the heirs 
 genera/, and does not therefore apply in the case of the 
 sale of an estate of inheritance, whether legal or equit- 
 
 {t) Above, p. 300. (z) Above, pp. 228, 231—236. 
 
 («) Wms. Real Prop. 01, 99, {a) Above, pp. 216, 529. 
 
 lOS, 109, 21st ed. {b) Above, pp. 221, 222, .530. 
 
 (x) See Sug. Pow. 343 •«/., (c) lie iSomervilU and Turner's 
 
 8th od. ; Farwell on Powers, 266, Contract, 1903, 2 Ch. 583 ; above, 
 
 2ud ed. p. 235. 
 
 {;/) Above, p. 221. (rf) Above, p. 530.
 
 534 
 
 EBTECT OF THE CONTRACT PENDING COMPLETION. 
 
 Leasehold.s. able, in any copyhold hereditaments. If the property 
 sold were leaseholds for years, the vendor's estate therein 
 would in any case pass, on his death before completion, 
 to his executors or administrators at common law (c). 
 
 Conversion of 
 the land sold 
 in the ven- 
 dor's hands. 
 
 As between the vendor and his own representatives 
 after his death, the property sold, if real estate, is, as 
 we have seen (./'), converted into personalty as from the 
 date of the contract for sale, provided that the contract 
 become fully binding by the acceptance of the title. If 
 this condition be fulfilled, the purchase money and the 
 vendor's lien therefor belong, in case of his death before 
 completion, to his executors or administrators as j)art of 
 his personal estate {<j) : but the benefit of the vendor's 
 right to take the rents and profits up to the proper time 
 for completion will pass, if he die before that time, to 
 his heir or devisee {//), subject to the executor's or 
 administrator's interest therein for payment of the 
 vendor's debts under the Land Transfer Act, 1897 (/). 
 If the vendor should, prior to the contract for sale, have 
 specifically devised the land afterwards sold, the devise — 
 although it would, j)rior to the Land Transfer Act, 
 1897, convey the vendor's estate at law (/.■) — is in equity 
 adeemed ; so that the devisee is not entitled to the 
 purchase money (/) unless a contrary intention should 
 appear from the will (m) . If a contract for the sale of 
 
 (e) Above, pp. 217, 219. 
 
 (/) Above, p. 505. 
 
 {</) Above, pp. 506, 528. 
 
 (/«) Luiiisden v. Fraser, 12 Sim. 
 263 ; 1 Dart, V. & P. 263, 5th 
 ed. : 302, 6th ed. ; 306, 7th ed. ; 
 TFattsv. JFatts, Ij. R. 17Eq. 217. 
 
 (i) Above, pp. 229—231. 
 
 (A:) Above, p. 529. 
 
 (l) Moor V. Itaisbeck, 12 Sim. 
 123 ; Farrar v. JFiiiterton, 5 Beav. 
 1 ; Weeding v. TFerdiufji, 1 J. & 
 H. 424, 431 ; JFatts 'v. IFatts, 
 L. R. 17 Eq. 217 ; Sug. V. & P. 
 190; 1 Dart, V. & P. 263, oth 
 
 ed. ; 302, 6th ed. ; 306, 7th ed. 
 The same law is applicable where 
 the land has been disi^osed of by 
 will in exercise of a general or 
 special power of a])pointraent and 
 afterwards sold : Jie Boivscft, 1901, 
 1 Ch. 398 ; Beddinyton v. Baumann, 
 1903, A. C. 13. 
 
 ini) Brant v. Vatise, 1 Y. & C. 
 C. C. 580 ; Fmuns v. /Smith, 2 De 
 G. & S. 722 ; Weeding v. Jl'eeding, 
 1 J. & H. 424, 431 ; 1 Dart, V. 
 & P. 263, 264, 5th ed. ; 302, 303, 
 Oth ed. ; 306, 7th ed. ; and see 
 Sugd. Law of Property, 223.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 535 
 
 real estate become unconditionally binding by the 
 acceptance of the vendor's title and the vendor die 
 pending completion, and afterwards the contract fail to 
 be performed owing to the purchaser's default in pay- 
 ment of the price, the land becomes in equity the pro- 
 perty of the persons entitled on the vendor's death to 
 his personal estate ; for they became absolutely entitled 
 to the benefit of the vendor's lien when the contract 
 became fully binding ; and they remain entitled, on 
 failure of the contract by the purchaser's default, to 
 take possession of their seciu-ity in specie {)/). But if 
 the contract never become absolutely binding upon and 
 specifically enforceable against both parties, as where 
 there is a failure to show a good title on the vendor's 
 part, or the contract is voidable ab initio and is avoided 
 for fraud, misrepresentation, or any other cause (such 
 as omission to comply with the Statute of Frauds (o) ), 
 there is no conversion of the property sold in the 
 vendor's hands, and if lie die, the land, which was the 
 subject of the contract, will pass as such to the persons 
 entitled to his lands either on his intestacy or under his 
 will {])). And the like result follows where a contract 
 for sale of lands has been rescinded or abandoned by 
 consent of the parties in the vendor's lifetime [q). 
 When a man has entered into a valid contract giving to Option to 
 another an option to purchase (r) his real estate, the P"'"'^"^*^- 
 
 («) Cunr V. Ilowj/rr, o Bcav. who has the option, and must 
 
 6, 11. ; Jji/saghl v. Bduiird.s, 2 Ch. therefore conform with the 4th 
 
 D. 499, 506 .section of the Statute of Frauds 
 
 (o) Above, p. 11. (above, p. 3); see London and 
 
 (p) Above, pp. 21'? .v^.; and see South ll'esfcni Jiiuli'ni/ v. Goiiiin, 
 
 Hayncs v. llaijucs, 1 Dr. & Sm. 20 Ch. D. o62 ; above, pp. 370, 
 
 426; Edwards v. J/'e.s/, 7 Ch. D. 371. In order that an option 
 
 80S, 862 ; 1 Jarm. AV'ills. 54, to purcha.se any hmd may be 
 
 5th ed. well exercised, the terms of the 
 
 (7) Sii}^. V. &P. 191 ; and con- contract, jrrant or devi.se, which 
 
 sider lUdoul v. Foic/tr, 1904, 1 created the option, must in all 
 
 Ch. 658, 2 Ch. 93. respects be strictly pursued, and 
 
 (>•) A contract giviuif an option where any particular time is 
 
 to purcha.se any land jjivcs au specified for the exercise of the 
 
 interest in the laud to the person option, time is of the essence of
 
 536 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 property is converted into personalty in the hands of 
 the vendor, his heirs and assigns, us from the time of 
 the exercise of the option ; and if the vendor die before 
 that time, his heirs or assigns of the hereditaments in 
 question are entitled to the rents and profits thereof 
 until the option is exercised, after which, in the absence 
 of any disposition to the contrary made by his will (.s), 
 his legal personal representatives are entitled to the 
 purchase money, with interest from that time until pay- 
 ment, as part of his personal estate (t). 
 
 Conveyance 
 of deceased 
 vendor's 
 estate by vest- 
 insr order. 
 
 As we have seen(i«), in case of the vendor's death 
 pending completion, a conveyance of his estate must be 
 executed to the purchaser before the purchase money 
 can be obtained. Such a conveyance cannot always be 
 immediately executed by the persons on whom the ven- 
 dor's estate has devolved on account of their being under 
 disability or from other causes. In certain cases of this 
 kind the required conveyance may be effected by vest- 
 ing order made under the jurisdiction conferred by the 
 Lunacy Act, 1890 {x), or the Trustee Act, 1893 (y). 
 
 the contract or matter : Brooke v. 
 Gan-od, 'L De G. & J. 62 ; Rane- 
 lagh V. Melton, 10 Jur. N. S. 
 1141 ; Weston v. Collins, 11 Jur. 
 N. S. 190 ; and see Milh v. Hay- 
 wood, 6 Ch. D. 196 ; Bruner v. 
 Moore, 1904, 1 Ch. 305. The benefit 
 of an option given by covenant 
 contained in a lease to the lessee, 
 his executors, administrators or 
 assigns, to purchase the fee sim- 
 ple of the demised premises goes, 
 after the lessee's death, to the 
 persons becoming entitled to the 
 lease : Re Adams and Kensington 
 Vestry, '2.7 Ch. D. 394. As to 
 the question how far an option 
 to purchase must conform with 
 the rule against perpetuities, see 
 
 above, pp. 370—372. As to the 
 eti'ect of a contract to give the 
 first refusal of land, see Manchester 
 Ship Canal Co. v. Manchester Race- 
 course Co., 1901, 2 Ch. 37. 
 
 («) See above, p. 634, n. (/«). 
 
 {€) Laives v. Bennett, 1 Cox, 
 167 ; Townley v. Bedwell, 14 Ves. 
 590 ; Weeding v. Weeding, 1 J. & 
 H. 424 ; Re Adams and Kensington 
 Vestry, 27 Ch. D. 394, 399. 
 
 (m) Above, p. 529. 
 
 [x) Stat. 53 Vict. c. 5, s. 135, 
 enabling the Judge in lunacy to 
 make a vesting order when a 
 lunatic is solely or jointly seised 
 or possessed of, or entitled to a 
 contingent right in any land upon 
 trust. 
 
 [y) Stat. 56 & 57 Vict. c. 53, ss. 26 — 34. These enactments and 
 that mentioned in the previous note have replaced the Trustee Acts, 
 1850 and 1852 (stats. 13 & 14 Vict. c. 60 ; 16 & 16 Vict. c. 55), which
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 537 
 
 But, except where the coutract is established by briiig- 
 iug an actiou for its specific performance, the Court will 
 
 replaced 11 Geo. IV. & 1 WiU. IV. c. 60 : 4 & 5 Will. IV. c. TS ; and 
 1 & 2 Vict. c. 69. 
 
 By the Trustee Act, 1893, s. 26, the High Court may make a vesting 
 order — 
 
 (i.) Where the High Court appoints or has appointed a new trustee ; 
 (ii.) Where a trustee entitled to or possessed of any laud, or entitled 
 to a contingent right therein, either solely or jointly with any 
 other person — 
 
 (a) is an infant, or 
 
 (b) is out of the jurisdiction of the High Court, or 
 
 (c) cannot be found ; 
 
 (iii.) Where it is uncertain who was the sur\dvor of two or luore 
 
 trustees jointly entitled to or possessed of any land ; 
 (iv.) Where, as to the last trustee known to have been entitled to or 
 possessed of any land, it is uncertain whether he is living or 
 dead ; 
 (v.) Where there is no heir or personal representative to a trustee 
 who was entitled to or possessed of land and has died intestate 
 as to that land, or where it is uncertain who is the heir or 
 personal representative or devisee of a trustee who was entitled 
 to or possessed of any land and is dead ; 
 (vi.) Where a trustee jointly or solely entitled to or possessed of 
 any land, or entitled to a contingent right therein, has been 
 required, by or on behalf of a person entitled to require a 
 conveyance of the land or a release of the right, to convey the 
 land or to release the right, and has wilfullj'' refiised or neglected 
 to convey the land or release the right for twenty-eight days 
 after the date of the requirement. 
 By sect. 27, where anj' laud is subject to a contingent right in an 
 unborn person or class of unborn persons who, on coming into exist- 
 ence, would, in respect thereof, become entitled to or possessed of the 
 land on any trust, tlie High Court may make an order releasing the 
 land from the contingent right, or may make an order vesting in any 
 person the estate to or of which the unborn person or class of unljoru 
 persons would, on coming into existence, be entitled or possessed in 
 the land. 
 
 By sect. '61, where judgment is given (amongst other things) for 
 the specific performance of a contract concerning any land, the High 
 Court may declare that any of the parties to the action are trustees of 
 the laud or any part thereof within the meaning of this Act, or may 
 declare that the interests of unborn persons who might claim under 
 any party to the a(;tiou, or under the will or voluntary settlement of 
 any person deceased who was duriug his lifetime a party to the con- 
 tract concerning whidi the judgment is given, are the interests of 
 persons who, on coming into existence, would be trustees within tlic 
 meaning of this Act, and thereupon the High Court may make a 
 vesting order relating to the rights of those persons, bom and unborn, 
 as if they had been trustees. 
 
 By sect. 32, vcstingorders have the effect of a conveyance by the 
 proper persons. By sect. 33, tlie Court niay, in all ca.scs where a 
 vestiug order can be nuide, appoint a per.son to convey, and a convey- 
 ance by siich ])ersoii shall have the same effect as a vestiug order. 
 By sect. 34, where an order vesting copyhold laud is made with the
 
 538 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 not make a vesting order as to a deceased vendor's 
 estate under these Acts unless the contract had been so 
 far executed in his Hfetime that at the time of his death 
 he was unquestionably an absolute trustee for the pur- 
 chaser (;:) ; as, for examj^le, where the whole or the 
 bulk of the purchase money had been paid and the 
 purchaser let into possession (a). It may be observed 
 that the construction so placed on these Acts is not 
 inconsistent with the doctrine that the vendor is a 
 trustee for the purchaser conditionally as from the date 
 of the contract, and absolutelj^ when the contract has 
 become fully binding by the acceptance of the title (/>). 
 The Court, in exercising the jurisdiction conferred by 
 these Acts, does not question this doctrine ; it merely 
 requires indisputable evidence of the vendor's absolute 
 trusteeship before it will treat his representatives as 
 trustees. 
 
 Death of 
 vendor M^ho 
 sold under a 
 power. 
 
 Where the owner of a power of appointment over 
 land has contracted to sell the land in exercise of the 
 power {(■) , and dies before completion of the sale by 
 conveyance under the power, the contract for sale is 
 treated in equity on the same footing as a defective 
 execution of the power, and will accordingly be speci- 
 fically enforceable by the purchaser against the persons 
 
 consent of the lord of the manor, the land shall vest without surrender 
 or admittance ; and where a person is appointed to convey any copy- 
 hold land, he shall do all things necessary to complete the assurance 
 thereof, and the lord of the manor shall, subject to the customs of the 
 manor and the usual payments, admit him accordingly. 
 
 (;) lie Carpenter, Kay, 418 ; be presumed that he contracted 
 
 Jte Collimj, 32 Ch. D. 333. 
 
 (a) Re Cumiwj, L. R. o Ch. 72 : 
 Re Pagani, 1892, 1 Ch. '236. 
 
 [h) Above, pp. 505, 529, 530. 
 
 \c) The question whether the 
 vendor contracted to sell in exer- 
 cise of the power depends upon 
 his intention. It is not necessary 
 that the contract should refer to 
 the power. Where the vendor 
 had no estate in the land, it will 
 
 to sell in exercise of his power; 
 but where he had an estate in the 
 land as well as the power, it is a 
 question of construction whether 
 he contracted to sell in exercise 
 of the right of alieu.ation annexed 
 to his estate or of the power : see 
 Blake v. Mariiell, 2 Ball &, Beat. 
 35; Sug.Pow. 201.sY?.,289,343Ar/., 
 8th ed. ; Farwell on Powers. 266, 
 2nd ed. ; above, pp. 532, 533.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 539 
 
 entitled to the lauds in default of appointment. Thus, 
 if the power of appointment were exercisable by deed 
 only, and the contract for sale were made by unsealed 
 writing, and the vendor died before conveyance, eqvdty 
 would supply the defect in favom* of the purchaser, and 
 would oblige the persons entitled in default of appoint- 
 ment to carry out the contract (^/) . But in order that 
 a contract to exercise a power over land may be so 
 binding on those entitled in dnfault of appointment, it 
 must be valid from the beginning ; and it appears that 
 a parol contract, followed by part performance by the 
 purchaser, is not so enforceable against them {e), unless, 
 witli knowledge of the parol contract, they lie by and 
 allow him to lay out money on the estate (,/). Every Contracts for 
 contract for the sale of settled land made by a tenant l^e^tie'jj'^ii^Q^ 
 for life or any person liaving the powers of a tenant for under the 
 life under the Settled Laud Act, 1882 {(j), is binding ^vcts. 
 on, and enures for the benefit of, the settled land, and 
 is enforceable against and by every successor in title 
 for the time being of the tenant for life, and may be 
 carried into effect by any such successor, but so that it 
 may be varied or rescinded by any such successor in 
 the like case and manner, if any, as if it had been 
 made by himself. And by the Settled Land Act, 
 1890 (A), a tenant for life may make any conveyance 
 which is necessary or proper for giving effect to a 
 contract entered into by a predecessor in title, and 
 which, if made by such predecessor, would have been (Sic.) 
 valid as against his successors in title. This enactment 
 appears to be applicable, not only where the contract 
 was made in exercise of some power conferred by the 
 
 (d) CoviHtry v. Conntti/, 1 Str. G. "24, 33. 
 
 59G; Mortluck v. Built r, 10 Ves. {f) .Sdlci v. <JowjMr,'6 Aik. 692-, 
 
 'l'J2, Ijlo; Shdiiiioii V. JlrmMrret, Shannon v. Jiradxtnct, 1 Sch. & 
 
 1 Sell. ^ Let". 6"J ; Sug. Pow. ;)52, Lef. 52, 72, 73. 
 
 563, 8th od. ; lir Dykes, L. K. 7 '£) Suit. 45 c«c 40 Vict. c. 3.S, 
 
 Eq. 337, 342. ns. 31 (1), (2), 5.S. 
 
 (e) Blorc V. ^Sutton, 3 Mer. 237; (A) Stat. 53 & 54 Vict. c. G9, 
 Moryun v. Alttmun, 3 De G. M. & 8. 6.
 
 540 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Settled Land Acts, but in all other eases where the 
 contract binds the contractor's successors in estate ; for 
 example, where one seised of lauds in fee has sold them, 
 and died pending completion, having devised the lands 
 to another for life with remainder over. But in these 
 circumstances, if the vendor died after the commence- 
 ment of the Land Transfer Act, 1897 (/), the purchaser 
 could not safely take a conveyance from the tenant for 
 life under the will, except where the real estate sold 
 was not affected by this Act, as in the case of copy- 
 holds (/.•) , for the effect of the Act is to prevent any 
 legal estate from passing to the devisees, and in equity 
 the devise, if made prior to the sale, would be revoked 
 thereby (/). 
 
 Devolution of 
 the burthen of 
 the contract 
 on the ven- 
 dor's death. 
 
 If the vendor die pending completion, the proper 
 persons to be sued by the purchaser for the specific per- 
 formance of the contract are the vendor's executors or 
 administrators, as being his general representatives in 
 respect of his contractual liabilities and being the per- 
 sons entitled to receive the purchase money ; but the 
 vendor's heir or devisee, who would have been entitled 
 to the land if it had not been sold, was formerly and, 
 it appears, is still a necessary party to the action, as 
 having an interest in disputing the validity of the con- 
 tract (m). The vendor's legal personal representatives 
 are the proper persons to be sued for breach of the 
 contract at law (/?). 
 
 Death of the 
 purchaser. 
 
 We have seen (o) that when a man enters into a con- 
 tract, which is valid and specifically enforceable, for the 
 
 (i) Above, pp. 228 «/., 531. (w) But if the contract were 
 
 (k) Above, pp. 2'i9, 2o5, 533. under seal and bound the 
 
 {1} Above, pp. 22b cfj., 534. vendor's heirs, his heirs or de- 
 
 (■/«) Above, pp.528, n. (C), 529, viseea might be sued thereon at 
 
 n. (m), 531, n. (;;;), and theauthori- law: see above, p. 223; Wnis. 
 
 ties there cited ; Rawlins on Conv. Stat. 234, 235. 
 
 Speciiic Performance, 83. (o) Above, pp. 505, 506.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 541 
 
 purchase of land, tlie land is in equity ///s land as from 
 the date of the contract. If therefore he die pending 
 the completion of the contract, the benefit of his rights 
 under the contract passes to the persons wlio become 
 entitled to that particular part of his lands, which is 
 represented by the property purchased. If this were 
 freehold estate of inheritance, the beneficial interest 
 therein passed formerly to his heir, if he died intestate 
 in respect thereof, and otherwise to his specific or 
 general devisee (p) ; and in the hands of such heir or 
 devisee would be rra/ assets for payment of his debts {q). 
 Under the Land Transfer Act, 1897 (r), freehold estate 
 of inheritance contracted to be purchased appears to 
 pass, on the purchaser's death pending completion, to 
 liis executors or administrators, upon trust, subject to 
 the payment of his funeral and testamentary expenses 
 and debts, for his lieir or devisee. If the property pur- 
 chased were a legal estate of inheritance in copyholds, 
 the purchaser's interest devolves upon his customary 
 lieir or devisee ; and it does not appear that his 
 executors or administrators take any estate therein 
 under the Land Transfer Act, 1897 : but the per- 
 sonal representatives take the purchaser's estate 
 where he bought an equitable estate only in copy- 
 holds (s) . In either case the lands would be real 
 assets for payment of the purchaser's debts {f). If 
 leaseholds were purchased, they pass of course to the 
 purchaser's executors or administrators as part of liis 
 personal estate. The persons so becoming entitled, on 
 the purchaser's death, to the land whicli he has con- 
 tracted to purchase, are the proper persons to sue for 
 
 (;;) Since the Wills Act, 1837, {q) Above, pp. 222, 223, 506. 
 
 lands purchased after the date of (;) Stat. 60 & 61 Vict. c. 6.), 
 
 !i will pass under a <i-oneral devise ss. 1,2; above, pp. 228, 229. 
 therein contained; previously (.v) Jie Soiiitrville and Tut iter'' s 
 
 thev did not : Su«r. V. A: P. 183— Contract, 1903, 2 Ch. .583 ; above, 
 
 189; Stat. 7 Will. IV. & 1 Vict. pp. 229, 2^3—23.5. 
 c. 26, 88. 3, 23, 24. [t] Above, pp. 222, 223.
 
 542 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 the specific performance of the contract by the vendor : 
 but the purchaser's legal personal representatives should 
 be made parties to such an action, if brought by his 
 heir or devisee, as they are liable to the vendor for pay- 
 ment of the purchase money and have an interest in 
 disputing the contract (fi). The proper persons to sue, 
 after the purchaser's death, for damages at law for 
 breach of the contract are his legal personal representa- 
 tives (r) ; and any damages so recovered appear to form 
 part of the purchaser's personal estate. 
 
 Purchaser's Formerly, if one contracted to buy land and died 
 
 now takes pending completion, his heir or devisee, in the case of 
 
 subiect tothe ^^^^ estate, or his specific devisee in the case of lease- 
 vendors hen. ' '^ 
 
 holds, was entitled to have the purchase money paid 
 
 out of the deceased purchaser's general personal estate (//) . 
 But now, under the Acts amending Locke King's Act (z), 
 the heir or devisee, or the specific devisee of lease- 
 holds (a), or other chattels real (h), must take the here- 
 
 (?/) Fry, Sp. Perf. § 217, 3rd 
 ed. And it appeal's that where 
 the purchaser's personal represen- 
 tatives sue for specific perf oi-mance 
 of a contract to buy real estate, 
 as being entitled thereto under 
 the Land Transfer Act, 1897, they 
 should still make his heir or de- 
 visee a party as being the person 
 beneficially entitled and being 
 interested in securing a proper 
 inquiry into the title : Rawlins, 
 Spec. Perf. 83. 
 
 (.r) Oi-iiie v. Bronghton, 10 Bing. 
 533 ; Sug. V. & P. 238 : 2 Dart, 
 V. & P. 9.54, oth ed. ; 1084, 6th 
 ed. ; 998, 7th ed. 
 
 ()/) Broome v. Mo)ick, 10 Ves. 
 h'dl, 614, 620, 621 ; Hood v. Rood, 
 3 Jur. N. S. 684. 
 
 (r) Stat. 40 & 41 Vict. c. 34, 
 extending the provisions of 17 & 
 18 Vict. c. 113, and 30 & 31 Vict. 
 c. 69, to the case of any testator 
 or intestate dying after the Slst 
 December, 1877, seised or pos- 
 
 sessed of or entitled to any land 
 or other hereditaments of what- 
 ever tenure which shall at the 
 time of his death be charged with 
 any lien for unpaid purchase 
 money, unless in the case of a 
 testator he shall within the mean- 
 ing of these Acts have signified a 
 contrary intention ; and providing 
 that such contrary intention shall 
 not be deemed to be signified by 
 a charge of or direction for pay- 
 ment of debts upon or out of 
 residuary real and personal es- 
 tate or residuary real estate. By 
 Stat. 30 & 31 Vict. c. 69, s. 1, a 
 general direction that the debts 
 of the testator shall be paid out 
 of his personal estate is not to be 
 deemed a declaration of such con- 
 trary intentiou without words 
 expressly or impliedly referring 
 to the debt charged on the land. 
 
 {a) Re Kershaw, 37 Ch. D. 674. 
 
 [b) Re Fraser, 1904, 1 Ch. Ill, 
 726.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 543 
 
 ditameuts so purcliased charged with the vendor's lien 
 for payment of the ])urchase money, whicli is, as between 
 the heir or devisee and the persons entitled to the pur- 
 chaser's personalty, to be satisfied out of the estate 
 purchased ; unless tlie purchaser, being a testator of the 
 property bought [<•), should have signified a contrary in- 
 tention within the meaning of the Acts. But these Acts 
 do not affect the vendor's right to obtain payment of the 
 [turcliase money out of all the purchaser's assets, real or 
 personal {d). It is to be observed that the Acts appa- 
 rently do not apply where the lands purchased are not 
 subject to any vendor's lien, as may be the case if the 
 parties so agree {<'). 
 
 The right of a deceased purchaser's heir or devisee to Test of the 
 succeed to real estate, contracted to be purchased by but arvulvino- as 
 not conveyed to liim in his lifetime, depends upon the ''""' "" ^'^^ 
 
 ... , . ,, , purchaser's 
 
 like condition as determmes the question ot the con- death, 
 version of the property into personalty in the vendor's 
 hands ; that is to say, whether the contract was specifi- 
 cally enforceable against the purchaser at the time of 
 his death. If this were so, the heir or devisee is abso- 
 lutely entitled to the property ; and he was formerly so 
 absolutely entitled to have the purchase money raised 
 out of the dead man's personalty that if the contract 
 had been specifically enforceable against the purchaser 
 at his deatli, but was not performed owing to some 
 cause subsequently occurring, the heir or devisee was 
 entitled to have the purchase money raised and applied 
 in the purchase for him of other lands ( /"). But this 
 was not the case where the contract failed to be per- 
 
 (c) See lit' Cockcroft, '.'A Ch. I). Garnett v. Acton, 28 Beav. W.V.I; 
 
 94, 100. Hudson v. Cook, L. R. 13 Eq. 
 
 {d) See Stat. 17 & IS Vict. -117; sed qii. whetlier this last 
 
 c. 113. case was rig^htly decided; the 
 
 {e) See Re Cockcroft, ubi sup. jjurchaser had entered iuto a con- 
 
 (/■) jrhiffakcr V. irhilfukrr, 4 tract which waa not absolute, but 
 
 Bro. C. C. :U ; Jimn/ne v. Mu/ick, voidable by the vendor in certaiu 
 
 10 Ves. 597, 599, 006—608, 614 ; events.
 
 544 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 formed owing to the vendor's want of title ; for that 
 proved that the contract was not specifically enforceable 
 against the purchaser when he died (g). This doctrine 
 of allowing the heir or devisee to have the purchase 
 money raised and laid out in buying other lands appears 
 to be only applicable, under the present law, where the 
 lieir or devisee does not take the estate purchased sub- 
 ject to the vendor's lien (//). 
 
 Devolution of 
 the burthen of 
 the contract 
 on the pur- 
 chaser's 
 death. 
 
 The burthen of the contract on the purchaser's death 
 before completion devolves upon his legal personal 
 representatives, who are the proper persons to be sued 
 by the vendor either in equity for specific performance 
 of the contract or at law for damages for its breach (/) ; 
 but the purchaser's heir or devisee becoming entitled to 
 the purchased land w^as, and apparently still remains, a 
 necessary party to proceedings at suit of the vendor for 
 specific performance of the contract, as having an in- 
 terest in seeing that the inquiry into title is properly 
 conducted (A') . 
 
 Bankruptcy 
 of either 
 party to the 
 contract. 
 
 A contract for the sale of land is not discharged either 
 by an act of bankruptcy committed or by a receiving 
 order or an adjudication of bankruptcy made pending 
 completion by or against either party thereto (/) ; but 
 after a receiving order has been made against either 
 party, the other has no remedy against the property or 
 person of the debtor in respect of any liability of the 
 
 {g) Broome v. Monck, 10 Ves. 
 597 ; Collier v. Jenkins, Younge, 
 295. 
 
 [])) Above, p. 542 ; Re Coekeroft, 
 24 Ch. D. 94, 100, 101. 
 
 (i) But if the contract were 
 under seal, and bound the pur- 
 chaser's heirs, his heirs or de- 
 visees might be sued thereon at 
 law: 2 Dart, V. & P. 957, 5th 
 ed. ; 1084, 6th ed. ; 998, 7th ed.; 
 
 see above, p. 223 ; Wms. Conv. 
 Stat. 234, 235. 
 
 [k] Towmend v. Champernotvne, 
 9 Price, 130; above, pp. 528, 
 n. ((■), 529, n. [u), 531, n. {m), 
 540 ; Rawlins on Specific Per- 
 formance, 83, 84. 
 
 (/) Brooke v. Hewitt, 3 Ves. 
 253, 255; Sug. V. & P. 175; 
 1 Dart, V. & P. 253, 5th ed. ; 
 291, 6th ed. ; 294, 7th ed.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 debtor wliicli is provable in bankruptcy, and cannot 
 commence any action or other legal proceedings to 
 enforce such liability, unless with the leave of the 
 Court, and on such terms as the Court may impose [m). 
 And after the presentation of a bankruptcy petition 
 against either party to the contract the Court may stay 
 any action, execution, or other legal process then pend- 
 ing against him {»). When a receiving order has been 
 made against either party to the contract, the other may 
 prove under the bankruptcy proceedings in respect of 
 the debtor's liability on any contract made by him, so 
 far as such liability consists in the obligation to pay 
 money or money's worth on breach of the agreement, 
 or is capable of resulting in the payment of money or 
 money's worth (o). And an order of discharge under 
 the Bankruptcy Act, 1S(S3 {p), or a composition or 
 scheme of arrangement accepted and approved by the 
 Court under the Bankruptcy Act, 1890 (</), will release 
 the bankrupt or debtor from all liabilities provable in 
 bankruptcy, with certain exceptions not material to be 
 here stated. The vendor's liability on the contract at 
 law seems to be provable in his bankruptcy, for it is 
 reducible to the obligation to pay money damages on 
 breach of the contract (r) : but his liability in equity 
 to perform the contract specifically depends on different 
 considerations, and does not appear to be so provable («). 
 The purchaser's liability on the contract, whether at law 
 or in equity, seems almost entirely to consist in his 
 
 {m) Stot. 46 & 47 Vict. c. 52, don, 1898, 1 Ch. 478, 483, 484, 
 
 ss. 9, 16S ; see Re OuednUa, 1905, affirmed. 1899, 1 Ch. .'5. 
 
 2 Ch. ;j:n. (>•) Above, p. .^6 ; Levi/ v. 
 
 («) Sect. 10. Stogdo)), 1898, 1 Ch. 478, '483. 
 
 (o) Sect. 37; see Ifardyx. Fot/in- 484, affirmed, 1899, 1 Ch. .5. 
 
 </ill, 13 App. Cas. 351. (s) See the cases cited in 
 
 {p) Stat. 46 & 47 Vict. c. 52, notes (z), p. 546, (rf), p. 547. 
 
 s. 30. below ; Lfvi/ v. Stnqdnn, ubi sup. • 
 
 {q) Stat. 53 & 54 Vict. c. 71, Re Rris, 1904, 2 K. B. 769, 777, 
 
 s. 3 (12); F/ifit v. Rnrnard, 22 781, 787, affirmed, nom. C/owyA v! 
 
 Q. B. D. 90 ; S<'aton v. Brry/iurxf, Samuel, 1905, A. C. 442 ; above 
 
 1895, 1 Q. B. 853 ; Levy v. Stog- p. 37. 
 
 w. 35 
 
 545
 
 546 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 obligation to pay the }>riee {f), and to be provable in his 
 bankruptcy accordingly. 
 
 Banki'uptcy 
 of the vendor. 
 
 If the vendor be adjudged bankrupt pending com- 
 pletion, his rights under the contract vest, as part of his 
 property, in the trustee in his bankruptcy (ii) ; and his 
 estate in the land sold also vests in the trustee, unless, 
 it appears, the contract had been executed by payment 
 of the whole of the purchase money before the act of 
 bankruptcy, so that the vendor h.ad become a bare 
 trustee for the purchaser (a") . It has, however, been 
 held, where leaseholds had been sold and the price paid 
 but no conveyance executed, that the vendor was 
 j)ossessed of the legal estate in the term not only as 
 trustee for the purchaser, but also for his own use in 
 virtue of his lien on the property by way of indemnity 
 against the rent and covenants of the lease, and that 
 for this reason his estate passed on his subsequent bank- 
 ruptcy to the trustee therein (//) . But the trustee in the 
 bankruptcy takes the vendor's estate in the land sold 
 subject to the purchaser's equities therein under the 
 contract (s) ; and if he cannot, or does not, disclaim the 
 land sold under his power to disclaim onerous pro- 
 perty (r/), he cannot disclaim the contract for sale, where 
 
 (t) Above, pp. 34, 35 ; and see 
 lie Taylor, 1910, 1 K. B. 562. 
 
 (m) Stat. 46 & 47 Vict. c. 52, 
 88. 20, 44, 50 (5), 168 ; Exptc. Rab- 
 hidge, 8 Ch. D. 367. 
 
 {x) See A'. C, 8 Ch. D. 371 ; 
 Re Taylor, 1910, 1 K. B. 562 ; 
 above, p. 529. It does not appear 
 that the vendor could be treated 
 as holding the land sold on trust 
 for the purchaser, so that it would 
 not pass to his trustee in bank- 
 ruptcy, merely by reason of the 
 acceptance of the title : see ca.se.s 
 cited in note [d], below, p. 547. 
 
 («/) <S7. Thomas's Hospital 
 Governors v. Rlchardmn, 1910, 1 
 K. B. 271, 
 
 (ji) Expte. HoUhausen, L. R. 9 
 Ch. 722, 726 ; Expte. Rahhidge, 
 8 Ch. D. 367, 370, 371 ; Rv 
 Taylor, 1910, 1 K. B. 562; see 
 above, pp. 504 ^i., 528. 
 
 {a) Stat. 46 & 47 Vict. c. 52, 
 s. 55, amended by 53 & 54 Vict, 
 c. 71. s. 13, empowering tlie 
 trustee in bankruptcy within 
 twelve months after the first 
 appointment of a trustee, or 
 where the pi-operty shall not 
 have come to the knowledge of 
 the trustee within one montli 
 after such appointment, within 
 twelve months after he first 
 became aware thereof, or in 
 either case within such extended
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 541 
 
 it contains no more than the usual reciprocal duties of 
 vendor and purchaser (b), as an unprofitable con- 
 tract (c) ; but the specific performance of the agreement 
 may be enforced against him by the purchaser (d) . If 
 the vendor should have bound himself by the contract 
 to lay out money on the property sold prior to com- 
 pletion, his trustee in bankruptcy might, it is thought, 
 be at liberty to disclaim the contract if it would be 
 unprofitable, and so free himself from the obligation of 
 incurring the expense : but even this disclaimer would 
 not affect the purchaser's equitable interest in the 
 land {e). And if the trustee in bankruptcy were 
 entitled to disclaim, and shoidd disclaim, the property 
 sold as being onerous, as he might in the case of lease- 
 holds, the purchaser's equitable interest therein would 
 be equally unaffected {e), and the purchaser might 
 apply to the Court for an order vesting the estate in 
 him (./'). 
 
 In consequence of the doctrine of the relation back of Act of bank- 
 the title of a trustee in banki-uptcy to the act of bank- vendor. ^ 
 ruptcy (g), if a purchaser of land have notice of an act 
 of bankruptcy committed by the vendor, he cannot 
 safely proceed with the contract (unless with the con- 
 cmrence of the vendor's trustee in bankruptcy) during 
 
 period as may be allowed by the (c) See note («), p. 546. 
 
 Court, to disclaim an}' part of (d) Pearce v. Ba-stablc's Trustee, 
 
 the property of the bankrupt 1901, 2 Ch. 122 ; Re Bastable, 
 
 which consists uf land of any 1901, 2 K. B. ol8 ; Re Taylor, 
 
 tenure burdened with onerous 1910, I K. B. 562. 
 
 covenants, of shares or stock in {e) Re Bantahle, 1901, 2 K. B. 
 
 companies, of unprofitable con- 518, 529 ; stat. 46 & 47 Vict, 
 
 tracts, or of any other property c. 52, s. 55 (2). 
 
 that is unsaleable or not readily (/) Stat. 46 & 47 Vict. c. 52, 
 
 saleable by reason of its bind- s. 65 (6). 
 
 ing the possessor thereof to the {g) Stat. 46 & 47 Vict. c. 52, 
 
 performance of any onerous act ss. 4, 43, amended by 53 & 54 
 
 or to the payment of any sum of Vict. c. 71, ss. 1, 20 ; see Fonsford 
 
 money; see Re Cohen, 1905, 2 v. Union of London, ,^c. Bank, 
 
 K. B. 704. 1906, 2 Ch. 444 ; above, p. 394, 
 
 («) Above, pp. 32—35. n. (a).
 
 648 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 the three months for which the act of bankruptcy 
 remains available as a ground of bankruptcy proceed- 
 ings {g). For if the purchaser were to accept a convey- 
 ance from the vendor and to pay him the purchase 
 money, then, if the vendor should afterwards be 
 adjudged bankrupt in respect of that act of bankruptcy, 
 the conveyance to the purchaser would be rendered 
 ineffectual and the purchaser would be liable to pay the 
 money over again to the trustee in bankruptcy (h). 
 For these reasons, a vendor who hns committed an act 
 of bankruptcy is not entitled to enforce the specific 
 performance of the contract (/). And where time is of 
 the essence of the contract, as upon the sale of a public- 
 house as a going concern (/*•), if the purchaser have 
 notice of an act of bankruptcy by the vendor, which 
 will be available at the time fixed for completion, he is 
 entitled at law to treat the contract as broken, and to 
 recover his deposit accordingly {/). Where time is not 
 of the essence of the contract, as is uf-ually the case on 
 sales of land (m), it seems open to the purchaser, on 
 receiving notice of an act of bankruptcy by the vendor, 
 at once to object to the title, on the ground that 
 after the act of bankruptcy the vendor can only convey 
 an estate, which is no longer absolute but defeasible on 
 adjudication, and cannot give a good receipt for the 
 purchase money (;^). And it is submitted that if the 
 purchaser make this objection and at the time fixed for 
 completion the vendor still remain unable to make a 
 valid conveyance, either alone or with the eonciu'rence 
 of the trustee under an adjudication of bankruptcy 
 
 iff) See Stat. 46 & 47 Vict. c. .52, (/) Powdl v. Mayshalh 1899. 1 
 
 8S. 6 (1) (c), 43. Q. B. 710. 
 
 {h) Expte. Rdbbidqr, 8 Ch. D. {m) Above, pp. .i8, ')9. 
 
 367; Powell V. Marshall, 1899, 1 (w) See above, pp. 168, 169; 
 
 Q. B. 710, 71-2, 713; Davis v. Lowes w. Lush, \i Ves. 5i7, 549 ; 
 
 Pctric, 1906, 2 K. B. 786 ; and Goodwin v. LigldlmUi, Dan. 153 ; 
 
 see Re Taylor, 1910, 1 K. B. 562. Hipicell v. ICidf/ht, 1 Y. i: C. 401, 
 
 ()■) Loivet V. Lush, 14 Ves. 547. 419 : Sug. V. & P. 176. 
 
 \k ) Above, p. 488, 
 
 i
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 549 
 
 against him, the purchaser, not being in default with 
 regard to the performance of his part of the contract, 
 will be entitled to treat the contract as broken. But if 
 at the time fixed for completion the act of bankruptcy 
 have ceased to be available or the vendor have been 
 adjudged bankrupt, it appears that the vendor or his 
 trustee in bankruptcy, as the case may be, will be 
 entitled to enforce the contract either specifically in 
 equity or at law. And if the purchaser do not repudiate 
 the contract in the manner indicated above, it appears 
 that the vendor or his trustee in bankruptcy will be 
 entitled to enforce the same, specifically or otherwise, 
 after the act of bankruptcy has ceased to be available or 
 an adjudication has taken place, although the day fixed 
 for completion is gone by (o). The vendor's trustee in 
 bankruptcy must, however, obtain the permission of the 
 committee of inspection before bringing any action upon 
 tlie contract against the purchaser (yj). If the purchaser 
 of his own accord choose to wait after the time fixed for 
 completion, either until the vendor is adjudged bankrupt 
 or until the particular act of bankruptcy has ceased to 
 be available (y), he will be able to complete the contract 
 safely, paying the purchase money to and taking a 
 conveyance from the trustee in the bankruptcy in the 
 fomier case, and in the latter the vendor himself. 
 Under the Bankruptcy Act, 1883, if the purchaser 
 should have no notice of an act of bankruptcy committed 
 by the vendor, the conveyance of the property by and 
 the payment of the purchase money to the vendor will 
 not be invalidated in the event of the vendor being 
 afterwards adjudged bankrupt upon that act of bank- 
 ruptcy, provided that the conveyance and pajment take 
 
 («) See Loues v. Luah, 14 Vea. ;)9, 168, 169. 
 
 .)47, 549; Dart, V. & P. 498, [p) Stat. 46 i^c 47 Vict. c. 52, 
 
 995, 5th ed. ; 568, 1114, 6th ed. ; s. 57 (2). 
 
 1226, 7th ed. : Rawlins on Specific [q) Dart, V. \- P. 498, 5th ed. ; 
 
 Performanco, 87 ; above, pp. 58, .■)68, 6th ed. : r2'25, 7th ed.
 
 550 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 place before the date of any receiving order made 
 against the vendor (r). But if in such a case the com- 
 pletion of the contract should not take place until after 
 that date, the purchaser is not protected ; and it appears 
 that both the conveyance to him and the payment by 
 him would be rendered ineffectual on a consequent 
 adjudication of bankruptcy against the vendor (s). 
 
 Insolvent 
 vendor when 
 discharged 
 from liability 
 on the con- 
 tract. 
 
 Vendor an 
 undischarged 
 bankrupt at 
 the time of 
 the contract. 
 
 If before completion of the contract the vendor be 
 adjudged bankrupt and obtain an order of discharge, or 
 a composition or scheme of arrangement with his 
 creditors be accepted and approved by the Court, it 
 appears that he will be released from his liability on 
 the contract at law (f). But, as we have seen {it), the 
 vendor's trustee in bankruptcy takes his legal estate in 
 the land sold subject to the purchaser's equities therein; 
 and if this estate were reconveyed to the vendor on his 
 obtaining his discharge, he would take it subject to the 
 same equities. Besides this, the vendor's correlative 
 equitable liability to specific performance of the con- 
 tract does not appear to be provable in bankruptcy (x) ; 
 so that a vendor making a composition or scheme of 
 arrangement with his creditors under the Bankruptcy 
 Act, 1890, without parting mth his estate in the land 
 sold, does not appear to be discharged fi-om his liability 
 to perform the contract specifically at the purchaser's 
 suit (j/) . 
 
 Where the vendor is an undischarged bankrupt at the 
 time when the contract of sale was made, he cannot give a 
 
 (r) Stat. 46 & 47 Vict. c. 52, 
 s. 49. 
 
 (s) Hxpte. Rabbidge, 8 Ch. D. 
 367, decided on the Bankruptcy 
 Act, 1869 ; and see Poiccll v. 
 Marshall, 1899, 1 Q. B. 710, 713, 
 714; Re Taylor, 1910, 1 K. B. 
 562. 
 
 [t) Above, p. 545. 
 
 (»f) Above, p. 546. 
 
 {x) Above, p. 545. 
 
 («/) See Lexni v. Stogdon, 1898, 1 
 Ch. 478, 1899, 1 Ch. 5, where, 
 however, the purchaser was barred 
 by his delaj^ from enforcing the 
 specific performance of the con- 
 tract, but was held to be entitled 
 to a lien for the amount of his 
 deposit.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 551 
 
 good title to or convey the laud sold, if it were vested in 
 him before his bankruptcy (-) , or being freehold or other 
 real estate (whether legal or equitable) had been 
 acquired by or devolved upon him since the com- 
 mencement of the bankruptcy (a) . If, however, the 
 property sold be held for a term of years, and were 
 acquired by or devolved upon the vendor since the 
 commencement of tlie bankruptcy, he can make a valid 
 disposition thereof to anyone dealing with him in good 
 faith and for value, either with or without notice of the 
 bankruptcy, before the trustee intervenes, and will 
 therefore be entitled to enforce the contract against the 
 purchaser in proceedings either for specific performance 
 or damages {h). And this doctrine has been extended 
 to real estate purchased by undischarged bankrupts for 
 partnership purposes and so converted into their per- 
 sonal property (c). If a bankrupt's assets be more than 
 sufiicient to satisfy his liabilities, he can make a valid 
 disposition of his equitable interest in the surplus assets 
 or any particular portion thereof, subject to tlie rights 
 of the trustee and of his creditors (d). Where a tenant Bankruptcy 
 for life has a power to consent to the exercise by trustees f,j/[if"°^ 
 of a power given to them to sell the settled land and empowered 
 becomes banki'upt, the concurrence of the trustee in the ^ .^ saie. 
 bankruptcy is necessary to enable his power of consent 
 to be effectually exercised {c). The effect of the bank- 
 ruptcy ot a tenant for life on his capacity to exercise 
 the power of sale given to him by the Settled Land Acts 
 has been akeady discussed (./') . 
 
 {z) Above, p. .)4G, nn. («), (x). 1901), 2 Ch. 195 ; see above, 
 
 («) Stat. 46 & 47 Vict. c. 52, pp. 465, 466. 
 s. 44; Jie Xew Land, ^c. Asm. [d) Bird v. Fhilpott, 1900, I Ch. 
 
 and Gray, 1892, 2 Ch. 138; Bird 822. 
 
 V. Fhilpott, 1900. 1 Ch. 822; (c) RcBedingJield and Herring'' s 
 
 Ofwial Receirtr v. ^W.r, lOOO, Contract, 1893, 2 Ch.* 332 : see 
 
 2 Ch. 661. Williams on Settlements, 43 — 45, 
 
 (/;) Re Claiftun and Burchii/ti 322, 323. 
 (Jontract, 1895, 2 Ch. 212. (/) Above, pp. 325—327. 
 
 (c) Re Kent, ^-c. foke Co., Ltd.,
 
 552 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 Bankruptcy of If the purchaser be adjudged bankrupt pending 
 the purchaser, eompletion, his rights under the contract vest in his 
 trustee in bankruptcy (g) , who will be entitled to enforce 
 the same against the vendor by action brought with 
 the permission of the committee of inspection {//) either 
 for damages at law or for specific performance in 
 equity (i). The trustee in baukriiptcy of the purchaser 
 is, however, at liberty to disclaim the contract as 
 unprofitable (k), and so long as it remains open to him 
 to exercise his option of disclaiming the contract (/), 
 the vendor cannot, mthout his consent, maintain an 
 action against him for specific performance of the 
 contract (//?). If the purchaser's trustee in bankruptcy 
 disclaim the contract, this will operate to determine the 
 liabilities of the bankrupt in respect thereof (n) ; the 
 vendor will be entitled to retain the deposit, if any (o), 
 and he may prove for any injiu'y sustained by him in 
 consequence of the disclaimer as a debt under the 
 bankruptcy (p). 
 
 Act of bank- 
 ruptcy by the 
 purchaser. 
 
 If the vendor have notice of an act of bankruptcy 
 committed by the purchaser, he cannot safely proceed 
 with the contract so long as the act of bankruptcy 
 remains available ; for any money subsequently paid to 
 him by the purchaser might be recovered back by the 
 trustee under a consequent adjudication of bankruptcy 
 against the purchaser (q) . For this reason, a purchaser 
 
 (ff) Above, p. 546, n. (m). 
 
 (A) Above, p. 549, n. [p). 
 
 [i) 2 Dart, V. & P. 995, 1004, 
 5th ed. ; 1114, 1126, 6th ed. ; 
 1029, 7th ed. ; Rawlins on Specific 
 Performance, 87, 88. 
 
 {k) Above, p. 546, n. {a); Expte. 
 Barren, L. R. 10 Ch. 512. 
 
 {I) See Stat. 46 & 47 Vict. c. 52, 
 s. 55 ; above, p. 546, n. (a). 
 
 (m) Holloivay v. York, 25 W. R. 
 627. 
 
 («) Stat. 46 & 47 Vict. c. 52, 
 s. 55 (2). 
 
 (o) Expte. Barren, L. R. 10 
 Ch. 512; Collins v. Stimson, 11 
 Q. B. D. 142. 
 
 [p] Stat. 46 & 47 Vict. c. 52, 
 s. 55(7). 
 
 [q) Above, pp. 546, n. (m), 547, 
 n. [g) ; see next note, and Re Pollitt, 
 1893, 1 Q. B. 175, 455 ; Pomford 
 V. Union of London, •^c. Bank, 
 1906, 2 Ch. 444 ; Davis v. Fctric, 
 1906, 2 K. B. 786.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. ^53 
 
 who has committed an act of bankruptcy remaining 
 available against him cannot enforce the specific per- 
 formance of the contract by the vendor {r). And it 
 appears that if time be of the essence of the contract, 
 and on the day fixed for completion the pui'chaser's 
 act of bankruptcy still remain available against him, the 
 vendor will be entitled to treat the contract as broken and 
 to claim the deposit as forfeited (s). And if time be 
 not of the essence of the contract, it seems that the 
 vendor receiving notice of an act of bankruptcy by the 
 purchaser may at once take the objection that the pur- 
 chaser is not and will not at the time fixed for com- 
 pletion be capable of making a valid payment of the 
 purchase money, and may repudiate the contract on 
 this ground (/). But, as in the case of an act of bank- 
 ruptcy by the vendor, when an act of bankruptcy by 
 the pvu'chaser has not been followed by any bankruptcy 
 proceedings, and has ceased to be available against him, 
 it is thought that he will be entitled to enforce the 
 contract specifically or otherwise, unless in the mean- 
 time the vendor has become entitled to repudiate the 
 contract, and, in the case of a sale where time is not of 
 the essence of the contract, has repudiated the same {k). 
 And in such case the vendor may safely complete the 
 contract with the purchaser (./•). TSHiere the vendor has 
 no notice of an act of banki'uptcy committed by the 
 purchaser, and the contract is executed by payment of 
 the purchase money before the date of any receiving 
 order against the purchaser, the transaction is expressly 
 protected, and the trustee under an adjudication 
 founded on that act of bankruptcy cannot recover the 
 money back (y). And even if in such case the contract 
 
 (>•) Franklin v. Brownlnir, 14 [t] See above, p. .)4f< ; Colluta 
 
 Ves. 550. V. Sfimsoii, ubi sup. 
 
 (s) See above, p. 548 ; Collins (»/) See above, pp. 548, 549. 
 
 V. Stimson, 11 Q. B. D. 142. (.r) Soo above, p. 549. 
 
 (y) See above, p. 550, n. (r). 
 
 k
 
 554 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 be completed after that date, and the vendor, without 
 notice of the act of bankruptcy, receive from the pur- 
 chaser any money or negotiable securities in payment 
 of the price, he will obtain a perfectly valid title thereto 
 under the general law (s). 
 
 
 Adjudictitiou If the purchaser be adjudged bankrupt pending com- 
 ao-a^^Uh^*^"^ pletion, the vendor ought to make application in writing 
 purchaser. to the trustee in the bankruptcy requiring him to decide 
 whether he will disclaim the contract or not ; for if the 
 trustee do not disclaim the contract within twenty-eight 
 days after the receipt of sucli an application or within 
 such extended period as may be allowed by the Court, 
 he wdll no longer be entitled to disclaim the contract 
 but shall be deemed to hare adopted it (a). These last 
 words, as to the adoption of the contract, were added to 
 the bankruptcy law by the Bankruptcy Act, 1883 (b), 
 and they have not yet received any judicial interpreta- 
 tion. Apparently, their effect is to impose on the 
 trustee, being so deemed to adopt the contract, the 
 liabilit}^ to fulfil it with the bankrupt's assets, but not 
 to make the trustee otherwise personally liable on the 
 contract (c) . If so, it would seem that the purchaser's 
 trustee in bankruptcy, on being so deemed to adopt 
 the contract, would be liable to be sued on the eon- 
 tract by the vendor either for specific performance or 
 for damages {d). If however the vendor make no ap- 
 plication requiiing the trustee to elect as to disclaimer 
 of the contract, and the trustee allow the time other- 
 wise limited to him for disclaiming onerous pro- 
 
 (2) See Wms. Pers. Prop. ")42, 
 .'A?,, 16th ed. 
 
 («) Stat. Hi k 47 Vict. c. 52, 
 s. 55 (4). 
 
 (b) Apparently in consequence 
 of the decision in lie Sncczum, 3 
 Oh. D. 463. 
 
 {c) See the arguments put for- 
 ward in the Court of Appeal and 
 the judgment of James, L. J., 
 in the last-mentioned case : Wil- 
 liams's Bankruptcy Practice, 261, 
 262, 7th ed. 
 
 {(l) See above, p. 552.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 perty (e) to elapse without disclaiming the contract, 
 it is not provided that the trustee shall be deemed 
 to have adopted the contract; and in such case it 
 does not appear that the trustee comes under any 
 liability to perform it, or that the vendor can main- 
 tain any action thereon, either for specific performance 
 or damages, against the trustee (/). But by the Bank- 
 ruptcy Act, 1883 {g), the Court may, on the application 
 of any person who is, as against the trustee, entitled to 
 the benefit or subject to the burden of a contract made 
 with the bankrupt, make an order rescinding the con- 
 tract on such terms as to payment by or to either party 
 of damages for the non-perfonnance of the contract, or 
 otherwise, as to the Court may seem equitable, and any 
 damages payable under the order to any such person 
 may be proved by him as a debt under the bankruptcy. 
 If the purchaser's trustee in bankruptcy do not disclaim 
 the contract, the question arises whether the vendor can 
 safely complete the contract with the trustee electing to 
 adopt it. The Bankruptcy Act, 1883 (A), gives no 
 express power to the trustee to perform the bankrupt's 
 contracts generally. But the trustee is expressly 
 empowered, with the permission of the committee of 
 inspection, to bring any action or other legal pro- 
 ceeding relating to the property of the bankrupt («), 
 which includes the benefit of a contract made by the 
 bankrupt (A-) ; and by the former bankruptcy law the 
 trustee was entitled to perform a contract entered into 
 by the bankrupt, if he thought it would be beneficial to 
 the creditors (/). It seems therefore that, as uuder the 
 present Bankruptcy Act the purchaser's trustee may, 
 with the permission of the committee of inspection, sue 
 
 (<■) Above, p. 546, n. («). see sects. 56, 57 : Re Snceziou, 
 
 if) See Re Sneeziim. 3 Gh. D. 463; 3 Ch. D. 463, 473. 
 
 Hollowa,/ V. York, 25 W. R. 627. (i) Sect. 57 (2). 
 
 iff) Stat. 46 & 47 Vict. c. 62, (k) Sect. 168. 
 
 3. 55 (5). (l) Re Sneczinn, 3 Ch. D. 463, 
 
 (A) Stat. 46 & 47 Vict. c. 52 ; 472, 474. 
 
 555
 
 556 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 the vendor for specific performance of the contract on 
 the usual terms of paying the price, so he may well 
 secure the same benefit on the same terms without 
 litigation where the vendor is willing to carry out 
 the contract (iii) ; but it is thought that the trustee 
 ought to obtain the permission of the committee of 
 inspection before so performing the contract, and that 
 the vendor cannot safely complete the contract unless 
 this be done [ii) . 
 
 Insolvent 
 purchaser 
 when dis- 
 charered from 
 liability on 
 the contract. 
 
 Purchaser an 
 undischarged 
 bankrupt at 
 the time of 
 the contract. 
 
 If before completion of the contract the pm'chaser 
 should be adjudged bankrupt and obtain an order of 
 discharge or should make a composition or a scheme of 
 arrangement with his creditors approved under the 
 Bankruptcy Act, 1890, it appears that he would be 
 released from all liability under the contract, even 
 though the trustee had not disclaimed the contract and 
 the vendor had not proved in respect of the purchaser's 
 liability (o) . 
 
 If the purchaser were an undischarged bankrupt at 
 the time when the contract of sale was made, and the 
 vendor complete the contract and receive, in ignorance 
 of that fact, any money or negotiable securities in pay- 
 ment of the price, the same cannot, of course, be 
 recovered from him, whether the trustee in bankruptcy 
 were entitled thereto or not (p). If, however, the 
 vendor receive notice, before completion, of the pur- 
 chaser's bankruptcy, it does not appear that he would 
 obtain a good title to any money subsequently paid to him 
 by the bankrupt in pursuance of the contract, unless the 
 money had been acquired by the purchaser since the 
 
 (»?) See the principle applied in 
 
 iltaffff V. Medivay Navigation Co., 
 1903, 1 Ch. 169. 
 
 (w) See Re Vavasour, 1900, i' 
 Q. B. 309. 
 
 (o) See above, p. 545. 
 
 (;;) See Wms. Pers. Prop. 543, 
 16th ed. ; Collins v. Stimson, 11 
 Q. B. I). H2.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 5o7 
 
 commencement of tlic bankruptcy, tind the trustee had 
 not intervened to claim it [q) . The purchaser, it seems, 
 would be obliged to prove that this was the case, and, 
 if he failed to discharge this obligation satisfactorily, 
 the vendor (^ould not safely complete the contract 
 without the concurrence of the trustee (r). 
 
 The vendor may suffer the involuntary alienation of Land taken 
 the land sold pending completion, not only in the I^qI-,^" ^o°^. 
 event of his bankruptcy, but also if the land be taken pletion. 
 in execution of a judgment against him (s). If this be 
 done, either under a writ of e/ec/if or by virtue of an 
 order for the appointment of a receiver (7), and the 
 writ or order be duly registered under the Land 
 Charges Acts, 1888 and 1900 (?/), the judgment cre- 
 ditor vn\\ acquire an indefeasible estate by r/rt/if in the 
 land, entitling him to hold the same until his debt be 
 satisfied out of the rents and profits (r) : and this will 
 be a legal estate in the land sold, where the vendor's 
 interest therein was legal (./•). The judgment creditor 
 further acquires a charge on the land so taken in exe- 
 cution for the amount of the judgment debt and 
 interest (//), and may obtain an order for the sale of 
 the debtor's interest in the land (z) . And these rights 
 of the creditor are not now affected or liable to be 
 diminished in case the purchaser had no notice of the 
 
 (ly) See Pollock, B.. Co/lhis v. («) Stats, ol c^- o'i Vict. v. ol, 
 
 ,S'/!;m.so«, 11 Q.B. D. 11.2, 144,ast<) ss. 4—6; 63 & 64 Vict. c. 26, 
 
 the money, wln<li ill that case was s. 2 (1); see Wms. Real Prop, 
 
 the property of the trustee, being 274, 276, 21st ed. 
 earmarked : E.r//(r. Ihir/uir.s/, [x) See ibid. 273, n. (/), 275. 
 
 L. R. 7 Ch. 18.), where note that (i/) Stat. 1 & 2 Viet. c. 110, 
 
 the mouny liad been aequired by s. 13 ; .see Wins. Real Prop. 271, 
 
 tlic bankrupt after tlie liank- 276, 21.sted. 
 ruptcy. (.-) Stat. 27 & 28 Viet. e. 112, 
 
 (>•) See above, p. oo2. s. 4. amended by 63 & 64 Vict. 
 
 ( v) See Wms. Real Prop. 26.S e. 26, s. .5 ; see Wms R(>al Prop. 
 
 nfj., 2l8t ed. 275, 276, 21st ed. 
 
 (0 See ibid. 269 sq., 292,
 
 558 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 judgment (a). The judgment creditor, however, takes 
 the estate and interest so acquired by him in the land 
 sold subject to the purchaser's equities therein under 
 the contract (b). If the whole or any part of the 
 purchase money should have been paid to the vendor 
 prior to the registration of the writ or order of execu- 
 tion (before which time the judgment cannot now 
 operate as a charge on the land or on any unpaid 
 purchase money therefor {<■) ) , the purchaser has priority 
 in respect of the amount so paid over the creditors' 
 interest in the land (b). If, however, the whole of the 
 purchase money have not been paid before the registra- l^ 
 
 tion of the "svTit or order, the judgment creditor becomes 
 entitled to receive the amount remaining unpaid, or so 
 much thereof as will satisfy the judgment debt ; and 
 the purchaser is bound and must take care to pay this 
 amount to the creditor and not to the vendor (d). Any ) 
 
 writ or order of execution and any delivery in execution I 
 
 of the land sold pending completion is void as against 
 the purchaser unless the writ or order be duly registered ^ 
 
 in the Office of Land Registry under the Land Charges ■: 
 
 Act, 1888 {(') ; and the judgment does not operate as a 
 charge on the land or any interest therein, or on the 
 unpaid purchase money therefor, unless or until such 
 registration takes place (/). But, as we shall see here- 
 
 (ff) By the Judgments Act, Lodge v. Lyseleij, 4 Sim. 70. 
 1839, no judgment, as against (<") Stat. 63 & 64 Vict. c. 26, 
 
 purchasers and mortgagees with- s. 2 (1) ; Wms. Real Prop. 274, 
 
 out notice thereof, should bind 276, 21st ed. 
 any hei'editaments more exten- ((/) Sug. V. & P. 518, 527 ; 
 
 sively than a duly docketted Forth v. Norfolk, 4 Madd. 503, 
 
 judgment would have bound such 505; Re Pope, 17 Q. B. D. 743. 
 purchaser or mortgagee before the [e] Stat. 51 & 52 Vict. c. 51, 
 
 Judgments Act, 1838; but this ss. 4— 6. 
 
 enactment was repealed by the (/) Stat. 63 & 64 Vict. c. 26, 
 
 Land Charges Act, 1900 : see s. 2 (1). These provisions apply 
 
 stats. 2 & 3 Vict. c. 11, s. 5 ; 63 to writs or orders affecting any 
 
 & 64 Vict. c. 26, s. 5 ; Wms. hereditaments of any tenure ; and 
 
 Real Prop. 271 — 276, 521, 522, appear therefore to apply to writs 
 
 21st ed. of Ji. fa. when used for seizing 
 
 {h) Sug. V. & P. 517, 518, 527 ; leaseholds, as well as writs of 
 
 Whitworth v. Gaurjain, 1 Ph. 728 ; elegit : stats, 51 & 52 Vict. c. 51,
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. •'559 
 
 after (//), it is tliouglit tliat, if the purcliaser have notice 
 that the land sold has been actually delivered in execu- 
 tion under an unregistered Avi-it or order, lie cannot 
 safely disregard the fact ; for the execution is valid as 
 against the judgment debtor, and confers upon the 
 judgment creditor an estate by eJcgit voidable, in 
 default of registration, as against purchasers only, and 
 it may be held that^ such delivery in execution is valid 
 in equity as against a purchaser with notice thereof. 
 Wliere the land sold is seized pending completion under 
 process of execution which is valid, either at law or in 
 equity, as against the purchaser, the judgment creditor 
 must concur in the conveyance in order to convey his 
 interest in the land sold, and receive and give a dis- 
 cliarge for so much of tlie purchase mone}' as is payable 
 to him. The delivery in execution of any land, 
 whether by writ of clcnit or order apj)ointing a receiver, 
 is not an act of bankruptcy, so that in such cases the 
 sale may be safely completed with the judgment cre- 
 ditor's concm-renee [h). It appears that equitable Execution 
 execution issued by the appointment of a receiver in purchaser, 
 respect of a piirchaser's interest in land under the con- 
 tract for sale will not operate to give the judgment 
 creditor any charge on the land, if the vendor should 
 never become an absolute and a bare trustee for the 
 purchaser. Sucli execution cannot therefore affect the 
 
 s. 4 ; iVi & ()4 Vict. c. 'JS, s. G (.'5); In this context "goods" includes 
 
 see Wms. Ileal Prop. o'21, .V2i, all chattels personal, but not ap- 
 
 21st cd. parently chattels real: see stat. 
 
 (//) Below, Chap. XII. Sect. 2. 46 & 47 Vict. c. .52. ss. 4.), 
 
 (A) See stat.s. 4(5 & 47 Vict. 168. If execution be levied on 
 
 c. ;V2, s. 4 : -VJ <5«: o4 Vict. c. 71, a debtor's leaseholds by writ of 
 
 s. 1. A debtor commits an act Ji. fa., and the .sheriff hold them 
 
 of bankruptcy if (amouji^'st other for twenty-one days, it is a ques- 
 
 thinff.s) e.xei;ution against him has tion whether an act of bankruptcy 
 
 been levied by seizure of his good.s is committed ; and if so. a pur- 
 
 under process in an action in any chaser of the laud cuuld not safely 
 
 Court or in any civil procei'din;,'' complete his contract, even with 
 
 iu the High (Jourt, and the ffoods the judgment creditor's ooniur- 
 
 have been either .sold or held by rence : see above, p. 54S, 
 the sheritf for twenty-one days.
 
 5(i0 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 vendor's right to rescind the contract for the purchaser's 
 breach of one of the main duties thereby imposed on 
 him (/). The subject of executions issued against the 
 land sold pending completion is further discussed below, 
 under the head of Searches (k) . 
 
 Lunacy. If either vendor or purchaser, having been sane when 
 
 the contract was made, become of unsound mind before 
 its completion, that does not avoid the contract, and an 
 order for its specific performance may nevertheless be 
 obtained (/). As, however, a person of unsound mind 
 can make no valid conveyance or payment to another, 
 who has notice of his mental condition {in), he cannot 
 himself well perform the acts necessary to completion. 
 But the eifectual completion of the contract may be 
 obtained in certain cases by means of an order under 
 the Lunacy Acts, 1890 and 1891 (>?). By these Acts, 
 the Judge or a Master (o) in lunacy may by order 
 authorise the committee of a lunatic to perform any con- 
 tract relating to the property of the lunatic entered into 
 before his lunacy {p) ; and in the case of persons of un- 
 sound mind,'not being lunatics so found by inquisition, 
 to whom the powers of management and administration 
 given by the Act of 1890 apply (q), such of the powers 
 
 («) See Midout v. Foioler, 1904, 95, 159, 16th ed. 
 1 Ch. 658. 2 Ch. 93 ; above, {n) Stat. 58 Vict. c. 5. .<;. 120 (i). 
 
 pp. 605, 506, 529, 530, 538 : and (o) Stat. 54 & 55 Vict. c. 65, 
 
 see above, p. 36; below. Chap. s. 27 (1), which enabled the juris- 
 
 XVIII. § 2, XIX. § 1. diction of the judge in these re- 
 
 {k) Chap. XII. ^ 2. spects to be exercised by the 
 
 [1] Ou-en V. Daries, 1 Ves. sen. Masters ; see Jif Browne, 1894. 
 
 82 ; Hall v. Warren, 9 Ves. 605. 3 Ch. 412 : Re Langdale, 1901, 1 
 
 (;w) Wms. Real Prop. 298. Ch. 3. 
 299, 21st ed. ; Wms. Pers. Prop. [p] Stat. 53 Vict. c. 5, s. 120 (i) . 
 
 [q) By stat. 53 Vict. c. 5, s. 116 (1), these powers apply — 
 
 (a) To lunatics so f oimd by inquisition ; 
 
 (b) To lunatics not so found by inquisition for the protection or 
 
 administration of whose property any order has been made 
 before the commencement of the Act : 
 
 (c) To every person lawfully detainecl as a lunatic thouffh not 
 
 so found by inquisition (see lie Whalley, 1906, 1 Ch. 565) ; 
 
 I
 
 EFFECT OF THE CONTRACT PENDING COMPLETIOX. SGI 
 
 of that Act as are made oxercisable by the committee of 
 tlie estate sliall be exercised by such person as the Judge 
 or Master sliall direct (/•). And the committee of the 
 estate, or such person as the Judge or Master approves, 
 shall in the name and on behalf of the lunatic execute 
 and do all such assurances and things for giving effect to 
 any order under this Act as the Judge or Master directs, 
 and every such assurance and thing shall be valid and 
 effectual, and shall take effect accordingly, subject only 
 to any prior charge to which the property affected 
 thereby at the date of the order is subject (s). If the 
 vendor become of unsound mind after the contract has 
 been so far executed that lie is a trustee for the pur- 
 chaser within the meaning of the statutes authorising 
 vesting orders to be made as to the estates of trustees (;'), 
 an order vesting the vendor's estate in the purchaser 
 may be obtained under tlie Lunacy Act, 1*890 [ii). 
 
 If either party to the contract be a single woman, Marriage of 
 and marry pending completion, she is not, under the l^^\^^ ^^^*^ 
 present law (.<■), disabled from enforcing or completing tract, 
 the contract by herself alone. If she should have made 
 
 (d) To everj' person not so detained and not found a lunatic by 
 
 inquisition, with regard to whom it is proved to the satis- 
 fat'tioii of tlie Judge in hinacy that such person is through 
 mental iiiHimity arising from disease or ago incapable of 
 managing his aliuirs (see Jie Ih-otnic, 1894, o Ch. 112 ; Re 
 Spurlhxj, I'JO!), 1 Cii. 199) ; 
 
 (e) T(\ every person as to whom it is proved to the satisfaction of 
 
 the Judge in lunacy that he is of unsound mind and 
 incapable of managing his affairs, and that his property 
 does not exceed 2,000/. in value, or that the annual income 
 thereof does not exceed 100/. : 
 
 (f) To every person as to whom the Judge is satisfied that he is 
 
 or has hcin a criminal liuiatic, and continues to be insane 
 and in eonlinement. 
 
 (>•) Sect. 116 (2). AV Vagani, 1892. I Ch. 23G. 
 
 {•«) Stat. •'):? Vict. c. ;'). s. 124, (j-) As to the elf eet of marriage 
 
 ,'is amended by .")4 & o5 Vict. c. (j'), on a woman's legal cajiacity at 
 
 s. 27 (1). "ominon law, see below. Chap. 
 
 (/) Above, pp. ASG— 5.38. XVf. : Wms. Keal Prop. :?()G sq., 
 
 {u) Stat. 'V\ Vict. c. .'), s. 1:5.'') ; 2 1st ed. ; Wm.s. Pers. Prop. IJ^S, 
 
 see lie Ciimiii;/, L. R. '» Ch. 72: ICth ed. 
 
 w. 36
 
 '562 EFFECT OF '11111 CONTRACT PENDINCJ COMPLETION. 
 
 no disposition of her interest in the contraot by wny of 
 settlement, she will on marriage become entitled to the 
 same as lier separate property (//) and will be enabled to 
 sue alone in respect thereof as if she were h/chh' f<oh>[z). 
 And she will be liable to be sued thereon without her 
 husband being joined (a) ; although he will be liable 
 on the contract to the extent of all property belonging 
 to her which he shall have acquired or become entitled 
 to from or through her, after deducting therefrom any 
 payments made by him, and any sums for which judg- 
 ment may have been ho)id fide recovered against him at 
 law in respect of her ante-nuptial debts, contracts or 
 wrongs (/>), and he may be sned on the contract either 
 alone or jointly with her accordingly {<■). If she be the 
 vendor, her estate in the land sold will become her 
 separate property on marriage, unless otlierwise dis- 
 posed of by ante-nuptial settlement, and she will be 
 able to convey tlie same to the purchaser witliout her 
 husband's concurrence [d). In consequence of the in- 
 convenient doctrine that the legal estate in land vested 
 in a married woman as trustee does not become and 
 cannot be conveyed as her separate property [c) — a 
 doctrine intended to be remedied by the Married 
 Women's Property Act, 1907 (./), wluch enabled a 
 married woman to dispose as if she were difcmo aoh of 
 real or personal property held by her as trustee or 
 personal representative — it seems necessary to point out 
 that wlien a vendor of land, being the beneficial owner 
 tliereof, is or pending completion becomes a married 
 woman, the purchaser could not before that Act and 
 
 [y) Stat. 45 & 46 Vict. o. 75, 23 Q. B. D. 316. 
 S.S. 'l (1), 2,24. {d) Sects. 1 (1), 2; Re Drinn- 
 
 (z) Sects. 1 (2), 12, 24. moiul ei,'- I)urie\-< Co)ifracf, 1891, 1 
 
 («) Sect. 13; and see sect. 19; Cli. 624. 
 J«y V. i^i/«so«, 25 Q. B. D. 467 : ('■) Re ITcirkncfis ^- AU>iopp\s 
 
 Robinson v. Lyiics, 1894,2 Q. B. Contnici, 1896, 2 Cli. 358; see 
 
 577. below, Chap. XVI. 
 
 {/)) Sect. 14. (/) Stat. 7 Edw. VII. c. 18, 
 
 \c) Sect. 15; Bee Beck v. Piercr, s. 1 (1); see below, Chap. XVI. 
 
 > 
 
 i
 
 EFFECT OP THE CONTRACT PENDING COMPLETION. '56-3 
 
 cannot now require the concurrence of her liusband 
 in tlie conveyance on the ground that slie became an 
 absolute trustee for the purchaser at the time when 
 the title was accepted (r/). For in the first place, 
 when a married woman is disposing of her separate 
 property for her own use, she is not a trustee thereof 
 within the meaning of this doctrine at any time prior 
 to the execution of the contract by payment of the 
 purchase money (//). And secondly, even admitting 
 tliat she were an absolute trustee for the purchaser on 
 acceptance of the title, she would, on payment of the 
 price, become a hare trustee for him(/), and so might 
 well make a conveyance to him on receipt of the pur- 
 chase money by virtue of the power of conveyance given 
 to married women, wlio are bare trustees, by the Trustee 
 Act, 1893 (/»•). The marriage of a man does not, of 
 course, affect his legal capacity. But on the marriage 
 of either party to the contract, wliether man or woman, 
 the other party should incpiire wliether any settlement 
 or agreement for a settlement has been made affecting 
 the property sold or his or her interest in the contract (/) ; 
 as if any such disposition should have been made, the 
 contract can no longer be safely or properly completed 
 with the lately married party alone, but the concurrence 
 of the persons to whom his or her interest has been 
 assigned must bo obtained (w). 
 
 If, pending completion, either party to the contract Conviction of 
 have judgment of deatli or penal servitude pronounced fpio'n " "* 
 or recorded against liim in Kngkind, Wales or Ireland, 
 ui)on any charge of treason or felony, he cannot, so long 
 
 (f/) Above, p. .'J29. c. 78, s. G ; see Itc Howfiate (uid 
 
 (/i) See 7iV Jiroo/.e ^- Ficmlins (hhurii\st:outnut,VjO->,\bh..\^n \ 
 
 Contract, 1898, I Ch. G47 ; above, below, Chap. XV^I. 
 pp. ftO.i, 506. (/) 1 Dart. V. & P. 32!), 5th 
 
 (i) Above, p. .')2'.1. f(l. ; :57;5, Gth eJ. ; 307, 7tli od. 
 
 (/.) Stat. .")(j ic .)7 Vict. c. o.'J, (;;/) See above, pp. Mb, 13U. 
 
 .s. IG, replacing' 37 & "iS Vict. 
 
 36 (2)
 
 164 
 
 EFFECT OF THE CONTRACT J'EN1)IN(t COMPLETION. 
 
 Oiitl.iwry, 
 
 Pai'ty lipcom- 
 iTisjr ixn alien 
 eiit'iny. 
 
 as he remains a convict, bring any action on the 
 contract either at law or in equity, or alienate any 
 property (//) ; but all his property, including his interest 
 in the contract or in the land sold, vests in the person 
 appointed to be his administrator, who may sue or be 
 sued on the contract, and has such powers of dealing 
 with the convict's property as will enable him to 
 complete the contract (o). Outlawry, which remains 
 theoretically possible in criminal proceedings, would, if 
 incurred by a party to the contract pending com- 
 pletion, involve his incapacity to enforce the contract 
 and would raise obstacles to the completion in the 
 forfeiture to the Crown of the profits of his real estate 
 and of his goods and chattels ( p) . If, pending com- 
 pletion, either party to the contract become an alien 
 enemy (q), he cannot enforce the contract whilst he 
 remains so (r) ; unless indeed he be resident in this 
 countrj' under the King's protection. 
 
 Assi.i^nnioTit We will now consider the effect of the assignment by 
 
 by a party to gj^j^g^ party to the contract of tlie land sold or of liis 
 
 the ooiitraot. . 
 
 Assignment beneficial interest in the contract. With regard to the 
 by the vendor assignment by the vendor of the land sold, this land 
 
 ot the land ^ / , 
 
 sold. Ix-ing m equity the propert}^ of tlie purchaser as from 
 
 tlie date of the contract for sale, tlie vendor is not 
 entitled to make any disposition thereof pending tlie 
 completion of the contract to any other person or other- 
 wise in derogation or to the prejudice of the purchaser's 
 rights under tlie contract (.s) ; any sucli disposition by 
 
 
 («) Stat. 33 & 34 Vict. c. 23, 
 s.«. G — 8 ; and see .sect. 30. 
 
 (o) Sects. 9—14 ; C'arr v. An- 
 drrmi, 1903, 2 Ch. 279. The 
 administrator of a convict has, 
 however, no power to bar an 
 estate tail vested in the convict : 
 but the convict himself can exe- 
 cute a disentailing deed ; Re 
 GmMl&; irall(W Cnntmct, 1906, 
 
 2 Ch. 1 ; see above, p. .'532, n. 
 (7/) ; below, Chap. XVI. 
 
 (p) See below, Chaii. XVI. ; 
 Wms. Real Prop. 48, llo, 3t)l, 
 21st cd. ; "Wms. Pers. Prop. 96, 
 l.i3, KiO, 16th od. 
 
 (7) See Jansoii v. Driefontein, 
 .\r., 1902, A. C. 484, fjOr), r)OG. 
 
 (r) See below, Chap. XVI. 
 
 (.s) Above, pp. -501 «</., 519.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 565 
 
 the vendor of the land sold constitutes a breach of the 
 contract, for which the purchaser may at once sue him 
 at law, witliout nuikiug- any offer to complete the 
 contract or other formality (/), and the vendor may, as 
 we have seen (//), bo restrained by injunction from so 
 parting with his estate in the land. If, however, the 
 vendor do make any such alienation of the laud sold, 
 either for a legal estate to a volunteer, with or without 
 notice of the contract for sale, or to a pm-chaser ^^ith 
 notice of the contract (r), or for an equitable estate only 
 to any person (,/■), the alienee takes subject to the pur- 
 chaser's equities under the contract, may be joined as a 
 party to an action for its specific performance, and may 
 be ordered to convey his interest in the land to the 
 purchaser in order to complete the sale(y). But if, To punhiisir 
 uijou such an alienation by the vendor, the alienee forv^-l^c 
 acquire a legal estate in the land sold for valuable notico. 
 consideration actually paid or executed in good faith 
 without notico of the contract for the sale, lie is entitled 
 to hold this estate free from all equities of the pur- 
 chaser, who has no remedy but to sue the vendor for 
 compensation for his loss (:: i. And the alienee, taking 
 in good faith and for the like valuable consideration is 
 entitled to the same priority over tlie purcliaser, not 
 only where he has acquired the legal estate, but also 
 where he has, before receiving notice of the contract for 
 sale, accjuired the best right to call for the legal estate. 
 For instance, if A. were seised of lands in fee on trust 
 for 13., and 13. contracted to sell the lands to C, and, 
 
 {I) Main's COM , h Rep. "iOb ; c) See Miiiiael! v. Mnincll, 2 
 
 Lovelock V. Frankit/n, 8 Q. B. 371 ; P. W. 678, 681 ; miloughh,/ v. 
 
 Synge v. Sijnye, 1894, 1 Q. B. WiUouyhby, 1 T. R. 763, 7^1 — 
 
 466, 471 ; see below, Chap. 773 ; Clemow v. Geach, L. R. 6 
 
 XVIII. § 2. Ch. 147 : rUchu-v. Ildwlins, L. R. 
 
 («) Above, pp. .JOl v/.. .)!'.>. 7 Ch. 2r)'J; r,n< \. Cavr, l.')Ch. I). 
 
 \c) luiuxon V. Ellin, 1 J. A: W. 63'J ; Ji>i€i,Ii v. Ldou^, l.j Q. H. I). 
 
 624. 2Si) : Ha'hs v. Jiul/in-Mjii, ib. 288; 
 
 (.(•) See iibuvo, p. 476. i>y>i!/c v. Hyxyc, 1894, 1 Q. B. 400, 
 
 (y) Above, y. .V28, ii. {») ; Fry, 471. 
 Sp. Peif. ^^ 2U6, Ml, 241, c;rd e'd.
 
 566 EFFECT OF THE CONTRACT PENDING COMPEETION. 
 
 pending completion of that contract and without notice 
 thereof, the same lands were sold by B. to D., and the 
 sale to D. were completed by payment of the purchase 
 money, and the execution by A., at B.'s request, of an 
 express declaration of trust in D.'s favour, it appears 
 that C. would have no better equity than D. to insist 
 on possession of the land (a). But it is to be observed 
 tliat tlie protection obtained against the purchaser's 
 prior equity by a subsequent alienee acquiring in good 
 faith, for value and without notice, the legal estate or 
 the best right to call for it, does not extend beyond the 
 interest actually acquired for valuable consideration 
 paid or executed before any notice of such equity 
 has been received. If the vendor, pending com- 
 pletion, dispose of the land sold to a stranger for any 
 valuable consideration which is wholly or in part 
 executory, the alienee, though he has obtained the legal 
 estate in good faith and without notice of the sale, 
 cannot, if he afterwards receive notice thereof, safely 
 perform for the vendor's use any part of the con- 
 sideration then remaining unexecuted. Thus, if the 
 vendor, pending completion of the original sale, re-sell 
 the land and convey the legal estate tlierein to another 
 Avitliout receiving payment of the whole price, the 
 second purchaser is protected against the first piu^- 
 chaser's prior equity as regards so much of his purchase 
 money as he has paid before receiving notice of the 
 first sale, and is entitled to hold his legal estate as 
 security for the amount so paid. But after he has re- 
 ceived such notice he cannot safely pay the rest of his 
 purchase money ; for he will not be entitled to set up 
 A/.s contract of sale as specifically enforceable against 
 the first purchaser, and, as between himself and the 
 
 (a) See ini/.rs v. Boduujion, 'l If'ilmnl v. Pdc, 5 Hare, 14, L'l — 
 
 Veni. 599; WiUaiajlibii v. Wil- Ti : rohnm v. Kciiipslcr, 1907, 
 
 loufikby, I T. R. 76;i, 767— 77'2 ; 1 Ch. 373, 378. 
 Sta)ihope v. Vcniri/, 2 Edeu, 81 ;
 
 EFFECT OF THE COXTKACT PENDING CoMI'LHllON. 
 
 0G7 
 
 veudor, tliat contract will be rescinded and lie will Le 
 discharged from all fm-tlier performance of his obli- 
 gations thereunder (h). If the vendor, pending com- 
 pletion of the contract, convey an equitable estate in 
 the land sold for valuable consideration to some third 
 jierson, the alienee cannot, after receiving notice of the 
 contract for sale, protect himself against the pm'chaser's 
 claim by taking a conveyance of the legal estate from 
 tlie vendor, or from an express trustee thereof for the 
 vendor (r). Uut otherwise the alienee is entitled to Titikin:,' by 
 lack his ovni equitable interest to the legal estate if he aiieu.ju. 
 can obtain it without any breach of trust on the part of 
 the conveying party, so that if the legal estate in the 
 property be outstanding in a mortgagee the alienee, on 
 taking a transfer of the mortgage, even after receiving 
 notice of the sale, can exclude tlie purchaser's rights (d). 
 
 The }»urchaser is, as we have seen (r), fidly entitled AHiimtiuu by 
 to dispose of the land sold as his own, at any time after of'theVand^'^'^ 
 the makins: of the contract for sale. sold. 
 
 (b) Joiirii V. S/i/ii/ii/, 2 Eq. Ca. 
 Abr. 68."), pi. 9 ; Slor;/ ^^ U'liui- 
 for, '1 Atk. (>3() ; JIardiDyhain v. 
 y,vh»lh, ;i Atk. ■M)\ ; ToiinUIr v. 
 Xiiish. 3 P. W. 307 : Su'jr. 
 V. A: P. 78'.». In the last ca.so a 
 purchaser whu had taken a con- 
 veyance and given a bond for 
 the balance of the jjrice without 
 notice of a prior efpiitable incum- 
 brance, and received notice there- 
 of prior to payment of the money 
 due on the bond, was postponed 
 to the incunibruncer, as reg-ards 
 Much money, on the ground that 
 he would be entitled in equity to 
 avoid payment of the money on 
 the bond. The privinpr of a bond 
 or covenant for payment of the 
 whole or part of the purchase 
 money may, i)erhaps, be properly 
 treated as not constitutin;,' exe- 
 cuted consideration within the 
 meaning of the rule stated above, 
 
 as any assi^jrnee of the debt so 
 secured would take subject to the 
 equities between the debtor and 
 original creditor. Tint if the sale 
 were made on the terms that a 
 negotiable security should l>e 
 given for the un])aid purc^hasc 
 money, it appears that tlie giving 
 of such security ought to be 
 treated as executed con.sideration, 
 at least where the security has 
 lx>eu negotiated before notice of 
 the prior equity is received ; for 
 after the negotiable security has 
 come to the hands of a bona fide 
 holder for value the liability 
 thereon can no longer be avciided. 
 
 ((■) Above, p. 4S(), n. (i) ; I'ottir 
 V. Sdtidrrs^ (3 Hare, 1. 
 
 d) T<(i/lvr V. UitustU, 1892, 
 \. C. 244 ; liuilrif v. Hunicn, 
 IS9i, I Ch. 25, 30, 37; tibovo, 
 pp. 477—480. 
 
 [r) Above, pp. 50G, o41.
 
 5t;8 
 
 EFFECT OF THE CONTKACT PENDING COINIPLETION. 
 
 A.ssigiiniciit 
 of the beuefit 
 of the cou- 
 tract. 
 
 Either party to the contract may hiwfully assign 
 over his beneficial interest therein (/'), and the assignee 
 may sue the other party in his own name in equity for 
 the specific performance of the contract, making the 
 assig-nor a party to the action {(/) ; and this is the case 
 whether the assignment of the benefit of the contract 
 be made for the purpose of absohitely transferring the 
 assignor's whole interest or of securing some lesser or 
 other advantage to the assignee, such as the repayment 
 of money lent {//). And the assignee of the interest of 
 either party to the contract is entitled, under the Judi- 
 cature Act of I87'j, to sue the other party thereon in 
 his own name at law if the assignment were an absolute 
 assignment in writing under the hand of the assignor 
 (not purporting to be by way of charge only), and 
 express notice in writing of such assignment were 
 given to the other party (/). Notice of the assignment 
 by either party of the benefit of the contract must, of 
 course, be given to the other party, in order to prevent 
 him from further performing the contract for the 
 
 (/) ]rood V. GriJ/it/i, 1 Swaiist. 
 43," 55, 56 ; Sug. V. & P. 35H ; 
 iS/i(iw V. Fos/cr, L. R. S H. L 
 321, 333. 338; TolliMTKi v. As.su- 
 ciaUd Fort lane/, <^-c. Ltd., 19C3, 
 A. C. 414, 420, 423. 
 
 iff) Ncithorpe v. Hulyate, 1 Coll. 
 203 ; and see Crosbie v. Toolce, I 
 My. & K. 431 ; Mon/an v. Modes, 
 ib. 435 ; FoireU v. Frw, 1 Y. & C. 
 C. C. 345, 358 ; 12 L. J. (N. S.)Ch. 
 158. 162, 165; Buckhoul \. Fapil- 
 hn, L. R. 1 Eq. 4 77, 2 Ch. 67 ; 
 Ely, Sp. Perf. § 222, 3rd ed. 
 
 (/i) Browne v. Lundun Necropolis 
 Co., 6 W. R. 188 : Shaiv v. Fos- 
 ter, L. R. 5 H. L. 321, 333, 338 
 —344, 350. 
 
 (J) Stat. 36 & 37 Vict c. 66, 
 «. 25, sub-s. 6 ; Turklngton v. 
 McHjee, 1902, 2 K. B. 427, re- 
 versed on the facts, 1903, 1 K. B. 
 644 ; and see FJaivson v. Great 
 Xortherii By., 1905, 1 K. B. 
 
 200, 270, 271. It ha.s been de- 
 cided that where there is au abso- 
 lute a.ssigiiment of the chose; in 
 action (in the sense of a complete 
 transfer of the legal ownership 
 thereof), the a.ssiguee may sue in 
 his own name, although the as- 
 signment be made to secure 
 the payment of money, and be 
 subject to a proviso for redemp- 
 tion on such payment : Tancred 
 V. Ikhuioa lUuj, iff. Hall. Co., 23 
 Q. B. i). 239 ; hnrhum x.liobert- 
 soH, 1898, 1 Q. B. 765 ; Hughes 
 V. Fuwp House, ^-c. Co., 1902, 
 2 K. B. 190 ; cf. Merennlile Bank 
 of London V. Evans, 1899, 2 Q. B. 
 613; Jones v. Humphreys, 1902, 
 I K. B. 10 ; or although the as- 
 signment be made on trust for 
 the assignor : Comfort v. Bells, 
 1891, I Q. B. 737; FUzroy v. 
 Cave, 1905, 2 K. B. 361.
 
 EFFECT OF 'J'HE CONTKACT PENDING COMPLETION. ofi-> 
 
 assignor's own use, which he would otherwise he 
 entitled to do. And, as a ride, when one party to the 
 contract i-eoeives notice of the assignment by the other 
 of his interest in the contract, he is thenceforth bound 
 to continue the performance of his part of the contract 
 in favour of the assignee, and must no longer give to 
 the assignor the benefit of the contract (k). But in 
 order to oblige the other party to cease performance in 
 favour of the original contractor, and to complete the 
 contract with the assignee, there must be an effectual 
 assignment (jf the original contractor's interest and 
 notice of such assignment, and the assignee must show 
 himself ready and willing to take the assignor's place in 
 all respects, accepting the burtlien, as well as the benefit, 
 of the contract (/). Thus, where a purchaser of leaseholds S/iau-v.lox/cr. 
 deposited his contract with his bankers, together with a 
 written agreement that he would at any time there- 
 after, at their request, execute to them a valid assign- 
 ment of the contract, and the bankers gave formal 
 notice to the vendor of the terms of this agreement 
 only, not mentioning the deposit of the contract or 
 expressing any intention to stand in the purchaser's 
 place as regards its completion, and took no further 
 steps to secure to themselves the benefit of the sale, it 
 was considered that the terms of the agreement amounted, 
 not to a present assignment of the benefit of the 
 contract, but only to a promise to assign the same at a 
 future time upon request ; and it was held that the 
 vendor was justified in executing, on payment of the 
 purcliase money by the original purchaser, a conveyance 
 which took no notice of any interest on the banker's 
 part {m). 
 
 rX) S/,nir V. Fvstir, L. R. 5 1902. 2 K. B. 127. ivvor.swl i.u 
 }I. L. :?21, 3.i3, 33«, 3:jy, 3o0 ; the facti*. 1903, I K. B. li41. 
 Wms. Pcrs. Prop. oG, IGth cd. 
 
 (</«) ahaw V. t'wlii\ L. 1\. .') 
 
 {I) See Turklngton v. Mugu, H. L. 321.
 
 570 
 
 El'FlXT OF THF CONTUACT I'ENDING COMPLETION. 
 
 As to tilt' 
 burthen of 
 tlie contract 
 after ;in 
 ussisifuuient. 
 
 Of course, neither l)arty to the contract can assign 
 over tlie burthen thereof (ii). It follows that when one 
 party to the contract has assigned his interest therein 
 he remains liable to perforoi his part of the contract ; 
 and the other party cannot sue the assignee, either for 
 the specific performance or for damages for breach of 
 the contract {o), unless he has accepted the assignee as 
 occupying the assignor's place, in respect of the fulfil- 
 ment of the contract. In this case there appears in 
 trutli to be a novation of the contract, and tlio assignor 
 is not a necessar}' or proper party to any action 
 tliereon {p). 
 
 Trausfer of 
 part of tlic 
 benefit of the 
 coiitruct. 
 
 If a party to the contract make no direct assignment, 
 either legal or equitable, of his whole interest in the 
 contract, but merely transfer by some indej)endent act 
 or agreement a part of the benefit which he is to derive 
 from its performance — as if the vendor merely charge 
 the purchase money with the payment of some smaller 
 amount, or the purchaser agree to sell a part or to lease 
 the whole or a part of the land sold — the transferee, 
 being no party to the contract and being unable to 
 assert an absolute assignment to himself of the original 
 contractor's interest within the meaning of the Judica- 
 ture Act of 1873, is not entitled to sue the other party 
 to the original contract in his own lutme at law (y). 
 
 («) Tolliio'st V. ^hsociiitcd Forl- 
 IfDid Cement MiDiiifacliorrs, 1902, 
 2 K. B. GGO, 608, afHrmed, 1903, 
 A. C. 414. 
 
 (o) Chadwick v. Madcn, 9 Hare, 
 188. 
 
 [p) HoldcHW Uaijn, 1 Mer. 47 ; 
 Hall V. Later, 3 Y. .^ C. 101. 
 
 [q) Sec above, p. 5GS ; Mei- 
 rKiilde Batik of J.oiidvn v. Ecarns, 
 1899, '1 Q. B. Glo ; Jones v. Hum- 
 p/nrt/n, 190-2, 1 K. B. 10. It iw 
 
 a question whether an absolute 
 assignment by the vendor of part 
 of the purchase money would 
 enable the assignee to sue the 
 purchaser at law ; but the better 
 opinion appears to be that it 
 would not : see Urice v. Bainiii'fer, 
 3 Q. B. D. 5U9 ; llnrham v. liu- 
 hrrtson, 1898, 1 Q. B. 765, 7G9— 
 77-5, and the two cases cited 
 above ; Hkippcr v. llollowat/, 1909, 
 W. N. 230, 79 L. J. K.'B. 91, 
 reversed ou the facts, 1910, W. N.
 
 EFFECT OF 11 IK CONIKACT PENDIXG COMPLETION. '^"l 
 
 But, iu equity, one who has acquired from an orig-iual 
 contractor a derivative interest in the subject-matter of 
 a contract which is specifically enforceable, may claim, 
 as against his grantor and the other party to the con- 
 tract, to be an assignee 2)ro ianto of the benefit of tlie 
 contract, and to have the same specifically performed in 
 his own favour accordinGrlv. Thus, in Bromio v. Lmnloii ^j'O"'"^ \; 
 
 " - ' _ _ London J\'f/y- 
 
 Nccropolis Co. {/•), a vendor of laud assigned a portiou /^o./i*- Cu. 
 of the purchase money by way of mortgage, the mort- 
 gagee deposited this mortgage with another by way of 
 sub-mortgage, and the sub-mortgagee sued the pur- 
 chaser, his own mortgagor and tlie vendor, claiming, Jis 
 against the purchaser, tlie specific performance of the 
 contract. AVood, V.-C, held that the suit was maintain- 
 able in this form, considering that any person who was an 
 assignee of the vendor might assert the vendor's rights 
 under the agreement to purchase, and thus obtain the 
 benefit of his charge through the medium of specific 
 performance. The same rule appears to be applicable 
 in the case of the acquisition by a third person from 
 the i)urchaser of an estate or interest in the land sold. 
 But to obtain such relief the person claiming it must 
 submit to perform the original contract, so far as any 
 duty thereby created relates to the interest acquired by 
 him in tlie subject-matter of the agreement, and lie 
 must also procure the whole of the obligations under- 
 taken by his assignor in the contract to be comph^tely 
 discharged (s). For a contractor cannot, by a partial 
 any more than by a complete {t) assignment of his 
 
 74: 1910, -2 K. B. fi30; lioulr.s v. ;i')0, 3.')7. 358; aud see Sunt/i 
 
 /y^^r/-, 1910, W.N. 24, 110, 119 ; Jui.strrn Rail. Co. v. A'lwlt, 10 
 
 n(im. Fovnter v. Baker, 1910, 2 Hare, 122 ; Fen wick v. liulman, 
 
 K. B. 63C. L. R. 9 E(i. 1().5, where note that 
 
 (»•) 6 W. R. 188, where, how- Broune v. Lo)i<lon XvcropoUn Cu. 
 
 ever, specific performance was was uot cited ; (Joienniiiul of 
 
 refused on other trrounds. Xcic/oinid/dtid v. Xeirfvuiidlinid 
 
 {«) Di/er V. I'ltltcneij, Barn. Ch. Hail. Co., 13 App. Gas. 199, 
 
 IGO. Ihb, 170 ; Slia'w v. Foiler, 210—213. 
 L. R. 5 H. L. 321, 333, 338, 339, [i) Above, p. 570.
 
 572 
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 interest under the contract, deprive the other party to 
 the contract of his right to have the same performed in 
 its entirety [if) ; and he can only enforce specific per- 
 formance by the other party on the terms of carrying 
 out his own part of the agreement (.r). 
 
 Contract 
 ispecifically 
 enlorceable 
 against per- 
 sons whoso 
 estate would 
 be displaced 
 by a con- 
 veyance. 
 
 Here it may be mentioned that contracts for sale of 
 land are specifically enforceable, not only against the 
 vendor's representatives in law and his assigns, who 
 have or are taken to have notice of the contract, but 
 also, as a rule, against all persons having any estate or 
 interest in the land sold which would be displaced by 
 the vendor's conveyance in pursuance of the contract (v/) , 
 Thus, a contract for sale by a joint tenant of his share 
 of the land is sj)ecifically enforceable against the other 
 joint tenants claiming the estate by survivorship, the 
 contract for sale operating in equity as a severance of 
 the joint tenancy (s). And a contract for sale properly 
 entered into by a trustee for or with power of sale is so 
 enforceable against the ccntiti-que-truda {(() ; but this is 
 not the case if the circumstances were such as to make 
 it a breach of trust for the trustee to enter into the 
 contract (6). And where a trustee authorised to invest 
 the trust funds in the purchase of land has entered into 
 a contract of purchase in sucli circumstances as to con- 
 stitute a breach of trust, the contract is not specifically 
 enforceable by the vendor against the cc.sfui-ijKc-frtO'if-s, 
 notwithstanding that they have been in possession of the 
 
 (/() Above, n. (.s), p. 571. 
 
 {x) Fry, Sp. Perf. § 922 sq., 
 3rd ed. 
 
 (y) 2 Dart, V. & P. 997, 5tli 
 ed. ; 1117, Gth cd. ; 1031, 7th ed. ; 
 see above, pp. o38, 539. 
 
 (2) Hintun V. llin/on, 2 Ves. 
 sen. 631, 634 ; Broun v. Raindlc, 
 3 Ves. 256, 257. 
 
 (ff) Shai/iioii V. Bradstreet, 1 
 Sch. & Lef. 52 ; Mortlock v. 
 BiiUer, 10 Ves. 292, 314 ; Lowell 
 V. Dew, 1 Y. & C. C. C. 345 ; 
 above, pp. 256 .sry. 
 
 [h) See Mortlock v. Bailer, 10 
 Ves. 292, 313 ; White v. Cuddon, 
 8 CI. & Fin. 7G6; M>m v. Top- 
 ham, 19 Beav. 576, 578.
 
 EFFECT OF THE CONTRACT PENDING COMPLETION. 
 
 573 
 
 laud under tlie coutraot or with the vendor's leave, and 
 the vendor's only remedies to obtain payment of the 
 purchase money are to sue the trustee at law and to 
 enforce his vendor's lien (r). 
 
 (c) Ecclesiastiral Commrs. v. 
 riiinei/, 1899. 2 Ch. 7'29, 190.), 
 2 Ch. T-'^G. Fn)in what "was said 
 in the judgments in this case it 
 ajjpears that the vendor would not 
 
 have had any remedy to obtain 
 payment of the purchase money 
 from the c xlii'i-qut-tnisfs or out 
 of the trust fund if the contract 
 had not been a breadi of trust.
 
 574 
 
 CHAPTER XTI. 
 
 OF THE COMPLETION OF THE CONTEACT. 
 
 ^ 1. 
 ^5. 
 
 Of Completion generally. 
 
 Of Searches and Inquiries. 
 
 Of the Preparation of the Conveyance. 
 
 Of the Adjustment of Accounts. 
 
 Of the Execution of the Conveyance. 
 
 ^:? 1.- 
 
 -Of Completion f/enern////. 
 
 Ak'I'KR the investigation of title is completed, the pur • 
 chaser either accepts the title and proceeds to completion, 
 or he objects to the title and claims that the vendor has 
 failed to perform that part of the contract. In the latter 
 case the vendor either admits the purchaser's claim or 
 disputes it, when the parties must pursue their legal 
 remedies. But if the purchaser accept the title, the con- 
 tract is either duly completed or it fails to be performed 
 either for non-payment of the purchase money or else 
 for some reason Avhich is not precisely a matter arising 
 upon the investigation of title, as that the contract was 
 induced by mistake or by misrepresentation as to some 
 fact, or bv fraiul, duress or undue influence, or cannot or 
 ouglit not to be performed by reason of the incapacity 
 of some party thereto or of the relation in which tlie 
 parties stand to each other. Of course, any of tliese 
 matters may be alleged as a ground for avoiding the 
 contract before or during the investigation of title. But 
 as the plan of this treatise has been to take the normal 
 coiirse of a contract for the sale of land, and to describe 
 the incidents thereof as they occur in order of time, wo
 
 Ol^ TIIK COMF^LKTTON OF PHE COXTRACT. 575 
 
 will first examine the cases in which the contract is duly 
 completed, and will consider afterwards tlie various 
 grounds on which the contract may he avoided. 
 
 Let us now approach the subject of the completion of Tiinr- f.,r 
 the contract in its ordinary course. And first, as to the ""'^' 
 time for completion. As we have seen (a), if when the 
 investigation of title is concluded the vendor has shown 
 a good title according to the contract, the purchaser is 
 bound to accept the title and complete the contract 
 accordingly. Under an open contract, the time for 
 completion is when the vendor has shown a good title (//) : 
 but it is usual in formal contracts for the sale of land 
 to fix a date for completion {(•). When this is done, 
 time is not, as a rule, of the essence of the contract, 
 either in equit}' or. since the Judicature Acts commenced, 
 at law(^/). This rule, however, is subject to certain 
 exceptions. The principle to which these exceptions 
 are referable is the same as that on wliioli tlie rule itself 
 is founded (/'). As the Court will enforce the specific 
 performance of a contract, notwithstanding tlie failure 
 to comply with some stipulation as to time, where it 
 considers that the real intention of the parties was not 
 to make the condition as to time material (/"), so the 
 Court will not order the specific performance of a con- 
 tract after breach of a stipulation as to time, where the 
 intention appears, either expressly or impliedly, that tlie 
 observance of the time stipulation sliall be an essential 
 part of the contract (f/). A stipulation, tlierefore, tliat 
 a contract for tlie sale of land shall be complet(^d on a 
 particular day will be of the essence of the contract, if 
 such were the intention f»f tlie parties ; and this inten- 
 
 (rt) Above, pp. 3.'), 40. 16:3, 179. {,■) See Jlipwcll v. Knight. 1 
 
 (/;) Above, pp. 3.'), 4f). Y. & C. 401. 
 
 , . ,, ,- (/) Above, pp. .58, '>9. 
 
 (r) Above, p. 5<. (;^. j..,^ the cases cited above, 
 
 [d) Above, pp. 58. 59 ; ralnck p. 5s ; Put rick v. Milne,; 2 C. P. 
 
 V. Mihier, 2 C. P. D. 342. D. 342.
 
 576 OF THE COMPLETION OF THE CONTRACT. 
 
 tion may be eitlier expressed or implied. An express 
 intention to make time of tlie essence of the contract is 
 best shown by providing (in these terms) that time shall 
 be of the essence of the contract as regards the particular 
 act required to be done within a given time {//) : but 
 such an intention may also be gathered from other 
 expressions in the contract (/). It must, however, be 
 clearly shown, or the general rule of construction, that 
 time is not of the essence of an agreement to complete 
 a sale of land on a given day, will be applied (A-) . With 
 regard to the implication of an intention to make time 
 of the essence of a contract to complete a sale of land on 
 a particular day, we have seen (/) that such an intention 
 may be inferred from the nature of the property or 
 from the surrounding circumstances. Thus, time is of 
 the essence of the contract where the value of the 
 property sold must necessarily increase or diminish 
 according to the effluxion of time (m), as in the case of 
 sales of remainders or reversions other than those expec- 
 tant merely on a lease at a profitable rent {)/), of estates 
 or interests determinable with life (o), or of mining 
 leases or short leaseholds ( p) . So, where the property is 
 used for trade or business purposes, time is generally of 
 the essence of the contract (q), as on the purchase of a 
 public-house {>■), mill or manufactory as a going concern, 
 or of mines for the purpose of working them {x). But 
 in all these cases the question whether time is material 
 
 {Ji) Lloifd V. Rippingah, cited 1 (ol See Withy v. Coltle, T. & R. 
 
 Y. & C. 410; Parkin v. Thorold, 78 ; ' 1 Dart, V. & P. 419, 5th 
 
 16 Beav. 59, 65 : see above, ed. ; 484, 6th ed. ; 497, 7th ed. 
 pp. 62, 72. {p) IlKflson v. Temple, 29 Beav. 
 
 (/) ILpwell V. Knifihl, 1 Y. & C. 536, 543. 
 401, 417; Bcn-cluy'y. Messenr/cr, {q) Coshike v. Till, I Rxis^fi. Z76 ; 
 
 43 L. J. N. S. Ch. 449, 455. /r«//.-^rv./^#m/.'(. 1 Hare, 341, 348. 
 
 (/■) Above, p. 575 ; TJ'/hb v. {>■) Above, p. 488. 
 
 ir>iffhe.s, L R. 10 Eq. 281, 286. (.v) Tarker v. Fnf/,, 1 S. & S. 
 
 [I) Above, p. 59. 199, n. ; Maehri/ile v. IVeekea, 22 
 
 {m) Hipurll v. Knit/ht, 1 Y. >Sc Beav. 533 ; Fry, Sp. Perf. 
 
 C. 401.416. ■ ^§1079— 1082. 3rd ed. ■^.•' 
 
 [u'l Above, p. 408. • ..
 
 OF THE COMPI.ETION OF THE CONTRACT. 577 
 
 is to be determined by ascertaining the intention of the 
 parties (f) ; and if it appear from the contract that they 
 contemplated delay in completion after the day fixed 
 therefor, as where the payment of interest in case of 
 delay in completion is expressly provided for {u), it will 
 not be considered that compliance with the time stipu- 
 lation is essential {.a) . As to inferring an intention to 
 make time of the essence of the contract from the 
 surrounding circumstances, this may be illustrated by 
 the case of a contract to sell a house for the purpose of 
 residence (y), or to sell land for erecting a mill or 
 factory (s) , or for any other immediate purpose (a) : but 
 it does not appear that such an intention will be inferred 
 where the vendor does not expressly or impliedly offer 
 the proj)erty as available for the required piu-pose and 
 the purchaser does not disclose to him what use he 
 desires to make of it (b). An express or implied stipu- 
 lation that time shall be of the essence of the contract 
 may be waived either by express agreement or by the 
 conduct of the parties, as where they continue negotia- 
 tions as to title after the day fixed for completion (c). 
 
 As we have seen (^/), where time is not originally of Making time 
 
 ,•1 p i.1 J. J. 'i 1 1 ' ±^ of the essence, 
 
 the essence oi the contract, it may be made so, in the ^here not 
 
 case of unreasonable delay by either party in the per- originally so, 
 formance of his part of the contract, by a notice served notice, 
 on him by the otli<^r party and requiring him to do the 
 acts, which he has so delayed to perform, within a speci- 
 fied time ; provided that the time so specified allow him 
 
 {t} Above, p. 575. S. & S. 190. 
 
 (m) Above, pp 67, 74. (a) See Jonrx v. Gardiner, 1902, 
 
 (x) ]Vebb V. Ilufihes, L. R. 10 1 Ch. 191. 
 
 Eq. 281, 28G; I'o'trick v. Mihier, {h) See Bofhin v. TFood, 1 J. & 
 
 2 C. P. D. 342 : and see Jones v. W. 419, 422 ; Tifki/ v. Thomas, 
 
 Gardiner, 1902, 1 Ch. 191. L. R. 3 Ch. 61, 67, "70 ; Webb v. 
 
 (,v) Lenj V. Liiido, 3 Mer. 81, Hitghrs, L. R. 10 Eq. 281. 286. 
 
 84 ; Gedi/i' v. Montrose, 26 Beav. (r) Hipwrll v. Kntqht, 1 Y. i: 
 
 45 ; Tiiley v. Thomas, L. R. 3 C. 401 ; JVebb v. Hughes, L. R. 
 
 Ch. 61. 10 Eq. 281. 
 
 (s) See U'rit/ht v. IFoicard, 1 {d) Above, p. 48. 
 
 w. 37
 
 i78 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Time for per- 
 formance by 
 vendor of a 
 condition 
 which is a 
 term of the 
 sale. 
 
 The acts to be 
 performed on 
 either side for 
 completion. 
 
 such a period commencing from the date of service of 
 the notice as is reasonably necessary for accomplishing 
 the acts required. 
 
 Here it may be mentioned that, if it be a term of the 
 contract for sale that some condition shall be performed 
 by the vendor, as that he shall procure a mortgagee of 
 the land to alloAv the amount advanced to remain on the 
 security, and a day be fixed for completion, time being 
 of the essence of the contract in this respect, the vendor 
 may, as a rule, well perform the condition at any time 
 before the day fixed for completion {e). 
 
 Completion of the contract consists on the part of the 
 vendor in conveying with a good title the estate con- 
 tracted for in the land sold and delivering up the actual 
 possession or enjoj^ment thereof ; on the purchaser's 
 part it lies in accepting such title, preparing and ten- 
 dering a conveyance for the vendor's execution, accept- 
 ing such conveyance, taking possession and paying the 
 price (/'). But the performance of either party's duty 
 in this respect cannot be exacted by the other unless he 
 himself be ready to fulfil his own part of the contract. 
 Thus the vendor cannot require payment of the price 
 and call upon the purchaser to take possession unless and 
 until he have shown a good title and be ready and will- 
 ing to execute a valid conveyance to the purchaser; 
 nor can the purchaser oblige the vendor to convey and 
 give up possession of the land without himself accepting 
 the title, tendering a conveyance for execution, accept- 
 ing the conveyance and paying the price. And this is 
 so, not only under an open contract, but also where a 
 day is fixed for completion in the ordinary way, time 
 not being of the essence of the contract ; either party 
 being at liberty in such case to decline to eomj)lete the 
 
 (e) Smith v. Butler, 
 Q. B. 694, 699. 
 
 1900, I 
 
 (/) Above, pp. 26, 33, 34, 46.
 
 OF THE COMPLETION OF THE CONTRACT. '^79 
 
 contract, notwithstanding that the day for completion 
 anive or be past, except on the terms of the other 
 discharging his duty (fj). 
 
 Let us first consider the purchaser's duties. The first The pur- 
 step towards completion required of him is to accept the duties "^ 
 title, if the title shown on the abstract and proved by 
 the documents and other evidence produced for verifica- 
 tion of the abstract be a good title according to the 
 contract (A) . No formal act or notification of such Acceptance of 
 acceptance is required ; it takes place when the vendor's 
 last answer to the purchaser's last outstanding requisi- 
 tion is received without objection («"). Such acceptance, . 
 however, is merely an acceptance of the title so put 
 forward by the vendor (A) ; it does not preclude objec- 
 tion to the title on account of defects subsequently . 
 discovered from other sources than the information 
 supplied by the vendor, as from searches or other 
 inquiries made by the purchaser (/), provided of course 
 that the title agreed to be taken were not so limited by 
 special stipulation as to preclude such objection (m). 
 Neither does acceptance of the title prevent objections 
 as to matters which are properly matters of conveyance 
 rather than of title («) . It is important to observe this, 
 as a part of the proper investigation of every title 
 consists in searcliing for registered incumbrances, making ; Searches and 
 
 • • p i i ,1 • i. i.1. i. inquiries to be 
 
 inquiries ot tenants or other occupiers as to the nature made by the 
 
 purchaser. 
 
 {g) See 3lfirtin v. Smith, 6 1903, 1 Ch. 287. 
 
 East. 555 ; Jones v. JLidd, 4 (A) Above, p. 189. 
 
 Russ. 118; Pookv. Hill, 6 M. & (/) Above, pp. 189, 190 ; Jie 
 
 W. 83.) ; Tillii/ v. Thuma.s, L. R. Jackson and Oakshott, 14 Ch. D. 
 
 3 Ch. 61 ; Phillips V. Silvestet-, 851 ; Re Monekton and Gilzean, 
 
 L. R. 8 Ch. 173. 176—178; Ti Ch. T>. obb ; Re Haedicke atid 
 
 Noble -v. Edicardes, bQh.Ti.il^X Lipski's Contract, 1901, 2 Ch. 
 
 Mosli/n V. Mosti/n, 1893. 3 Ch. 666, 669, 670 ; Rr PuckHt and 
 
 376 ; above, pp.'eo, olT), .516. Smith's Contract, 1902, 2 Ch. 258. 
 
 (A) See above, pp. 35, 36, 105, (w) Above, pp. 202—207. 
 
 115. 143, lOfi, 178, 179. («i Above, pp. 164-166, 181, 
 
 (i) See cases cited above, pp. 26, 188, 190 ; Mosti/n v. Mostyn, 1893, 
 
 n. (r). 60, n. (/) : Re Iliyhett and 3 Ch. 376 ; Re Hughes and Ashley's 
 
 Bird's Contract, 1902, 2 Ch. 214, Contract, 1900, 2 Ch. 595. 
 
 37(2)
 
 580 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Acceptance 
 by not 
 sending in 
 requisitions 
 in time. 
 Soper V. 
 Arnold. 
 
 of their interests, or, where vacant possession is to be 
 given on completion, ascertaining that the vendor is in 
 possession ; and these searches and inquiries should be 
 so made as to extend over the very latest possible time 
 before completion (o). And it may happen that an 
 objection as to some matter of conveyance may be such 
 as to justify the purchaser in refusing to complete the 
 contract {p). We have seen (</) that the title may also 
 be accepted by not sending in requisitions or objections 
 within the time specially limited by the contract for 
 that purpose. If the purchaser inadvertently accept a 
 defective title put forward without fi'aud, and after- 
 wards fail to pay the purchase money and the vendor 
 rescind the contract and retain the deposit as forfeited 
 on that account (r), the purchaser will not be enabled, 
 on subsequently discovering the defect in the title, to 
 recover the deposit (s) . 
 
 Searches, 
 their object. 
 
 § 2. — Of Searches and Inquiries. 
 
 The object of searching for incumbrances or other 
 matters, which are registered or enrolled, is to ascertain 
 that the vendor's title is not adversely affected by any 
 judgment, Crown debt, writ or other process of execu- 
 tion, life annuity, land charge, Us jjendens, bankruptcy, 
 deed of arrangement, disentailing assurance, deed 
 acknowledged before the year 1883 by a married woman 
 entitled at common law, or by registration of the title 
 or any registered disposition under the Land Transfer 
 Acts, 1875 and 1897 {t), or in the case of lands in 
 Middlesex or Yorkshire, by any disposition thereof 
 
 (o) Sug. V. & P. 538 : Dart, 
 V. &P. 454, 499, 5th ed.; bUsq., 
 569, 6th ed. ; 1191, 1227, 7th ed. 
 
 {p) Above, pp. 165. 166, 181, 
 182 ; Mostyn v. Mostyu, 1893, 3 
 Ch. 376. 
 
 (r/) Above, pp. 179—182. 
 
 (?) See above, pp. 26, 36, 57, 
 74. 
 
 (.s) Soprr V. Armld, 37 Ch. D. 
 96, 14 App. Cas. 429. 
 
 [t] Stats. 38 & 39 Vict. c. 87 ; 
 60 & 61 Vict. c. 65.
 
 OP THE COMPLETION OF THE CONTRACT. 581 
 
 already registered (u), or in the ease of copyholds by 
 any assurance already enrolled (x). 
 
 With regard to judgments and Crown debts of record Judgments, 
 or by specialty in statutory form or arising from public ^^^^ ^"pj^^ ^f 
 accountantship to the Crown, all of which at one time execution, 
 were, when registered, charges on the debtor's lands (i/), 
 it is now provided by the Land Charges Act, 1900 (z), 
 that a judgment (a) or recognizance, whether obtained 
 or entered into on behalf of the Crown or otherwise, 
 either before or after the commencement of the Act (h), 
 shall not operate as a charge on land, or on any interest 
 in land, or on the unpaid purchase money for any land, 
 unless or until a writ or order for the pui'pose of 
 enforcing it is registered under the Land Charges Act of 
 1888 (c) ; and this provision applies to any inquisition 
 finding a debt due to the Crown, and any obligation or 
 specialty made to the Crown, and any acceptance of 
 office from or under the Crown, whatever may have 
 been its date, in like manner as it applies to a judg- 
 ment (d). Under the same Act (c) too, no entry shall 
 be made, except under an order of the High Court, in 
 the register of judgments established by the Judg- 
 ments Act, 1838 (./■), the register of Crown debts 
 established by the Judgments Act, 1839 {(/), the 
 registers of writs of execution established by the Law 
 of Property Amendment Act, 1860 {h), and the Judg- 
 ments Act, 1804 (/), or the register of Crown process of 
 
 (m) Above, pp. 373 «'/. (6) Ist July, 1901 ; stat. 6'S k 
 
 Ix) SeeWms. Real Prop. -208— 64 Vict. c. 26, s. 6 (2). 
 294, 602—60.'), 2l8t ed. (c) Stat. 51 & 52 Viet. c. 51. 
 
 (y) Ibid. 209—275, 28.3—287. (rf) Stat. 63 & 64 Vict. c. 26, 
 
 (2) Stat. 63 & 64 Vict. c. 26, s. 2 (2) ; see Wms. Real Prop. 
 
 8.2(1). 285— 287, 21st ed. 
 
 (a) Hero including' any order (e) Sect. 2 (3). 
 
 or decree having the effect of a (/) Stat. 1 .Sc 2 Vict. c. 110, 
 
 judgment, except an order made .•*«. 19, 21. 
 
 by a Court having bankruptcy (</) Stat. 2 & 3 Vict. c. 11,. i. 8. 
 
 jurisdiction in exercise of that (A) Stat. 23 & 24 Vict. c. 38. 
 
 jurisdiction : see sect. 6 (3) ; stat. (i) Stat. 27 «ic 28 Vict, c 112. 
 
 51 & 52 Vict. c. 51, s. 4.
 
 582 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 execution established by the Crown Suits Act, 1865 (/c). 
 And all these registers, as well as the registers of lis 
 pendens and life annuities (/), have been transferred 
 from the Central Office of the Supreme Court to the 
 Office of Land Registry {m). As regards writs or other 
 processes of execution, we have seen {ti) that, by the 
 Land Charges Act of 1888 (o), every writ or order 
 affecting land (including hereditaments of any tenure) 
 issued or made by any Court for the purpose of enforc- 
 ing a judgment (^:)), and every delivery in execution or 
 other proceeding taken in pursuance of any such writ 
 or order shall be void, as against a purchaser for value [q) 
 of the land, unless the writ or order is for the time 
 being duly registered against the uame of the jierson 
 whose land is affected in the Office of Land Registry. 
 This enactment was extended by the Land Charges 
 Act, 1900 (r), to every writ or order affecting land 
 issued or made by any Court for the purpose of enforc- 
 ing a judgment, whether obtained on behalf of the 
 Crown or otherwise, and whether obtained before or 
 after the commencement of the Act, and to every 
 delivery in execution or proceeding taken in pursuance 
 of any such writ or order. Registration under these 
 Acts ceases to have effect at the expiration of five years, 
 but may be renewed, and if renewed has effect for five 
 years from the date of renewal (s). With regard, 
 therefore, to judgments, Crown debts or liabilities of 
 the kind mentioned in the Land Charges Act, 1900, 
 and process of execution, whether at suit of the Crown 
 
 (/.■) Stat. 28 & 29 Vict. c. 104 ; 
 sec Wins. Real Prop. 271 — 275, 
 286, 21st ed. 
 
 {I) See below, pp. 587, 593. 
 
 («?) Stat. 63 & 64 Vict. c. 26, 
 s. i ; and Order thereunder, W. N. 
 18th Aug. 1900. 
 
 (w) Above, !>. 558. 
 
 (o) Stat. 51 & 52 Vict. c. 51, 
 ss. 4 — 6. 
 
 {p) Above, p. 581, n. {a). 
 
 [q) Including a mortgagee or 
 lessee, or other person who for 
 valuable consideration takes any 
 interest in or a charge on land : 
 sect. 4. 
 
 (»•) Stat. 63 & 64 Vict. c. 26, 
 s. 3. 
 
 (a) Stat. 51 & 52 Vict. c. 51, 
 s. 5 (3).
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 583 
 
 or of a common person, the purchaser need only now 
 ascertain that no writ or order affecting the land sold 
 has been registered or re-registered within the last five 
 years ; and if this be so, and the possession of the lands 
 sold be in accordance with the title shown, he may 
 safely complete the purchase (f). But if any such 
 writ or order be registered, the purchaser must not 
 complete without the concurrence of every person 
 entitled thereunder to any interest in the land (ii). And 
 this is the case whether such writ {.(•) have been followed 
 by actual deliver}- in execution or not, as the effect of 
 the Land Charges i\.ct, 1900 (//), read together with the 
 unrepealed provisions of the Judgments Act, 1838 (s), 
 appears to be that a judgment shall operate as a charge 
 on the judgment debtor's lands, wlien the writ or order 
 enforcing it has been registered under the Land Charges 
 Act of 1888 (r^), actual delivery in execution being no 
 
 {t) It fjiunot now be necessary, 
 as regards judgments suffered or 
 Crown debts incun-ed before the 
 comraenooment of tlie Land 
 Charges Act, 1900, to search in 
 any of the registers closed as 
 above mentioned: p. 581. If 
 before that Ait any sucli judg- 
 ments or debts wore i;harges on 
 any lands without the lands 
 having been actually delivered 
 in execution fas might happen 
 in the case of a judgment entered 
 up before the 'i^rd July, l.S(iO, 
 and kept alive by payment of 
 interest or otherwise, i>v a Crown 
 debt incuiTcd before the 2nd Nov. 
 18(3.)), it appears that on the 
 commencement of that Act they 
 ceased to be charges, unless or 
 until a writ or an order to enforce 
 them had been or should be 
 registered. If the lands had 
 been actually delivered in execu- 
 tion prior to that Act, it appears 
 that, by virtue of sect. 'A of the 
 Act (above, p. 582), unless the 
 land h;wl bei'n already sold under 
 the Judgments Act, 18G4, it 
 
 became necessary on the com- 
 mencement of the Act of 1900 to 
 register the writ or other process 
 of execution, and that in default 
 of such registration the delivery 
 in execution would be void as 
 against the jjurchaser. But the 
 purchaser must ascei'tain that the 
 possession of the land sold is in 
 accordance with the title shown, 
 because he is deemed to ha've 
 notice of the interests of all per- 
 son.s in occupation thereof, and 
 it may be held that, if the pur- 
 chaser have notice of a delivery 
 in execution under an unregis- 
 tered writ or process, the same is 
 valid in equity as against him : 
 see below, p. 581. 
 
 (it) See above, pp. 557 — 560. 
 
 (.«•) An order appointing a re- 
 ceiver is of itself e<iuivalent in 
 c>quity to actual delivery in exe- 
 cution : below, p. 585, n. (i). 
 
 V) <}3 & 64 Vict. c. 26, s. 2. 
 
 (-) Stjit. 1 & 2 Vict. c. 110, 
 s. 13. 
 
 (a) Stat. 51 & 52 Vict. c. 51.
 
 584 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Notice of 
 judgments, or 
 Crown debts 
 of record or 
 by speoialty 
 or public 
 accountant- 
 ship. 
 
 Crown debts 
 by simple 
 contract. 
 
 Notice of 
 unregistered 
 process of 
 execution. 
 
 longer a condition precedent to the lien of a judg- 
 ment (b) . So Crown debts of tlie kind included in the 
 Land Charges Act, 1900 (c), h;ive the binding effect on 
 the debtor's lands which was given to them by common 
 law or early statute (d), so soon as a writ or order for 
 the purpose of enforcing them is registered. But as no 
 charge now arises in the case of Crown debts of this 
 kind, or of judgments, until registration of the writ or 
 order, the purchaser will not be adversely affected by 
 notice or knowledge of any of these Crown debts 
 incurred by or any judgments against the vendor or his 
 predecessors in title, so long as the purchase is com- 
 pleted before such registration takes place. Debts due 
 to the Crown by simple contract and not arising from 
 the above-mentioned accountantships {c) did not, under 
 the old law, give rise to any lien on the debtor's 
 lands until they were made of record for the pm^pose 
 of enforcing them (/') ; and they do not now give rise to 
 such a lien. The piux-haser may therefore safel}' 
 disregard these liabilities of the vendor, notwithstanding 
 that he have notice of them ; they could only affect 
 him if his purchase were made, not in good faith, but 
 with intent to defraud the Crown {g). With regard to 
 unregistered process of execution against lands, it is to 
 be observed that the same is made void only as against 
 purchasers for value {/>). The actual delivery of any 
 lands in execution, under an unregistered writ of elegit 
 or receiving order, still vests in the judgment creditor 
 
 (b) Under the Judgments Act, 
 1864, no judgment thereafter 
 entered up affected any land until 
 actually delivei'ed in execution. 
 But this enactment was repealed 
 by the Land Charges Act, 1900 : 
 see stats. 27 & 28 Vict. c. 112, 
 s. 1 ; 63 & 64 Vict. c. 26, s. 5 ; 
 Wms. Real Prop. 274, 21st ed. 
 
 (c) See above, p. 583, n. (y) ; 
 and p. 581. 
 
 {d) See Wms. Real Prop. 285, 
 21st ed. 
 
 {e) Above, p. 581. 
 
 (/) M. V. Smith, Wightw. 
 34 ; Casherd v. A.-G., 6 Price, 
 411, 473—476; Chitty on the 
 Prerogative of the Crown, 293 — 
 296 ; Sug. V. & P. 545. 
 
 ((/) Sug. V. ^' P. 545. 
 
 (/() Above, p. 582.
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 585 
 
 an estate by degit, which is valid as against the judg- 
 ment debtor himself, his representatives in law and 
 assigns by voluntary conveyance (/). It appears there- 
 fore that the actual delivery in execution under unregis- 
 tered process of lands sold, whether made before or 
 pending the completion of the contract for sale, is an 
 objection to the title, the estate sold being partly vested 
 in some person, whom tlie vendor has no right to direct 
 to convey to the purchaser {k) ; and it seems by analogy 
 to the rule applied under the old law as to the sale of 
 lands already parted with by voluntary conveyance (/), 
 that the vendor could not enforce the specifie j^erform- 
 ance of the contract, upon the ground that conveyance 
 to the purchaser would render the execution void. Nor 
 could the purchaser himself be advised to rely upon this 
 ground and accept the title, if he had notice of the 
 
 (*) See above, p. .559. The 
 estate by rkgit vests in the judg- 
 ment creditor, in the case of exe- 
 cution under a writ of <hgit, 
 wLen he has g-ot the sheriff's 
 return to the wrif. and in the 
 case of equitable execution by 
 the appointment of a rei:eiver, 
 when the order for a receiver is 
 made. In the case of an fU(/i/, 
 the slieriff delivers to the judg- 
 ment creditor symbolical not 
 actual possession of the land ; 
 but the latter, when tenant by 
 elegit, may, if the land were in 
 the oocupatiuu of a tenant, dis- 
 train for rent subsequently be- 
 coming due without any attorn- 
 ment by such tenant. And if 
 the land were in the judgment 
 debtor's own occupation, the 
 tenant by elegit may obtain actual 
 pos.ses8ion thereof by peaceable 
 entry or by action : see Ifve^s 
 rtm; n Rep. 8'Jb ; Tai/lor v. Co/*-, 
 3 T. R. 292, 29r) ;' Rogn-.s v. 
 Pitcher, 6 Taunt. 202, 206, 207 ; 
 Sharp V. Key, 8 M. & W. 379 : 
 Lloyd V. navies, 2 Ex. lO.i : 
 Hughes V. Lumleg, 4 E. & B. 274 ; 
 Guest V. (Jowbridge Jig. (Jo., L. R. 
 6 Eq. 619 ; Hatton v. Haywood, 
 
 L, R. 9 Ch. 229, 236 ; Re Pope, 
 17 Q. B. D. 743, 74.5, 751 ; Re 
 Anthoiii/, 1892, 1 Ch. 4.5(i ; Johus 
 V. Puik, 1900, 1 Ch. 296. It is 
 submitted that the case of Re 
 HobsoN, 33 Ch. D. 493, if well 
 decided, which is doubtful, lays 
 down no more than this : 
 that the .symbolical delivery of 
 land by the sheriff under an 
 elegit may be equivalent to a 
 "seizure" thereof within the 
 meaning of sect. 45 (2) of the 
 Bankruptcj' Act, 1883. It ap- 
 pears that a judgment creditor, 
 who has obtained actual delivery 
 in execution of the judgment 
 debtor's lands under unregistered 
 process, is entitled to obtain an 
 order for sale under the Judg- 
 ments Act, 1864 (stat. 27 & 28 
 Vict. c. 112), 8. 4, as the words 
 in that enactment which required 
 registration of the process of 
 execution as a condition prece- 
 dent to obtaining an order for 
 sale were repealed by the Land 
 Charges Act, 1900 (stat. 63 & 64 
 Vict. c. 26), s. 5. 
 
 y.) Above, pp. 164—166. 
 
 (/j Above, p. 395, u. (»).
 
 586 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 execution ; for it may be argued that, on the principle 
 applied in the case of unregistered eonve3^ances of lands 
 in Middlesex or Yorkshu-e {m), of undocketed judgments 
 under the old law (»), and of unregistered life annuities 
 under the Judgments Act, 1855 (o), executions actually 
 put in force against lands under unregistered process 
 are valid in equity as against purchasers who have 
 notice of the same. Until this point be precisely 
 decided, the purchaser should, it is conceived, refuse to 
 complete in such a case, except with the concurrence of 
 every person interested by virtue of the execution in 
 the land sold {p). 
 
 Orders made 
 in exercise of 
 bankruptcy 
 jurisdiction. 
 
 It will have been observed {q) that the provisions of 
 the Land Charges Acts, 1888 and 1900, do not apply 
 to orders made by a Court having jurisdiction in bank- 
 ruptcy in the exercise of that jurisdiction. Such orders, 
 if made for the payment of any sum of money, or any 
 costs, charges or expenses, appear to have the effect of 
 a jvidgment [r), and therefore to operate as a charge on 
 the lands of the person ordered to pay (.s) : but all the 
 enactments which rendered registration of the order or 
 of the writ of execution or actual delivery in execution 
 a condition precedent to such lien have been repealed {t). 
 Such orders may be made, for example, where one who 
 has contracted with a person afterwards adjudged bank- 
 rupt applies in the bankruptcy for rescission of the 
 
 (;«) Above, p. 37o ; Wins. ReaJ 
 Prop. 212, 21st ed. 
 
 (m) Bails V. airat/uiion; 16 Ves. 
 419; Sug. V. &P. r)2l. 
 
 (o) Gnavesv. Tofirld, 14 Ch. D. 
 663. The language used in the 
 Judgments Act, 185.5, is difierent 
 from that used in the Land 
 Charges Act, 1888. But Greaves 
 V. Tofield was expressly decided 
 on the principle applied in con- 
 struing the Middlesex and York- 
 shire Registry Acts, of which 
 the language closely resembles 
 
 that of the Land Charges Act, 
 1888. 
 
 [p) See above, pp. 557 — 559. 
 
 ((/) Above, p. 581, n. («). 
 
 :>•) See stats. 1 & 2 Vict, c lid, 
 s. 18 ; 46 ic 47 Vict. c. 5:!, ss. b2, 
 93, 100 ; R. S. C. 1883, Orders 42 
 (it. 3, 24, 28), 43 (r. 1) ; Bank- 
 ruptcy Rules, 1886, r. 93. 
 
 (.s) Stat. 1 & 2 Vict. c. 110, 
 s 13. 
 
 [i) Stat. 63 e^: 64 Vict. c. 26,
 
 OF THE COMPLETION OF THE CONTRACT. 587 
 
 contract and is ordered to pay damages or costs (?/). 
 There do not appear to bo any means of discovering 
 whether lands sold are affected by a liability of this 
 kind. 
 
 Annuities or rent-charges which may affect purchasers Annuities or 
 of land are of two kinds, those granted in exercise of ^^^ "^ arges. 
 the ordinary right of alienation incident to ownership, 
 and those created under statutory authority, generally 
 for the purpose of securing the repayment of money 
 advanced for the improvement of land. Of annuities 
 of the former kind, those granted on or after the 26th 
 of April, 1855, otherwise than by marriage settlement 
 or will, for a life or lives or for any estate determinable 
 on a life or lives, are required to be registered, for- 
 merly in the Court of Common Pleas and now in the 
 Office of Land Registry, in order to affect the lands 
 charged therewith as against purchasers {x) . Life N.jticc of lite 
 
 . , , T • i 1 1 annuities. 
 
 annuities so required to be registered are, however, 
 valid in equity, though unregistered, as against pur- 
 chasers who have notice of them (//). Annuities or rent- 
 charges of the former kind, other than those so required 
 to be registered, of course take effect according to their 
 nature ; if legal, they will affect the lands charged in 
 the purchaser's han'ls ; if equitable, the purchaser will 
 take the lands free from them, only so far as he can 
 claim under a c(mveyauce of the legal estate made in 
 
 (m) Above, p. 5.);3. An example an estate in fee or in tail in pos- 
 
 of an appeal made by a con- session, were formerly made void 
 
 tractor with a bankrupt to bank- by statute, unless a memorial 
 
 ruptcy jurisdiction and dismissed thereof were duly enrolled in the 
 
 with costs against him occurs in Court of Chancery : stats. 1 7 
 
 J{e Jiti-stab/c, 1901, -IK. B. n\S. Geo. III. o. -26 ; oli Geo. III. 
 
 {x) Stat. 18 & 19 Vict. c. lo, c. 141; 3 Geo. IV. c. 92: 7 
 
 88. 12, 14; above, pp. 437, 582. Geo. IV. c. 75. But the.se 
 
 Annuities for or determinable on statutes were repealed by the 
 
 any life or lives, granted for Act abolishing the Usury Laws : 
 
 valuable con.sideraticm, and not stat. 17 ic 18 Vict. c. 90. 
 secui'ed on lands of equal or (y) Greaves v. Tofcld, 14 Ch. D. 
 
 greater value than the annuity, oG3. 
 and belonging to the grantor for
 
 588 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 good faith and for executed valuable consideration 
 without notice of them, and not otherwise {z). [f any 
 such rent-charges exist, they ought to be stated on the 
 abstract (a) : but if not so disclosed, they are not gene- 
 rally discoverable either by any search, or by the 
 absence of the title deeds, as a person having a rent 
 only is not entitled to the custody of the title deeds of 
 the land charged therewith {b). 
 
 Land charsfes. 
 
 Notice of 
 uru'egistered 
 land charge.-*. 
 
 Land 
 
 improvement 
 charges 
 created before 
 1889. 
 
 With regard to rent-charges of the latter kind, those 
 coming under the description ot a land charge {(•) in the 
 Land Charges Act of 1888 (^d), and created after that 
 year, are void as against a purchaser for value (c) of the 
 land charged therewith, unless registered in the register 
 of land charges at the Ottice of Land Registry. And 
 rent-charges coming under the same description and 
 created before the year 1889, but assigned over by act 
 inter cii'OH after the year 1888, are not recoverable after 
 the expiration of one year from the lirst of such assign- 
 ments, as against a purchaser for value {e) of the land 
 charged therewith, unless registered in the same 
 register [g) . As it may be contended that land charges 
 so required to be registered are valid in equity as 
 against purchasers who have notice of them (//), pur- 
 chasers cannot be advised to disregard any such charges, 
 though not registered, of which they have notice. Land 
 improvement charges created by the authority of statute 
 before the year 1889 were not declared to be void, as 
 against purchasers, if not registered : but some of them 
 were required to be registered and are discoverable by 
 search. Thus, charges created under the Public Money 
 
 {z) Above, pp. 565 — 567 ; C/c- 
 mnv V. Geach, L. R. 6 Ch. 147. 
 
 {a) Sec above, pp. 105, 176. 
 
 {/>) Wms. Real Prop. 462, 13th 
 ed. ; 598, 21st ed. 
 
 (c) Stated above, p. 437, u. {a). 
 
 {d) Stat. 51 cVc 52 Vict. c. 51, 
 
 12. 
 
 [c) Above, p. 582, n. (c/). 
 
 {(/) Sect. 13. 
 
 (/*) See above, p. 586, and n. (o).
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 589 
 
 Drjiiuage Acts (/), the Private Money Drainage Act, 
 1849 (/•), or the Improvement of Laud Act, 1864 (/), 
 he fore the year 1889, were registered against the name 
 of the landowner affected thereb}' at the office of the 
 Inclosure Commissioners, afterwards styled the Land 
 Commissioners (w), whose powers and duties were in the 
 year 1889 transferred to the Board of Agriculture («), 
 at whose office the search for such charges should be 
 made (o). Land improvement charges created under 
 the General Land Drainage and Improvement Com- 
 pany's Act(/>), the Lands Improvement Company's 
 Acts (q), or the Land Loan and Enfranchisement 
 
 (() Thesi! charg-fs were to be 
 made by certificate of the In- 
 closure Commissioners, and to 
 consist of rent-charges payable 
 for twenty-two years : stats. 
 9 & 10 Vict. c. 101 (see s. 34), 
 amended by 10 & II Vict. c. 11 ; 
 11 & 12 Vict. c. 119 ; 12 & 13 
 Vict. c. 100, .ss. 30, 31 (repealed 
 by 27 & 28 Vict. c. 114) ; 13 & 14 
 Vict. c. 31 ; 19 & 20 Vict. c. 9. 
 
 (/•) These consist of rent- 
 charg-es payable for twenty- two 
 years and granted by certificate 
 of the Inclosure Commissioners, 
 and. if eharsred on lands in 
 Middlesex or York, were to be 
 registered in the county regis- 
 ter: stat. 12 & 13 Vict. c. 100 
 (see ss. 10, 14), amended by 
 19 (5c 20 Vict. c. 9. and repealed 
 by 27 & 28 Vict. c. 114. 
 
 (/; These were to be made by 
 absolute order of the Inclosure 
 Commis.sioners creating a rent- 
 charge for the term tliereby fi.\ed, 
 not exceeding twenty -five j-ears : 
 .stat. 27 & 2S Vict. c. 1 14 (see ss. 26. 
 49j, amended by 62 ..t 63 Vict. 
 c. 46, and extended by 33 «& 34 
 Vict. c. 56 and 34 tV: 35 Vict, 
 e. 84 to the erection, (-ompletion 
 or improvement of limited owners' 
 residences ; by 4 c^- 4 I Vict. c. 31 
 to waterworks ; by 1 > <& 46 Vict, 
 c. 38. s. 30, to all improvementH 
 authorised by the Settled Land 
 Act, 1882^; and by 60 A: 61 Vict. 
 
 c. 44 to the supply of water to a 
 rural district. Under the Act 
 of 1864 (sect. 56) the rent-charges 
 thereb}' created were required to 
 be registered in the Office of 
 Land Registry : but the words 
 requiring this were repealed by 
 stat. 62 & 63 Vict. c. 46. s. 5, 
 which also prohibited any entry 
 or search from being made in any 
 register kept at the Office of Land 
 Registry under sect. 56 of the 
 Act of 1864, except under an 
 express order of the High Court. 
 This does not appear to prohibit 
 search at the Office of the Board 
 of Agrictilturc. 
 
 {ill) Stat. 45 & 46 Vict. c. 38, 
 s. 48. 
 
 {II) Stat. 52 & 53 Vict. c. 30. 
 
 {n See Elphinstone i: Clark 
 on Searches, 109 — 112 ; above, 
 n. {I). 
 
 (p) These wei'c to be created 
 by absolute order of the Inclosure 
 Commissioners: stat. 12 & 13 
 Vict. c. xci. .see s. 56) (local and 
 personal) . 
 
 {q] These were to be created 
 by absolute order of the Inclosure 
 Commissioners charging the lands 
 by way of annuity for not more 
 than twenty-five years; and, if 
 affecting lan<ls in Middlesex or 
 Yorkshire, were to be registered 
 in the county register : stat. 
 16 & 17 Vict.'c. cliv. '.see .ss. 48, 
 54), amended by 18 & 19 Vict.
 
 590 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Company's Act (;•) may also be discovered by search at 
 tlie office of tlie Board of Agriculture, as well as by 
 search at the companies' offices respectively (s) . Charges 
 under the Artisans' and Labourers' Dwellings Acts, 1868 
 to 1882 {f), in favour of owners who themselves com- 
 pleted the works required under the Acts by the local 
 authority, had to be recorded and may be discovered by 
 searcli at the office of the Clerk of the Peace for the 
 county in which the lands affected lie ; where also may 
 be found evidence of any charges created under the 
 Landowners Drainage and Improvement Company's 
 Act {u) and the LandoAvners West of England and 
 South Wales Land Drainage Company's Act (x). 
 Charges under the Sewers Amendment Act, 1833 (y), 
 will be found registered in the Court of Sewers, if any, 
 for the district ; or if made by a drainage board con- 
 stituted imder the Land Drainage Act, 1861 (s), at the 
 
 c. Ixxxiv. ; 22 & 23 Vict, 
 c. Ixxxii. ; and 26 & 27 Vict. 
 c. cxl. (local and personal Acts). 
 
 (?•) These are rent-charges for 
 terms not exceeding twenty-five 
 years created by absolute order 
 of the Inclosure Commissioners, 
 and, if affecting lands in Middle- 
 sex or Yorkshire, were to be 
 registered in the county register : 
 Stat. 23 & 24 Vict. c. clxix. (see 
 ss. 37, 38, 47), amended by 23 & 
 24 Vict. c. cxciv. (local and 
 personal) . 
 
 (*•) Elphinstone i.^; Clark on 
 Searches, 117 — 119. 
 
 [t) These charges were made 
 by order of the local authority 
 charging the lauds with an an- 
 nuity for tliirty years, and, if 
 affecting lands in Middlesex or 
 Yorkshire, were required to be 
 registered in the county register. 
 Where the local authority them- 
 selves executed the works, the 
 costs, charges and expenses so 
 incurred might be charged on 
 the lands by order of the Court 
 
 of Quarter Sessions : see stats. 
 31 & 32 Vict. c. 130 (see ss. 19, 
 25—30) ; 38 & 39 Vict. c. 36 ; 
 42 & 43 Vict. cc. 63 and 64 ; 43 
 Vict. c. 8 ; 45 & 46 Vict. c. 54 : 
 all repealed by the Housing of 
 the Working Classes Act, 1890 
 (stat. 53 & 54 Vict. c. 70) : see 
 ss. 36, 37, as to charging orders 
 in favour of owners completing 
 works themselves, which are to 
 be registered in Middlesex or 
 Yorkshire in the county register. 
 
 {ii) Stat. 10 & 11 Vict. c. ccxii. 
 
 (.1-) Stat. 11 & 12 Vict. c. cxlii. ; 
 this company was ordered to be 
 wound up in 1874 : see Landowners 
 Tf'fst of l-jif/hnid, &;c. Co. y . Ashford, 
 16 Ch. D. 411. 424 ; Elphinstone 
 .Is: Clark on Searches, 119, 120. 
 
 ((/) These are made by a decree 
 or Ordinance of the Commis- 
 sioners of Sewers and are payable 
 by instalments over a period not 
 exceeding fourteen years : stat. 
 3 & 4 Will. IV. c. 22 (see s. 41). 
 
 (z) Stat. 24 & 25 Vict. c. 133, 
 s. 67.
 
 OF THE COMPLETION OF THE CONTRACT. 591 
 
 office of the Board (a) . Rent-charges granted under the 
 Public Health Act, 1875 (6), for securing the repayment 
 of money advanced for private improvement expenses, 
 are required to be registered and may be discovered by 
 search at the office of the local authority. There are 
 also some eases in wliich charges authorised by Local 
 Improvement Acts are required to bo registered (c). 
 
 Amongst land improvement rent-charges which did Land 
 
 1 on • • ■ p improvement 
 
 not before the year 1 8H9 require any registration of any eharges not 
 kind, are those created under stat. 8 <fc 9 Vict. c. 56 (d). ^-^q™? 
 
 ' ^ ' registration 
 
 Various local Acts have also authorised the creation of before issit. 
 rent-charges to repay money advanced for improve- 
 ments, without the requirement of registration (e). 
 
 Besides the land improvement charges payable by Statutory 
 way of terminable annuity, there are other statutory iandofaprin- 
 charges on land of some principal sum not so payable ; ''^P'^^ ^}^^' °°* 
 and these were not required to be registered. Among way of 
 such charges are those given by the Public Health Act, ""°"'*y- 
 1875 (./■), to secure the repayment with interest of the 
 amount of the expenses incurred by any local authority 
 under the Act(.v), for the repayment whereof the owner 
 
 (rt) Elphiustone A: Clark ou more than twenty-five years, of 
 
 Searches, 114, 11'). moneys expended in the improve- 
 
 {/>) These are granted b^' the ment of settled estates to be 
 
 local autliority by way of rent- iharged thereim with the sanction 
 
 charge for a term not exceeding of the Court of Chancery ; but 
 
 thirty years : stat. 38 & '.id Vict. apparently seldom resortetl to : 
 
 c. .TO, 88. 2 JO, "241. Elphinsto'ne & Clark on Searches, 
 
 ((•) As those created under the 11.). 
 Improvement of Buildings Act, {e) See Elphinstoue vS: Clark on 
 
 18()() 'c. cxxix.), as to lauds iij Searches, 121 .iq. 
 Middlesex, the Bradford Water- ( /) Stat. :iS A: ;{•) Vict. c. 5."), 
 
 works aud Improvement Act, s. 257 : »oc Coipn. of liirunnff ham 
 
 1K7.') (c Ixxx.), and the Leeds Im- v. Btiher, 17 Ch. D. 782: Rr littles. 
 
 provemeut .Vet, I.S77 (c. dxxviii. , north tiiid R'uhvr, 37 Ch. D. .)3.> ; 
 
 where registration in the county Rr Simfh's Sittl-il Extnlcs, 1901, 1 
 
 register is retjui red : Pjlphin.stoue Ch.C89: above, pp. 177, 521, .522. 
 &: Clark ou Searches, 121, 123. [g) As in sewering, paving or 
 
 (^ Enabling the repayment, by lighting private streets under 
 
 iustalmeuts extending over not sect. !.')() of the Act.
 
 '592 OF THE COMPLirnON OF THE CONTRACT. 
 
 of the premises, for or in respect of which the expenses 
 were incurred, is made liable either under the Act or by 
 agreement with the local authority. Similar charges 
 have been created by various local Acts, sometimes by 
 express words, sometimes impliedly, as by giving power 
 to distrain for the amount due {/i). The charges given 
 under the Agricultural Holdings (England) Act, 
 1883 (/), to a landlord who had paid to a tenant com- 
 pensation under that Act and where the landlord was 
 not entitled for his own benefit, also required no 
 registration. 
 
 What are fand It appears that all the land improvement rent-charges 
 after Tsss^ ^^ created after the year 1888, at the instance of the owners 
 of the land under any of the above-mentioned Acts, 
 come within the description of land charges contained 
 in the Land Charges Act of 1888 (A-), and must be 
 registered accordingly in order to be effectual as against 
 a pm'chaser for value of the land charged. So, it seems, 
 must an}^ other laud improvement charge effected under 
 the same Acts at the instance of the owner of the land, 
 but not payable by way of annuity (/). The above- 
 mentioned charge given by the Agricultural Holdings 
 (England) Act, 1883, in favour of a landlord, who had 
 paid compensation, was expressly included in the defini- 
 tion of a land charge given in the Land Charges Act of 
 1888 [m). And by an Act of 1890 (») it was provided 
 
 (A) See Elphin stone & Clark on within the meaning of sect. 4 of 
 
 Searches, 121 .sv/. : above, pp. 177, the Land Charges Act, 1888, 
 
 521, .522. though such order or certificate 
 
 (i) Stat. 46 & 47 Vict, c. 61, be directed to be made under 
 
 ss. 29, 31. hand and seal : see above, pp. 588 
 
 (/,) Above, pp. 4 37, n. (a), 588. —591. 
 
 It is conceived that where the (l) See Ji. v. Vice-Ren'istrar of 
 
 charges are created by order or Office of Land Registri/, 24 Q. B. 
 
 certificate of the Inclosure Com- D. 178. 
 
 missioners, Land Commission ei's, (»?) Above, pp. 437, n. («). 
 
 or Board of Agriculture or other («) Stat. 53 & 54 Vict. c. 57, 
 
 body, given under statutory autho- s. 3. 
 rity, they are not charged by deed
 
 OF THE COMPLETION OF THE CONTRACT. ^93 
 
 that the charge given by the Agricultm-al Holdings 
 Act of 18S'3, where the landlord was not entitled for his 
 own benefit, should be a land charge within the meaning 
 of the Land Charges Act of 1888, and should be regis- 
 tered accordingly. And similar charges created under 
 the Agricultural Holdings Act, 1908 (o), are also 
 made land charges under the Act of 1888 and required 
 to be registered in the same manner. But it has been 
 held that the charges given by sect. 257 of the Public 
 Health Act, 1875 (p), and similar charges imposed by 
 statute on lands against their owner's will (y), are not 
 land charges within the meaning of the Land Charges 
 Act of 1888 (r), and do not, since that Act, require to 
 be registered (.s). A charge similar to that given by 
 sect. 257 of the Public Health Act, 1875 {p), was autho- 
 rised by the Private Street Works Act, 1892 (f) : but a 
 register of these charges is required to be kept by the 
 urban authority. 
 
 With regard to the other matters above referred to (ii) Lis pendens. 
 in enumerating the objects of searches : — Under the 
 Judgments Act, 1839 {x), no Us pendem shall bind a 
 purchaser or mortgagee without express notice thereof 
 imless registered and re-registered every five years in 
 the Office of Land Registry. The purchaser should 
 therefore search the register of pending suits for the 
 last five years to find out if any legal proceedings 
 affecting the property sold are entered therein. And 
 as lie will be bound by the result of any action at law 
 
 (o) Stat. 8 Edw. VII. c. 28 Office of Land Ecfiislrt/, 24 Q. B. 
 
 (which consolidated and repealed D. 178. 
 
 the Act of 1888 and its amending {t) Stat. 55 k 56 Vict. c. 57, 
 
 Acts), 8. 19 ; see ss. 15—18, 35 ; s. 13 ; Stuck v. Meakui, 1900, 1 
 
 Wms. Real Prop. 532, 533, 21st Ch. 683 ; above, pp. 177, 521. 
 
 cd. (u) Above, p. 580. 
 
 (p) Above, p. 591. [x) Stats. 2 & 3 Vict. c. 11, 
 
 [q) Above, pp. 177, 521. s. 7. ; 42 & 43 Vict. c. 78 ; R. S. C. 
 
 (r) Above, p. 437, and n. (a). 1883, Order 61 ; above, p. 581. 
 
 (s) R. V. Vicc-Rc(jislrnr uf 
 
 w. 38
 
 594 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Lands in 
 Lancashire or 
 Durham. 
 
 Bankruptcy. 
 
 Deeds of 
 arrang'eraent. 
 
 or in equity affecting the property sold, wliieh is so 
 registered, or of which, though not so registered, he has 
 express notice (//), he should, if any such action be pro- 
 ceeding, refuse to complete without the concurrence of 
 all persons asserting therein any apparently well-founded 
 claim on the property. It should be noted, however, 
 that registration or express notice of a lis peiideiis against 
 the vendor is not necessarily notice of an incumbrance 
 on the land sold, for the suit in question may not affect 
 the land (s) . It is merely notice of a claim, and makes 
 it necessary for the purchaser to inquire into the nature 
 of the claim. And if the claim sought to be enforced 
 be such as would create no charge on the land sold, tlie 
 purchaser cannot refuse to complete the contract (rt). 
 Where the land sold is situate in either of the counties 
 palatine of Lancaster and Durham, the index of 
 pending suits in the Palatine Courts (h) must also be 
 searched (c). 
 
 Searches in bankruptcy are of course made to discover 
 if the title to the lands sold has been affected by reason 
 of theii" vesting under bankruptcy proceedings against 
 the vendor or some former owner, either in the trustee 
 in the bankruptcy or in the trustee appointed to carry 
 out a composition or scheme of arrangement approved 
 by the Court ((/). By the Deeds of Arrangement Act, 
 
 ('!/) Co. Litt. 344 b ; Anon., 1 
 Vern. 318; mem v. Mill, 13Ves. 
 114, 120 ; Bellamij v. Sahinc, 1 De 
 G. & J. 566 ; Price v. Price, 35 Ch. 
 D. 297. ' 
 
 {z) See above, p. 224. 
 
 [a) Bull V. Hutchenx, 32 Beav. 
 615. 
 
 {h) See Wms. Real Prop. 277 
 and n. [p), 21st ed. 
 
 [c] Stat. 18 & 19 Vict. c. 15, 
 a. 3. 
 
 {d) See above, pp. 546 — 550 ; 
 stats. 46 & 47 Vict. c. 52, s. 44 ; 
 53 & 54 Vict. c. 71, s. 3 (16, 17). 
 An order of adjudication in bauk- 
 
 ruptcy does not require to be 
 registered in Middlesex in order 
 to pass the lands there situate to 
 the trustee : Re Calcott and Elvin^s 
 Contract, 1898, 2 Ch. 460. But 
 as to land in Yorkshire, it appears 
 that under the Yorkshire Regis- 
 tries Act, 1884, a trustee in bank- 
 ruptcy must register the order of 
 adjudication in order to secure 
 for himself priority over all jjer- 
 sons who might claim under a 
 subsequent registered conveyance 
 from the debtor ; see stat. 47 & 48 
 Vict. c. 54, ss. 3, 4, 6 (3), 14; 
 above, p. 377, and n. (z).
 
 OF THE COMPLETION OF THE CONTRACT, 595 
 
 1887 (c), any of the following instruments made in 
 respect of the affairs of a debtor for the benefit of his 
 creditors generally (./') (otherwise than in pursuance of 
 the banki-nptcy law for the time being in force) shall be 
 void, unless registered in the Central Office of the 
 Supreme Court {(/) within seven days after the first 
 execution thereof by the debtor or any creditor (h) , and 
 unless stamped in accordance with the Act ; that is to 
 say, an assignment of property, or deed of or agreement 
 for a composition, deed of inspectorship, letter of licence, 
 and any agreement or instrument entered into for the 
 purpose of carrying on, winding up, or disposing of a 
 debtor's business with a view to the payment of his 
 debts. And by the Land Charges Act of 1888 (?'), 
 every such deed of arrangement, whether made before 
 or after the commencement of that Act, shall be void as 
 against a person becoming after the year 1888 a pur- 
 chaser for value (k) of any land comprised therein or 
 affected thereby, unless registered in the Office of Land 
 Registry. Search in bankruptcy and for deeds of 
 arrangement should never be omitted where it is known 
 or there is reason to suspect that the vendor or any 
 former owner is or has been in embarrassed cii'cum- 
 stances (/) ; and having regard to the difficulties occa- 
 sioned where bankruptcy proceedings have taken place 
 
 (e) Stat. oO & 51 Vict. c. .57, posted within one week after 
 
 amended as to Ireland by 53 & 54 execution, and registered within 
 
 Vict. (;. 24 ; see rule thereunder, seven days after aiTival in the 
 
 W. N. 7 July, 1888. ordinary course of post : see 
 
 (/) See lir Saumarrz, 1907, stat. 50 & 51 Vict. c. 57, 8. 5. 
 
 •2 K. B. 170. (i) Stat. 51 & 52 Vict. c. 51, 
 
 (/7) In Ireland the place of ss. 2, 4, 7 — 9. Such a deed need 
 
 reg'istration is the Bills of Sale not, since the passing of the 
 
 Office of the King's Bench Land Charges Act, 1900, be 
 
 Division: stat. 50 & 51 Vict. registered in the Middlesex Re- 
 
 c. 57, 8. 8. gistry : stat. 63 k 64 Vict. c. 26, 
 
 (h) Others may execute the s. 4. 
 
 deed after registration: R< Bat- [k) Above, p. 582, n. {q). 
 
 ten. Ex parte Mtbie, 22 Q. B. D. (/) See Cooper v. Htephenso», 16 
 
 685. Instruments executed out Jur. 424, 21 L. J. Q. B. 292. 
 of England or Ireland may be 
 
 38 (2)
 
 596 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Disentailing, 
 assurances. 
 
 Deeds 
 
 acknow- 
 
 ledsred. 
 
 unknown (m) , it appears desirable to search in bankruptcy 
 on every sale. And the same remark applies to search- 
 ing for deeds of arrangement. Search for disentailing 
 assurances is only necessary where the title depends on 
 the fact of some estate tail, vested in a person of full 
 age, not having been barred. It is only requisite to 
 search for certificates of the acknowledgment of deeds 
 by married women where title is made through some 
 married woman entitled to the land sold at common 
 law, and there is reason to suppose that some disposi- 
 tion, inconsistent with the abstracted title, has been 
 made by her before the year 1883 by deed acknow- 
 ledged (n) and has been suppressed (o) . Both these 
 searches are now made, as to assurances under the Fines 
 and Recoveries Act, 1 833 ( p) , at the Central Office of 
 the Supreme Court {g) ; whilst the records of fines and 
 recoveries are preserved in the Public Record Office (>•). 
 The object of searching, on the sale of unregistered 
 land, in such of the registers established by the Land 
 Transfer Acts, 1875 and 1897 (-s), as are open to public 
 inspection, is to discover whether the title to the land 
 sold has been or is about to be registered under those 
 Acts. This may be ascertained at the Office of Land 
 Registry by inspection of the index map and search in 
 the list of pending applications kept there. Such in- 
 spection and search should certainly be made on every 
 sale of unregistered land situate in a district where 
 registration of title is compulsory on sale (t) ; and, 
 having regard to the effect of registration under tliese 
 Acts in extinguishing title (it), it is no doubt a prudent 
 
 {m) See the cases cited above, 
 pp. 551, 552, nn. («), (o). 
 
 («) See Stat. 45 & 46 Vict, 
 c. 39, s. 7 ; Wms. Real Prop. 
 311 andn. {c), 21st ed. 
 
 (o) 1 Dart, V. & P. 499, 5th 
 ed. ; 568, 6th ed. 
 
 (p) Stat 3 & 4 Will. IV. c. 74. 
 
 Iq) Stat. 42 & 43 Vict. e. 7S ; 
 R. S. C. 1883, Order 61, r. 9. 
 
 (>•) Established by stat. 1 & 2 
 Vict. c. 94. 
 
 («) Stats. 38 & 39 Vict. c. 87 ; 
 60 & 61 Vict. c. 65 ; Land 
 Transfer Hules (1898), 12, 14 ; 
 Wms. Real Prop, 671, 672, 
 21st ed. 
 
 {() Above, p. 380. 
 
 («) See Wms. Real Prop. G13 — 
 648, 2l8t ed.
 
 OF THE COMPLETION OF THE CONTRACT. '^97 
 
 precaution to take ou any sale. But until voluntary 
 registration of title becomes more common than it has 
 hitherto been, the risk practically run in omitting this 
 search, on the purchase of land not situate in a com- 
 pulsory registration district, will not be great. If it 
 should be found that the title to the land sold has been 
 registered, the purchaser must of course take the steps 
 requisite on a purchase of registered land to acquire 
 a transfer of the estate to himself. The object and Semcli iu 
 necessity of search in tlie Middlesex and Yorkshire Yorkshire 
 Registries on the puiehase of lands situate in those Registries. 
 counties sufficiently appears from what has been said 
 above concerning such sales (x) . The Court Rolls should Copyholds, 
 be searched on the sale of copyholds (?/) for similar 
 reasons. 
 
 It appears, then, that the searches which shoidd What searches 
 
 usually be made on the purchase of land are the be made!"''"^ 
 f ollo\ving : — 
 
 1. In the Office of Land Registry for wiits and i. Writs aud 
 
 orders affecting land registered or re-registered 'iD,/[j^if(i ^ * 
 Avithin the last five years (s). 
 
 2. In the same office for any /is pendem registered or •>. Lis pendens. 
 
 re-registered within the last five years (a) . Aud 
 where the lands sold are situate in Lancashire 
 or Durham, for //s- pcndeim so registered or re- 
 registered iu the Lancaster or Durham Court of 
 Chancery (/>). 
 '6. In the Office of Land Registry for registered life '^- Lift- 
 
 .,. , . aunuities. 
 
 annuities (c). 
 A. If there is reason to suspect that the vendor or ^- '^'H'k- 
 some f oimer owner is or has been in embarrassed 
 circumstances, then certainly, but advisably on 
 every sale, for adjudications of bankruptcy, 
 
 {x) Above, pp. 373 nq. (a) Above, pp. 593, ;> 
 
 (y) Above, p. 346. {b) Above, p. 594. 
 
 (s) Above, pp. 580—587. [c) Above, p. 587.
 
 598 
 
 OF THE COMPLETION OF THE CONTRACT, 
 
 5. Deeds of 
 arraDS'oment. 
 
 6. For regis- 
 tratiou of 
 title. 
 
 7. Land 
 charges. 
 
 8. Middlesex 
 or Torkshii'e 
 Register. 
 
 8. 
 
 receiving orders, schemes of arrangemeut, aud 
 compositions under the Bankruptcy Act, 
 1883 (c/) ; and where it is necessary to go 
 back so far, for adjudications or liquidations 
 by arrangement under the Bankruptcy Act, 
 1869 (e), or any previous Bankruptcy Act (/'), 
 or for insolvency {g). These searches are made 
 in the registers kept at the Bankruptcy Court in 
 London {h) . Receiving orders and adjudications 
 are required to be advertised in the Loudon 
 Gazette (i). 
 
 In the same circumstances, but advisably on every 
 sale, at the Office of Land Registry for deeds of 
 arrangement registered there (/»). 
 
 On sale of land situate in a district where regis- 
 tration of title is compulsory on sale, but as a 
 prudent precaution (though perhaps the caution 
 is excessive) on every sale, at the Office of Land 
 Registry in the index map and list of pending 
 applications (I). 
 
 On sale of land which is or has within the last 
 twenty- five years been agricultural land {ni), or 
 may otherwise be subject to some land improve- 
 ment charge {u) , in the Office of Land Registry 
 for land charges registered there (o), and also, 
 imtil by the effluxion of time land charges created 
 prior to the year 1889 must have ceased to atfect 
 lands, for land charges so created and registered 
 elsewhere (p). 
 
 On purchase of land situate in Middlesex 
 
 {d) Above, pp. 594, 595. 
 
 {e) Stat. 32 & 33 Vict. c. 71. 
 
 (/) See Wms. Pers. Prop. 238, 
 241, 254, 11. (d), 16th ed. 
 
 (ff) Ibid. 277 ; Wms. Real Prop. 
 279, 2l8t ed. 
 
 {h) Elphinstone and Clark on 
 Searches, 98, 100, 101. 
 
 m Miaaiesex or 
 
 (i) Stat. 46 cV: 47 Vict. c. 52, 
 ss. 13, 20 (2), 132. 
 
 (/.•) Above, p. 595. 
 
 {1} Above, p. 596. 
 
 (m) See above, pp. 177, 58S— 
 593. 
 
 («) See above, pp. 588 — 593. 
 
 (o) Above, pp. 588, 689. 
 
 [p) Above, pp. 589—591.
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 599 
 
 Yorkshire, iu tlie county register for any regis- 
 tered assurance affecting the land {q) . 
 
 0. On purchase of copyholds, in the Court Rolls, for 9. Court 
 any enrolled assurance affecting the land pur- 
 chased (r) . 
 
 10. On the purchase of land from a company regis- lO- On pur- 
 tered under the Companies Act, 1862 (s), or the from a com- 
 Conipanies (Consolidation) Act, 1908, at the P^^y- 
 office of the Registrar of Joint Stock Com- 
 panies in the register established there by the 
 Companies Acts, 1900 {t) and 1907 (u) and the 
 Companies (Consolidation) Act, 1908 (.?•), of the 
 mortgages and charges created after the year 
 1900 by any such company for any of the pur- 
 poses mentioned in those Acts. Where a limited 
 company is the vendor the purchaser should also 
 inspect the company's register of all mortgages 
 
 (n) Above, p. 597. 
 
 (/•) Above, p. 597. 
 
 (») Stat. 25 & 26 Viet. c. 89. 
 
 (0 Stat. 68 k 64 Vict. c. 48, 
 s. 14. 
 
 («) Stat. 7 Edw. VII. o. aO, 
 9. 10. 
 
 [x) Stat. 8 Edw. VII. c. 69, 
 8. 93, whereby every mortgage 
 or charge created after the Iwt of 
 July, 190S, by a company rcgi.s- 
 tered iu England or Ireland and 
 bei ug cither (1) for the purpose 
 of secniring any is.sue of deben- 
 tures, or (2j on uncalled capital 
 of the company, or (:{) created 
 or evidenced by an instrument 
 which, if executed by an indi- 
 vidual, would require registration 
 as a bill of sale, or (4) on any 
 laud, wherever situate, or any 
 interest therein, or (5) on any 
 book debts of the company, or 
 (6) a filiating i;harge oji the 
 undertaking or property of the 
 company, shall, so far as any 
 security on the company's pro- 
 perty or undertaking is thereby 
 conferred, be void against the 
 liquidator and auy creditor of the 
 
 company, unless registered as 
 therein required within twenty- 
 one days after the date of its 
 creation, but without prejudice 
 to any contract or obligation for 
 repayment of the money thereby 
 secured. This section replaced 
 Stat. 7 EdAv. VII. c. oO, s. 10, 
 which by s. 52 (3) came into 
 oj)eration on the 1st July, 190S, 
 and replaced Avith amendmenta 
 Stat. 63 & 64 Vict. c. 48, s. 14, 
 containing similar provisions but 
 not extending to mortgages or 
 charges made for piu-poses (4) 
 and (5; above mentioned or .saving 
 the contract or obligation for 
 repayment. See £.e Harro(/atc 
 Estates, Ltd., 1903, 1 Ch. 498; 
 Cornbrook, S;c. Co. v. Law Deben- 
 ture Corpn., 1904, 1 Ch. 103 ; 
 Illingivorth v. Hoiifdsuoit/i, 1904, 
 A. C. 355; Jie Yolland, i^r., Ltd., 
 1908, 1 Ch. 152 ; lUistol United 
 Jlrtiirries, Ltd. v. Abbot, ib. 279 ; 
 Jie N^PW London, ^c. Co., ib. 621 ; 
 Cunard Steamship Co. v. Jfopwooti, 
 1908, 2 Ch. 564; inison v. Ke/- 
 land, 1910, 2 Ch. 306.
 
 600 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 and charges specifically affecting its property (//) . 
 And, as by the Companies (Consolidation) Act, 
 1908 (s), in the case of a winding up of a com- 
 pany by or subject to the supervision of the 
 Court, every disposition of the property of the 
 company made after the commencement of the 
 winding up {a) shall, unless the Court otherwise 
 orders, be void, a purchaser of land from a 
 company should, where there is any reason to 
 suspect the position of the company, search in 
 the London. Gazette for advertisements of 
 winding-up petitions (/>) . 
 
 This exhausts the list of searches, which ought usually 
 to be made ; but it will be observed that of these the 
 first three only are imquestionably necessary on every 
 sale ; though Nos. 4 and 5 are very desirable and No. H 
 is perhaps advisable apart from the special circumstances 
 which make them absolutely requisite. Nos. 7, <S, 9, and 
 10 need only be undertaken on the purchase of the par- 
 ticular kind of property which can be affected by the 
 registered incumbrances so to be searched for. Search 
 for disentailing assurances or certificates of the acknow- 
 ledgment of deeds by married women is only necessary 
 in the special circumstances above mentioned (c) . 
 
 {>/) See stat. 8 Edw. VII. c. 69, 
 ss. 100, 101 (the latter replacing 
 7 Edw. VII. c. 50, s. 17), under 
 which this rcg-ister is open to 
 public inspection. This register 
 was established by stat. 25 & 26 
 Vict. c. 89, s. 43, but was thereby 
 made open to the inspection of 
 creditors and members of the 
 company only. It was held that 
 non-registration in this register 
 did not avoid the charge ; TFrif/ht 
 V. Horton, 12 App. Cas. 371. 
 
 (z) Stat. 8 Edw. VII. it. 69, 
 s. 206 (2) , replacing 25 & 26 Vict, 
 c. 89, s. 153. 
 
 {a) This is, on a winding up 
 
 by the Court, the time of the 
 presentation of the petition for 
 winding up ; and on a winding 
 up under the supervision of the 
 Court, the time of the passing 
 of the resolution authorising the 
 winding up; see stat. 8 Edw. VII. 
 c. 69, ss. 139, 183, replacing 25 & 
 26 Vict. c. 89, ss. 84, 130; 
 m-slon\ Cme, L. R. 4 Ch. 20 ; 
 lti> Dry Docks Corpn., 39 Ch. D. 
 306 ; Re West Cumheflniid Iron 
 Co., 40 Ch. D. 361. 
 
 (*) 1 Dart, V. & P. 566, 6th 
 ed. ; 1222, 7th ed. 
 
 {(■) Above, p. 596.
 
 OF THE COMPLETION OF THE CONTRACT. 601 
 
 It was not the practice, prior to the Land Charges Agaiust what 
 Acts of 1888 {(I) and 1900 [r), to direct any search to be "'a'rchu>< 
 made in respect of any of the charges or matters then should be 
 necessary to be searched for — viz. judgments, writs 
 of execution, Crown debts and process of execution, 
 annuities, //.s- pendens, and assurances registered in a 
 county register or enrolled in Court Rolls (,/') — against the 
 names of persons entitled previously to the date of the 
 last purchase deed, as it was assumed that all neces- \ • 
 sary searches were made on the occasion of the last 
 purchase {y). And the same practice prevails with 
 respect to the matters above mentioned (//) as to which 
 searches are now required ; though in strictness it 
 appears desirable to carry back searches Nos. 1 and '2. 
 in every case for the whole five years before the 
 sale and to extend searches Nos. 8 and i) over the 
 wliole period covered by the abstract. But search 
 should always be made against the names of all persons 
 appearing by the abstract to liave been entitled to the 
 land sold since the date of the last purchase deed for 
 any estate or interest which might be adversely affected 
 by any of the incumbrances to be discovered by the 
 search. Thus the search for writs and orders affecting 
 land and lis jjcitdeii-s should be made against the names 
 of trustees or mortgagees as well as beneficial owners ; 
 for a writ, order, or suit a-ffecting the land sold may well 
 
 {d) Stat. 51 & .'52 Vict. c. 51. over the whole period covered by 
 
 [c) Stat. 6:J & 64 Vict. c. 26. the abstract: 1 Dart, V. & P. 497, 
 
 (/) See Wins. Real Prop. 86— oth ed.: .')67, 6th ed.: 122:5, 7th ed. 
 
 1)4, 465—467, lljth ed. ; 270— 27«, The statement in 1 Dart, V. k, P. 
 
 2S.j— 287, 2'.)3, 294, 602-605, .560, Oth ed., that it is not the 
 
 2l8ted. practice to go further back, in 
 
 {g) On tliis p(jint the testimony searching, than the last iiwrtr/ayee 
 
 of Mr. Jo.sliuji AVilliaiiis is ex- or pui'chaser for value does not 
 
 press: Wins. Kc;il Prop. :{57, 1st appear in the 5th ed. (p. 491), 
 
 ed., 465, i;{thed. And tlie same and is the statement of the editors 
 
 rule is laid down in Klphinstone only. The same statement as to 
 
 v& Clark on Searches, 144, 148, the practice is, however, made in 
 
 149. Mr. Dart, however, stated Wolstenholme's Ctmveyancing 
 
 that si'arches in the Middlesex and Settled Laud Act«<, 196, 
 
 and York.shire Registries and in 8th ed. 
 
 the Court Rolls should extend (h) Above, pp. 597 — 600.
 
 602 OF THE COMPLETION OF THE CONTRACT. 
 
 have been issued, made, or instituted against a trustee or 
 mortgagee, although the judgment or Crown debts of 
 a trustee {/) or of a mortgagee, who lias been paid 
 off (/.•), cannot affect the trust or mortgaged property. 
 The same search should also be made against the names 
 of persons entitled to a general power of appointment 
 over the land sold or to any vested or contingent 
 remainder or any executory interest therein, if the title 
 depend on any exercise or release of the power or any 
 release or conveyance of the remainder Or executory 
 interest. For under the Judgments Act, 1838, and the 
 Land Charges Act, 1900, lands over which a man has a 
 general power of appointment may be taken under the 
 writ of elegit in execution of a judgment against him, 
 and the judgment is a charge on the lands when the 
 writ or order for enforcing it has been registered (/). 
 Under the same Acts (/), too, a judgment is a charge on 
 all lands to which the judgment debtor is entitled for 
 any estate or interest at law or in equity, whether in 
 possession, reversion, remainder, or expectancy, so soon 
 as a writ or order for enforcing the same has been regis- 
 tered {ni). And, although no freehold estate in reversion 
 or remainder, not being merely expectant on a lease for 
 years (>/), can be taken in execution under a writ of 
 elegit (o), it appears that an order for the appointment 
 of a receiver may be made in respect of such an interest, 
 and that such an order, though not equivalent to actual 
 delivery in execution, may nevertheless be au oi'der 
 made for enforcing the judgment, and so may be suffi- 
 cient, if duly registered, to give rise to the statutory 
 
 (i) Finch V. innchil.sca,l'P.W. .s. 2 (1); Wms. Real Prop. 381, 
 
 277,282; Whitivorthv. Gauijain, 21st ed. 
 1 Ph. 728. {))>) See Wms. Real Prop. 419, 
 
 {k) Stat. 18 & 19 Vict. c. la, 21st ed. 
 s. 11 ; Greaves y. 7/'/to«, 25 Beuv. («) Ilai/or of Foule \. U'hitt, 15 
 
 434; Wms. Real Prop. 569, M. &W.'571. 
 21st ed. (o) lie South, L. R. 9 Ch. 369 ; 
 
 {i) Stats. 1 & 2 Vict. c. 110, Hood-Barrs v. Cathcarl {No. 5), 
 
 ss. 11, 13 ; 63 & 64 Vict. c. 26, 1895, 2 Ch. 411.
 
 OF THE COMPLETION OF THE CONTRACT. 603 
 
 charge {p). This point, however, is open to question 
 and has not yet been decided {q), but until it be, it is 
 advisable to make the search suggested. Life annuities 
 are generally searched for against the names of bene- 
 ficial owners only : though a trustee might also create 
 such charges valid at law, where the trust is not dis- 
 closed by the title deeds. It is of course unnecessary 
 to search in bankruptcy against the names of trustees 
 who have no beneficial interest, as their estates are not 
 affected thereby (/•), but mortgagees' estates are divested 
 on their bankruptcy. Land charges registered under 
 the Land Charges Act, 1888 (-s), are entered, in the 
 case of freeholds, in the name of the person beneficially 
 entitled to the first estate of freehold at the time of the 
 creation of the land charge, and in the ease of copyholds, 
 in the name of the tenant on the Court KoUs at the time 
 of the creation of the charge ; and they must be searched 
 for against such names. Land improvement charges 
 created before the year 1889 must be searched for against 
 the name of the landowner at whose instance they were 
 made (f) ; generally the person beneficially entitled in 
 possession to the rents and profits of the land. 
 
 It may be observed that there is no obligation on a Nu obligation 
 piu'chaser to make or direct any search at all; he owes to scarcb'"^^' 
 
 [p) Re Httrritioit aitd Jiottomleij, laeutM Act, 1838; but the prin- 
 
 1899, 1 Ch. 465, 471. ciples laid dowu iu Hulmvs v. 
 
 (7) The juriwdictiou of the Mi/hit/r, 18913, 1 Q. B. 5.31, seem 
 
 Court to make au order for the opposed to auy such jurisdiction, 
 appointment of a receiver in re- (>) St»it. 46 A: 47 Vict. c. 52, 
 
 spect of a judgment debtor's .ss. 20, 44, 168. 
 legal or equitable estates iu (.v) Stat. 51 A: 52 Vict. c. 51, 
 
 reversion or reniaiuder in land s. 10, providing also that where 
 
 may be supported by the decision the person, on whose application 
 
 iu Tyrnlly. J'nititoii, 1S95, 1 Q. B. the laud charge was created, was 
 
 202, and the f/ictu of Lindley, beneficially entitled to a lease for 
 
 M.Il., in J{f Harrison and Hot- lives or life at a rent or to a term 
 
 tomley, 1899, 1 Ch. 465, 471, and of years, the land charge shall 
 
 by the ttousideration that uuder also be registered in the name of 
 
 the Land Charges Act, 1900, that person. 
 
 actual delivery in execution is {t) See the Acts cited above, 
 
 no longer a condition precedent pp. 588 — 593 ; Elphiustone «!c 
 
 to the attacluuent of the charge Clark on Searches, 109 sq. 
 given by sect. 13 of the Judg-
 
 604 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Senrch is 
 iKtticu. 
 
 Duty of 
 purchaser's 
 solicitor to 
 search. 
 
 uo duty in this respect to any person interested under 
 an entry in an}' register, and omission to search is not 
 negligence wliich will affect him with notice of any 
 matter to be discovered by searching {it) . But if he do 
 make a search in person or by agent, he will be affected 
 with notice of all entries in the register which affect 
 the land sold, although he may fail to discover them {x). 
 It is the duty of the purchaser's solicitor to make on 
 his behalf all searches which in the circumstances of the 
 case are necessary and proper (//) ; and if he omit so to 
 search and the purchaser's title be injuriousl}^ affected 
 in consequence, he will be liable to his client in an 
 action of negligence for the damage incurred (;:). 
 
 Official 
 searches. 
 
 Under the Conveyancing Act, 1882 {((), and the 
 Land Charges Act of 1888 (6), official searches may be 
 directed to be made in tlie registers of /w pendens, life 
 annuities, writs and orders affecting land, land charges, 
 deeds of arrangement, and certificates of acknowledg- 
 ment by married women, and a certificate of the result 
 of the search filed. Such a certificate, according to the 
 tenour thereof, is conclusive, affirmatively or negatively, 
 as the case may be, in favour of a purchaser as against 
 persons interested under the matters or documents, 
 which are the subject of registration ; an office copy is 
 evidence of the certificate ; and solicitors obtaining an 
 otfice copy of such a certificate, and any trustees, execu- 
 
 (u) Lam V. Jaclcson, 20 Beav. 
 03.). 
 
 {x) Procter V. Cooper, 2 Drew. 1, 
 18 Jur. 444 ; affirmed, 1 Jur. 
 N. S. 149. Having regard to 
 the provisions of stat. 45 & 46 
 Vict. c. 39, s. 2 (3), stated below, 
 as to the certificate of the result 
 of an official search being con- 
 clusive, negatively, it seems that 
 a purchaser will not, by merely 
 directing an official search to be 
 made, be affected with notice of 
 
 any entries not ajjpeariug in the 
 certificate. 
 
 (y/) See above, pp. 5^7—600. 
 
 [z] Cooper \. Stephenson, 16 Jur. 
 424, 21 L. J. Q. B. 292 : Sug. 
 V. & P. .547 ; Elphinstono & 
 Clark on Searches, 4, -5 ; Dart, 
 V. & P. 454, 455, 5th ed. ; 522, 
 523, 6th ed. ; 1196, 1197, 7th ed. 
 
 {a) Stat. 45 & 46 Vict. c. 39, 
 s. 2. 
 
 {b) Stat. 51 & 52 Vict. c. 51, 
 s. 17. 
 
 T
 
 OF THE COMPLETION OF THE CONTRACT. 605 
 
 tors, agents or other persons in a fiduciary position for 
 wliom they are so acting, are not answerable in respect 
 of any loss that may arise from any error in the certifi- 
 cate {<■). These advantages are not obtainable on private 
 searches, which may still be made. The utility of 
 ofiicial searches ha=5, however, been doubted by the 
 learned authors of the treatise on searches (d), who 
 maintain that the certificate of the result of an official 
 search can only be evidence, negatively, that no entry 
 of any of the matters searched for is made against the 
 name of the person therein mentioned by the description 
 applied to him in the requisition for search, and does 
 not exclude the possibility of the existence of other 
 entries against that person b}^ the same name but under 
 a different address or description. It appears, however, 
 that this contention is not quite correct. The Convev- 
 ancing Act, 1882, provides that the certificate sliall be 
 conclusive according to if-s tenour (e), not according to 
 the tenour of the requisition for search. It is true that 
 by the rules made under that Act (/) any one directing 
 an official search to be made against a particular name 
 is required to state the usual or last known place of 
 abode as well as the title, trade or profession of the 
 person bearing that name. But according to the forms 
 prescribed by these rules, the search is directed to be 
 made against the irnnc mentioned in the requisition, 
 and the certificate is of the result of a search against the 
 name specified in the certificate. By the practice of the 
 office, too, the certificate of the result of the search does 
 not necessarily specify the address and description of 
 the person against whose name the search was made. 
 If no entr}^ or none but those specified in the certificate, 
 were found against any person of that i/a/i/r, the fact is 
 
 (<•) See the two previous notes. (/) See Wms. Con v. SUit. 47'.» 
 
 ((/) Elphiustonc & Clark on ></. ; Wolstcnholme's Conveyanc- 
 
 Scrtrclii's, lf)(; -l(i,S. ingiiudSettlodLaml Arts, l.'»!)s« 
 
 (t) Above, p. ()01. 8th ed. '
 
 fi06 OF THE COMPLETION OF THE CONTRACT. 
 
 SO stated in the certificate, without adding the address 
 and description contained in the requisition for search ; 
 and in such case the certificate certainly has a vakie 
 
 • unohtainahle by a private searcli. If entries are found 
 against the same name hut coupled with a different 
 address and description, the certificate then states that 
 no entries, or none but the entries sj)ecified therein, have 
 been found against the name, address and description 
 contained in the requisition for search. This form of 
 certificate shows that there are entries against the same 
 
 I name but coupled with an entirely different address and 
 description, and is a warning that further search may 
 
 1 be necessary. If, however, entries are found against the 
 name specified in the requisition for search, but coupled 
 with an address and description which, though not 
 identical with those contained in the requisition, render 
 it probable that the person so described is the same as 
 that mentioned in the requisition, then a note is made 
 in the schedule to the certificate, of the entries against 
 the person so described. And if the identity of the 
 person be certain, as it would be in the case of a peer, 
 though the address be different, all the entries against 
 the name are included in the scliedule to the certifi- 
 cate (g) . It appears, therefore, that a certificate of the 
 result of an official search has a greater value than is 
 allowed by the learned authors of the treatise on 
 searches ; and it seems that in general the best course 
 to take is to direct an official, instead of making a private 
 search. When this course is adopted, the purchaser 
 obtains in the certificate a valuable document of title, 
 and the purchaser's solicitor is relieved from the liability 
 which he would incur if he or one of his clerks searched 
 the register but failed to discover a material entry. 
 
 (//) The writer is iudebted for Charges Department of the Office 
 this information to the courtesy of Land Registry, 
 of the officials in the Laud
 
 OF THE COMPLETION OF THE CONTRACT. ^07 
 
 Official searches may also be directed to be made in Official 
 the index of enrolled disentailing deeds (//), in the York- disentailing- 
 shire Registries (/), and in the index of assui'ances <ipedsaud iu 
 registered in the Middlesex Registry (/•) . The oertifi- and Middlesex 
 cate of the result of any such search has no effect as J^'f-'i*'^''*"^- 
 against any person interested under any entry duh' 
 made, but not disclosed, by the certificate (/) ; but in 
 tlie case of the Middlesex (/.•) and Yorkshire (/) Regis- 
 tries, solicitors directing an official search, and an}^ 
 persons in a fiduciary position for whom they are acting, 
 are protected against liability for any loss that may 
 arise in consequence of an error in the certificate. It 
 appears, therefore, that in these cases also, the best 
 course for the purchaser's solicitor to take is to direct 
 an official search. It may be remarked that an official 
 search must necessarily be made by a person familiar 
 with the register or index of which he is in charge, and 
 experienced in searching for entries therein ; but a soli- 
 citor may not always be able to entrust a private search 
 to a clerk experienced in such matters. 
 
 Besides making the above-mentioned searches {ni), the Inquiries to ho 
 purchaser should, where the property sold is likely to J."^',*^,pK.f,j,*,|[' 
 be subject to any statutory charge of the kind held not 
 to be a land cliargo within the meaning of the Land 
 Charges Act of 1888 («), such as a charge for a propor- 
 tion of the expenses incurred by a local authority in 
 sewering, paving or lighting an adjoining street, inquire 
 of the vendor wlietlier the property is or Avill become 
 subject to any such charge, and also if he has notice or 
 knowledge of any fact (such as a demand made, notice 
 
 (A) R. S. C. 1S83, Order 61. W. N. 1 3th Feb. 1892. 
 r. 23. (/) See stat. iCt & 46 Vict. c. ;1U, 
 
 (i) Stat. 17 & 48 Viot. c. o4, s. 2 (I, 11) ; Wins. Conv. Stat. 
 
 ss. 20-2:5, .51. 273, 274. 
 
 (/.) Land Re<cistry (Middlesex (w) Above, pp. .597—000. 
 
 Deeds) Rul.-s. 18!t2, Nos. 9—14 ; (m) Above, pp. 177.. 52 1,692, 593.
 
 608 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 As to dis- 
 charge of 
 outgoings 
 payable by 
 Mie vendor. 
 
 served, or resolution passed hy the local authority 
 requiring the execution of any street or other works) 
 which will subject the property sold to a charge of this 
 kind at any future time. This inquiry is usually 
 appended to the requisitions on title (o) : but as such a 
 liability may arise after they have been delivered, and 
 should be discharged by the vendor as an outgoing if 
 incurred before the time fixed for completion ( y>) , it is 
 prudent, where there is a likelihood or possibility of any 
 such liability, to repeat this inquiry just before comple- 
 tion, and also to make inquiry of others, as of neighbours 
 or of the local authority (q). As we have seen (r), a 
 purchaser may be able to insist on such a liability being 
 discharged as a condition precedent to completion in 
 cases where he might have some difficulty in recovering 
 the amount thereof from the vendor if paid by himself 
 after completion. And generally tlie purchaser should 
 ascertain, before he completes the purchase, that all 
 outgoings payable by the vendor, whether for rates, 
 taxes, rent or any other matters that might subject the 
 purchaser to any liability for their payment (.s), have 
 
 (o) Above, p. 177. 
 
 (;;) Above, pp. 520—523. 
 
 {qj See Ee Ley land and Taylor'' s 
 Coniracl, 1900, 2 Ch. 625, where 
 a purchaser, vrho completed his 
 contract without making such 
 inquiries, was held not to be 
 entitled to compensation, under a 
 condition pronding that compen- 
 sation should be allowed for any 
 omission in the particulars, by 
 reason of the vendor having 
 omitted, without fraudulent in- 
 tent, to disclose that such a notice 
 as above mentioned had been 
 served on him before the date of 
 the contract for sale, no liability 
 under such notice having been 
 actually incurred before comple- 
 tion. It was pointed out, how- 
 ever, by Rigby, L. J. (p. 632), 
 that, if the purchaser had not 
 completed the contract, he might 
 perhaps have relied upon such 
 
 omission as a ground for resisting 
 the specific performance or claim- 
 ing the rescission of the contract ; 
 cf. Carlish V. Salt, 1906, 1 Ch. 
 335, 340 ; but see the writer's 
 criticism of the dicta in this case 
 in 50 Sol. J. 611 ; and as to non- 
 disclosure, see below, Chap. 
 XIII. § 1, XIV. § 1. See also 
 Hampstead Corpn. v. Cauni, 1903, 
 2 K. B. 1, as to the liabilities of 
 the above natui'e which a pur- 
 chaser may incm". It has been 
 laid down that in cases of the 
 above kind there is no incum- 
 brance nor even a liability, 
 inchoate or otherwise, on the 
 property, until the charge given 
 by the statute has arisen ; Re 
 Allen and DriscolV s Contract, 1904, 
 2 Ch. 226, 230, 231 ; see above, 
 p. 522, and n. (i). 
 
 (>•) Above, p. 522. 
 
 (.s) Above, p. 521.
 
 to their 
 interest. 
 
 OF THE COMPLETION OF THE CONTRACT. 609 
 
 been duly diseliarged. If the property sold include a 
 house having water, gas or electric light laid on, the 
 purchaser should ascertain that the water rate or other 
 charges payable by the vendor have been duly paid or 
 that non-payment thereof will not subject him to any 
 liability (0- 
 
 The purchaser must further ascertain that the posses- Ascertaining 
 sion or enjoyment of the land sold is in accordance gion is in 
 with the title shown. For this purpose he should accordance 
 make inquiries of all tenants or occupiers of the pro- title, 
 perty sold or any part thereof as to the nature and Inquiry of 
 
 „,.. . -n .pii . tenants and 
 
 extent of their interest therein. Jj or if he have notice occupiers as 
 of a tenancy of any part of the property, he will be 
 affected with notice of all rights or equities of the 
 tenant against the vendor with regard not only to the 
 lease (ii), but also to all collateral matters (.r) ; as, for 
 instance, if the tenant should have an agreement or 
 option to purchase the demised premises (//), or the 
 timber growing thereon (s), or if the property sold 
 belonged in equity to a partnership firm, of which the 
 vendor was a member {a), and were in the occupation 
 of the firm {h). So actual knowledge that the rents 
 are paid to some person, whose title is inconsistent with 
 the vendor's, is constructive notice of that person's 
 rights : but mere knowledge that the rents are paid to 
 an estate agent does not affect the purchaser with 
 any notice or put him upon inquiry (c). As we have 
 
 [t) See Shcfield Watmvorks Co. Luck, 1901. 1 Ch. 45, 49, 1902, 
 
 V. Wilkimou, 4 C. P. D. 410, 1 Ch. 428, 432. 
 422, 424; East London JJ'ater- (y) Dank fs y. Davidson, 16 Vefi. 
 
 works Co. V. Kellerman, 1892, 2 249, 17 Ves. 433. 
 Q. B. 72 ; Cannon Brewery Co. v. (z) Allen v. Anthony, 1 Mer. 
 
 Gas Light and Coke Co.. 1904. 282. 
 A. C. 331. (a) See above, p. 465. 
 
 (m) See Caballero v. Henty, L. R. (i) Cavander \. Biilteel, L. R. 
 
 9 Ch. 447, 449. 9 Ch. 79. 
 
 ^x) Barnhart v. Urrenshields, 9 (c) Hunt v. Luck, 1901, 1 Ch. 
 
 Moore, P. C. 18, .32 ; ffiint v. 45, 1902, 1 Ch. 428. 
 
 w. 39
 
 610 OF THE COMPLETION OF THE CONTRACT. 
 
 seen (d), where the property sold is a reversion expect- 
 ant on a leasehold interest yielding- rent, the piirchaser 
 should ascertain that the tenant is paying his rent to 
 the vendor. And where land is sold with vacant 
 possession to be given on completion of the purchase, 
 the pui'chaser should ascertain that the vendor himself, 
 or some person who makes no claim advei'se to the 
 vendor's title and will undertake to give up possession 
 according to the contract of sale, is in occupation 
 thereof (e) . As has been already mentioned (,/') , it is pos- 
 sible that a person may be in possession of the property 
 sold by virtue of a writ of o/ec/if actually executed but 
 not registered, or that a tenant may be paying his rent 
 to a receiver appointed under an unregistered order 
 made by way of equitable execution ; and in such cases 
 the purchaser may be bound by the writ or order if he 
 Inspection have notice of it. The purchaser should also carefully 
 
 and survey of , . 
 
 the property, inspect the whole of the property sold and have it 
 surveyed prior to completion, and should make inquiry 
 of the tenants or occupiers with respect to the boundaries 
 or other matters regarding the physical condition of the 
 property. For if by reason of any material defect of 
 quantity or otherwise the property sold do not corre- 
 spond with the description of it given in the contract, 
 or in any representation which induced the purchaser 
 to make the contract, and the error be caused by the 
 innocent misrepresentation of the vendor and not hy 
 fraud, the purchaser will be entitled to resist the specific 
 performance of or to rescind the contract, while it 
 remains uncompleted (g) : but when the contract has 
 been fully performed, the purchaser will not be entitled 
 
 (d) Above, pp. 399, 400. Societi/ v. Bomash, 3.5 Ch D. 390. 
 
 \e) As to the duty of the vendor (/) Above, p. ,'584. 
 
 to give up vaoant possession on {g) Above, p. 608, and n. [q) ; 
 
 completion, see above, pp. 512, Jacobs v. Revell, 1900, 2 Ch. 858 ; 
 
 515, 578 ; Em/eU v. Fitch, L. R. 4 Re Puckett and Smith's Contract, 
 
 Q. B. G59 : ' Roijal Bristol, S^c. 1902, 2 Ch. 258,
 
 OF THE COMPLETION OF THE CONTRACT. 611 
 
 to any relief in respect thereof {h), except (1) by virtue 
 
 of an express agreement contained in the contract to 
 
 make compensation for such errors (/), or (2) if the | ^ 
 
 defect be really a defect of title and compensation be 
 
 recoverable under the covenants for title contained in 
 
 the conveyance (/•), or (3) if the representation amounted 
 
 to a warranty, collateral to the contract for sale, of the 
 
 trutli of the fact stated (/). Here it may be mentioned Purrhaser 
 
 that if a man buy land without inspecting it, he does ouUnfpectinii 
 
 so at his own risk and must accept without compen- must atcept 
 TP,.., 1-1 T- Pii patent, but 
 
 sation any detects m the physical condition oi the not latent 
 property which are patent to any one who views it and 'l^*^''*^- 
 are not inconsistent with the description contained in 
 the contract for sale ; as where a meadow sold is ob- 
 viously crossed by a public footpath (m), or a house sold 
 is plainly out of repair (>/). But a man may decline to 
 perform the contract on account of defects which 
 are latent, or not discoverable by inspection, if they 
 interfere materially with the enjoyment promised to 
 him by the contract ; as where a pathway across a field 
 adjoining a private dwelling-house is subject to an ease- 
 ment of way, not disclosed by the contract, in favour 
 of an adjoining landowner (o) ; and this is the case 
 whether the purchaser actually inspect the property 
 sold or not, and notwithstanding that the contract 
 provide that, the property being open to inspection, the 
 purchaser shall be deemed to buy with full knowledge 
 
 (A) Wilde \. Gibson, 1 H. L. C. bridge, ubi sup.; bolow. Chap. 
 
 605, 632, 633 : Jolifr v. Baker, XIX. ij "). 
 
 11 Q. B. D. 25;)'; Claiiton v. (/) Le Lassalle v. Guildford, 
 
 Leech, 41 Ch. D. 103 ; Seddoti v. 1901, 2 K. B. 215. 
 
 North Eastern Salt Co., 1905, 1 (in) Jiorv/e.sv. Hound, oYes. 508. 
 
 Ch. 326 ; above, pp. 66, 608, n. (;/) Gran/ v. Mioit, G. Coop. 
 
 (q); below, Chap. XIV. y^ 1. 173. 177; Kea/es v. Cadogan, 10 
 
 {i) l'alnur\.Jnlniso)i.UQ..'R.T>. C. B. 591; Cool; v. Waugh, 2 
 
 361 ; above, pp. 65, 66 ; see Deben- Giff. 201. 
 
 ham\. S<iwhridge,\90\.-lCh.9%: [o) Anhburner \. Sewell, 1891, 
 
 below, § 4 of this Chapter. 3 Ch. 405 ; see above, pp. 73, 
 
 (k) May v. Plait, 1900. 1 Cli. n. [t). 175, 176, 608, and n. {q). 
 616 ; and see Ikbcnham v. Sair- 
 
 39 (2)
 
 612 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 of the actual quantities and condition thereof [jn) . Such 
 a stipulation may, liowever, in some cases prevent the 
 purchaser from raising objections to defects discoverable 
 by a careful survey, though not by a mere casual view 
 of the property {q). As we have seen (r), if a man buy 
 land with notice that a good title cannot or will not be 
 made in some particular, he is precluded from objecting 
 in this respect to the title shown, unless the vendor have 
 by the contract of sale expressly agreed to make a good 
 title. This doctrine may prevent a purchaser buying 
 land with notice of phj^sical defects, which would other- 
 wise constitute a ground for refusing to perform the 
 contract, from objecting to the title on that account ; 
 and may also preclude him from avoiding the contract, 
 where the vendor has made an innocent misrepresenta- 
 tion as to the property sold, but the purchaser bought 
 with notice of the true state of the facts {s). 
 
 Preparation 
 of the con- 
 veyance. 
 
 Who are 
 necessary 
 parties to the 
 conveyance. 
 
 § 3. — Of the Preparation of the Conrei/aiice. 
 
 As we have seen {t), it is the purchaser's duty at his 
 own expense to prepare a proper instrument of convey- 
 ance to himself of the property sold and to tender the 
 same to the vendor for his execution ; the vendor is 
 bound to execute this instrument at his own expense ; 
 and where other persons than himself are necessary 
 parties thereto, in order to convey to the purchaser the 
 whole estate contracted for, he is bound, in the absence 
 of stipulation to the contrary, to procure them to execute 
 the same at his own expense. What persons are neces- 
 sary parties to the conveyance will have been ascertained 
 
 {p) Re Puckett and Smithes Con- 
 tract, 1902, 2 Ch. 258. 
 
 (<7) Re Tern/ and White' t< Con- 
 tract, 32 Ch. i). 14, 23. 
 
 (r) Above, pp. 203, 353, 354. 
 
 («) See Farebrother v. Gi//-ioH, 
 
 1 De G. & J. 602 ; Let/land v. 
 Illmf/ivorth , 2 De G. F. & J.- 
 248 ; below, Chap. XIV. § 1. 
 
 [t) Above, pp. 35, 46, 47, 67, 
 73, n. («). .'>78.
 
 OF THE COMPLETION OF THE CONTRACT. 613 
 
 on the investigation of title. Every person in whom is 
 vested any portion of the legal and equitable estate con- 
 tracted for in the land sold, or any interest therein, 
 mnst concm- in the conveyance to the purchaser, unless 
 his interest be such that it will be conveyed or defeated 
 by the execution of some paramount trust or power 
 intended to be exercised by the instrument of convey- 
 ance. Thus, where an unincumbered estate in fee simple 
 is sold, all persons entitled for a vested estate either for 
 life, in tail, or in fee, and either in possession or in 
 remainder, to the whole or any fraction of the fi*eehold 
 in fee, all persons entitled to any contingent or execu- 
 tory interest which will or may displace or defeat any 
 present vested estate, all mortgagees, portioners, join- 
 tresses and doweresses, all persons entitled to any term 
 of years, continuing tenancy, rent-charge, yjyo^^ d prendre 
 or easement, and all persons interested in the property 
 sold under any trust or equity of or by which the pur- 
 (ihaser has notice or is bound {u), are necessary parties 
 to the conveyance {jc) ; unless the assurance to the pur- 
 chaser is to be effected, for example, by the exercise of 
 a power of appointment operating under the Statute of 
 Uses or created by will, of a statutory power, such as 
 that given by the Settled Land Act, 1882 (//), or of a 
 trust for or power of sale on the part of trustees liaving 
 the legal estate (~). And where the conveyance is to be 
 carried out by virtue of an authority paramount to the 
 estate or interest of some person entitled, who is not, 
 therefore, to be made a party thereto, care must be taken 
 that all persons, whose estates or interests are not bound 
 by the execution of the authority, shall concur to convey 
 the same. Thus we have seen that on a sale under the 
 powers given by the Settled Land Acts, there may be 
 
 (m) Alxjve, pp. KW, 'I'M s,j. 594, .595 and elsewhere, "J 1st ed. 
 
 (j-) See Wins. Real Prop. 452. (//) Above, p. 306. 
 
 463 and elsewhere, 13th ed. : (:) Above, p. 256.
 
 614 OF THE COMPLETION OF THE CONTRACT. 
 
 various estates and interests, which will not be displaced 
 or defeated by the conveyance of the tenant for life {a) ; 
 and the owners of all such estates and interests, as para- 
 mount mortgagees of the fee, mortgagees for securing 
 money actually raised under some power or trust for 
 the purj)ose contained in the settlement or assignees 
 for value of the estate of the tenant for life (unless 
 these last by some separate document consent to 
 the exercise of the tenant for life's power {b) ), 
 must be required to assure by their own conveyance 
 their estates or interests to the purchaser. So also, 
 where the purchaser has bought at a sale made by 
 order of a Court of Equity, he need not require the 
 concurrence in the conveyance of any persons having 
 equitahle estates or interests, which are bound by the 
 order for sale : but he must obtain a conveyance of the 
 interests of all persons entitled to the legal estate in the 
 property, or to any equitable estate or interest therein 
 Intermediate not bound by the order (r). Where the title to any 
 land sold is such that intermediate trustees are inter- 
 posed between trustees seised or possessed of the legal 
 estate and the persons beneficially entitled, as where 
 land has been assured to the use of A. in fee on trust 
 for B., who is a trustee for C, the intermediate trustees 
 are not necessary parties to the conveyance of the land, 
 which may well be made by the trustees holding the 
 legal estate and the persons beneficially entitled ((/). 
 The intermediate trustees, however, may possibly have 
 acquired a lien on the land for their costs or expenses, 
 so that their coucuiTence may, it seems, be required by 
 a purchaser in order to release or acknowledge the non- 
 existence of any such lien [e). And if it be proposed in 
 
 («) Above, pp. 307, 317 sq. Cox, 57 ; v. Walfurd, 4Russ. 
 
 {b) See above, pp. 318, 319, 372 ; Gramge v. Wilhcrforcc, 5 
 
 321—325. Times L. R. 436. 
 
 (c) Above, pp. 471, 472. (e) See above, p. 3()6, aud u. {x). 
 
 trustees. 
 
 \d) See ilead v. Teynham, 1
 
 OF THE COMPLETION OF THE CONTRACT. 615 
 
 such cases to dispense with their concurrence, inquiry 
 should be made of them if they claim any such lien. 
 Here we may notice that if any necessary party to the Incapacity of 
 conveyance be under any incapacity, such as that of thJcon^ev^ 
 infancy, coverture on the part of a woman, or lunacy, ance. 
 all due steps must be taken to secure the proper assur- 
 ance of his or her estate to the purchaser, either by 
 vesting order (./"), concurrence of the husband and 
 acknowledgment of the deed in the case of a married 
 woman not entitled to the land as her separate property, 
 or otherwise. 
 
 On the side of the grantee or grantees under the Parties to the 
 conveyance, the piu'chaser himself is in general the thel^antee'°° 
 only necessary party. But as we have seen (</), the side, 
 vendor's obligation is to execute a conveyance of the 
 land sold to the purchaser, or as he shall direct. The Conveyance 
 purchaser is therefore entitled to require the conveyance chaser's 
 to be made to some other person or persons than him- nominee, 
 self, or to himself and others, and for such estates and 
 interests as he shall direct ; and the vendor is bound to 
 assure the lands sold accordingly. It appears that in 
 such case the vendor may in general demand that the 
 purchaser, with whom alone he has contracted, shall be 
 made a party to the conveyance in order to testify that 
 ho has directed the conve3'ance to be made to a stranger 
 to the contract and that the vendor has duly performed 
 his part of the contract by complying witli this direc- 
 tion (A) . But if the purchaser should have made an 
 absolute assignment of all his interest in the contract, 
 and the assignee have given notice of the assignment 
 
 (/) Above, pp. 530, .561. ti'act by the vendor, the pur- 
 
 Iff) Above, p. 46. chaser should be made a party to 
 
 (h) This appears to follow from the action (above, p. .")(i8j, and 
 
 the fact that, if the purchaser's would be a proper party to a 
 
 assijjuoe seek to enforce the conveyance ordered in such 
 
 specific performance of the con- action.
 
 ^16 OF THE COMPLETION OF THE CONTRACT. 
 
 and be willing to take upon himself the whole burden of 
 the original contract and prove his title by assignment 
 from the purchaser, then it seems that the vendor ought 
 to complete the contract with the assignee alone, without 
 requiring any further concurrence of the purchaser (/). 
 In this event, however, it is thought that the assignee 
 could not insist on the vendor executing a conveyance 
 which took no notice of the original contract and the 
 assignment ; for the vendor would be entitled to have 
 the payment and receipt of the original price mentioned, 
 and could not be made to accept any recital or statement 
 alleging, contrary to the truth, that he had contracted 
 with the assignee for the sale of the land (k). If the 
 purchaser before completion re-sell the land to another, 
 it is to the sub-piu"chaser's interest to obtain a conveyance 
 direct from the vendor and taking no notice of the 
 original contract, as this will prevent the raising in the 
 future of any question whether the original purchaser 
 incumbered his interest before the re-sale and the sub- 
 purchaser had notice thereof (/). Where there is no 
 
 («) Above, pp. 568 — 570. ance of the legal estate from the 
 (k) Hartley y. Burton, L. R. 3 vendor in order to avoid all 
 Ch. 365. question of the first purchaser 
 [I ) It is thought that, where a having incumbered his equitable 
 purchaser re-selling before com- interest under the contract for 
 pietion discloses to the sub-pur- sale ; see below, p. 619, and 
 chaser the fact that he is himself n. («). Having regard to this 
 a purchaser under an uncompleted liability, it is advisable for a 
 contract of sale and in effect sells purchaser of land re-selling before 
 the interest so acquired by him, completion to sell his interest 
 the sub-purchaser cannot oblige under the contract for sale, as 
 him to take a conveyance from such, and to stipulate expressly 
 the original vendor ; as that that the sub-contract shall be 
 course would apparently involve completed by a conveyance from 
 the payment by the first pur- the original vendor to the sub- 
 chaser of ad valorem stamp duty purchaser by the fii'st purchaser's 
 on such conveyance. But if the direction. Where a purchaser of 
 first purchaser so re-sell as if he land re-sells before completion, he 
 were the full owner of the land, is bound to furnish, at the sub- 
 without disclosing that he is only purchaser's request, an abstract 
 entitled under an uncompleted of the original contract for sale 
 contract of sale, it is submitted and of his dealings, if any, 
 that the sub -purchaser's strict with his interest thereunder ; Re 
 right would be to require the Htickerby and Atkinson'' s Contract, 
 first purchaser to take a convey- 102 L. T. 214, where note that
 
 OF THE COMPLETION OF THE CONTRACT. 617 
 
 increase of price on the re-sale, the vendor may 
 well agree to this if the original purchaser sign a 
 memorandum authorising him to convey the land direct 
 to and to receive payment of the price from the sub- 
 purchaser (tn). But if the purchaser re-sell at an 
 increased price, he must be a party to the conveyance 
 in order to acknowledge the receipt of his profit on the 
 transaction (n) ; for the sub-purchaser is only entitled 
 to a conveyance on payment of the price fixed by the 
 re-sale to the person entitled to receive it (o) , and cannot 
 of course require the vendor to accept the whole of this 
 and pay over part of it to the original purchaser. And 
 the price fixed by the re-sale must be stated in the 
 conveyance, as it is on that price that the stamp duty 
 is payable (yj). Where the vendor will remain after 
 the conveyance under some liability in connexion with 
 the property sold, as where leasehold land subject to 
 payment of a rent and performance of onerous covenants 
 is sold, and the purchaser is therefore bound to enter 
 into a covenant of indemnity (q), it is thought that the 
 vendor is not obliged to accept the liability of the 
 purchaser's assignee as a substitute, but may insist on 
 having the covenant of the person, with whom alone he 
 himself has contracted (r). 
 
 Subject to the question discussed below (.«,), whether Form of the 
 outstanding estates or incumbrances should be got in by ^'o^veyance. 
 deeds separate from the conveyance, the conveyance of 
 
 the sub - purchaser expressly (p) Stat. 54 & 55 Vict. c. 39, 
 
 waived all objectiou to accepting s. 58 (4), (5). 
 
 a conveyance direct from the [q] See above, p. 80 ; and see 
 
 original vendor (see p. 215). bolow in the present section of 
 
 (m) See 1 Dart, V. & P. oil, this chapter as to the (rases in 
 
 5th ed.; 581, Gth ed. ; 536, 7th ed. which the purchaser is bouud to 
 
 The memorandum shimld be in give a covenant of indemnity, 
 
 duplicate, one part being given (r) This appears clearly to 
 
 to the sub-puroliaser. follow from the rule that the 
 
 (;/) See Davidson, Prec. Conv. burthen of a contract cannot be 
 
 vol. ii. pt. i. 319, 4th ed. assigned over; above, p. 570. 
 
 [o'j Above, p. 57.S (s) Page GIS).
 
 618 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 the property sold will, as a rule, be effected by one deed. 
 But it is for the pui-chaser to decide in what form he 
 will take his conveyance, provided that the burden laid 
 on the vendor, in respect of expense and otherwise, be 
 not materially increased by the purchaser's choice (/). 
 Thus, where properties of different kinds or held under 
 different titles are sold by one contract, the purchaser 
 may require the same to be conveyed by separate 
 assurances and apportion the purchase money as he 
 may think fit (n). For example, where freeholds and 
 copyholds are sold together, the conveyance cannot of 
 course be effected by one deed, the copyholds requiring 
 to be assured by surrender and admittance. So where 
 freeholds and leaseholds are included in one contract of 
 sale, the purchaser may require that his title to the 
 freeholds shall not be incumbered with the assignment of 
 the leaseholds, and as to the leaseholds themselves, that 
 his title under one lease shall not be complicated with 
 the assurance of land held under another. And where 
 lands sold together lie far apart, as in different counties 
 not adjoining each other, he may demand that they 
 shall be assured by separate deeds. But it is question- 
 able whether the vendor can be compelled, in the absence 
 of special stipulation, to execute a great number of 
 separate conveyances in different parcels of a lot of land 
 lying near together and sold by one contract ; for that 
 would sensibly increase the vendor's trouble of perusing 
 and executing the assiu-ance completing, the contract ; 
 and in any case he could only be requii-ed to do so on 
 the terms of being paid the extra expense so occasioned, 
 and also, it is thought, on condition that he were not 
 asked to assure lands accurately described as one 
 entire property in the contract by several new descrip- 
 
 {t) See Clark v. 3Lii/, 16 Bwiv. G79, 685 ; Ef/munt v. Smith, 6 
 •273; Cooper v. Cartiv'ri(jht, John. Ch. D. 469, 474. 
 
 {i() Clark V. May, 16 Beav. 27o.
 
 OF THE COMPLETION OF THE CONTRACT. (J19 
 
 tions of the particular parts thereof (x). If a purclmser 
 desire to take a conveyance in lots of lands offered to 
 him for purchase by private contract as one entire estate, 
 he should certainly insert an express stipidation to that 
 effect in the contract (//) . 
 
 Where the whole estate in the land sold is not vested Sale of laudi* 
 in the vendor, as where it is subiect to mortg-affes or '^"^Jf^* *■" i"" 
 
 ' _ •* _ o o cuuibrautx's. 
 
 other charges or incumbrances, which lia\ e to be paid 
 off, discharged, or released, to enable the vendor to 
 convey such an estate as he contracted to sell (z), it 
 appears that, if by the contract the vendor piu'ported to 
 sell the whole estate as vested in himself without dis- 
 closing- the state of the title, and in the absence of any 
 stipulation to the contrary, the purchaser is in strict 
 right entitled to requii'e the vendor at his own expense 
 to get in all the outstanding estates and interests and 
 vest them in himself or in a trustee for himself, in 
 order that the conveyance to the purcliaser may be one 
 simple deed of assurance fi'om the vendor, or from him 
 and Ids trustee, to the purchaser (a). But it has never 
 
 {x) See Sug. V. ic P. .ji59 ; 1 ivit/i that of tchich /jox.HSxioii t.v 
 Dart, V. & P. 503, 5th ed. ; 573, ofend (above, pp. 4:{, 94). it ap- 
 6th ed. ; 531. 7th ed. It is sub- pears that the vendor cannot be 
 niitted that the dictum of Jessel, obliged to convej- and to coven.int 
 M. R., in Egmont v. Stiiith, (i for title b}^ t)thcr dcMcriptious 
 Ch. D. 469, 474, that in no case than those mider which he sold, 
 can a vendor object to convey But land.s sold as one entire pru- 
 the .sold property in piu-cels on perty can seldom be conveye<l in 
 reieiving the whole purchase lot*s without a number of new- 
 money, and on bcinfjr paid the descriptions. This con.sideration 
 additional expense, is not correct. alone, it is submitted, e.\hibit.s 
 The vendor's obligation is to con- the inaccuracy of tlie late M. R.'s 
 vey the land which he has con- dictum. Besides, it takes no ac- 
 tracted to sell. AV'hat that land count of the increased trouble, 
 is, is sliown by the de.scription apart from the extra expense^ 
 thereof contained in the contract which may be laid on the vendor! 
 for sale. If the vendor hii.s (y) Note that such a stipula- 
 shown a good title, that is, has tion wa,s actuallv made, in the 
 proved liis right to convey what ca.se of Egmoiit \\ Smithy ubi sup. 
 he contracted to sell, indud- (z) Above, pp. 94 164 
 ing the identity of the land de- («) Sug. V". & P. ;)57 ; Dart 
 scribed in the contract with that V. & P. 7'J2 5th ed. ■ 814 6th 
 described in the title detnls, and ud. ; 723, 7th ed. ; see livevi.s v.
 
 620 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 The usual 
 Htipulation as 
 to the ousts 
 of convey- 
 ance. 
 
 been the practice to insist on this right, except in cir- 
 cumstances of extreme complication (i^) ; and, as we 
 shall see, it is not to the purchaser's interest to allow 
 the legal estate to be conveyed to the vendor, where the 
 land sold is heavily incumbered ; so in most cases the 
 conveyance is taken by one deed, to which the incum-, 
 brancers, as well as the vendor, are parties. If, 
 however, by reason of the number of estates or interests 
 outstanding in persons, who were not parties to the 
 contract of sale, the expense of preparing the instrument 
 of conveyance is sensibly increased, the purchaser is 
 entitled to require the vendor to bear the extra expense 
 so occasioned {c) : though where the contract shows that 
 the property is subject to charges or incumbrances, 
 which must be released in order to make a good title, it 
 does not appear that the vendor is liable to contribute 
 to the cost of preparing the conveyance {d). As we 
 have seen (c), it is and has long been the practice 
 to stipulate expressly in conditions of sale by auction 
 that the vendor and all other necessary parties, if any, 
 shall execute a proper assurance of the property to the 
 purchaser ; and that the purchaser shall bear the 
 expense of preparing, making and doing, not only this 
 assurance, but also every other assui-ance and act, if 
 any, which shall be required by the purchaser for 
 getting in, surrendering or releasing any outstanding 
 estate, right, title or interest, or for completing or per- 
 fecting the vendor's title, or for any other purpose. It 
 has been decided that, where the purchaser expressly 
 undertakes, in words as wide as these, to bear the 
 expense of preparing, maMmj and doing every assurance 
 and act necessary to get in any outstanding estate or 
 
 Gill, 1 Beav. 375, and the com- 
 ments thereon in Sug. V. & P. 
 568. 
 
 {b) Sug. V. & P. r).57 ; and see 
 Junes V. Leivis, 1 De G. & S. 245. 
 
 (c) Sug. V. & P. 558 ; 2 Dart, 
 
 V. & P. 722, 5th ed. ; 814, 6th 
 ed. ; 723, 7th ed. ; see Jones v. 
 Lewis, 1 De G. & S. 245. 
 
 {d) Sug. V. & P. 558. 
 
 [e) Above, pp. 67, 73.
 
 OF THE COMPLETION OF THE CONTRACT. 621 
 
 perfect the vendor's title, he is bound to pay the whole 
 expense of the concurrence in the conveyance to him of 
 the vendor's mortgagees (,/"), or of the execution of a 
 deed of confirmation rendered necessary because ot' 
 the imperfect execution of the conveyance to the 
 vendor himself (g). But the understanding of the 
 profession is that a condition of sale in the above 
 form is not intended to throw upon the pm-chaser the 
 expense of the perusal on behalf of and execution by 
 the vendor himself of the conveyance of the property 
 sold (h) — an expense for which the vendor is liable in 
 absence of express stipulation to the contraiy (/) — and 
 the practice is for the vendor to bear this expense him- 
 self, although the contract contain tliis condition. It 
 has been held that the stipulation in question does not 
 cast upon the purchaser the expense of deducing the 
 title to any outstanding estate (/.). 
 
 Under the Conveyancing Act of 1881 (/), upon the Discharge of 
 sale, either by tlie Court (in) or out of Court (//), of land i"cumbranoe« 
 
 •^ , ^ ' ^ , ^ " on sale by 
 
 subject to any incumbrance (including any mortgage, payment into 
 lien or charge of a portion or annuity or other capital '^^^ ' 
 or annual sum, whether immediately payable or not), 
 the Court may, if it thinks fit, on the application of any 
 party to tlie sale, direct or allow payment into Court of 
 a sum of money sufficient to provide for tlie amount 
 
 (/) lie Willett and A>yenfi,60 the purchaser does literally undor- 
 
 L. T. 73;'), explained and dis- take to bear the expense of w<^/.//i</ 
 
 tiuguished in Ite Samler and the assui'ance to himself. 
 Il'aiford'.s Contract, 83 L. T. 316; (i) Sag. V". & P. 561 ; 2 Dart, 
 
 1000, W. N. 183. Ee Willett V. & P. 707, 5th ed. ; 798, 6th 
 
 and Argent i appears to have given ed. ; 7 H, 7th ed. 
 to the usual condition of sale a (/•) Re Adams^ Trustees and 
 
 greater effect than it wa.s pre- Fronton Contract, 1907, 1 Ch. 695, 
 
 viously supposed to have : see 703 ; above, p. 73, n. {a). 
 Davidson, Prec. Couv. vol. i. (/) Stat. 44 & 45 Vict. c. 41, 
 
 p. 612, 4th ed. s. 5 ; see s. '2 (viii.). 
 
 ((/) Re If'onds and Lewis's Von- {m) Sec Patching v. Bull .30 
 
 tract, IS'.IS, 1 Ch. 433, 437, W. R. 244 ; Dickin v. Dickin, ib 
 
 affirmed, 1S'.»8, 2 Ch. 211. 387. 
 
 (//) It should be noted, how- (/i) See Milford, ijV. Co. v. 
 
 ever, that, a<Tordingto this form, Mouuitt, 28 Ch. D. 402.
 
 622 OF THE COMPLETION OF THE CONTRACT. 
 
 charged on the land and future costs, expenses and 
 interest (o) ; and the Court ma}^ if it thinks fit, and 
 either after or without notice to the incumbrancer, 
 declare the land to be freed from the incumbrance, and 
 make any order for conveyance, or vesting order, proper 
 for giving effect to the sale. This enables a vendor to 
 procure land, which is subject to mortgages or charges, 
 to be conveyed to the purchaser for an unincumbered 
 estate without the concurrence of the incumlk'ancers. 
 But it appears that the Court will not oblige the 
 vendor, at the purchaser's instance, to adopt this 
 mode of conveying an unincumbered estate, where 
 such a course would involve hardship, as where the 
 amount required to be paid into Court would greatlj'' 
 exceed the purchase money ( p) . 
 
 VendorshoulcT It should be noted, in connexion with the release of 
 "u'^^' ^*^to incumbrances, that, where the legal estate is outstanding 
 obtain the in mortgagees or trustees, the purchaser should never 
 "' '^ ' "^^ require or allow the vendor to take a reconveyance or 
 conveyance thereof to himself before completing the 
 purchase (q). The reason of this is that, if the vendor 
 should, while he was entitled to tlie equity of redemption 
 or other equitable estate in the lands, have executed a 
 conveyance by way of mortgage or otherwise and 
 containing a precise recital, if the lands were thereby 
 assured for an estate in fee simple in possession, that he 
 was seised of them in fee, or in other cases that he was 
 entitled to the legal estate therein, then he and all 
 persons claiming under him would be estopped from 
 denying that he was so seised, or entitled. It would 
 follow that upon the reconveyance or conveyance of 
 
 (o) For the piirpot<e of deciding {p) lie Great Northern Raxl. (Jo. 
 
 what sum ought to be so paid and Sanderson, 25 Ch. D. 788. 
 
 into Court, the Court will make (q) See General Finance, ^-c. Co. 
 
 a declaration as to future rights: v. Liberator, ^-c. Kocji., 10 Ch. D. 
 
 Re Freme's Contract, 1895, 2 Ch. 15, 20. 
 256, 778, 780.
 
 OF THE COMPLETION OF THE CONTRACT. 62.'3 
 
 the legal estate to the vendor, the same would in effect 
 pass at once to the persons entitled under the mesne 
 conveyance. As against those persons, the purchaser, 
 claiming by a subsequent conveyance fi-om the vendor, 
 would be subject to the same estoppel, and would be 
 precluded from alleging that the mesne conveyance 
 passed an equitable estate only, and that he himself 
 lield the legal estate as a purchaser for value without 
 notice of the mesne convej'anee (r). The purcliaser 
 would thus be affected by mesne incumbrances created 
 by the vendor, wliicli he might liave avoided if he luid 
 not allowed the vendor to obtnin the legal estate. The 
 right com'se, therefore, for the purchaser to take is to 
 require that any legal estate outstanding in mortgagees 
 or trustees shall be convej'ed by them to him, or to a 
 trustee for him, direct. He will then be able to rely 
 on tlie doctrines of purchase of the legal estate for value 
 and without notice and of tacking, if the vendor sliould 
 liave created intermediate equitable incumbrances, of 
 which the purchaser knew nothing (.s) . It is thought 
 tliat, as the vendor is in equity a trustee for the 
 purchaser of the land sold from the date of the contract 
 for sale {f), and as the purchaser is entitled to restrain 
 any disposition of the legal estate about to be made to 
 his prejudice by tlie vendor pending completion (n), and 
 
 [rj An ambiguous rocital not fact of the vendor having- entered 
 
 preciBely avcn-ing (in the case of into express or the statutory 
 
 freeholds) the vendor's legal ruvenants for title. See Bmxhi/ 
 
 seisin would not have the same v. JJindon, 2 S. iSc S. 5l;>, 8 L. J. 
 
 etteet ; for instance, a recital Ch. 85 ; Jliff/if d. Jefferya v. Buck- 
 
 that he was seised of or otherwise uell, 2 B. & Ad. 278 ; Doe d. 
 
 well entitled to the lands, for he Gaixfurd v. S/om, 3 C. B. I7G ; 
 
 might well 1)0 entitled in equity Mentli v. Vrealock, L. R. 10 Ch. 
 
 though not at law. Neither 22; General Finance, i^c. Co. v. 
 
 would any such estoppel result l-^herator,S;c. Socy.,\ij Qh.Ti.Xh; 
 
 from a mere conveyance of lands, Onward, Sge. Soci/. v. Umif/ison 
 
 without any recitals, by \ene-e 1893, 1 Ch. 1. 
 
 and release or grant; for these (.v) Alx)ve, pp. 480, 4S.3, '>6r, 
 
 are innocent conveyances, passing 5lJ7. 
 
 only the assuror's actual estate {t) Above, pp. 504 sq., 512. 
 
 or interest, if any. Nor would («) Above, p. 518, 
 
 .my such estoppel arise from the
 
 624 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 is entitled to take his conveyance in what form he 
 pleases and to keep alive any mortgage for his own 
 benefit, if he desire to do so (./■) , the purchaser is entitled 
 to insist that any outstanding legal estate shall be con- 
 veyed direct to himself, or to a trustee for him, and 
 shall not, pending completion, be got in by and assured 
 to the vendor. But compliance with such a requirement 
 can only be ensured where the mortgage is to be paid 
 off out of the purchase money. If the vendor propose 
 to pay off the mortgage out of his own resources before 
 completion and take a reconveyance to himself, it does 
 not appear that the purchaser can prevent him from 
 doing so ; for if the purchaser were to bring an action 
 for specific performance of the contract, he would be 
 obliged to accept the title so offered, if in other respects 
 good according to the contract (//) . 
 
 Purchase 
 followed by 
 an immediate 
 mortgag-e. 
 
 It constantly happens that a purchaser completes the 
 sale with the assistance of some other person, who 
 advances part of the purchase money and takes a mort- 
 gage of the lands sold to secure the repayment of his 
 loan. In such cases it is a common practice for the 
 whole estate in the lands purchased to be conveyed to 
 the purchaser, and to be mortgaged by him to the 
 lender by a deed executed immediately after the 
 execution of the conveyance, the conveyance and the 
 other title deeds being transferred directly from the 
 vendor's into the new mortgagee's custody. It was pro- 
 nounced by a late learned judge (s), that if in a case 
 like this the property sold were in mortgage at the time 
 of the sale, the new mortgagee should never allow the 
 legal estate to get into the purchaser's hands. There is 
 no doubt that it is always preferable for an intending 
 
 ' {x) Cooper v. Cartivright, Joh. 
 679, 685. 
 
 («/) See above, p. 88 ; below. 
 Chap. XIX. ^ 3. 
 
 {z) Jessel, M. R., General Fin- 
 ance, ^-e. Co. V. Liberator, <|'C. 8ocy., 
 10 Ch. D. 15, 20.
 
 OF THE COMPLETION OF THE CONTRACT. 62o 
 
 purchaser or mortgagee of lands, which are already in 
 mortgage, to take a convej'ance of the legal estate direct 
 from the former mortgagee, as that secures the same 
 priority over mesne incumbrances as the former mort- 
 gagee had. But in the case of a purchase followed 
 immediately by a mortgage, the risk run by the new 
 mortgagee allowing the legal estate to be conveyed to 
 the purcJiaac)' is very different from and far less than 
 that incurred by a purchaser allowing an outstanding 
 legal estate to be got in by the vendor. In the latter 
 case the vendor has presumably been in possession of the 
 land, and has had both the right and the opportunity of 
 creating mesne incumbrances. In the former instance 
 the purchaser has never been in possession either of the 
 land or of the title deeds ; and it is only by fraud that 
 he can have executed, prior to the new mortgage, such 
 a conveyance as would estop the new mortgagee from 
 claiming the legal estate. A fraudulent mortgage of 
 this kind, induced by false title deeds, was in fact made 
 by an intending purchaser of land in the case, which 
 called forth the learned judge's remarks: but as the 
 mortgage deed contained no recitals at all, there was no 
 estoppel as against the mortgagee from the pm-chaser. 
 He suffered, however, the inconvenience of defending 
 an action brought against him by the prior mortgagee. 
 This shows that the only quite safe course is to follow 
 the learned judge's advice. But the common practice 
 is still pursued in many such cases, partly on account of 
 its convenience, and partly because the only risk run 
 is that of fraud, which is an exceptional occurrence. 
 
 In connexion with the subject of getting in the legal Purchaser 
 estate direct from a first mortgagee as a protection ^^^\^q^^ 
 against mesne incumbrances, the reader may be reminded mesne iiuum- 
 that, if the purchaser receive notice, actual or construc- 
 tive, before the purchase money be fully paid, of some 
 
 w. 40
 
 626 OF THE COMPLETION OF THE CONTRACT. 
 
 mesne equitable incumbrance, he cannot safely complete 
 without the incumbrancer's concurrence in the convey- 
 ance to him {(i) ; and further that, if after the receipt of 
 such notice the purchase should be completed with the 
 concurrence only of the first mortgagee, who on being 
 paid ofE out of the purchase money conveyed the legal 
 estate and released his security, the purchaser would not 
 be able to avail himself of the priority, which was 
 enjoyed by the first mortgagee, as a protection against 
 the mesne incumbrance, unless the intention appeared 
 to keep alive for his own benefit the charge created by 
 the first mortgage ((6). In such a case, therefore, this 
 intention should be clearly expressed in the deed of 
 conveyance, though it would not be necessary to take an 
 actual transfer of the first mortgage to a trustee for the 
 purchaser (r) . As we have seen (r/), the purchaser is 
 entitled, if he think fit, to keep alive for his own use 
 any mortgage existing on the property sold either by 
 express declaration or by having the same transferred 
 to a trustee for him, or to a new mortgagee advancing 
 part of the purchase money, provided always that he 
 pay any increased expense thereby caused to the vendor. 
 It may be thought that, where a mortgage is paid ofi^ 
 out of the purchase money, it would always be desirable 
 to keep alive the charge, in order to protect the purchaser 
 against any mesne incumbrance of which he might, 
 without knowing it, have received constructive notice (e) . 
 But it never was, and is not now, the practice to do 
 this, the risk run being too small to counterbalance tlie 
 inconvenience of always maintaining the charge (/'). 
 
 («) Above, pp. 565, 566 ; Jared (/) See Davidson. Prec. Conv. 
 
 V. Clements, 1903, 1 Ch. 42f<. vol. ii. pt. i. 290, 324, 327, 4tli 
 
 (b) Above, p. 481. ed., from whicli it is obvious that 
 
 (c) Above, p. 481. it was uot the practice to keep 
 
 (d) Above, pp. 481, 624. alive a mortgage paid off out of 
 le) This was the case in Toul- the purchase money unless there 
 
 mill V. Steere, 3 Mer. 210 ; above, were reasou to suspect the exis- 
 
 p. 480. tence of some mesne iucumbrauce :
 
 OF THE COMPLETION OF THE CONTRACT. 627 
 
 And under the present law a.s to constructive notice, the 
 purchaser is no longer in danger of being affected with 
 any notice acquired by his solicitor in some previous 
 transaction of an equitable charge on the proj)erty (//). 
 Where part of the purchase money is to be advanced by 
 a new mortgagee, who requires that the legal estate 
 shall be conveyed direct from some already existing 
 mortgagee to himself (A), the purchaser must take care 
 that the whole estate in the lands sold be conveyed to 
 the new mortgagee by the deed of conveyance completing 
 the sale and a new equity of redemption limited to him- 
 self by the same deed. He will then be as well pro- 
 tected against unknown prior equities as the new mort- 
 gagee himself, for he will claim as piu"chaser under the 
 same conveyance of the legal estate. But if he were to 
 allow the new mortgagee to take a simple transfer of 
 the old mortgage and himself take a conveyance from 
 the vendor alone, he woidd be exposing himself to all 
 the risks attendant on the purchase of an equity of 
 redemption (/). 
 
 It is beyond the scope of the present work to give a Framing the 
 complete account of all the principles and rules which ''"^^^^y^"^^- 
 ought to be observed in framing conveyances on sale. 
 A few points must, however, be noted. And first, as to Recitals, 
 the extent to which the vendor's title should be recited 
 or noticed. This will depend on the state of tlie title : 
 but the general principle to he observed is that any 
 recitals or statements inserted in the conveyance should 
 not carry tbe history of the title any further back than 
 is necessary in order to explain the assurance thereb}' 
 made (/r). Thus, where on investigation of the title, 
 the vendor has proved that lie is himself absolutely 
 
 1 Key & Elph. Prec. Conv. 483, (i) Above, pp. 47(i nq. 
 
 490, 4t.h ed. ; 481. 486, 8th ed. (/) See 1 Dart, V. &: P. .'ilS. 
 
 (^) Above, pp. 246—254. 5th ed. ; n90, 6th cd. ; .')4.'). Tth 
 
 (h) A»>ove, p. 625. ed. 
 
 40(2)
 
 628 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 entitled to the whole estate contracted for in the land 
 sold, it is in general unnecessary to show in the con- 
 veyance how he became so entitled. In such cases 
 recitals may he dispensed with altogether {/■). The old 
 conveyancing practice, however, was to recite the con- 
 ve3^ance to the vendor (m) : although, as we have seen {n), 
 if any recital at all be made, it is best for the purchaser 
 that it should be a precise recital (as of the vendor's 
 seisin in fee, in the case of freeholds) sufficient to estop 
 the vendor and all claiming under him from setting up 
 a legal estate, which they have not at tlie time of con- 
 veyance, but may subsequently acquire (o). But it is 
 thought to be permissible to depart from this principle 
 where the vendor's title depends on proof of facts, as 
 distinguished from deeds or other assurances (j)). Tn 
 such cases it is often convenient to recite the facts in 
 order that on any resale of the land to be made after 
 twenty years' time, the recitals may be used as jyrt'md 
 facie evidence of the facts (q). For example, where the 
 vendor became entitled to the land sold as the heir of 
 an intestate, it is very useful to recite the various 
 matters of pedigree which establish the heirship (r) ; 
 and this is particularly tlie case where the fact material 
 to the title is negative, as that one had or left no 
 issue (s). The utility of similar recitals is equally 
 obvious where the vendor's title depends on the deter- 
 mination of an estate tail or of successive estates tail. 
 Where land sold is subject to outstanding estates or 
 incumbrances, which are all got in or released by the 
 deed of conveyance {i), it will, as a rule, be necessary to 
 
 (1) See Davidson's Prec. Conv. (p) See 1 Dart, V. & P. 619, 
 
 vol. i. p. 44 ; vol. ii. pt. i. pp. '229 5th ed. ; 591, 6th ed. ; above, 
 
 sq., 4th ed. p. 116. 
 
 (w.) Wins. Real Prop. 140, 363, (q) See above, p. 136. 
 
 1st ed. ; 192, 514, 13th ed. (r) Above, pp. 131, 153 ; see 
 
 («) Above, p. 622. also, p. 138. 
 
 (o) Sug. V. & P. 558. («) Above, p. 132. 
 
 (t) Above, p. 620. 
 
 ^i
 
 OP THE COMPLETION OF THE CONTRACT. 
 
 recite the assurances under which the various conveying 
 parties claim ; and this may of course involve the state- 
 ment of the title prior to the acqmsition of the land by 
 the vendor : but in these cases also the same principle 
 should be observed of not carrying the title further back 
 than is necessary to explain the operative part of the 
 deed. The draftsman's aim should be to frame a deed 
 which shall be capable of serving as a good root of 
 title {/() in time to come. For this reason it is desirable 
 that the conveyance should show clearly the origin of 
 every outstanding estate or interest assured, but should 
 contain no reference to any documents or matters which 
 it would be inconvenient to produce or explain on any 
 futui-e dealing with the land, when the present convey- 
 ance might be treated as the root of title. For this 
 reason also no assurance or other document, which is 
 not a necessary part of the title, should ever be recited 
 or noticed. Thus contracts for the sale of land, which 
 are in general superseded by the conveyances made in 
 pursuance thereof, should never be stated in recital as 
 being entered into by some particular document, unless 
 in exceptional circumstances making that document an 
 essential part of the title (j) . The agreement only to 
 sell is commonly referred to in conveyances on sale, the 
 written memorandum of the contract not being men- 
 tioned (y). As we have seen (s), the vendor cannot be 
 required to execute a deed containing any recital, which 
 is contrary to the truth : but he cannot object to execute 
 an assurance, which will duly carry out his obligation 
 of conveying the propeity sold, but contains no 
 recitals {a). 
 
 With respect to the parcels or description of the pro- Parcels 
 perty sold, it up]»ears that the purchaser is entitled to 
 
 («) Above, p. 100. ed. ; above, p. G28, un. (/), (w). 
 
 \x) See above, p. 531. [z) Above, p. 616. 
 
 \ij) 1 Dart. V. & P. .V24, .Hli (a) Harthij v. Burton, L. R. 3 
 
 ed. ; 595, 5ii6, 6lh ed. ; 550, 7th Ch. 365. 
 
 629
 
 630 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 have inserted in the conveyance such a description of 
 the property sold as will clearly identify the land 
 intended to be assured. If, therefore, the description of 
 the property sold contained in the contract be mislead- 
 ing, inadequate or obsolete, the purchaser should insert 
 in the draft conveyance an accurate description of the 
 land, according to its present condition, prepared from 
 his own surveyor's report ; and it is thought that in 
 these eircumstances the vendor could not refuse to 
 convej^ the land by the new description (/>»). It is, 
 however, questionable whether a vendor, who has sold 
 lands by a description accurately applying to them, and 
 has completely discharged the obligations imposed on 
 him of proving the identity of tlie lands described in 
 the contract with those described in the muniments of 
 title and with those of which possession is offered (r), 
 can be required to convey and to covenant for title by a 
 different description from that by which he sold. If he 
 has satisfactorily proved title and identity, his only 
 remaining obligation seems to be to convey what he has 
 contracted to sell, that is, the land described in the 
 contract ; and it is thought that in such case he cannot 
 be compelled to undertake the burden of verifying a 
 new description of the lands [d). We have seen that 
 the vendor lies under a double duty in respect of proving 
 identity ; he is bound, first, to identify the land 
 described in the contract with that described in the 
 title deeds, and secondly, to identify the actual land 
 offered by him in fulfilment of the contract with that 
 described in the contract (e). It is thought that, where 
 the vendor's second duty cannot be performed without 
 extrinsic evidence explanatory of the description in the 
 
 {b) See Davidson, Prec. Couv. beth's (Joidrnrt, 1910, 1 Ch. 741, 
 
 i. b2 nq., 4tli ed. The above 749. 
 
 passage in the text (p. 557, Ist (f) Above, pp. 43, 144, 171. 
 
 ed.) was approved of by Swinfen {d) Above, p. 619, and n. {x). 
 
 Eady, J., in lie Sansoni unci Kur- {e) Above, pp. 33, 41, 43.
 
 OF THE COMPLETION OF THE CONTRACT. ^'"^l 
 
 contract (/'), the purchaser is entitled to have such a 
 description inserted in the conveyance as will on the 
 face of it identify the land thereby conveyed with that 
 of which he is to be put in possession. But if the 
 description contained in the contract be of itself com- 
 pletely sufficient to identify the land sold with that 
 offered in fulfilment of the contract, it is submitted that 
 the purchaser is not entitled to require any other or 
 further description to be inserted in the conveyance. 
 
 The important question, in what cases is the purchaser Wheu is the 
 entitled to have the property conveyed by reference to entitled to a 
 a plan, can only rightly be solved by applying these couveyance 
 principles. This question arose in two recent cases : to a plan r 
 but in each of them the judge evaded the necessity of 
 deciding- it(r/). In Re Sparrmc and Jamca^ Contyacf, iic Sparrow 
 
 ° ^-^^ ^ . and James' 
 
 Harwell, J. (after remarking that it was unnecessary to Contract. 
 determine the general question whether the purchaser 
 is in all cases entitled to have a description of the 
 property conveyed by reference to a plan), considered 
 that, where the description contained in the contract is 
 insufficient or unsatisfactory as a means of identifying 
 the land sold with that proposed to be conveyed in 
 fulfilment of the contract, the purchaser is entitled to 
 have the property more precisely described; and in the 
 circumstances of the case the learned judge decided that 
 the purchaser was entitled to have the description in the 
 contra(!t su])i)leniented ( without any restriction) by a 
 plan (//). In Re Sonsoni and Narbetli's Contract, 
 
 (/) See abovf, p. 0. with a statement to the ettect 
 
 ((/) Me H/J'irrvir and James' Con- that it was for reference only and 
 
 tract, 1910, '2 Ch. 60, 62 ; Ee its accuracy was not guaranteed. 
 
 iSanaom and Narhetk'n Contract, The purchaser proposed to take a 
 
 U)10, 1 Ch. 741, 7oO, 7ol. conveyance by a general deserip- 
 
 [h) See the judgment in lie tion referring to more particular 
 
 i'^parrow and James' Contract, 1910, descriptions in a schedule and a 
 
 2 Ch. 60, tii, 6.3. Note however plan. The vendor desired to 
 
 that in that case a plan was have the words "by way of 
 
 attached to the conditions of sale, elucidation and not of warranty"
 
 ()32 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 ^ Samom and Swinfen Eady, J. (after citing with approval the above- 
 Contract. Doted passage in this book (/) ), hiid down that m all 
 
 simple cases, in which a plan would assist the description, 
 the purchaser has a right to have a plan on the convey- 
 ance, and that this follows as part of the rule that the 
 purchaser is entitled to take a conveyance in his own 
 form : though the learned judge declined to say that in 
 every case the purchaser is entitled to have a description 
 by plan {h) . It is respectfully submitted that this pro- 
 nouncement is unsatisfactory in principle ; and that a 
 sounder rule is suggested in the judgment of Farwell, J., 
 viz., that, where the description in the contract is without 
 a plan insufficient to identify the property sold, the pur- 
 chaser may require it to be supplemented by a plan. It 
 seems to be implied from this that no plan can be 
 required where the description in the contract affords a 
 sufficient and satisfactory identification of the land 
 sold. The question remains however whether, when 
 the description in the contract is - of itself (without 
 extrinsic evidence) insufficient to identify the land sold, 
 the }3urchaser is entitled to insist that this description 
 shall be elucidated by a plan and not merely by a 
 further and better verbal description. On this point 
 the above-mentioned decisions are authorities in favour 
 of the purchaser s right to a conveyance by reference to 
 
 inserted before the reference to 
 the plan ; and the point actually- 
 decided was that, the fact being 
 that the verbal description w;ts of 
 itself idone insufficient to identify 
 the land, the vendor was not 
 entitled to insist on the insertion 
 of those words. 
 
 (i) Above, p. 630, n. (6). 
 
 (k) He Sansoin and Narbeth\'< 
 Contract, 1910, 1 Ch. 741, 749, 
 750. In that case the contract 
 contained only a general descrip- 
 tion of the property sold not 
 defining the measurements or 
 boundaries thereof ; and it seems 
 clear that the purchaser (unless 
 
 precluded by the fact that the 
 vendors sold as trustees ; see 
 below, pp. 634, 635) was entitled 
 to a more detailed description 
 than was contained in the con- 
 tract. In the latest title deed 
 under which the vendors claimed 
 the property was described by 
 reference to a plan ; it was agreed 
 before the summons came on for 
 hearing that the purchaser should 
 have a copy of this plan on his 
 conveyance ; and the suimnons 
 was only heard to determine the 
 question of costs. It was decided 
 that the vendors must pay them.
 
 OF THE COMPLETION OF THE CONTRACT. 633 
 
 a plan. But it is respectfully submitted that, where the 
 land sold can be satisfactorily identified by a further or 
 better verbal description than is contained in the con- 
 tract, and the vendor offers to convey by such a 
 description, it does in trutli subject the vendor to an 
 additional burthen if he be required also to convey by 
 reference to a plan, which he must necessarily employ 
 (and pay) his own surveyor to check. x\.nd it is fm'ther 
 submitted that the rule, that the purchaser may take 
 his conveyance in what form he pleases, is qualified by 
 the proviso that the bm-then laid on the vendor by the 
 purchaser's choice be not materially increased, in respect 
 of expense or otherwise (/). With great respect for 
 Mr. Justice Swinfen Eady, it is thought that he did 
 not make sufficient allowance for this limitation of the 
 rule. In the present state of the authorities, vendors 
 of land should be particularly careful, where they desire 
 not to convey by reference to a plan, to describe the 
 property sold in the contract with complete verbal 
 accuracy, or to sti])ulate expressly that they shall not 
 be requii'ed to convey by reference to a plan or at least 
 that any reference in the conveyance to a plan shall be 
 made solely by way of illustration of the verbal descrip- 
 tion of the property sold and not so as to make the 
 plan any part of the description by which the vendor 
 conveys. 
 
 It is always desirable, in the purchaser's interest, Descriptiou 
 that the conveyance should contain a complete verbal of or by 
 description, independent of any plan, of the property reference to 
 
 (/) Above, p. 620. See au cient certainty to make tho con- 
 article on the subject above dis- tract specifically enforceable, 
 ciiHsed in -6 L. Q. R. 2()8 : but it although the vendor may be 
 is respoctfully submitted that the obliged to resort to extrinsic 
 learned author has overlonkcjd the evidence to prove that the actual 
 vendor's double duty of identiti- land offered in fulfilment of the 
 cation, and the fact that in a contract is the same as tiiat sold ; 
 contract to sell land the property above, pp. 6, 630, 631. 
 sold may be described with suffi-
 
 634 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Coimectiug' a 
 new descrip- 
 tiou with the 
 old. 
 
 Mortgag'ees 
 and trustees 
 convey by the 
 description 
 under which 
 they took. 
 
 sold and that any plan of the land referred to or drawn 
 on the deed should be auxiliary only {m). If, as is 
 sometimes unavoidable, the property is so described by 
 reference to a plan that the plan is made a material 
 part of the description (//), extreme care should be taken 
 in checking the accuracy of the plan (o). AVhen lands 
 are conveyed by a nevv^ description not contained in any 
 of the title deeds, it is always desirable in framing the 
 deed of conveyance to connect the new description with 
 the old by stating that the lands were formerly known 
 by the old description (giving it) (p). Such a state- 
 ment will in twentj' years become priuid facie evidence 
 of identity on sales {q). When mortgagees, who are 
 paid off, or trustees join in a conveyance on sale, they 
 are not, as a rule, bound to convey by any other 
 desciiption than that by which the land was conveyed 
 to them (r). If in such eases a new description be 
 desirable for and can be required by the purchaser, 
 and the mortgagees or trustees will not abate any- 
 thing of their strict rights, the conveyance must be 
 so framed that the mortgagees or trustees convey by 
 the old description, and that any conveyance of the 
 
 [ih) 1 Dart, V. & P. 530, 5th 
 ed. ; 601, 6th ed. ; 554, 7th ed. ; 
 Davidson, Prec. Conv. i. 85, 86, 
 4th ed. ; i. 65, 66, 5th ed. It 
 may be noted that the converse 
 of the question above discussed 
 may arise, viz. whether the pur- 
 chaser can require a verbal de- 
 scription by measurements and 
 boundaries to be inserted in the 
 conveyance, when the land sold 
 is described in the contract by 
 reference to a plan. The writer 
 is not aware of any authority on 
 this point, but it can only be de- 
 cided by applying the principles 
 above stated ; see pp. 'iSO sq. 
 
 {h) See above, p. 115. 
 
 (o) For instances of the effect 
 of a conveyance of lands described 
 by reference to a plan, which was 
 inaccurate, see Llewellynv. Jer.seij, 
 
 11 M. & W. 183; Lylev. Richurds, 
 L. R. 1 H. L. 222 ; May v. Flutt, 
 191)0, 1 Ch. 616 ; Home v. Sti-u- 
 hen, 1902, A. C. 454 ; Melhr v. 
 Walniedey, 1904, 2 Ch. 525, 1^05, 
 2 Ch. 165. For an example of a 
 reference to a schedule of parcels 
 and a plan controlling a general 
 description, see Barton v. JJawes, 
 10 C. B. 261 ; Ec Brocket, 1908, 
 1 Ch. 185, 195, 196. For a case 
 of an ambiguous general descrip- 
 tion being controlled by recitals, 
 see Walsh v. Trevanion, 15 Q. B. 
 733. 
 
 {p) Davidson, Prec. Conv. i. 83, 
 4th ed. ; i. 63, 5th ed. 
 
 {q) Above, p. 136. 
 
 {r) Goodson v. Elitsson, 3 Russ. 
 583, 594 ; see Mostyn v. llostyn, 
 1893, 3 Ch. 376.
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 land by the new description or any statement that 
 the land conveyed by the old description is now more 
 accurately described by the new is the conveyance or 
 statement of the vendor only. Trustees of lands under 
 a simple trust are, however, bound to ccecutc fJie estate (-s) ; 
 and if the eqiutable interest therein become vested by 
 assignment or otherwise in several persons, of whom 
 each is entitled in severalty to a particular parcel of the 
 lands, the trustees must at the request of all conve}' to 
 each the legal estate in his own part ; and this may of 
 course involve theii- conveying by a new description [t). 
 But there is an oft-cited dictum of Lord Eldon (jt) that 
 a trustee cannot be compelled to divest himself of his 
 trust by different parcels at different times. It appears, 
 however, that an assignee from the cestid-quc-tnist of a 
 part of the trust property is entitled, on proving to the 
 trustee that the whole equitable estate or interest in 
 that part is now vested absolutely in himself, to require 
 the trustee to convey to liim the legal estate or interest 
 therein {ii). Where trustees are themselves vendors of 
 land, it does not appear that they are exonerated from 
 the duties of identifying the land ottered in fulfilment 
 of the contract with that described therein and of con- 
 veying the land sold by a description sufficient to 
 establish such identitj', even though they sold as trus- 
 tees (/•). Mortgagees cannot of course be required to 
 release from their security any part of the land 
 charged without the whole amount due to them being 
 
 (») Wins. Rful I'rop. 171, 181, recognised by Lord Eldoii in 
 
 2l8t ed. Goodson v. Elli^sott, ;5 Ru8s. o9(j, 
 
 {t) Goodmn v. EHinnoii, 3 Russ. subject to the trust^n^'s ri<j:ht to 
 
 •)8o. be protected by the order of the 
 
 (m) This is clearly established Court in a case of doubt or diffi- 
 
 with regard to funds of money or culty. 
 
 stock, &c. : Smith v. Snoir, ?> [v] See Re Samoni and Narheth''s 
 
 Madd. 10; Lenaghnii v. Smith, Contract, 1910, 1 Ch. 741, 749; 
 
 ■1 Ph. 301, 302; Ite Radcliffe, above, p. 032, n. (X) ; though in 
 
 1892, 1 Ch. 227 ; Re Pabnir, that case it was considered that 
 
 1907. 1 Ch. 48() : and it .seems the tru.stees themselves took under 
 
 from the decree ultimately made a conveyance referring to a plan, 
 tiiat this principle was really 
 
 635
 
 636 
 
 OF thp: completion of the contract. 
 
 Trustee - 
 mortgagees 
 gratuitously 
 releasing part 
 of their 
 security. 
 
 paid (./•). But it sometimes happens, where a small 
 portion of lands in mortgage is sold, that the mort- 
 gagees, being satisfied that the remainder of the 
 lands is an ample security for the money due to 
 them, concur in the conveyance to the purchaser to 
 convey the legal estate and release their charge with- 
 out receiving any part of the purchase money. No 
 difficulty can arise when this course is taken, if the 
 mortgagees be beneficially entitled to the mortgage 
 money, or if the purchaser have no notice that they 
 are not so entitled {(/). In either ease he takes as a 
 purchaser for value from the mortgagees, they con- 
 veying to him at the mortgagor's request in considera- 
 tion of his paying the purchase money to the mort- 
 gagor; and there is no question of the adeqiiacy of 
 this consideration as regards the mortgagees, where 
 they are apparently entitled for then- own use. But 
 if the purchaser should have notice that the mort- 
 gagees are trustees of the mortgage money, the 
 question arises whether they have power, as against 
 their cedui-qtic-tnish, to release gratuitously any part 
 of their security. It is said that, at least where the 
 trustees have the usual power of varying investments, 
 they are justified in so releasing a portion of the 
 property charged, provided that their security is not 
 substantially'' impaired (the transaction being equivalent 
 
 (,i) The rule was that the only 
 right enforceable by a mortgagor, 
 and those claiming under him, 
 against a mortgagee, whose estate 
 had become absolute at law, was 
 the equity of redemption on re- 
 payment of principal, interest 
 and costs : Buit.stan v. FatU-rson, 
 2 Ph. 341, 345 ; Chivhentvr v. 
 Dvntgall, L. R. 5 Ch. 497, 502. 
 This rule has been modified by 
 enactments in the Conveyancing 
 Act of 1881 obliging mortgagees 
 to execute a transfer of their 
 
 mortgages, instead of reconvey- 
 ing, on the terms on which they 
 would be bound to reconvey, and 
 giving to mortgagors under 
 mortgages made after that year 
 the right to inspect the title 
 deeds of the mortgaged property : 
 but otherwise it remains in full 
 force. See stats. 44 & 45 Vict, 
 c. 41, ss. 15, 16 ; 45 & 46 Vict, 
 c. 39, s. 12 ; Teevan v. Smith, 20 
 Cli. D. 724 ; above, pp. 124, 125, 
 and notes. 
 
 (y) Above, p. 238.
 
 OF THE COMPLETION OF THE CONTRACT. ^^'* 
 
 to the calling-in and re-investment of the raonej'^ 
 seoured), and tliat the purchaser is entitled to assume 
 that their power has been properly exercised (s). But 
 it must not be forgotten that trustees advancing money 
 on mortgage of land have no right to release any part 
 of the land charged for the mere convenience of the 
 mortgagor (n) ; even in exercising an express power 
 to release or compromise a claim, they are bound to act 
 reasonably and in good faith for the advantage of their 
 rf.shn'-qxr-fr/isf.s [h). It seems, therefore, that wliere 
 mortgagees, being to the knowledge of the purchaser 
 trustees, release part of tlie mortgaged lands to a 
 purchaser without any valuable consideration given to 
 them, they act, prima faclo, to the disadvantage of their 
 rt'.sfiii-qiif'-frnxf-s, and the purchaser appears to take the 
 risk of proving that the transaction was proper ; failing 
 which the release would be invalid against the 
 beneficiaries (r) . And it is certainly advisable for a 
 purchaser, proposing to accept such a conveyance from 
 trustee -mortgagees, to satisfy himself that their security 
 will not be impaired in any substantial degree by the 
 release, and to obtain evidence of this fact, which he 
 can produce on any future sale or mortgage of the land. 
 
 As is well known, before the year 1882 it was the General 
 practice in drawing conveyances of land to add to the 
 pnirol-s, or desci'iptiou of the property to be assured, a 
 number of (jcno-dl wordu, comprehending all easements, 
 rights, privileges or advantages appertaining or reputed 
 to appertain thereto or therewitli used and enjoyed {(/). 
 
 (r) Davidson, Free. Couv. vol. ii. (c) See Pell v. /><- lllnton, 2 
 
 pt. i. 347, n., 4th ed. ; see Dart, De G. & J. 13; Dart. V. & P. 
 
 V. & P. 612, 'r)th ed. ; 689, 6th 612, 613, 5th ed. ; 689, 690, 6th 
 
 ed. ; 630, 7th ed. ed. ; 630, 631, 7th ed. 
 
 (rt) See Lewin on Trusts, 49;'), (rf) Wms. Real Prop. 193, 331, 
 
 fith ed. ; 706, 10th ed. .)15, 13th ed. ; 427. 613, 623, 
 
 (A) See J{lm- v. Maishall, 3 21st ed. ; Da\adsou. Preo. Couv. 
 
 P. W. 381 ; Prniiiiu/ton v. Ifialei/, vol. i. 91 m/. ; vol. ii. pt. i. 231, 
 
 1 C. & M. 402, 407 ; Re AUxand'r, 4th ed. 
 13 Ir. Ch. 137.
 
 638 OF THE COMPLETION OF THE CONTRACT. 
 
 This addition was unnecessary and of no effect as 
 regards any rights legally appendant or appurtenant to 
 the land conveyed ; for all such rights pass by a con- 
 veyance of the land without being mentioned {e). But 
 so far as the general words comprised any privileges or 
 advantages nserl or onjoi/ed with the land conveyed, they 
 might have the effect of an express grant by the con- 
 veying party, as a legal easement or right, of some 
 privilege or advantage previouslj' used or enjoyed, for 
 the benefit of or in connexion with the land conveyed, 
 over some other land of his OAvn (./'). Since the Con- 
 veyancing Act of 1881 {g) took effect, it has been the 
 practice to omit general words from conveyances in 
 reliance on the provisions contained in the 6th section 
 of that Act. These provisions resemble the general 
 words formerly in use, not only in including in con- 
 veyances a superfluous assurance of all easements and 
 rights appertaining to the land conveyed, but also in 
 incorporating therein an express conveyance of all 
 privileges or advantages enjoyed with the land conveyed 
 at the time of conveyance {h) ; and this conveyance may 
 operate, in the same manner as general words, to grant, 
 as a legal easement or right, some privilege or advantage 
 enjoyed in fact at the time of conveyance for the benefit 
 of the land assured over other land belonging to the 
 grantor (/). It is therefore necessary to consider what 
 
 (e) Litt. 8. 183; Co.Litt. 121b: (A) This does not exactly 
 
 Williams on Commons, 315; follow the usual form of general 
 
 Bcddingfon v. AtJee, 35 Ch. D. words, which mentioned all 
 
 317, 326. rights, kc. now or heretofore en- 
 
 (/■) Wfiftfi V. Kehon, L. R. 6 joyed with the land. As to the 
 
 Ch. 166 ; Ka)i v. Oxlry, L. R. !» effect of this difference, see Hall 
 
 Q. B. 360 ; 'Barkshirc v. Grubh, v. Byron, 4 Ch. D. 667, 671, 672 ; 
 
 18 Ch. D. 616 ; Williams on Wms. Conv. Stat. 68. 
 Commons, 170, 315—319, 323, 
 324; Wms. Conv. Stat. 64—66. (') Brooniftcld v . Wdliams, 189<, 
 
 {a) Stat. 44 & 45 Vict. c. 41. 1 Ch. 602 ; International Tea Stores 
 
 wh'ich canle into operation imme- C'o. v. Hohbs, 1903. 2 Ch. 165 ; see 
 
 diatelv after the 31st December, Q''>«'''« v. Chapman, 1903, 1 Cli. 
 
 1881 ;■ see Wms. Conv. Stat. 659. 
 60 sq.
 
 OF THE COMPLETION OF THE CONTRACT. 639 
 
 easements or like privileges a purchaser of land ma}^ 
 require to be conveyed to him. 
 
 A contract for the sale of a piece of land, either with What ease- 
 •,i - • p iL j-i J 55 inents or other 
 
 or without mention oi the appurtenances, passes privileges the 
 (equally with a conveyance at common law of the leffal P^^rcliaser cari 
 
 ^ ^ "^ , . . . ~ require to be 
 
 estate therein (/») ) only such rights, privileges or ease- conveyed to 
 ments as are legally appendant or appurtenant thereto ; ^"^' 
 and does not, in absence of special stipulation, entitle 
 the purchaser to have conveyed to him any privileges or 
 advantages which were used by the vendor in connexion 
 with the land sold over adjoiniug or other land of his 
 own, but are not necessary for the enjoyment of the 
 property as sold (/). And the (ith section of the Con- 
 veyancing Act of 1881 {m) affects only conveyances of 
 land made by deed and does not apply to contracts for 
 the sale of land [ii). It follows, therefore, that if the 
 conveyance, as drawn on the purchaser's behalf, incor- 
 porate tacitly, according to the present practice, the 
 provisions of this enactment, and these provisions would, 
 if uncontrolled, operate to graut to the purchaser as an 
 easement or a right some advantage previously enjoyed 
 in fact by the vendor, but not included in the contract 
 
 (/.•) Wms. Real Prop. 427. 21st Burnms v. Lang, 1901, 2 Ch. 502 ; 
 
 ed. ; Wins. Conv. Stut. 64, 65 ; Godwin v. ^chwtppes, Ld., 1902, 
 
 above, p. 638. 1 Ch. 926 ; above, pp. 429. 
 
 (/) Jiotton V. Bolton, 11 Ch. D. 430. So the sale of a house 
 
 968; linikshire v. Gntbh, 18 Ch. having windows overlooking land 
 
 D. (ilO. 620 ; Jte Vvck and Londrm not belonginsr to the vendor im- 
 
 Sc/iool Board, 1893, 2 Ch. 31;") ; jjlies no warranty that the vendor 
 
 ]{<■ Hui/hrs (iiid Ashhifs (Jiititravt, has a riglit to the access of light 
 
 1900, 2 Ch. 09.'). But, of course, through those windows: Orern- 
 
 ifth(> vendor iudu<e the purchaser Italy li v. BrindUij, I'JOl, 2 Ch. 
 
 Xm enter intf> the contract by a 324 ; but if the vendor were to 
 
 representation that he shall have represent (contrary to the fact) 
 
 some privilege over other land of that he had such right, he coulil 
 
 the vendor's, the vendor cannot not enforce the contract, 
 
 enforce the contract without [m Stat. 44 i: 4.') Vict, c 41 
 
 granting the same as a legal (see sect. 2 (v) ) ; above, p. 63.S. 
 
 right: seethe last mentioned case. {;<) Itr Prck and Lniiilun Srlianl 
 
 See also Bumingham, ^r. Banking Board, 1893, 2 Cli. 31.'), 318. 
 Co. V. Ross, 38 Ch. D. 296 ;
 
 I 
 
 640 OF THE COMPLETION OF THE CONTRACT. 
 
 for Ksale, the vendor is entitled to require that words 
 shall be inserted modifying the statutory provisions to 
 the extent necessary to give to the contract for sale its 
 true efPect (o). And in such cases the vendor should 
 be most careful to have the effect of the enactment in 
 question duly limited by express words, or he may find, 
 after conveyance, that he has subjected the land retained 
 by him to some easement or other right which he did 
 not intend to grant when he made the contract for 
 sale (p). If so, he will have no remedy but to bring an 
 action for the rectification of the conveyance ; and this 
 relief (apart from fraud) will be granted only in case of 
 common and not of unilateral mistake (q). If, how- 
 ever, the use of some privilege or advantage over adjoin- 
 ing land retained by the vendor be necessary to the 
 proper enjoyment, as contemplated by the contract (r), 
 of the property sold, the purchaser will be entitled 
 to have that privilege or advantage granted to him by 
 the conveyance as a legal easement or right. Indeed, 
 \\'liere the easement would be necessary and continuous, 
 as in the case of a right to the access of light, or even 
 necessary only, such as a way of necessity (.s), a grant 
 thereof would be implied from the mere conveyance of 
 the land to which it was necessarily accessory. But in 
 such cases the purchaser is not obliged to rest content 
 with such grant as would be implied in law from the 
 conveyance of the land. He is certainly entitled to 
 
 (o) lie Peck and London School (r) See Bmjleij v. Great Western 
 
 Board, 1893, 2 Ch. 31o, and Re Rail. Co., 26 Ch. D. 434, 441, 
 
 Hughes and Ashley'' s Contract, 442, 452, 453 ; above, pp. 429, 
 
 1900, 2 Ch. 595. ' 430. 
 
 {p) See Broomfieldv. Williams, (.s) See Wheeldon v. Burrows, 
 
 1897, 1 Ch. 602 ; Pollard v. Gare, 12 Ch. D. 31 ; Broomfield v. 
 
 1901, 1 Ch. 834 ; Internafionnl Williams, 1897, 1 Ch. 602, 610, 
 Tea Stores Co. v. Hobbs, 1903, 2 612; Pollard v. Gare, 1901, 1 Ch. 
 Ch. 165. 834 ; Cable v. Bryant, 1908, 1 
 
 (q) 2 Dart, V. & P. 744, 5th Ch. 259 ; and consider the case 
 
 ed. ; 838, 839, 6th ed. ; 742, 743, cited in the previous note. As to 
 
 7th ed. ; Maij v. Piatt, 1900, 1 drains, see Ewart v. Cochrane, 7 
 
 Ch. 616; see below. Chap. XIII. Jur. N. S. 925, 4 Macq. 117; 
 
 § '2. Williams on Commons, 319, 324.
 
 OF THE COMPLETION OF THE CONTRACT. ^^^ 
 
 have such an express grant of the privilege or advantage 
 in question as would he made hy incorporating in the 
 conveyance, without any restriction, the statutory 
 general words. And since the object of the conveyance 
 is to carry out with certainty the intention of the parties 
 to the contract, it is thought that, if the conveyance as 
 drawn on the purchaser's behalf contain a grant defining 
 accui'ately in express words some privilege or advantage 
 impliedly sold b}^ the contract and to be enjoyed 
 over some land retained by the vendor, the vendor 
 cannot object to execute the conveyance in that form. 
 As the vendor may, where necessary, exclude or restrict 
 the operation of the statutory general words and, in 
 place thereof, define his liabilities in express and un- 
 ambiguous terms (f), so the purchaser -is not obliged to 
 accept the general description of his rights which would 
 be given by such general words (a description which 
 cannot be reduced to certainty without proof of the 
 facts existing at the time of conveyance (ii) ), but is 
 entitled to have such rights particularly and exactly 
 defined (.r). An}' easements or other accessor}^ rights 
 expressly mentioned in the contract as being included 
 in the sale should of course be expressly granted in the 
 conveyance. 
 
 Wliere the vendor has stipulated in the contract for Reservations 
 the reservation in his own favour of any easement or dor's favour, 
 other right over the land sold, care must be taken that 
 due effect is given to such stipulation in the conveyance ; 
 otherwise the vendor will have no remedy to assert his 
 right but to sue for rectification of the conveyance (//). 
 
 it) Above, p. 640. Cotitract, 1900, '2 Ch. .")95 ; and 
 
 {t^) See th(> cases cited above, consider Re Birmingham, S^c. Co. 
 
 p. 688, nn. (/), (h), (i). and AHday, 1893, 1 Ch. 342. 
 (.r) See Jlolfon v. Bollon, 11 (//) See Terbai/ v. Manchestci-, 
 
 Ch. D. 968 ; Iia,/,s/,irr v. GnM, ^-r.' Rail. Co., '24 Ch. D. .'J72 ; 
 
 18 Ch. D. 616, 620 : 7iV /Vr/awrf Williains on Commons, 322: 
 
 London School lioanl, 1893. 2 Ch. below, Chap. XIII. § 2. 
 
 31 A ; /'' lliiiihes mill Ashleii's 
 
 w. 41
 
 642 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 The vendor may be entitled to some reservation over 
 the property sold, not only hy express agreement, bnt 
 by implication from the circumstances surrounding the 
 contract ; as where the purchaser buys with notice of the 
 fact that the adjoining property of the vendor is laid 
 out for building, and access thereto across the land sold 
 will obviously be necessary (s) . And a vendor may by 
 the like implication, as well as by express contract, be 
 entitled to reserve to himself the unrestricted use of 
 some adjoining land of his, which would otherwise have 
 become subject to an easement or right (as to access of 
 light) in the purchaser's favour {a) ; as where the pur- 
 chaser of a house with windows overlooking land 
 adjoining and retained by the vendor has notice that 
 the land is laid out for building in a manner ob\dously 
 inconsistent with the acquisition by the purchaser of 
 any such right {b). But except by virtue of such 
 express or implied contract, the vendor has no claim to 
 the reservation in his own favour of any right over the 
 land sold, or, where the exercise of some easement or 
 privilege over any adjoining land of his would other- 
 wise be necessary to the enjoyment of the property 
 sold, to the reservation in his own favour of such right 
 of free use of the adjoining land as will exclude the 
 acquisition of such privilege or easement (c). For 
 example, if a vendor offer for sale by auction in 
 different lots a house and land adjoining, which the 
 windows of the house overlook, and the land be sold 
 at the auction, but not the house, the purchaser of 
 the land will be entitled to build thereon so as to 
 obstruct the access of light to the windows (d). 
 
 (z) Baviex v. Scar, L. R. 7 Eq. (c) See above, pp. 639, 640, 
 
 427. and cases there cited. 
 
 [a) See above, p. 6o9. {d) Ellis v. Manchester Carriage 
 
 [b) See Birmitu/ham, 4-c. Bank- Co., 2 C. P. D. 13 ; JTheeldon v. 
 ing Co. v. Ross, 38 Ch. D. 295 ; Burrows, 12 Ch. D. 31 ; Bcddtm/- 
 Godivin v. Schivcppes, LfL. 1902, ton v. Atlee, 35 Ch. D. 317 ; 
 1 Ch. 926. Rayv. Hazeldine, 1904, 2 Ch. 17.
 
 643 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Wliereas, if the house were sold but not the land, the 
 purcliasor would acquire by implication an oasoment of 
 access of light over the land and the vendor would not 
 be entitled to build so as to obstruct such access (p) ; 
 unless, as we have seen, the purchaser bought wi.th 
 notice of the vendor's intention to build thereon in a 
 manner inconsistent with the acquisition of such an 
 easement ( /*). And if both lots were sold at the same 
 time, the purchaser of the house would acquire an ease- 
 ment of the access of light over the land ; for on a sale 
 or conveyance at one and the same time to different 
 persons of two tenements belonging to the same owner, 
 there is implied, unless a contrary intention appear, a 
 grant of all easements over one tenement which are 
 necessary for the enjoyment of the other (</). Where 
 two tenements belonging to one owner exercise each 
 over the other some privilege necessary to their proper 
 enjoyment, as where two houses are built together and 
 supported by one party wall, then, on a sale or convey- 
 ance of one of the tenements, there will be implied, not 
 only a grant of an easement of support in favour of 
 the purchaser or other alienee, but also a reservation of 
 the like easement to the owner retaining the other 
 tenement (A) . 
 
 If the property were sold subject to some particular "Where the 
 incumbrance, which is to remain undischarged, such as solTsuWect 
 a mortgage, restrictive covenants, an easement, or a ?» «o'°f^ 
 subsisting tenancy for any term, the vendor is of course 
 
 [e) Palmer v. Fletcher, I Lev. (^) Swannborotigk v. Coventry, 9 
 
 122 ; Holt, C. J., Tenant v. Bing. 305 ; Barnes v. Loach, 4 
 
 Goldwin, 2 Ld. Raym. 1089, Q. B. D. 494 ; All>'^i v. Tai/lor, 
 
 1093 : Thesigcr, L. J., Wheeldon 16 Ch. D. .lah. 
 
 V. liurroHs, 12 Ch. D. 31, .')1 ; (/() Jiirhards v. Rose, 9 Ex. 
 
 Je8.sel, M. R., Allen v. Ttn/lor, IC 21K ; Tliosigor, L. J., IflieeUhn v. 
 
 Ch. D. 3.^/), 3.'>7. 3;)S; (Jahle v. Ji>nrow>, 12 Ch. D. 31. r).» ; and 
 
 Itri/aut, 1908. 1 Ch. 2.')9. see Jones v. I'ritchard, 1908, 1 
 
 (/) Above, pp. 641, 642. Ch. 630, 635, 636. 
 
 41 (2) 
 
 incumbrance.
 
 644 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 entitled to require that it shall be expressed in the 
 conveyance that he conveys the land sold subject to the 
 incumbrance in question. And the conveyancer acting 
 for him should be particularly careful to see that this is 
 done ; as the statutory covenants for title, which are 
 now usually incorporated in conveyances on sale, include 
 covenants for right to convey and quiet enjoy meut, 
 subject only as expressed in .the conveyance, and for 
 freedom from incumbrances other than those subject to 
 which the conve3^ance is e.rptrss/// made (/). So that if 
 the vendor omit to specify in the conveyance the incum- 
 brance, subject to which he sold, and convey as beneficial 
 owner, he lays himself open to an action on his covenants 
 for title, to which his only defence would be to plead 
 the terms of the contract for sale and counterclaim for 
 rectifif'ation of the conveyance (/.•). Where the contract 
 for sale contains the common stipulation (/) that the 
 property is sold subject to all chief and other rents, 
 rights of way and water and other easements (if any) 
 charged or subsisting thereon, and to all leases, tenancies 
 and occupations, whether mentioned in the particulars 
 of sale or not, and to all rights and claims of lessees, 
 tenants and occupiers, it may perhaps be argued that the 
 vendor is in strict law entitled to insist that he shall 
 convey according as he contracted to sell, namely, sub- 
 ject to these incumbrances ; and that none the less, 
 where the purchaser has inquired whether there are any 
 such incumbrances (/;/) and received the reply that the 
 vendor is not aware of any {n). For as we have 
 
 (i) Stat. 44 & 45 Vict. c. 41, Stt(dlei/,Fmch,90 ■ Sug-. V. & P. 
 
 s. 7 (1a). 609 ; 2 Dart, V. & P. 786, 5th 
 
 (A) See Ftiqe v. Midland Sail. ed. ; 886, 6th ed. ; 794, 795, 7th 
 
 Co., 1894, l' Ch. 11 ; May v. ed. 
 
 Piatt, 1900, 1 Ch. 616; Great (/) Above, p. 73, and n. (/). 
 
 Western Ry. Co. v. Fi.sker, 1905, {in) Above, p. 175. 
 
 1 Ch. 316 ; below. Chap. XIII. (h) It is submitted that if the 
 
 ^2. Astoobtainiagrectiiieation vendor has answered positively 
 
 on this ground, see Coldcot v. that there are not any such in- 
 
 HiU, 1 Ch, Ca. 15 ; Feildvr v. cunibrauces, he cannot insist on
 
 OF THE COMPLETION OF THE CONTRACT. 645 
 
 seen (o) , it is onlj' against such incumbrances as the vendor 
 was not aware of that this stipulation has any force ; 
 and the vendor certainly appears to be entitled to limit 
 his liability under the statutory covenants for title, so 
 that he shall not be sued for any defects of title so 
 arising. But it is not, and has never been, the practice 
 of conveyancers to insert in conveyances on sale any 
 words qualifying, by reference to possible incumbrances 
 of this kind, either the assurance made or the covenants 
 for title entered into by the vendor [p) ; for it is under- 
 stood that the stipulation in question is merely intended 
 to protect the vendor against any objection to the title 
 on account of incumbrances of the kind mentioned, 
 which may exist without the vendor's knowledge, and 
 may be discovered in the eoui^se of the investigation of 
 title, and that the purposes of the clause are exhausted 
 when the title has been investigated without the dis- 
 covery of any such incumbrance {q). And it would be 
 a great hardship on the purchaser for such words to be 
 inserted in the conveyance, as they would put everyone 
 taking under the conveyance upon inquiry, whether 
 there were such incumbrances or not {>•). It is thought, 
 therefore, that the Court would not oblige a purchaser, 
 who bought under such a stipulation, to accept a con- 
 veyance, in which the assurance made by the vendor was 
 qualified by such words, especially when it is considered 
 that under an innocent conveyance (s) the vendor 
 assures the land described for such estate or interest only 
 as he really has therein and subject to all legal liabilities 
 
 having the same mentioned in Ibid. i. 611, 4th ed. ; i. 521 and 
 
 tlie conveyance. n., 5th ed. Sec also 1 Key & 
 
 {») Above, pp. 73, u. (<). 17."). Elph. Prec. Conv. 260, n. (c), 
 
 {/j) This appears from an ox- 4th ed. : 248, n. [</), 8th id. 
 
 ainiuation nf the precedents con- {(/) Dart, V. & P. 156, 5th ed. ; 
 
 tained in Davidson, Prec. Conv. 176, 6th ed. ; 172, 7th ed. 
 
 vol. ii. pt. i. 4th ed., con.sidered (;) Re Alms Corn Charity, 1901, 
 
 with reference tt) the fact that 2 Ch. 750. 
 
 the stipiUation in question is one (») Above, p. 623, n. (»■). 
 
 of the general conditions of sale :
 
 646 OF THE COMPLETION OF THE CONTRACT. 
 
 actually affecting the same {t) . But it is thought that 
 the vendor would be entitled to insist on limiting the 
 statutory covenants for title so that they should not 
 extend to indemnify the purchaser against any incum- 
 brance, whether known or unknown, subject to which 
 the sale was expressly made. It is not, however, the 
 practice to insist on such a limitation with regard to the 
 possible incumbrances specified in the above-mentioned 
 common condition of sale. If in any particular case it 
 were desired to insist on this limitation of the covenants, 
 it should be carried out by a clause expressly modifying 
 the effect of the statutory covenants and not by 
 expressing that the conveyance is made subject to the 
 incumbrances mentioned in the condition. If it be 
 stipulated in the contract for sale that the property is 
 sold and shall be conveyed subject to the incumbrances 
 above mentioned {u), the purchaser cannot object to the 
 insertion in the conveyance of the same words as are 
 contained in the contract [x] . The vendor cannot oblige 
 the purchaser to take a conveyance of the land sold 
 subject to any other incumbrances than those subject 
 to which the purchaser expressly or impliedly (//) agreed 
 to buy (s). 
 
 Sale of such If the vendor should have sold only such estate or 
 
 estate as the ., . ■, ■, . i'liii-c 
 
 vendor has. interest as he has m some particular land, he is oi 
 course entitled to require that he shall convey the same 
 thing only and in the same words. But if land were 
 sold by a particular description, with a stipulation that 
 
 {t) Hardman V. Child, 'IS Ch. J). not expressly contract to show a 
 
 712,717. good title ; above, p 203. 
 
 (m) Above, p. 642. (s) Re Monckton arid Gilzean, 
 
 {x) Gale V. Sqiiier, 4 Ch. D. -11 Cb..T>. bob \ Ilnrdman \. Child, 
 
 226, 5 Ch. D. 625. 28 Ch. D. 712 ; Musti/n v. Mostyn, 
 
 {y) As where the purchaser 1893, 3 Ch. 376 ; Re Wallls and 
 
 buys with notice that the land is Barnard's Contract, 1899, 2 Ch. 
 
 subject to some irremovable in- .tI;'). 
 cumbrance, and the vendor does
 
 OF THE COMPLKTION OF THE CONTRACT. ^'^^ 
 
 the purchaser shall accept such title as the vendor 
 has(rt), the case is dilfereut, and the vendor would be 
 obliged to convey tlie laud as described in the contract, 
 Avithout any words limiting the assurance to his actual 
 interest therein (b) . In such case, however, it is thought 
 that the contract is equivalent to an agreement to buy 
 subject to such incumbrances or defects of title as may 
 appear upon investigation to exist, and that the vendor 
 would therefore be entitled to limit his covenants for 
 title so as to prevent any action thereon being brought 
 against him by reason of such incumbrances or 
 defects (c). It may be observed that the usual vendor's 
 qualified covenants for title, whether given in express 
 terms or incorporated in the conveyance by statute, 
 do not confer any indemnity against the purchaser's 
 eviction by title paramount to that of the vendor's own 
 predecessors in title ; they extend only to the purchaser's 
 disturbance by reason of some act, omission or incum- 
 brance, of the vendor himself or any person through 
 whom he derives title, otherwise than by purchase for 
 value {(l) . A disseisor, therefore, or even a man having 
 no title at all, not so much as a disseisor's estate (e), if 
 he sold and conveyed (t-s hcurficia/ owner the land, into 
 which he had wrongfully entered or which he had 
 wi'ongfuUy assumed was his, would incur no liability 
 on the statutory covenants for title in case of the eject- 
 ment of the purchaser by the rightful owner. 
 
 If one sell a single piece of land on the terms that Sale of land 
 the purchaser shall enter into covenants restrictive of restrictive 
 
 covenants. 
 
 (o) Above, p. -202. k P. 602, 603, 605—609 ; Houfird 
 
 (h) See above, p. 646. v. Maitland, 11 Q. B. D. 696; 
 
 (f) See the caseH cited, above, and we below, Chap. XIX. ^ S. 
 p. G44, u. (/.). [e) This is an estate in fee 
 
 (rf) Jiroirnvuff V. Wri(//if,'2B.ii simple: see Litt. ss. 519, 520; 
 
 P. 13; Hesse v. Sleveunoti, '.i B. Williamson Seisin, 7, 10; Leach 
 
 \- P. 56.0. 574 ; Ntnd v. Marshall, v. Ja,j, 9 Ch. D. 42, 44 ; 51 Sol. J. 
 
 1 Brod. & B. :U9 : Stuiniard v. 143. 
 l'„ybes, 6 A. & E. 572 ; Sug. V.
 
 648 
 
 OF TifE COMPLETION OF THE CONTRACT. 
 
 the use of the land, the vendor is of course not bound, 
 in the absence of express or implied stipulation or of 
 representation to the contrary, to enter into any similar 
 covenants or to observe the like restrictions with regard 
 to any adjoining land retained by him (./'). If lands be 
 offered for sale in lots, either at one sale by auction or in 
 a series of consecutive private sales, on the terms that 
 each purchaser shall enter into restrictive covenants as 
 to the lot bought by him, it is, in the absence of express 
 stipulation, a question to be decided on consideration of 
 all the circumstances and conditions of the sale whether 
 there is implied in the contract for the sale of any lot 
 an agreement that the vendor shall be bound by the 
 restrictive covenants as to any lot remaining unsold (//). 
 If it appear that the offer made by the vendor was in 
 effect that each purchaser should have a lot forming- 
 part of an estate subject to a general scheme of restric- 
 tive covenants enforceable by as well as against all 
 owners of any part thereof, the vendor will be bound to 
 enter into like restrictive covenants with the purchaser, 
 as regards any lot remaining unsold ; and will be 
 bound in equity to observe the restrictions, though he 
 do not enter into any such express covenant (A). But 
 if it appear that the vendor merely offered each lot 
 to be sold subject to restrictive covenants to be entered 
 into with himself by each purchaser, and did not offer, 
 as part of the contract or as an inducement to buy, the 
 advantage of the whole property put up for sale being- 
 subject to the same covenants, then the purchaser of 
 
 (/) See Tucker v. Voivlcs, 1893, 
 1 Ch. 195 ; Roivcll v. Satchell, 
 1903, -2 Ch. 2\-2 ; Osborne v. Brad- 
 ley, 1903, 2 Ch. 446 ; above, 
 p. 497, n. (s). 
 
 ig) Above, p. 494, aud n. [a) ; 
 Nottingham Patent Brick, ^-c. Co. 
 V. B/itler, 16 Q. B. D. 778, 784, 
 785 ; CoUhis v. Castle, 36 Ch. D. 
 243. 
 
 (/() See cases cited iu previous 
 note ; lie Birminq/iajii, ^^c. Co. and 
 Allday, 1893, 1 Ch. 342 ; Davis 
 V. Leicester, 1894, 2 Ch. 208, 219, 
 227, 232 ; Hoi ford v. Acton Urban 
 Council, 1898, "2 Ch. 240 ; Rowell 
 V. Satchell, 1903, 2 Ch. 212 ; 
 Elliston V. Reacher, 1908, 2 Ch. 
 374, 384, 385, 665.
 
 OF THE COMPLETION OF THE CONTRACT. 649 
 
 any lot will have no claim to enforce any restriction 
 over any lot remaining unsold, or to require the vendor 
 to enter into any covenant in respect thereof (/). In 
 any case in which it is either an express or an implied 
 term of the contract for sale that any land retained by 
 the vendor shall be subject to any restriction in the 
 purchaser's favour, the purchaser is entitled to require 
 the vendor on completion to enter into a covenant with 
 him to that effect (/.•). The case is exactly parallel to 
 that of an express or implied contract to grant an 
 easement over land retained by the vendor (/). 
 
 The estate clause always inserted in conveyances of Estate clause. 
 land before the year 1882, and piu'porting to assure all 
 the conveying party's estate or interest in the land 
 conveyed (m), went out of use after the commencement 
 of tlie Conveyancing Act of 1881 [n) ; the 6'3rd sei-tion 
 of that Act providing that every conveyance shall by 
 virtue of that Act be effectual to pass all the conveying 
 party's estate or interest in the property conveyed, but 
 this enactment shall apply only if and as far as a 
 contrary intention is not expressed in the conveyance 
 and have effect subject to the terms of the conveyance 
 and the provisions therein contained. Having regard 
 to this express saving and to the construction placed on 
 the estate clause formerly usual (o), it is thouglit to bo 
 unnecessary expressly to exclude the operation of that 
 enactment upon conveyances assuring in proper terras 
 less than the whole estate of the party conveying, such 
 
 (») Tucker v. rowles, 1««J3, 1 Stat. 242 ; Wms. Real Prop. G2o, 
 
 Ch. IQ.") ; Holfoid v. Avion Urban 21 at ed. 
 
 Council, 1898, 2 Ch. 240 ; Reid v. (w) Stat. 44 & 4.) Vict. c. 41. 
 
 Hickcrstaff, 190<J. 2 Ch. ;J0;) ; (o) See BlundeU v. StanUy, 13 
 
 above, p. ()48, 11. (/'). Jul-. 998 ; Hunt v. Remnant, 9 
 
 (A) Re Biriiiingham, S;c. do. and Ex. 635 ; Rooper v. Harrison, 2 
 
 Alldaii, 1893, 1 Ch. 34^; Davi^i K. &J. 86, 113: Xeamev.Mour- 
 
 V. lAvmtvr, 1894, 2 Cli. 208, 220. »om, L. R. 3 Eq. 91 ; Francis v. 
 
 (/) Above, pp. 040, 641. Minion, L. R. 2 C. P. 543 ; 1 
 
 (/«) 1 David-son, Proc. Couv. Davidson, Prec. Conv. 94, 95, 
 
 94, 4tli ed. ; sec Wms. Couv. 4th ed.
 
 650 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 as leases for life or years, or gifts in tail. But if upon 
 the sale of tlie fee simple, or other the vendor's whole 
 estate in some land, it is stipulated that some exception 
 or reservation shall be made, the same must of course be 
 clearly defined in the deed of conveyance {p) ; for if all 
 mention thereof be omitted, the deed will take effect at 
 law according to its terms, and the vendor's only remedy 
 will be an action for rectification of the conveyance {q) . 
 
 Liriiitatiou of 
 the pur- 
 chaser' s 
 estate. 
 
 The reader may be reminded that, although a contract 
 for the sale of land, without defining the estate to be 
 sold therein, is intended to mean a sale of the freehold 
 in fee (r), this rule has no application to a conveyance 
 on sale, in which the estate to be taken by the purchaser 
 must be duly limited or marked out, either by the use of 
 the words necessary to convey the fee at common law, 
 or by the exact expressions mentioned in the 51st section 
 of the Conveyancing Act, 1881 (.s). If, therefore, an 
 estate in fee simple were sold, the land must be con- 
 veyed either to the purchaser and liis heirs or to him in 
 fee simple, and no other words will suffice to effect this 
 or (excepting the words proper to confer an estate tail) 
 will avail to convey a greater estate than for the 
 grantee's life it). And it must not be forgotten that 
 where the land sold is to be conveyed to a grantee to 
 uses, it is equally necessary to limit to him an estate in 
 fee simple in express and proper terms, otherwise he 
 
 [p] See 1 Davidson, Prec. 
 Conv. 95 — 98, 4th ed., also show- 
 ing the difference between an ex- 
 ception and a reservation. 
 
 (q) Above, pp. 640, 041. 
 
 (r) Above, p. 41. 
 
 \J) Stat. 44 & 45 Vict. c. A\. 
 
 (t) Ite Ethel and Mitclidh and 
 BuUcr'n Contract, 1901, 1 Ch. 945, 
 where the limitation was to the 
 grantee in fee ; Wms. Real Prop. 
 207, 21st ed. It may be noted 
 that it is sufficient if the proper 
 
 words of limitation be contained 
 in the habendum only of a deed, 
 as where A. grants to B. All that 
 farm called Blackacre To Hold the 
 same unto and to the use of B. 
 and his heirs, or in fee simple ; 
 see Jeukina v. Young, Cro. Oar. 
 230 ; <S'. C, nom. Meredith v. 
 Joans, Cro. Car. 244 ; Ormrs 
 Case, L. R. 8 C. P. 281, 295— 
 298, 300 ; ISpencer v. liegislrar of 
 Titles, 1906, A. C. 503 ; Williams 
 on Settlements, 4 — 7-
 
 OF THE COMPLETION OF THE CONTKACT. 651 
 
 takes an estate for his own life only in the land con- 
 veyed, with the oonsequence that the same legal estate 
 and no more will pass under the Statute of Uses («) to 
 the person (^r persons to whose use it is expressed that 
 he shall hold the land (.^■) . But if the purchaser should, 
 through a mistake of this kind, acquire by the con- 
 veyance a less estate at law than he was entitled under 
 the contract to have assured to him, he will nevertheless 
 be entitled in equity to such an estate as he actually 
 purchased in the land, and will be entitled to have the 
 conveyance rectified accordingly (/y). This consideration Lhuitatiou by 
 
 1 • i. i. T- • u -i. T-1 deed of oquit- 
 
 lias an important bearing on cases where an equitabie .^^^i^ estates 
 estate in lands is limited in a deed by words which "» ^^nd. 
 would be insufficient to convey the fee if the estate were 
 legal, but indicate an intention to pass the entire 
 equitable estate. It is settled that equity follows the 
 law to this extent, that a grant by deed of an equitable 
 estate in lands to the grantee simply, without any words 
 of limitation ur an// uthcr iconla indicating an intention to 
 paaa the fee, will confer an estate for the grantee's life 
 only (;:) . But it is otherwise if the deed show an . 
 intention to transfer the grantor's whole equitable 
 interest in the land {a). Thus, if A. agree with B. to 
 buy the lands of which C. is seised in fee on trust for B. 
 in fee, or to buy B.'s equity of redemption in the lauds 
 comprised in B.'s mortgage to 1)., and B. convey these 
 lands to A. by a deed, in which the nature of the agree- 
 ment between the parties is by recital or otherwise 
 
 («) Stat. 27 Huu. VIII. c. 10. ed.) 106 ; Prestou ou Estates, ii. 
 
 {x) Above, p. 172. 04 — 60; Hayes ou Convcyaucing, 
 
 \y) Re Kthel and Milchelh and 91, 92,5th ed. ; Lewiu ou Trusts, 
 
 Jiiitler's Contract, WHH, 1 Ch. 94.'), 9.5, Gthed. ; 117, 10th ed. : Wm^. 
 
 948; below, Chap. XILI. ^<. 2. Real Prop. 105. i;Jlh eL. 184, 
 
 (;) See Jic U'lin^tuii'-s Sittleinmt, ISo, 21st ed. ; li' Trui(/haiii\\ q1 
 
 1894, 1 Ch. 061, and the cases Truntx, 1904, 2 Ch. S+f-; Itv ^7 • 
 
 there cited; Re Irwin, 1904, 2 Irwin, ib. 752, 764 ; Re Ohver'x ' 
 
 i'h. 7.')2 ; Farwell, L. J., Re SeltUnunl, 1905, 1 Ch. 191 ; 
 
 Thiiribi/'x Settlctiwnt, 1910, 2 Ch. Farwell, L. J., Re Thitrsby's 
 
 181, 188, 189. Settleinrnt, 1910, 2 Ch. 181, 189. 
 
 (a) See Shep. Touch. (PrestouV
 
 652 OF THE COMPLETION OF THE CONTRACT. 
 
 sufficiently shown and the payment of the purchase 
 money is stated as the consideration, but which contains 
 no words or no correct technical words of limitation of 
 the fee simple to A., it is submitted that A. will none 
 the less be entitled to the entire equitable estate in the 
 lands. But, of course, it would be proper in such a case 
 for A. to take a conveyance to himself and his heirs or 
 in fee simple. 
 
 Veiidurof Every vendor of land, besides conveying the land 
 
 Ir^iTCthe ^^^^ to the purchaser, is bound, unless it appear from 
 usual cove- the contract that he was selling as a trustee or mort- 
 gagee (/*), to enter into the usual qualified covenants for 
 title. That is to say, he must covenant with the 
 purchaser that he has power to convey the land as 
 expressed in the conveyance, that the premises shall be 
 quietly enjoyed and that the same are free from any 
 incumbrance, and also, if the property sold were lease- 
 hold, that the lease is valid, the rent has been paid and 
 the covenants performed : but all these covenants fire 
 limited to indemnifying the purchaser against dis- 
 tm-bance by reason only of some act, omission or 
 sufferance of the vendor himself, or of any of his 
 predecessors in title subsequent to the last sale of the 
 land or the last conveyance thereof for other valuable 
 consideration whereon proper covenants for title were 
 given (r), or of any persons claiming under him or 
 them. 80 that if the veudor purchased the land him- 
 self, he will covenant against disturbance by reason 
 only of his own acts or those of persons claiming under 
 him. And the vendor must also covenant for further 
 
 (b) See Worlv(j v. I'rampton, 5 pt. i. 191, 261, n. («), 29(j, n., 
 
 Hare, 560 ; Sug. V. & P. 69, 4th ed. ; above, p. 76. 
 075; 1 Dart, V. & P. ooO, .Hh (e) See Sug. V. & P. 574 ; 
 
 ed. ; 62'2, 6th ed. ; 573, 7th ed. ; Davidsou, Prec. Conv. 192, 261, 
 
 Wms. Real Prop. 449, 13th ed. ; u. {<,), 4th ed. ; 1 Dart, V. & P. 
 
 Davidson, Prec. Conv. vol. ii. 545, 5th ed. ; 616, 617, 6th ed. ; 
 
 568, 569, 7th ed.
 
 OF THE COMPLETION OF THE CONTRACT. 653 
 
 assiu'ance by himself or any one claiming undtn- or in 
 trnst for him or any such of his predecessors in title as 
 aforesaid (d). And although, as we have seen (e), a 
 contract to sell land is an absolute undertaking, express 
 or implied, to sell tlie fee simple or other estate specified, 
 fire froiii iiicii/jihrai/crs, it is settled that, in the absence 
 of express stipulation to the contrar}^ a vendor of laud 
 is not bound to give, in the conveyance of the land, 
 any manner of warranty of title other than is afforded 
 by these qualified covenants (./') . And no otlier warranty 
 of title {{/) is implied on a sale of land made by one, 
 who assumes to deal therewith as owner, and completed 
 by conveyance and payment of the purchase money (h). 
 Indeed, under the present law, no warranty of or 
 covenant for title is implied by the mere conveyance, 
 on sale or otherwise, of any land (a) ; except only in the ^^ warranty 
 case of a demise for a term of years (/.•), and in certain implied, a,s a 
 cases of statutory conveyance where the word (irai/f bv ''"''"' ^^ ^^^ 
 force of some Act of Parliament implies covenants for of land, 
 title (/). But, as we have seen, on an executory agree- 
 ment to sell land the vendor is bound to show a g-ood 
 
 {d) Brotvniw/ v. IVrif/ht, 2 B. branres : see Expfe. Stanford, 17 
 
 & P. 13, 22;' Church v. Brown, Q. B. D. 259, 271. 
 
 15 Ves. 258, 2G3 ; Blakcsleij v. {(j) E.g., uo such warranty of 
 
 Whieldon, 1 Hare, 176, 181 ; title as is implied by the nuKlern 
 
 Susc. V. & P. 574 ; 1 Dart, V. law on the sale of j^-oods : see 
 
 & P. 514, 545, 649, 5th ed. ; (il.i Benjamin on Sah's, ' 511— 52.!, 
 
 — G17, 621, 6th ed. ; 567—569, 2ud' ed. ; Wms. Pers. Prop. 547, 
 
 572. 7th ed. ; Davidson, Prec. 16th ed. 
 
 Conv. vol. i. 118, 203, n. {b) ; (//) Clare v. Lamb, L. R. 10 
 
 vol. ii. pt. i. 191, 205, 214, 215. C. P. 334. 
 
 4th ed ; Wms. Real Prop. 448. ^i) Co. Litt. 384a and note (1) ; 
 
 13th ed. ; 607, 2l8t ed. stat. 8 & 9 Vict. c. 106, s. 4 ; Clare 
 
 (e) Above, p. 41. v Lnmb, nbi sup. ; Dchenham v. 
 
 (/) See note (rf), above. F(n- Nnwbridf/e, 1901, 2 Ch. 98, 100. 
 
 this reason, if the conveyance as (/.) See Wms. Real Proj). (ill, 
 
 prepared on the purchaser's be- (iTi, 21st od. ; liiiilil - Svilt v. 
 
 half purport to assure the land Dmiifll, 1902, 2 K. B. 351 ; Jaurx 
 
 to be held by hini "free from v. LuriiKjIui), 1903, 1 K. B. 253; 
 
 incumbrances," the vendor should Markhain v. Vinjei , 1908, 1 Ch. 
 
 strike out these words, as tliey 607. 
 
 mifflit iruport an uin-estrict<^d (/) See Wms. Real Prop. 610, 
 
 warranty at <'ommon law that 21st ed. 
 the lauds were free from incum-
 
 654 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 False repre- 
 sentation by 
 vendor that 
 he is the 
 owner of the 
 hind sold. 
 
 title (m) ; and if one agree to buy land and be let into 
 possession on pajmient of the purchase money and the 
 vendor's title prove defective before the execution of a 
 conveyance, the purchaser can recover the price paid as 
 upon a total failure of consideration, for the contract 
 was not then completed {i/). And this appears to be 
 the case, notwithstanding that the title had been 
 accepted (o) ; unless the purchaser had expressly agreed 
 to accept such a title as exposed him to the risk 
 attendant on the defect and the title contracted for had 
 been duly shown to him (p). If, moreover, one induce 
 another to buy land by untruthfully representing him- 
 self to be the freeholder in fee or absolute owner thereof, 
 the purchaser will be entitled to relief on the ground of 
 the misrepresentation and according as it were inno- 
 cent {q) or fraudulent (r) ; the difference being that 
 either an innocent or a fraudulent misrepresentation of 
 this kind will be a good ground for rescinding or 
 avoiding the specific performance of the contract while 
 it I'cmains uncompleted, but only a fraudulent mis- 
 I'epresentation will give rise to an action of deceit, or to 
 a claim to set aside the conveyance after completion. 
 
 Sale by- 
 trustee as 
 such. 
 
 If the vendor sold as a trustee, he cannot be required 
 to give the usual vendor's covenants for title, but can 
 only be called upon to covenant that he has done no 
 
 (m) Above, pp. 32, 94 sq. 
 
 («) Johnson v. Johnson, 3 B. & 
 P. 162. 
 
 (o) See S. C. ; Re Haedickc and 
 Lipski's Contract, 1901, 2 Ch. 6G6 ; 
 and above, pp. 179 — 181. 
 
 {p) See above, pp. 202—207. 
 
 [q) Bree v. Holbech, 2 Douor. 
 654 ; Wilde v. Gibson, 1 H. L. C. 
 605, 63o; Selborne, C, BroimUe 
 V. Campbell, o App. Cas. 925, 
 935-93S; Jolife v. Baker, 11 
 Q. B. D. 255 ; "Berry v. Peek, 14 
 App. Oas. 337 ; Onward Building 
 
 Society v. Smithson, 1893, I Ch. 
 1, 12 ; hebtnham v. Sawbridge, 
 1901, 2 Ch. 98 ; see also Endd v. 
 Lascelles, 1900, 1 Ch. 815, 818; 
 below. Chap. XIV. § 1; XIX. 
 
 ^ 0. 
 
 (»•) Bdtcards v. M'Leay, G. Coop. 
 30S, 2 Swanst. 287 ; Hart v. 
 Sivaine, 7 Ch. D. 42, as to which 
 see Brownlie v. Campbell and 
 Joliffe V. Baker, ubi sup. ; Dern/ 
 v. Peek, 14 App. Cas. 337, 365, 
 366, 371—374; below, Chap. 
 XIV. § 1 ; XIX. >5 5.
 
 OF THE COMPLETION OF THE CONTRACT. 655 
 
 act to incumber the property sold (.s) . But if a trustee 
 enter into a contract to sell land, without disclosing his . 
 fiduniarj^ character, the purchaser will, it is thought, he 
 entitled to the same covenants as if the vendor were 
 the beneficial owner (/) . This should not be forgotten 
 when it is desired to effect a sale by trustees without 
 disclosing the trust. So a mortgagee selling as such By mortfrim-co 
 under his power of sale is only bound to covenant that ^'* ^"''''• 
 he has not incumbered (x), but would, it is thought, be 
 liable to give the usual vendor's coAenants as to title if 
 he sold under an open contract. Where land held on a By ces/ ;,{-(, iir. 
 simple trust or in mortgage is sold by or by the direction mortgagor, 
 of the rof<f}ii-qiir-fruf<f or the mortgagor or other person 
 entitled to the equity of redemption, he must enter into 
 the vendor's covenants for title, and the trustee or 
 mortgagee concurring in the sale is only bound to 
 covenfint against his own incumbrances. And on a sale 
 by mortgagor and mortgagee, it is the invariable prac- 
 tice to insert or incorporate in the conveyance the usual 
 qualified covenants for title by the mortgagor, notwitli- 
 standing that these appear to supersede and to deprive 
 the purchaser of the benefit of the absolute covenants 
 for title entered into by the mortgagor on the occasion 
 of the mortgage (.r) . If laud be sold by a trustee in By trustee in 
 bankruptcy professedly selling as such under the power 
 of sale given to him by statute (.?/), he can only be 
 required to covenant that he has done no act to incumber. 
 It has, however, been the practice to require the bankrupt 
 himself to concur in the conveyance and to covenant for 
 title : but this cannot be insisted on, and the bankrupt's 
 covenants are of little or no value (-). Where lands are 
 
 {s) Abovp, T). 652, n. (A). Conv. 485, 4th ed. ; 483, 8th od. 
 
 t) Above, p. 652. (y) Stat. 46 & 47 Vict. i-. 52, 
 
 (k) Davidson, Prec. Couv. s. 66. 
 vol. ii. j)t. i. 296, n., 4th ed. (r) Sug. V. & P. 575; I Diirt, 
 
 (.»•) Davidson. Prei-. Conv. V. & P. 552, 5th I'd. ; 624, 6th 
 
 viil. ii. pt. i. 261, t)., 293, n. (<•), ed. ; 575, 7th cd. ; Davidson, 
 
 4tli ed. ; 1 Key & Elph. Prec. Proo. Couv. vol. ii. pt. i. 618
 
 656 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Sale under 
 power. 
 
 sold by or by the direction of one entitled to some 
 estate therein, with the intention that they shall be con- 
 veyed nnder some power exercisable by himself or by 
 others with his consent (such as the power of sale given 
 to a tenant for life by the Settled Land Act, 1882 {a), 
 or the power of sale usually limited before that Act to 
 the trustees of real settlements to be exercisable with 
 the tenant-for-life's consent), he is bound to enter into 
 the usual covenants for title f/>). But where such 
 person is tenant for life only and his covenants for title 
 extend to the acts, &c. of any of his predecessors in 
 title (e) , it is the regular practice to limit these covenants 
 bj^ a proviso saving him from liability, as regards the 
 remainder or reversion expectant on his life estate, for 
 any other acts or defaults than those of himself or his 
 own heirs or persons claiming under or in trust for him 
 or them (d) . And it would probably be held, where the 
 nature of the interest of a tenant for life so selling or 
 consenting to aTsale appears from the contract, that he 
 is entitled to insist on this restriction of his liability. 
 But it is thought that this is not the case where he has 
 sold as absolute owner. Thus, if one so entitled sold 
 by an open contract, which he proposed to carry out by 
 a conveyance by himself under the Settled Land Act, 
 1882, or by trustees under a power of appointment 
 exercisable with his consent (c), it is submitted that he 
 would be bound to give vendor's covenants for title 
 imrestricted by any such proviso. The case is analogous 
 to a sale made by a trustee without disclosing his 
 fiduciary character (/). If lands be vested in trustees 
 
 and n., 4th ed. ; 1 Key & Elph. 
 Free. Conv. 533 and n.. 4th ed. ; 
 526 and n., Sth ed. 
 
 (a) Above, pp. 300 xq. 
 
 [b) Re London Bridr/e jicts, 13 
 Sim. 176, 179; Poiikit v. Hood, 
 L. R. 5 Eq. 115 ; i2e Sawyer and 
 I!trri)/(/''ft Contract, 53 L. J. Ch. 
 1104; Sug. V. &P. 575. 
 
 (c) Above, pp. 652, 653. 
 
 {d) 1 Dart, V. & P. 548, Sth 
 ed. ; 619. 620, 6th ed. ; 571, 
 7th ed. ; Davidson, Prec. Conv. 
 vol. ii. pt. i. 261, n. (o), 262, 4th 
 ed. ; 1 Key & Elph. Prec. Conv. 
 453, n., 4th ed. ; 449, n.. Sth ed. 
 
 {e) Above, pp. 165, 282, 300 .?y. 
 
 (/) Above, p. 655.
 
 OF THE COMPLETION OF THE CONTRACT. 657 
 
 on a special trust for sale, and they sell as such trustees, 
 their receipts being good discharges {q), it does not 
 appear that the purchaser is in strict right entitled to 
 require the persons beneficially interested in the purchase 
 money to join in the conveyance or to covenant for 
 title (/c) : but it has been the practice of conveyancers 
 to insist, if such persons were absolutely entitled and 
 sni JHrix, that they should give the usual vendor's 
 covenants for title as regards their shares (/). It is, 
 however, usual on sales by trustees to stipulate expressly 
 that the concurrence of the beneficiaries shall not be 
 required and the purchaser shall be entitled to no other 
 covenant than the trustees' covenant against incum- 
 brances (/). Where lands belonging to one absolutely Sale by order 
 are sold by order of the Court, he must enter into the 
 same covenants for title as if he himself had sold them ; 
 but where on such a sale the legal estate is in trustees 
 and a good title to the equitable interest is given by 
 virtue of the order for sale (/), the piu'chaser cannot 
 require the concurrence in the conveyance of the persons 
 beneficially entitled, or oblige them to covenant for 
 title {)n). 
 
 The present practice is t(j incorporate the requisite The statutory 
 covenants for title or covenant against incumbrances (w) ^?y^°^°t'* ^^^ 
 in conveyances on sale by using the expressions which 
 cause such covenants to be " deemed to be included and 
 to be implied " therein by virtue of the Conveyancing 
 
 {ij) Above, p. 288. Prec. Couv. 264, u., 4th etl. ; 
 
 (A) See C'vitrellv. Cottrcll, L. R. 252, n., 8th ed. ; above, p. 76. 
 2 J5q. 330 ; abiive, p. (55.5 ; and (/) Above, p. 472. 
 
 next note. (/») Sng. V. & P. 574 ; Cottrell 
 
 {i^ Suff. V. & P. 574 ; 1 Dart, v. Cottrell, L. R. 2 Eq. 330 • 
 
 V. k P. 545, 540, 5th ed. ; 617, 1 Dart, V. & P. 54.i. .')th ed. ; 
 
 618, 6th ed. ; 568, 569, 7th ed. ; 617, 6th ed. ; 568. 7th ed. ; 
 
 Davidson, Prec. Cimv. vol. ii. Davidson, Prec. Conv. vol. ii! 
 
 pt i. 275, n., 4th ed. ; Wins. pt. i. 270— 275 and notes, 4th ed. 
 
 Real Prop. 449, 13th ed. ; 6U9, It is usual, however, so to stipu- 
 
 2l8t ed. late: 1 Davidson, Prec. Conv. 
 
 (/r) 1 Davidson, Prec. Conv. 661, 4th ed. ; 593, 5th ed. 
 613, 4th ed. ; 1 Key & Elph. {«] Above, pp. 652 — 655. 
 
 w. 42
 
 658 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Act of 1881. By this Act (o), in a conveyance (p) for 
 valuable consideration, other than a mortgage (y), there 
 are implied on the part of anyone, who conveys and is 
 expressed to convey as beneficial owner, as regards the 
 property expressed to be conveyed by him, and with the 
 person or persons to whom the conveyance is made, 
 covenants for right to convey, quiet enjoyment, freedom 
 from incumbrances and further assurance, and in the 
 case of leaseholds, for validity of the lease ; all limited 
 to the acts, omissions and sufferances of the person who 
 so conveys, anyone conveying by his direction and any- 
 one through whom he derives title otherwise than by 
 purchase for value (not here including a conveyance in 
 consideration of marriage), and j^ersons claiming under 
 him or thera (r). And the like covenants are implied in 
 a similar conveyance, in which it is expressed that one 
 conveys by direction of another directing as beneficial 
 owner, on the part of the person so directing (.s). And 
 in any conveyance there is implied a covenant against 
 
 (o) Stat. t4 & 45 Vict. c. 41. 
 s. 7 (1) (a), (b). This section 
 applies only to conveyances made 
 after the year 1881 : sect. 7 (8). 
 
 (p) In this section "convey- 
 ance " includes a deed conferring 
 the right to admittance to copy- 
 hold or customary land ; hut does 
 not include any other customary 
 assurance, or a demise by way of 
 lease at a rent; sect. 7 (5). 
 " Conveyance "' in the Act is 
 confined to assurances made by 
 deed on some dealing with or for 
 property; sect. "2 (v). 
 
 (q) In a conveyance by way of 
 mortgage, absolute covenants for 
 title are implied on the part of 
 any one, who conveys and is ex- 
 pressed to coTivey as beneficial 
 owner: sect. 7 (1) (c), (d). And 
 in a conveyance by way of 
 settlement there is implied on the 
 part of any one who couve}\s and 
 is expressed to convey as settlor 
 a covenant for further assurance 
 linuted to liimself and every per- 
 
 son deriving title under him sub- 
 sequently to that conveyance : 
 sect. 7 (1) (e). 
 
 ((■) Due exceptions are made 
 with I'egard to any estates, in- 
 terests, or incumbrances, subject 
 whereto the conveyance is ex- 
 pres.shj made, and the acts, &c. of 
 persons claiming in respect 
 thereof ; see above, p. 644. 
 
 (i) Sect. 7 (2). And by 
 sect. 7 (3), where a wife conveys 
 and is expressed to convey as 
 beneficial owner and her husband 
 also conveys and is expressed to 
 convey as beneficial owner, there 
 are implied, besides the covenants 
 implied as above mentioned by 
 the use of these expressions, the 
 same covenants as if the wife 
 conveyed by the dii-ection of the 
 husband directing as beneficial 
 owner, and also covenants by the 
 husband in the same terms as the 
 covenants implied on the part of 
 the wife : see Wms. Conv. Stat. 
 87—91.
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 incumbrances by anyone who conveys and is expressed 
 to convey as trustee or mortgagee, or as personal repre- 
 sentative of a deceased person, or as committee of a 
 lunatic so found by inquisition or under an order of 
 the Com-t, such covenant extending to the conveying 
 party's own acts only (t). But no covenant is implied 
 in any conveyance by virtue of this Act where it is not 
 expressed that some person conveys in one of the 
 characters particularly mentioned in the Act ; for 
 instance, as beneficial owner or as trustee (ti). The 
 covenants implied by virtue of this Act may be varied 
 or extended by deed (^). They may therefore, it is 
 considered, be limited in any manner which will not 
 altogether destroy the covenantor's personal liability, 
 A'proviso destroying altogether a covenantor's personal 
 liability on the covenant is held to be repugnant and 
 void (//). An instance of the limitation of the statutory 
 covenants for title occurs in the proviso usually inserted 
 in convej'ances where the party covenanting for title is 
 a tenant for life onlj;{3). The benefit of a covenant 
 implied l)y virtue of this Act shall be annexed and 
 incident to and go with the estate or interest of the 
 implied covenantee, and shall be capable of being 
 enforced by every person in whom that estate or interest 
 is, for the whole or any part thereof, from time to time 
 vested (a). This is analogous to the law laid down 
 with respect to express covenants for title. These run 
 with the land ; that is to say, they are enforceable by 
 every one, wlio takes the covenantee's estate therein (/>), 
 or any part thereof (r). But they are not enforceable 
 
 {i) Sect. 7 (1) (f). 503; Campbell v. Lncis, 3 B. & 
 
 (m) Sect. 7 (4). A. 392 ; Susr. V. & P. 576 sq. 
 (x) Sect. 7 (7). {c) Farwell, J.. RogerK v. Hose- 
 
 \y) Williams v. Ilathmrmj, 6 go(^, 1900, 2 Ch. :<88, 396 ; 
 
 Ch. D. 544, .'',46. " Jarm. Conv. by Sweet, 366, 404 : 
 
 (:) Above, p. 6.')C. 2 Dart, V. & P. 779, 5th ed. : 
 
 [a) Sect. 7 (6). Tu'1/nam v. Picknrd, 1 B. & A. 
 
 \b) Co. Litt. 314 b, 385 a ; lOrj. 
 
 Afidfllniinrf v. Gnndale, Cro. Car. 
 
 42 (2) 
 
 659
 
 660 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 by one who acquires the land, but does not take the 
 covenantee's estate therein. Thus if A. conveyed land 
 to B. and his heirs to such uses as C. should appoint 
 and in default of appointment to the use of C. and his 
 heirs and covenanted with C. for title, and C. after- 
 wards appointed the land to the use of D. and his heirs, 
 D. could not sue on the covenants for title, for he took 
 an estate which defeated C.'s estate in the land (r/). 
 Although if C. had conveyed to D. his estate in the 
 land, D. could have sued on the covenants for title. D. 
 could also have sued on the covenants, if they had been 
 made (as they should have been) with B., the grantee 
 to uses ; because then D. would, by virtue of the 
 Statute of Uses {e), have taken the covenantee's estate 
 in the land ; and this would be the case, whether he 
 had taken by appointment or grant from C. (./'). 
 Where the statutory covenants for title are employed, 
 the implied covenantee is the person to whom the 
 conveyance is made {g). This, in cases where the 
 conveyance is made to uses intended to be executed 
 by the Statute of Uses (e), is the grantee to uses ; so 
 that if the limitations of the conveyance include a 
 power of appointment, an appointee thereunder will 
 take the implied covenantee's estate and so be enabled 
 to sue upon the covenants for title. But it appears 
 equally true in principle of the statutory as of tlie 
 express covenants for title that one cannot sue thereon, 
 as assignee of the land to which they relate, unless he 
 take the implied covenantee's estate therein. 
 
 Covenants for If covenants for title were given upon the sale of an 
 
 title on sale of •- i i - j. e -i. e \ l- 
 
 an eqviitable equitable estate, as oi an equity ot redemption, an 
 
 estate. assignee of the pui'chaser's estate could not maintain an 
 
 [d) Roach v. Wadham, 6 East, 
 289 ; Sug. V. & P. 578—580. 
 {e) Stat. 27 Hen. VIII. c. 10. 
 (/) Sug. V. & P. 578 ; Spoor 
 
 V. G)-ee)i, L. R. 9 Ex. 99, 105. 
 113. 
 
 (/•/) Above, p. 658.
 
 OF THE COMPLETION OF THE CONTRACT, 661 
 
 action at law upon the covenants in his own name, for 
 there beings no legal estate with which the covenant 
 could run, he was regarded in law as a stranger to the 
 covenant (//). It appears however that he might main- 
 tain an action at law in the name of the original 
 covenantee, or his representatives, who would in equity 
 be bound to allow his or their name to be used for the 
 purpose. For in equity the benefit of the covenants for 
 title would, in accordance with the manifest intention of 
 the parties, run with the purchaser's estate in the 
 land {ij. But where tlie statutory covenants for title 
 are given in the conveyance on sale of an equitable 
 estate, it appears that an assignee of the purchaser's 
 estate may well maintain an action at law in his own 
 name upon the covenants, since the right of action 
 thereon is by force of the above-mentioned provisions of 
 the Conveyancing Act (/.•) annexed to the implied 
 covenantee's estate or interest in the land conveyed to 
 him ; and it is thought that the right of action on the 
 covenants is effectually so annexed to the covenantee's 
 estate, whether his interest be legal or equitable. 
 
 If on a conveyance of land covenants for title, express Covenants for 
 or statutory, be obtained by fraud, the covenantor may ^'t^e obtained 
 well plead the fraud, in avoidance of the contract, 
 in any action brought against him on the covenants 
 by the original covenantee. But if the covenantee 
 assign over his estate in the land to a purchaser for 
 value mthout notice of the fraud, the assignee will be 
 entitled, as such, to enforce the covenants ; and the 
 covenantor will no longer be enabled to set up the plea 
 of fraud (/). 
 
 [h) Sug. V. &P. oHl ; 9 Jann. ijood, 1900, 2 Ch. .388, 404 ; Sug. 
 
 Conv. by Sweet. 36G ; Onward V. & P. .592, .'iQS. 
 Buildiiiff Sociefi/v. Smilhso»,\S9:i, (A) Stat. 44 & 4.5 Vict. c. 41, 
 
 1 Ch. 1, 12. 8. 7 (6) ; above, p. (i.59. 
 
 (i) See ^pcncn- v. lioi/es, 4 Ves. (/) David \. Sabin, 1893, 1 Ch. 
 
 370 ; Riddell v. Kiddell, 7 Sim. .523, overruling the dUtiim to 
 
 529, 533, 535 ; Rogers v. Hom- the contrary in Onward Building
 
 662 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Purchaser 
 
 may take 
 either express 
 or the statu- 
 tory covenants 
 for title. 
 
 It seems to lie in the purchaser's option whether the 
 covenants for title, which he is entitled to demand, 
 shall be given by express words in the old form or by 
 incorporation in the conveyance of the statutory cove- 
 nants ; for the purchaser is in general the arbiter of the 
 form of the conveyance (;») . But, as we have seen {ii) , 
 the practice is to take the statutory covenants. If, 
 however, the statutory covenants implied by the vendor's 
 conveyance as beneficial owner would impose upon him 
 any more extensive covenant than the contract obliges 
 him to give, he will of course be entitled to have the 
 operation of the statute duly restricted (o) . Thus it has 
 been already mentioned that a tenant for life not bound 
 to covenant against the acts^of the remaindermen or 
 fevefsioiiers ihay so'lirnit his liability (/j). Again, we 
 have seen (q) that a vendor is bound to covenant for 
 title against his own acts and the acts of all his pre- 
 decessors in title subsequent to the last sale of the land 
 or other dealing therewith for value whereon proper 
 covenants for title were given. But the statutory 
 covenants are against the conveying party's own acts 
 and the acts of all persons through whom he derives 
 title otherwise than by purchase for value not including 
 the consideration of marriage (r). If, therefore, the 
 vendor derive title under a marriage settlement whereon 
 proper covenants for title were given (s), it appears that 
 
 Society V. Smithson, 1893, 1 Ch. 1, 
 13; see below, Chap. XIX. § 5. 
 
 (»«) Above, pp. 617, 622 — 624. 
 The same principle appears ap- 
 plicable in determining whether 
 any other rights, to which the 
 purchaser is entitled, shall be 
 assured to him in expi-ess terms 
 or by some statutory form ; r.g. , 
 whether express general words 
 shall be inserted, or recourse had 
 to the statute ; above, pp. 037, 638. 
 
 (w) Above, p. 658. 
 
 (o) Above, p. 640. 
 
 Ip) Above, p. 656. 
 
 [q) Above, p. 652. 
 
 (r) Above, p. 658. 
 
 (.s) It was the practice before 
 the year 1882 for the i?ettlor in a 
 marriage or family settlement to 
 give covenants for title qualified 
 in the same manner as upon a 
 sale : Davidson, Prec. Couv. 
 vol. iii. 59, 275, 634, 861, 1027, 
 1120, 3rd ed. ; Williams on 
 Settlements, 126, 226. But since 
 the Conveyancing Act of 1881 
 took effect, settlors have in many 
 cases given only the covenant for 
 further assurance implied under 
 that Act by their conveying as 
 settlor : above, p. 658, n. (r) ;
 
 OF THE COMPLETION OF THE CONTRACT. 663 
 
 in strict law he will not be bound to covenant for title 
 against the acts of the settlor, and will be entitled to 
 have the statutory covenants modified accordingly (^). 
 In practice, however, vendors claiming under marriage 
 settlements whereon proper covenants for title were 
 given have frequently submitted to covenant against 
 their settlors' acts {ii). 
 
 On the sale of a legal estate in copyholds, the Covenants for 
 covenants for title must be given by a deed separate of*^cop" ^olds. 
 from the conveyance of the land, which will of course 
 be by surrender and admittance {x) ; as the covenants 
 cannot be entered on the court rolls. This may be 
 accomplished by a deed either preceding or following 
 the surrender. In the former case the deed takes the 
 form of a covenant by the vendor to surrender the 
 copyholds to the purchaser's use and the covenants for 
 title are added ; in the latter case the deed contains 
 only the covenants for title. The latter course was 
 formerly considered preferable, because it was doubted 
 whether in the former case the covenants would run 
 with the land, the covenantee having no legal interest 
 therein previously to the surrender {//) . It should be 
 noted that the statutory covenants for title can only be 
 incorporated in a deed conferring the right to admit- 
 tance to copyhold land (z) ; so that if it be preferred to 
 take the surrender before the covenants for title are 
 entered into, they must be given by express words in 
 the old form. As the right of action on the statutory 
 
 2 Key & Elph. Tree. Conv. .5th ed. ; 616, 6th ed. ; 568, 
 
 461, u., 562, o(i:5, 704, 710, 4th 7th ed. 
 
 ed. ; 4o7, n., o.')3, oo4, 67 i, 680, {x) Wms. Real Prop. 484 sq., 
 
 8th ed. ; Da\ndsou's Concise Pre- 21st ed. 
 
 cedents, oil and n., .rll, 17th ed. (y) Above, pp. 659 — 661; ifiW- 
 
 {t; Sug. V. & P. o74 ; S Jann. de/f v. liiddtU, 7 Sim. 529; David- 
 
 Conv. by Sweet, :{7o ; Davidson, son, Prec. Couv. vol. ii. pt. i. 
 
 Prec. Conv. vol. ii. pt. i. 192, 205—207, 364, 367, 4th ed. 
 
 237, n., 243, n., 254, u., 261, n., (;) Stat. 44 & 45 Vict. c. 41, 
 
 4th ed. ». 7 (5) ; above, p. 658, and 
 
 («) See 1 Dart, V. ic P. 545, n. {q).
 
 664 OF THE COMPLETION OF THE CONTRACT. 
 
 covenants for title is expressly given to every person in 
 whom is vested the whole or any part of the estate or 
 interest of the implied covenantee, and it appears 
 immaterial whether that estate were legal or equit- 
 able (a), there seems to be no doubt that, where such 
 covenants are given by a deed of covenant to surrender 
 copyholds upon a sale thereof, the purchaser's assigns 
 will be enabled to sue at law upon the covenants. For 
 this reason the usual course now is for the purchaser 
 to take the statutory covenants for title upon the sale 
 of copyholds, incorporating them in a deed of covenant 
 Paym<jut of to Surrender the land to his use {b). It must be borne in 
 oTcopyholds mind, however, on the purchase of copyholds, that the 
 purchase money should not be paid until the actual sur- 
 render of the land sold ; for a surrender only can confer 
 on the purchaser an indefeasible right to admittance (c) . 
 
 Where the As has been already mentioned (<•/), where land is 
 
 bTconvf ed*" ^^^^ subject to some definite incumbrance, legal or 
 subject to any equitable, whether it be a mortgage, charge, lease, 
 incumbrance. , ,., v / y • i- . ii 
 
 easement, propf a prcnare, restrictive covenant or other 
 
 liability, it is proper to express in the conveyance 
 that the land is conveyed subject to the incumbrance. 
 And the vendor must be particularly careful to see that 
 this is done, where the incumbrance was created by 
 himself or some one, against whose acts he is bound to 
 covenant for title {e), and it is proposed to incorporate 
 the statutory covenants for title. For these include 
 covenants for right to convey, quiet enjoyment, and 
 freedom from incumbrance, subject only to estates 
 or interests subject whereto the conveyance was 
 expressly made (/). So that in such cases unless 
 
 (ff) Above, p. (iGl. Wins. Real Prop. 485, 486, 'ilst 
 
 {b) 1 Key & Elph. Prec. Con v. ed. 
 
 475 and n., 4th ed. ; 474 and n., {d) Above, p. 643. 
 
 8th ed. [c) Above, pp. 052, 662. 
 
 (c) See Davidson, Prec. Conv. (./) See.stat. 44 & 45 Vict. c. 41, 
 
 vol. ii. pt. i. p. 206, 4th ed. ; s. 7 (1) ; above, pp. 652, 658, n. (r).
 
 OF THE COMPLKTION OF THE CONTRACT. 665 
 
 the iucumbrauce, subject to which the laud was sold, 
 be expressly mentioued, the statutory covenants for 
 title will in terms extend to guarantee indemnity 
 against it ; although the conveyance will only pass 
 the vendor's actual interest in the land (ry). The 
 incumbrance diminishing the estate granted to the 
 purchaser must therefore be exactly specified in the 
 conveyance. If this were inadvertently omitted, the 
 vendor would have no remedy against an action on 
 the covenants but to claim rectification of the convey- 
 ance {Ji). On the otlier hand, if land, to which the Coveuauts for 
 vendor's title is defective, be sold, or accepted by the ['„ covct Im"*^ 
 purchaser, with the stipulation that the vendor shall by apparent 
 his covenants for title guarantee indemnity against the 
 risk of the defect, and the defect appear on the face of 
 the conveyance, it must be plainly shown, where the 
 statutory covenants for title are applicable and are 
 relied on, that they are intended to cover the defect ; 
 otherwise it might be contended that the defect, being 
 an incumbrance subject to whicli the conveyance was 
 expressl)' made, did not come within the terms of the 
 covenants. Of course, if in this or any other case the 
 usual qualified covenants for title do not cover defects 
 or possible defects of title, against which the vendor is 
 by the contract of sale bound to guarantee indemnity, 
 the statutory covenants for title must be modified 
 accordingly or else, which is the better plan, the 
 required covenants for title must be given in express 
 terms duly showing the intention of the parties (/). 
 Where covenants for title are particularl}^ intended to 
 guard against a known defect of title, which is not 
 necessarily apparent, it is better that they should be 
 contained in a deed separate from the conveyance ; Jis 
 
 (y) Above, p. (H'). I'Idtt, 1900, 1 Ch. ijlti ; 2 Uart, 
 
 (//) Above, p. 041. V^ & T. 7S6, oth ed. ; «««, 8S7, 
 
 (t) See Pogr v. Muiiitnil Rail. 6th ed. : 794, 79.'), 7th cd. 
 Co., 1894, iCh. 11, 20; Maij v.
 
 666 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 it would not generally be desirable to show the defect 
 on the face of the conveyance (/.•). In such case express 
 covenants must be given, as the statutory covenants 
 can only be incorporated in a deed of conveyance : 
 but the statutory covenants might be given in the 
 conveyance to prevent attention being attracted by 
 their absence, and it might be provided in the separate 
 deed that the covenants thereby given were intended to 
 be additional. 
 
 I'uruhaser 
 agreeing to 
 observance of 
 restrictions 
 on the use 
 of the laud 
 bought must 
 enter into an 
 absolute 
 covenant to 
 that efPect. 
 
 In certain circumstances the vendor can require the 
 purchaser to enter into some covenant with him by the 
 deed of conveyance. Thus, if the contract for sale 
 provide for the observance of certain restrictions on the 
 use of the land sold, the purchaser is bound, on com- 
 pletion, to enter into a covenant to observe the 
 restrictions (/) ; and in the absence of stipulation to the 
 contrary, this covenant must be absolute, and the 
 purchaser cannot insist that his liability thereunder 
 shall be limited in any way, as by a proviso that he 
 shall be released from liability if he re-sell the land 
 and procure the new purchaser to enter into a similar 
 covenant (/><). If the parties intend that the benefit of 
 any such restrictive covenant shall run with some par- 
 ticular land retained by the vendor, he should be careful 
 that the covenant is so expressed that no doubt can 
 arise as to the persons who will be entitled to enforce 
 the covenant. It is, as we have seen hi), a question to 
 be decided on consideration of all the circumstances and 
 conditions of the sale whether the intention of the con- 
 tracting parties was that the benefit of such a covenant 
 should run with some particular land belonging to the 
 vendor, or whether this benefit was meant to be confined 
 
 {/c) Sug. V. & P. 573 ; David- 
 son, Prec. Conv. vol. ii. pt. i. 
 pp. 379, n., 381, 4th ed. 
 
 {1} See above, pp. 493, 648. 
 
 (m) See Pollock v. Rabbits, 21 
 
 Ch. D. 466, decided on an express 
 condition ; but it is thought 
 that the stipulation implied by 
 law is the same. 
 
 («) Above, pp. 491—493, 648.
 
 OF THE COMPLETION OF THE CONTRACT. ^67 
 
 to the vendor himself, his personal representatives, and 
 his assigns of the benefit of the covenant. The pur- 
 chaser can of course only be called upon to covenant as 
 intended by tlie contract. If the contract do not in 
 effect provide that the benefit of the covenant shall run 
 with some particular land of the vendor's, the purchaser 
 cannot be obliged to covenant in such a manner that 
 the vendor's heirs and assigns of that land will be 
 entitled as such, and not merely as assignees from the 
 vendor of the benefit of the covenant, to enforce the 
 covenant (o) . 
 
 When the vendor is bound under any covenant or In wliat .asfs 
 contract to pay any money or do or observe any other \^>„f "^'i'','^'"^^' 
 act or thing in respect of the land sold or as the iuik-nmifv 
 condition of retaining his interest therein, and the land 
 is sold to be held by the purchaser on the same terms as 
 the vendor held it, but the vendor Avill remain personally 
 liable for any future breach of the covenant or contract, 
 which may occur after the sale and conveyance of the 
 land, the purchaser is bound on completion to enter into 
 a covenant with the vendor promising to observe all the 
 conditions on which it is intended that he shall hold the 
 land and to indemnify the vendor against all liability 
 in respect of any future breach of these conditions ; and 
 it is not necessary for the vendor to stipulate expressly 
 in the contract for sale that the purchaser shall enter 
 into such a covenant {p). For example, on the sale of Ou salo ..f 
 leaseholds, which are subject to the payment of rent 
 and the performance of onerous covenants, the purchaser 
 must, if the vendor will remain under any liability in 
 
 (o) See limalx v. C'otvlisAaw, 9 Morri-., 1 V. Jc B. S : JFi//,i/is v. 
 
 Ch. D. V2b, 129, 11 Ch. D. 86G ; Fri/, 1 Mer. 244, 26:3—266; J/ox-- 
 
 Spicer v. Martiti, 14 App. Cas. hay v. Indrnric/i, 1 De G. i: S. 
 
 12, 24 : Iioi/er.s v. lluseguod, 1900, 70S ; Sag. V. & P. 37, 3», 198 ; 
 
 2 Ch. 388, 396, 403—408. 1 Dart, V. A: P. 557 nq., 5th ed. ; 
 
 {p) See Pembcr v. Mut/iers, 1 628 .<</., 6th ed. ; 579 «</., 7th ed. ; 
 
 Bro. C. C. 52, o4 ; lyunuy v. Me Poole and Clarke's Contract, 
 
 Ward, 7 Ves. 332, 337; fitainoi v. 1904, 2 Ch. 173.
 
 668 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 respect of the rent and covenants, covenant in the deed 
 of conveyance thenceforth to pay the rent and perform 
 the covenants and to indemnify the vendor against all 
 liability by reason of any futm-e omission to pay the 
 rent or keep the covenants. The purchaser must there- 
 fore give this indemnity, where the vendor is the original 
 lessee, or an assignee who has entered into a similar 
 covenant on the assignment to himself, or the executor 
 or administrator of such lessee or assignee (q). But in all 
 such cases the sole object of the covenants so to be given 
 by the purchaser is to secure the vendor's indemnity 
 against any future breach of the conditions on which 
 the land sold is held ; and (except on the purchase of 
 leaseholds ' the purchaser is entitled to require that his 
 covenant to observe these conditions shall be so ex- 
 pressed as not to impose on him any greater liability 
 than this (r). On the sale of leaseholds the vendor can 
 oblige the purchaser to covenant in the above-mentioned 
 form, which has been established by long conveyancing 
 practice : but such covenants will be construed as having 
 been given by way of indemnity only, and not so as to 
 confer on the vendor any further or other right to 
 insist on the observance of the covenants in the lease 
 than is necessary for the purposes of his own indem- 
 nity («). If the vendor of leaseholds will not remain 
 liable, after the assignment of the leaseholds to the 
 purchaser, for any future failure to pay the rent or keep 
 the covenants, as where he is the original lessee's trustee 
 in bankruptcy or is an assignee of the lease who did 
 nof covenant to indemnify his assignor generally against 
 the rent and covenants, he cannot require the pm'chaser 
 to covenant to indemnify him {f). Where on a sale of 
 
 {q) See previoiis uote. Harris 
 V. Boots, i-c. Ltd., 1904, '2 Cli. 
 376, 382 : above, p. 80. 
 
 (r) Re Fuole and Clarke''s (Jun- 
 tract, 1904, L' Ch. 173. 
 
 (.s) Harris v. Boots, (^r. Ltd., 
 1904, 2 Ch. 376. 
 
 (C) 8ee Willcivs V. Fri/, 1 Mer. 
 244, 263—266 ; Sug. V. & P. 37, 
 38 ; 1 Dart, V. & P. 558, 5th ed. ;
 
 OF THK COMPLETION OF THE CONTRACT. 669 
 
 leaseliolds the vendor is bound to pay the rent and 
 perform the covenants in the lease up to the proper 
 time for completion, as is the case under an open con- 
 tract {>(), it is thought that the purchaser cannot be 
 required to enter into such a covenant as would extend 
 to indemnify the vendor against past breaches of cove- 
 nant (r). And it is submitted that in such case the 
 purchaser cannot safely enter into a covenant of indem- 
 nity in the common form, which has been hitherto 
 usual (//) ; for this, it sterns, might be held to oblige 
 him to indemnify the vendor against past breaches of 
 covenant {z) : but he should insist on his liability being 
 expressly limited to indemnity against future omission 
 to pay the rent and keep the covenants. If, however, 
 the purchaser bought with notice of some breach of 
 covenant and agreed to take the property subject to the 
 breach, then, it is thought, his covenant to indemnify 
 the vendor o\ight to include indemnity against the con- 
 
 630, 6th ed. ; 581, 7th ed. : covenant was not exactly in the 
 Davidson, Prec. Couv. vol. ii. common form : but the construc- 
 pt. i. 217, 4th ed. Note that the tion placed upon it certainly 
 assignee' .s liability independent throws doubt upon tlie construc- 
 of express contract to indemnify tion of the common form, which 
 the original lessee (as to which is not expressed with unraistak- 
 see Buriiclt v. Ltpich, 5 B. & C. able accuracy. Some of the 
 .589 ; Moule v. Garretl, L. R. o reasons given for the decision in 
 Ex. 132, 7 Ex. 101) extends only this case appear questionable: 
 to omission to pay the rent or but it may be supported on the 
 keep the covenauis during his ground that the breach of the 
 own tenancy, and not to any such covenant to repair was a con- 
 omission occurring after he has tiuuiug breach and the assignee 
 assigned over: Sug. V. & P. 38. covenanting to perform the cove- 
 
 (m) Above, pp. 350 *</. nants as from the date of the 
 
 {x) This is fui'ther apparent assignment came under an imme- 
 
 from the fact that the '-ovenants diute duty to perform the cove- 
 
 for title, which the vendor is naut to repair, and he could not 
 
 bound to give, include a covenant discharge this duty without 
 
 that the rent has been paid and remedying the whole breach of 
 
 the covenants perfnrmed ; see the covenant. Thus his failure 
 
 above, p. 652. to remedy the continuing breacli, 
 
 (y) Davidson, Prec. Ctmv. which occurred after the assign- 
 
 vol. ii. pt. i. 419, 4th ed. ; 1 ment, made him indirectly liable 
 
 Key & Elph. Prec. Conv. 457, to indemnify the vendor against 
 
 8th ed. a breach of covenant which liad 
 
 (c) See Gnoch v. Clntterbuck, occurred before it. 
 1899, 2 Q. B. 148, where the
 
 670 OF THE COMPLETION OF THE CONTRACT. 
 
 sequences of that breaeli. For example, where buildings 
 held under a repairing lease are out of repair and are 
 sold to a purchaser, who has notice of the actual con- 
 dition of the premises, on the terms that he shall take 
 them as they are and the vendor shall not be obliged to 
 put them in repair before completion, the purchaser 
 must, it is submitted, covenant to indemnify the vendor 
 against all liability for the existing breach of the cove- 
 nant to repair (a) as well as against any future omission 
 to pay the rent or keep the covenants (h). 
 
 Indoinnity on When freehold or copyhold land affected by restrictive 
 subject to covenants is sold subject to the covenants, the question 
 restrictive of the purchaser's liability to covenant to indemnify the 
 
 ro veil ants. '^ , . . 
 
 vendor depends on the principle above stated (e), the 
 same as prevails in the case of the leaseholds. If the 
 vendor will remain liable, after the conveyance, under 
 any covenant or contract previously made b}^ him, for 
 the future omission to observe the restrictions, the pur- 
 chaser must covenant to indemnify him ; otherwise not. 
 And this principle is jiroperly applicable, whether the 
 vendor or the purchaser seek to enforce the contract {(f). 
 
 (a) The judgments given in Jie (d) Re Foole and Clarke's Con- 
 
 Mghctt and Bird's Contract, 1903, tract, 1904, 2 Ch. 173. See Mo.r- 
 
 1 Ch. 287, are opposed to this hai/ v. Indertcick, 1 De Gr. & S. 
 
 view : hut it is submitted that 708 ; Lnkey v. Higr/s, 1 Jur. 
 
 those judgments were delivered N. S. 200, where there are 
 
 under a mistaken apprehension dicta leading to the conclusion 
 
 of the law : see above, p. 354. that, where land is expressly sold 
 
 {b) Apparently a covenant of as being subject to restrictive 
 indemnity in the common form covenants, but without an express 
 would effect this object, where stipulation that the purchaser 
 the breach is continuing, for shall observe tlie covenants, the 
 the reason given in the pre- pui'chaser cannot enforce the 
 vious note. But if the breach specific performance of the con- 
 were not continuing the common tract without entering into a cove- 
 form could not be relied on. naut with the vendor to observe 
 Wliere the vendor covenants for the restrictions ; but if specific 
 title in the usual way, it seems performance be sought bj' the 
 impossible to construe the com- vendor, the purchaser cannot be 
 mon form of purchaser's covenant obliged to enter into such a cove- 
 as extending to past breaches of nant : see Sug. V. & P. 38. But 
 covenant. it appears that Mr. Dart's 
 
 (c) Above, p. G67. criticism of these dicta (1 Dart,
 
 OF THE COMPLETIOX OF THE CONTRACT. 071 
 
 Tliiis tlie vendor will be entitled to be indemnified where 
 he was a party to tlie contract, whicli originally imposed 
 the restrictions, or where he bought from one liable to 
 observe the restrictions and covenanted with him to 
 observe tlie restrictions and to indemnify him against 
 all future breaches thereof. But if the vendor were no 
 party to the contract creating the restrictions and 
 acquired the land subject to the restrictions without 
 liim.self contracting to observe them or to indemnify his 
 grantor against their non-observance (e) , there is no 
 reason for calling upon the purchaser to indemnify him. 
 These results follow, when land is sold subject to restric- 
 tive covenants, although the contract for sale do not 
 expressly provide for any covenant being made by the 
 purchaser : but the purchaser, where he can be required 
 so to covenant, is entitled to have his own covenant to 
 observe the restrictions limited in express terms to 
 securing the vendor's indemnity against future breaches 
 of the restrictive covenants ( /") . It is however common 
 for a vendor who is selling land subject to restric- 
 tive covenants, and will remain liable for the failure 
 to observe them, to stipulate expressly that the pur- 
 chaser shall covenant to observe tlie restrictions and 
 indemnif}' him against any future omission to observe 
 them ; and if this bo done, the purchaser must of 
 course covenant in the terms stipulated for. "Where 
 lands were sold subject to a covenant not to erect 
 thereon any buildings other than those of a par- 
 ticular kind and also subject to " pro])er provisions 
 f(U" securing the due observance and performance " of 
 the covenant, it was held that the vendor was entitled 
 to have inserted in the conveyance a power of re-entry, 
 
 V. & p. .55i)— r)61, 5th eil. ; 6;il— (iiiii ClarLrs CoNttavl, n\n sup. 
 
 ():};5, Gth ed.) was correct; and , \ a . „,.- 
 
 .1 1 iv. T i.- i.- I 1 ('■) oee abovo, i). 06/. 
 
 tlwit the distinction so suggested "■ ' * 
 
 is unsound: and it is now estab- (/) Re Poole and Clarke'' s Cini- 
 
 lislicd tliat the true principle is tract, 1904, 2 Cli. 173 ; above, 
 
 tluit stated in the text ; AV I'oole p. 668.
 
 672 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 exercisable within the period of certain existing lives 
 and twenty-one years after, in ease of any breach of 
 the covenant, for the purpose oi pulling- down any 
 buildings erected in breacli of the covenant, and holding 
 the lands until reimbursed all expenses of so doing ; 
 but was not entitled to have a term of years or a rent- 
 charge limited to a trustee for the purpose of securing 
 the performance of the covenant (r/). This was so 
 decided in consequence of the express stipulation for 
 proper provisions for securing the performance of the 
 covenant ; and, without such stipulation, a vendor 
 selling lands subject to restrictive covenants cannot 
 insist on the insertion in the conveyance of any proviso 
 for re-entry on breach of the covenant. 
 
 Indemnity on 
 sale of land 
 subject to a 
 charge for 
 which the 
 vendor will 
 remain liable. 
 
 So where land is sold subject to some charge, which 
 the vendor will after conveyance remain personally 
 liable to pay, the purchaser is bound to covenant to 
 indemnify the vendor against all liability for its non- 
 payment ; as where a mortgagor sells the equity of 
 redemption of the mortgaged laud (h), or land is sold 
 subject to a rent-charge which the vendor has, either on 
 its original creation or on his own purchase of the land, 
 covenanted to pay (/), or an estate in remainder liable 
 to succession duty is sold (/■). 
 
 Sale in con- Wliere land is sold in consideration of a rent-charge 
 
 reiT-diarge^'' to issue thereout either for life or in fee, the vendor is 
 
 entitled to require that the rent shall be secured to 
 
 iff) Exptr. Ralph, De G. 219. 
 
 [h) Warm(j v. Ward, 7 Ves. 
 332, 337; Bridqmnn v. D(ui\ AK> 
 W. R. 253 ; Sug. V. & P. 198 ; 
 1 Dart, V. & P. 557, 5th ed. ; 
 629, 6th ed. ; 579, 7th ed. ; 
 Davidson, Prec. Conv. vol. ii. 
 pt. i. 453 aud n. (r/), 4th ed. 
 The purchaser is liable in equity 
 to indenmify the vendor with- 
 out such covenant ; Waring v. 
 
 Ward, ubi sup. ; Re Law Courts 
 Chambers Co., 61 L. T. 669, 671. 
 
 {i) 1 Dart, V. & P. 559, 5th 
 ed. ; 631, 6th ed ; 582. 7th ed. ; 
 see above, p. 435. 
 
 {k) Re Repington. 1904, 1 Ch. 
 811, 814; Dart, V. & P. 557, 
 593, 5th ed. ; 629, 668, 6th ed. ; 
 580, 1234, 7th ed. ; see above, 
 p. 407.
 
 OF THE COMPLETION OF THE CONTKACT. 67'-'^) 
 
 him, not only by charging the same on the land sold, 
 but also by the purchaser's personal covenant for pay- 
 ment (/) . The vendor is also entitled to have an 
 express power of distress limited to him, that being 
 of the essence of a rent-charge {ni). It is questionable, 
 however, whether he is entitled, in the absence of 
 express stipulation, to have the rent-charge further 
 secured by a power in default of payment to re-enter 
 and hold the land until the arrears of tlie rent and 
 all costs be satisfied (u) : although it has long been 
 usual, on conveyance of land in consideration of a rent- 
 charge, to reserve such a power (o). But a stipulation 
 that the rent-charge should be secured by ''proper 
 provisions " would certainly entitle the vendor to have 
 the same secured by such a right of entry {p). The 
 vendor is not entitled, without express stipulation, to 
 liave reserved to him a power in default of payment of 
 tlie rent to limit a term to a trustee on trust to raise the 
 arrears by sale or otherwise (7). And if no such express 
 stipulation were made in the contract of sale, and the 
 remedies for recovering the rent-charge are to be 
 reserved, as is now usual, by tacit incorporation in the 
 conveyance of the 44th section of the Convej'ancing 
 Act of 1881 (r), the purchaser should be careful to 
 insert a proviso modifying the operation of tliat enact- 
 ment in accordance with his rights under the contract, 
 and excluding the power to limit a term, which the 
 statute would otherwise confer (s) . The vendor is not 
 
 (/) Bower v. Cooper, 2 Harp, vol. ii. pt. i. 508 and n., 4th ed. ; 
 
 408; 1 Dart, V. & P. oG'J, .5th Wms. Real Prop. 337, 13th ed. ; 
 
 ed. ; 634, 6th ed. ; 08'), 7th ed. ; 42o, 20th ed. 
 Davidson, Prec. Conv. vol. ii. {p) Jupte. Italph, De G. 219. 
 
 pt. i. 50'.), n., 4th ed. {>/) See K.vple. Ralph, De G. 
 
 {m) Sec Wms. Real Prop. 432, 219; Davidson's Concise Prece- 
 
 21st ed. This is none the less so dents, 207, n. {a), 18th (h1. 
 that a remedy by distress was {r) Stat. 4 4 «5c 45 Vict. e. 41 ; 
 
 g'iven for rent seek by stat. 4 see Wms. Real Prop. 433, 436, 
 
 Geo. II. c. 2», s. 5. 21st ed. ; "Wms. Conv. Stat. 216, 
 
 (w) See Ex pie. Ralph, De G. 217. 
 210. (v) David.son's Coneise Prero- 
 
 {()) Davidson, Prec. Conv. dents, 207, n. (</), 18th ed. 
 
 w. 43
 
 674 
 
 OF THE COMPLETIO^■ OF Till-: CONTKACT. 
 
 entitled, in tlie absence of express stipulation, to liave a 
 
 power limited to him in default of payment of the rent 
 
 to re-enter on the land and hold the same as his own. 
 
 Sale partly in Where land is sold partly in consideration of an agroe- 
 
 of an ajj-ree- ment by the purchaser to erect buildings thereon, it is 
 
 mont by the thous'ht that, uulcss the contract otherwise provide, tlie 
 
 purc.ha.ser to ° _ r ' 
 
 build. vendor is only entitled to have the purchaser's covenant 
 
 to erect the buildings (/). It is therefore desirable for 
 the vendor to insert in such a contract an express stipu- 
 lation that ho shall, in default of due performance of 
 the covenant, have a power of re-entry and liolding the 
 land until the covenant be performed, sucli power to be 
 exercisable within a period not exceeding the limits of 
 the rule against perpetuities ; and it is sometimes 
 advisable to make such a stipulation where it is agreed 
 that the purchaser shall observe restrictions on the 
 use of the land sold {it). But it seems that a stipu- 
 lation that the performance of the covenants shall be 
 secured " by proper provisions " will entitle the vendor 
 to have.such a power of re-entry reserved to liim (.r). 
 
 Whether the 
 usual reme- 
 dies for 
 securing a 
 rent-charge 
 in fee are void 
 for remote- 
 ness. 
 
 An express power of distress granted either in terms 
 or by the operation of the 44 th section of the Convey- 
 ancing Act of 1881 (//) is certainly not obnoxious to the 
 rule against perpetuities. Such a power is, as Ave have 
 seen, of the essence of a rent-charge ; it merely confers 
 by express grant the same remedy as is annexed to rent 
 service at common law and now b}^ statute to rent 
 seek (z) ; it creates no separate future interest in the 
 land apart from the rent ; and it has been known to the 
 
 (t) See above, pp. 648, 666. 
 
 (?() It is not equally necessarj-^ 
 in all cases, as the burden of re- 
 strictive covenants will in equity 
 run with the land, and they may 
 be enforced by action for injunc- 
 tion against any one acquiring 
 the land with notice thereof ; 
 while covenants to build are only 
 
 enforceable by action at law on 
 the covenant against the cove- 
 nantor personally and hi.s repre- 
 sentatives in law ; see above, 
 pp. 491 sq. 
 
 {x) See Rrpfe. Halp/i, De G. 
 21!). 
 
 (y) Stat. 44 & 4.") Vict. c. 41. 
 
 (;) Above, p. 673, n. (m).
 
 OF THE COMPLETIOX OF THE CONTRACT. 675 
 
 Law and always treated as unquestionably valid from 
 Ijittleton's time (a) onward (/>). It is submitted tliat 
 the better opinion is that a riglit reserved on the erea- Power of 
 tion of a rent-cliarge in fee for the owner of the rent, g^tisfy 
 his heirs and assigns to enter on the land charged in fir^ars. 
 default of payment of the rent at any time and to liold 
 the same until the arrears of the rent and all expenses 
 shall be satisfied out of the rents and profits is not void 
 for remoteness, although its exercise be not confined to 
 the duration of existing lives and twenty-one years 
 after ; and that this is the case whether such right of 
 re-entry be created by direct reservation or by means of 
 the Statute of Uses. For it has alway^s been considered 
 that such a power of entry, being given by way of 
 remedy only for recovery of the rent, is merely a part 
 of the estate which the grantee of the rent has in the 
 rent limited to him ; the power passes bj^ a grant of the 
 rent as incident thereto, whereas if it had been an inde- 
 pendent interest or condition it would have been in- 
 alienable at common law, and the heir alone and no 
 assign of the grantee could have made use of it (c) ; and 
 it gives only a right of seizure and temporary occupa- 
 tion, which does not divest the estate of the terre- 
 tenant {(I), and confers no more than an interest to take 
 the profits in the nature of a distress (e). The right 
 created by such a power appears, therefore, not to be an 
 interest, independent of the rent, to arise at a future 
 
 («) Litt. 8S. 216—218. 30.S, 402, 21st od. : Suir. Tow. 
 
 (//) The writer Ls not aware 4'<i, 44. 
 that its validity lias ever bceu {//) The rent-owner entering 
 attaekeJ : but in view of tlie under sucli a power may indeed 
 modern extension of the rule demise the land, but can only 
 againbt perpetuities, and the confer on the tenant an interest 
 alarm inspired thereby amougbt eo-extent-ive with his own, that 
 the weaker bi-ethren, he has is to say, determinable on pay- 
 thought it wortli while to state meut or catisfaetion of all arrears: 
 tlic reasons fur maintaining the see Litt. s. 327 ; llnnriiill v. 
 validity of such a power. Jla re, Cro. J ac. .'ilO ; Jtmmitt v. 
 
 {c) Jfairif/ii/ V. II fin; Cro. Jac. Cun/i/, 1 Lev. 170. 
 
 .■ilO; see Wms. Real Prop. 33S, {r) Co. Litt. 203 a. 
 
 43 (2)
 
 676 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 a term. 
 
 time in the land out of which the rent issues, and so not 
 to fall within the class of future interests in land which 
 must conform with the rule against perpetuities (/). 
 And it is submitted that there is no occasion, on con- 
 ferring such a power of entry in connexion with the 
 creation of a rent- charge in fee, to confine the possible 
 exercise thereof witliin the term of some existing lives 
 Power to limit and twenty-one years after (g). There appears to be 
 no doubt, however, that a power given to the owner of 
 a rent-charge in fee, in case of non-payment of the rent- 
 charge at any time, to limit an aht^o/ufe term of years to 
 a trustee on trust to raise the arrears by sale or mortgage 
 tliereof, is invalid; for the creation of such a term would 
 confer an interest in the land charged, which would not 
 be determinable on payment or satisfaction of the 
 arrears of the rent (//) ; and such a future interest, 
 capable of existing independently of the rent must, it is 
 tliought, be limited to arise within the time allowed by 
 tlie rule against perpetuities or it will be void (/). If, 
 therefore, use be made of the 44th section of the Con- 
 veyancing Act, 1881 (A-), on the creation of a rent- 
 charge in fee, care must be taken to confine the possible 
 
 (/) See Third Report of Real 
 Property Commissioners, 37 ; 
 Sug. Gilb. Uses, 178, 179; Lewis 
 on Perpetuities, 618; Gray, Rule 
 against Perpetuities (Boston, 
 1886), ^ 303, p. 216; and observe 
 that the practice sanctioned by 
 the most eminent conveyancers 
 has long been to limit such 
 powers of entry as security for 
 the payment of a rent-charge in 
 fee without confining the time of 
 their possible exercise within the 
 period allowed by the rule against 
 perpetuities and without express- 
 ing any doubt as to their validity : 
 Davidson, Prec. Conv. vol. ii. 
 pt. i. 508 and n., 4th ed ; Wms. 
 Real Prop. 337, 13th ed. ; 1 Key 
 & Elph. Prec. Conv. 33."), n., 603, 
 4th ed. : Davidson's Concise Pre- 
 cedents, -206, 207, 18th ed. 
 
 (r/) The opposite course is 
 
 now recommended in 1 Key & 
 Elph. Prec. Conv. 365, n. (//), 498, 
 634, 9th ed. It is submitted, 
 however, that notwithstanding 
 the case of Ec HoUis' Ifospita/ 
 n ml Hague, 1899, 2 Ch. 540, the 
 better opinion as to the law and 
 proper practice is that expressed 
 in the authorities referred to in 
 the previous note. 
 
 (h) See above, p. 675, n. ((/). 
 
 (() Such a power, it must be 
 remembered, could not be con- 
 ferred by any common law dis- 
 position, but could only be created 
 under the law of shifting use or 
 executorv devise : see Wms. Real 
 Prop. 376 sij., 21st ed. 
 
 (/•) Stat. 44 & 45 Viit. c. 41, 
 which is thought to confer no 
 greater power of limiting a term 
 than the landowner has with- 
 out it.
 
 OF THE COMPLETION OF THE CONTRACT. t)< 
 
 exercise of tlie power of limiting a term therein men- 
 tioned (if this power be not altogether excluded (/) ) to 
 the period of the duration of some existing lives or life 
 and twenty-one years after. With regard to the limi- Puwtr of 
 tation, on tlie conveyance of land in consideration of a ^ay offor- 
 rent-charge in fee to issue thereout, of a power for the *eiture. 
 grantee of the rent, his heirs and assigns to enter in case 
 of non-payment of the rent at any time and thencefortli 
 to liold tlie land charged in fee as liis or tlieir own, if 
 such a power is reserved by way of shifting use, as it 
 must be to enable the grantee's assigns to take advantage 
 of it (ni), it will be void unless limited to the time 
 allowed by the rule against perpetuities {)i). And so 
 will a like power of entry limited by way of shifting 
 use to arise on breach of covenant (o). In either case 
 the power is quite different from a power annexed to a 
 rent to enter and satisfy aiTcars ; for a power to enter 
 and hold the land absolutely defeats altogether the 
 estate given subject to the power (p), the event in which 
 the power is to be exercisable being a cause of forfeiture 
 of that estate. As to conditions of entry limited on 
 gifts of land at common law to tlie donor and liis heirs, 
 they were in use and were considered to be perfectly 
 valid long before the rule against perpetuities was heard 
 of {q)y and the opinion of the Heal Property Commis- 
 sioners was that, although these conditions came witliin 
 the pollci/ of the modern rule against perpetuities, their 
 validity was not affected by that rule, as it tlien 
 existed (/•). Hecently, however, tlie opinion has been 
 
 (0 Above, p. (i7;>. (»•) Sec tli<ir 'I'liiid Report, 
 
 [di] See Litt. ^<s. ;i2.'), .'il7, ;J4.s ; pp. ;21), :>(), 'M . Their opiuioii 
 
 Co. Liu. -01, 214, 21.) ; Butler's was aud it whs louj^ eoiisidend 
 
 notes to Co. Litt. 203 a, b ; by very eminent lawyers that the 
 
 above, p. 07"), and n. (<•). rule ajrainst perpetuities related 
 
 [ii) Third Kop. of Real Prop. only to future interest.s created 
 
 Commrs. 37 ; Jt'' UoIUs' IloK/Atal by way of shifting use or execu- 
 
 a)i(t Hai/>ir,l8W. 2 Ch.oiO, bid. tory devise: see Wnis. R.al 
 
 (o) Above, p. G71. Prop. 27(3, 277, 319 .s,j., 13th ed. : 
 
 (p) See above, p. G7o. Davidson, Pree. Conv. vol. iii. 
 
 (</) Litt. s. 32.5 ; Co. Litt. 201, pt. i. 336, 3rd ed. 
 
 202.
 
 678 OF THE COMPLKl'lON OF THE CONTRACT. 
 
 judicially expressed that a common law condition of re- 
 entry annexed to a grant of land in fee is invalid unless 
 the event, in which the power of entry is to arise, must 
 occur within the time allowed by the rule against per- 
 petuities (.s). If, then, on sale of land in consideration 
 
 (s) N(n-th, J., BiniH v. Flood, 25 Ch. D. G29 ; Baggallay, L. J., 
 S. C, 28 Ch. D. 592: Ee IloUi.f' jrosjAtnl and Haijur, 1890, 2 Ch. 
 5i0. In the former ca.se the opinions expressed Avere vh'Ucr divld ; 
 and iuic'ording to the report the power of entry was created by cove- 
 iiMUt only and in favour of the vendors, without mentioning- their 
 heirs and assigns. If this be correct there could have been no objec- 
 tion on the score of perpetuity : for the power of entry would only 
 have been exercisable by the vendors themselves in their lifetime. 
 In the latter case the point was not precisely determined. It was a 
 vendor and purchaser summons raising the question whether it was 
 an objection to title that the land sold was subject to a common law 
 condition of reverter to a former owner's heir in an event which might 
 occur at an unlimited time after the creation of the condition. 
 Byrne, J., expressed the opinion that the condition was void, but 
 decided that the title was too doubtful to be forced on an unwilling 
 purchaser, since the person who would be entitled under the condition 
 (which if valid w ould have come into effect on the conveyance com- 
 pleting: the sale) was no party to the proceedings and threatened 
 litigation against the purchaser. The learned judge must therefoie 
 have considered that it was reasonably open to doubt whether the 
 person entitled in cuse of the validity of the condition had not a good 
 cause of action. It should be noted that the opinion of the Real 
 Property Commissioners (3rd Rep. p. 37) was not cited iu either of 
 these cases. Byrne, J., in the latter case, admitted that there was no 
 authority on the point and simply adojJted the view maintained in 
 Lewis on Perpetuities, 61G, saying that, except in Challis on Real 
 Property, 174 — 177, 2nd ed., he could find no definite statement of a 
 contrary opinion. It is submitted that on such a question the opinion 
 of the Real Property Commissioners is of greater weight than that of 
 Mr. Lewis. But of course, as Mr. Justice Byrne well pointed out, 
 instancing the analogous progress of the law as to contracts in 
 restraint of trade, the boundaries of the rule against perpetuities 
 have been of late considerably extended, and sever*! interests which 
 formerly were only within the policy of the rule have been drawn 
 definitely within the ambit of the rule itself : see London and Sunth 
 Western Rail. Co. v. Goiiiw, 20 Ch. D. 562 ; Itc Front, 43 Ch. D. 246 ; 
 Wms. Real Pi-op. 4flG — 417, 21st ed. If, however, covenants for the 
 perpetual renewal of leases are to ba considered as outside the rule 
 because their validity was established before the modern development 
 of the perpetuity rule (and it is submitted that their exception cannot 
 be well founded on any other principle : see an article by the writer 
 in 42 Sol. J. ()28), surely common law conditions, which are of much 
 great, r antiquity, might be allowed a similar immunity. One very 
 strong argument in favoiu- of the validity of common law conditions 
 of re-entry, though unrestricted as to time, is that by the common 
 law, if an estate be given to a man and his heirs upon some conditiou 
 subsequent, a right of re-entry on breach of the condition is implied in 
 favour of the donor and his heirs ; Litt. ss. 328, 329, 331. It does not 
 appear that the law has been altered in this respect. But if common
 
 OF THE COMPLETION OF THE CONTKACT. 679 
 
 of a rent-charg-e and a covenant to build or to observe 
 restrictive covenants, the vendor stipulate for the 
 reservation of a right of re-entry by way of forfoitiu'c 
 on non-payment of the rent or breach of covenant, such 
 right of entry must, if it is to be extended to the 
 vendor's assigns, be created by way of shifting use and 
 must therefore be limited to arise within some lives or 
 life in being and twenty-one years after {f). And in 
 the present state of the law it would be unwise to create 
 a common law condition of re-entry without limiting the 
 time of its possible exercise in the same way (^0- And I'ower uu 
 
 ^ . . . breach of 
 
 it is thought that this is equally the case where land is ooveuunt, to 
 
 sold partly in consideration of the performance of u"tUnorforni- 
 
 building or restrictive covenants and it is stipulated hucc thereof. 
 
 that the performance of the covenants shall be secured 
 
 by a power of re-entry and holding till performance of 
 
 the covenants (.<■). In this case also it appears that a 
 
 right for the vendor's assigns to re-enter can only be 
 
 secured by a shifting use (//) ; and as the riglit to 
 
 enforce a building covenant can confer no interest iu 
 
 the land to be built on, and the right to enforce a 
 
 restrictive covenant is merely an equitable interest in 
 
 the land thereby affected (~), it does not appear to be 
 
 maintainable that a right of re-entry of this kind is a 
 
 part of the estate of the person entitled to enforce the 
 
 covenant ; which is, as we have seen {a), the ground on 
 
 which a like power of entry annexed to a rent is asserted 
 
 to be valid, lliough unlimited as to time. 
 
 Another matter wliicli may be conveniently discussed 
 
 hiw coudilious .sliould bo suV)ject {xj Above, p. 07;"). See David- 
 
 to the rule against perpetxiitios, soii.Prec.Conv. vol. ii. pt. i.p. ol I 
 
 it wouUl apparently follow that and u., 4th ed. ; 1 Key & Ei])li. 
 
 such an implied condition of re- Tree. Conv. 33.), n., 467. G04, 
 
 entry would be voll. as being- 1th ed. ; 338, n., 4()4, r)<)4, 8th 
 
 exercisable at mi;/ future time. ed. ; Davidson's Concise Prcee- 
 
 i,\ \K.. ., ,-- dentfi -210 and n. 1 («), ISth ed. 
 
 {() Above, p. Om. /no 1 -■-> 
 
 * ' ' (i/j See above, p. 0<5. 
 
 (it) See above, p. 37'J and n. \:) Above, pji. 41)1 «y. 
 
 (/). {(I) Above, p. G75.
 
 680 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Delivery of ill coiiuectioii with tliG preparation of the conveyance is 
 oncompletioii^ ^^® delivery to the purchaser of the title deeds or other 
 muniments of title, and the vendor's duty to give or 
 procure proper statutory acknowledgments of right to 
 production and undertakings for safe custody of any 
 documents of title lawfully retained in the possession 
 of the vendor himself or any other person. The 
 general rules governing this matter upon a sale by open 
 contract have been already stated (b). The vendor is 
 bound, ill the absence of special stipulation, to deliver 
 over to the purchaser on completion all documents of 
 title, which are or should rightly be in his own 
 possession and relate solely to the property purchased, 
 whatever be their date and whether abstracted or 
 not {(•). The documents, which must be so handed 
 over, include not only the title deeds and such other 
 muniments of title as will pass without express mention 
 by a conveyance of the land itself (r/), but also all 
 documents produced for the purpose of verifying the 
 abstract in proof of any fact stated therein ; such as 
 certificates of baptism, marriage or burial, statutory 
 declarations as to matters of pedigree or as to the 
 identity of the property sold, or certificates of the result 
 of an official search for judgments or other matters {e). 
 But of coiu'se documents, such as a marriage settlement, 
 merely produced to show that they do not affect the 
 land sold (,/') cannot be required to be given up to the 
 purchaser. It appears that in general the vendor is not 
 obliged to hand over the receipts for payments made on 
 account of any of the death duties {[/) ; for although 
 these may be evidence (especially in the case of 
 
 (b) See above, pp. 34, 47, 48. 
 
 (c) Sug. V. & P. 407; Dart, 
 V. & P. 673, 5th ed. ; 7G2, 6th 
 ed. ; 693, 7th ed. 
 
 {d) See Harrbigton v. Trice, o 
 B. & Ad. 170 ; Fhilips v. Jlobin- 
 son, 4 Bing. 106 ; i?e WiUiams 
 
 and Newcastle' s Contract, 1897, 2 
 Ch. 144, 148 ; Wms. Pers. Prop. 
 126, 16th ed. 
 
 (e) See above, pp. 144, 153 — 
 155, 604. 
 
 ( /') See above, p. 134. 
 
 (()) See below, Chap. XXI.
 
 OF THE COMPLETION OF THE CONTRACT. 681 
 
 succession duty) tliat a charge of duty on tlie land 
 
 sold has been satisfied, they are principally evidence 
 
 of the discharge of the person who made the payment 
 
 from a personal liability or accountability to the Crown, 
 
 and on this ground lie appears to be entitled to retain 
 
 them. But it seems that any written statement or 
 
 certificate (such as may be given in the case of estate 
 
 duty (//) ) of the Inland Revenue Authorities, which 
 
 merely purports to show that the land sold is discharged 
 
 or free from any lien or claim for some particular death 
 
 duty, ought to be delivered up to the purchaser. As 
 
 we have seen (/), the Vendor and Purchaser Act, 1874, 
 
 provides that, in the absence of stipulation to the 
 
 contrary, where the vendor retains any part of an estate 
 
 to which any documents of title relate, he shall be 
 
 entitled to retain such documents {k) . It has been held 
 
 that, as this Act relates onl}^ to sales of land, this 
 
 enactment only applies where the vendor retains some 
 
 land or interest in land, to wliich the documents of 
 
 title relate ; so tliat where a mortgage had been made Av Wiiiiums 
 
 of land together with policies of insurance on the raort- "',','^tf/J^' 
 
 gagor's life, and the mortgagee sold the land imder his (^outruci. 
 
 power of sale, but not the policies, it was decided that 
 
 the mortgagee was bound to hand over the mortgage 
 
 deed to the purchaser (/). This case appears to have 
 
 been argued and decided solely upon the construction 
 
 of the enactment quoted : but it is submitted that the 
 
 matter ought rather to have been referred to the 
 
 principle contended for before the Vendor and Purchaser 
 
 Act was passed, namely, tliat where a title deed of any 
 
 land sold relates also to other property of th(! vendor, 
 
 he should be at liberty to retain it {in) ; and that the 
 
 intention of the Act was merely to declare the law in 
 
 {h) See below, Chiip. XXI. (/) lie WiUiuni" aiid Xcwcastlc^s 
 
 ,.. ., ,- C'oM</-w<, 1897, 2 Ch. 144. 
 
 (t) Above, p. 4.. ^^^. -2 Dart, V. & P. 618, 4th 
 
 (A) Stat. 37 & 38 Vict. c. 78, ed. ; AVms. Pers. Prop. 11, 11th 
 8. 2, nile 5. cd. ; 127, IGth ed.
 
 (582 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 cases wliere the vendor retained some land and not 
 to legislate for eases in wliieli he retains some personal 
 chattels to wliicli the deed in question is also a title 
 deed. Suppose that land and personalty were vested 
 in trustees by one deed of settlement, the land being 
 settled on trust for sale, would the trustees be obliged 
 on a sale of the land to hand over the deed of settle- 
 ment to the purchaser? It is thought not. But if 
 this opinion be right, it must rest on the above- 
 mentioned principle ; as it does not appear that the 
 fact, tliat the trustees have duties to perform under the 
 deed, is of itself sufficient to justify their retaining it. 
 For where land alone is settled on trust for sale and the 
 trusts of the piu'chase money are declared by the same 
 deed, it is considered that the trustees are not entitled 
 to retain the deed of settlement on a sale of all tlie 
 land {n) ; and for this reason it is the practice to declare 
 the trusts of the purchase money by a deed separate 
 from the conveyance on trust for sale [p). But in any 
 case where land has been settled along witli personal 
 chattels by the same deed either upon trust for or with 
 power of sale, and in any other case in which some title 
 deed of land sold relates also to personal chattels 
 retained by the vendor, he should be careful, so long as 
 the decision in lie WUJlaiitt< (uul NviccaHfle is not overruled, 
 Vendor, whu to stipulate cxpressly tliat he shall retain it. It does 
 nantcd to ^^^^ appear that a vendor, who is not retaining any land 
 produce tlio to whicli the title deeds relate, is entitled to retain them 
 on the ground that he has entered into a covenant to 
 produce them : but in such case, as the vendor will 
 remain under a personal liability, the purchaser must 
 covenant to perform the obligations which were so 
 undertaken by the vendor and to indemnify him 
 
 [ii) 2 Dart, V. i!c P. G7o, oth (o) Davidson, Prec. Couv. 
 
 od. ; 7G3, Gth cd. ; 094, 7th cd. vol. iii. 59, 8o7, 3id ud. ; Williaui.- 
 
 on Settlements, 125.
 
 OF THE COMPLKTION OF THE CON'l'KACT. 'Ji^'i 
 
 agai7i.st their non-performance {}>). If tlie vendor Voudor wlio 
 should prior to the sale have given a statutory .statiTtory ' 
 aekuowledo-ment and undertakinsr with regard to any acknowlwlg- 
 
 c' _ _ o o -^ ment and 
 
 document of title, that is of course no reason tor uudeitaking. 
 retaining it ; as the acknowledgmeut imposes no personal 
 liability and the undertaking imposes no liability on 
 the undertaker after he has parted with tlie possession 
 or control of tlio document (y). The vendor is of 
 course not bound to obtain and hand over any documents 
 of title lawfully remaining in tlie possession of any 
 other person tlian himself; as whore he himself lias no 
 more than a right to their production under a statutory 
 acknowledgment or a covenant, or where the documents 
 are in the possession of a mortgagee of other land, or a 
 mortgagee who is not to be paid off. 
 
 Where lands held under one title are put up for sale Sale ut" laml 
 in lots, without any special stipulation as to the custody 
 of the title deeds, it is considered that, if all the lots be 
 sold, the title deeds should be delivered to the purchaser 
 of the largest part in value of the lands (whether that 
 part be contained in one lot or several lots), and that lie 
 should give statutory acknowledgments and undertakings 
 to the otlier ])urchasers (y). If and so long as any lot 
 remain unsold, the vendor will be entitled to retain the 
 deeds (.s). But it is usual and proper on a sale by 
 auction of land in lots to make s[)ecial stipulations to 
 the like effect ; and these generally provide that the 
 deeds shall, after all the lots shall have been sold, 
 whether at the auction or afterwards, be delivered to the 
 
 {l>) Su",'. V. & r. 431, 435; (>•) See Griffi(h.s v. H.ileluinl, 
 Dart, V. & P. 561, 675, 5th cd. : 1 K. & J. 17", 18; Sag. V. & P. 
 6;{:;, 76:5, 6th ed. ; 584, 6<J4. 7th 34 ; Dart, V. & P. 144, ()71, 
 k1. ; David.-oii, Prec. Coiiv. 5th ed. ; 162. 76-_', 763, 6th ed. ; 
 vul. ii. pt. i. 6G4, u., 4th ed. ; 158, 693, 694, 7th ed. ; 1 David- 
 see above, p. 607. son, Prec Cunv. 117, 589, 4tli ed. 
 
 (7) Stat. 44 & 45 Vict. c. 11, 
 
 8. 9 (2), (9). (.v) Above, p. 681.
 
 684 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Solicitor's 
 lien on the 
 deeds. 
 
 Vendor's duiy 
 to furnish 
 statutory- 
 acknowledg- 
 ments and 
 undertakinijs. 
 
 What docu- 
 ments should 
 be included 
 in a statutory 
 acknowledg- 
 ment. 
 
 jiurchaser of tLe largest part in value of the lands 
 sold (/). 
 
 It lias already been considered (ii) how far the 
 existence of a solicitor's lien on the title deeds may be 
 an obstacle to their delivery to the purchaser {k). The 
 vendor's solicitor can acquire no lien on the draft or 
 engrossment of the conveyance by reason of its being- 
 handed to him for approval on behalf of or execution 
 by the vendor ; as both draft and engrossment are the 
 property of the purchaser (having been prepared at his 
 expense (•^')), and must be returned to him, whether the 
 contract be completed or rescinded (//). 
 
 As we have seen (;:), the vendor is, as a rule, bound 
 to furnish the pm-chaser with proper statutory acknow- 
 ledgments and undertakings for the production and safe 
 custody of any title deeds or other mimiments of title 
 which may lawfully be withheld from the purchaser on 
 completion, and are necessary to make a good title 
 according to the contract. This rule, it will be observed, 
 does not oblige the vendor to furnish any acknowledg- 
 ment or undertaking with regard to any document of 
 title dated prior to the time fixed by law or agreed upon 
 for the commencement of title. The rule is, moreover, 
 subject to two important exceptions. First, it does not 
 apply to documents in public or official custody or other 
 documents, not being in the vendor's possession or 
 
 {/) 1 Davidson, Prec. Con v. 
 G21, 638, (i44, 4th ed. ; David- 
 son's Concise Precedents, 12.5, 
 18th ed. ; 1 Key & Elph. Prec. 
 Conv. 33'2, Sth ed. ; above, 
 p. 82. Note that if it be utipu- 
 lated that the purchaser of the 
 Itii-f/est lot shall have the deeds, 
 the purchaser of the lot largest 
 in area will be entitled to them : 
 Griffiths v. Hatchard, 1 K. & J. 
 17 ; and under a condition giving 
 the custody of the deeds to the 
 
 purchaser of the largest lot in 
 value, they will go to the pur- 
 chaser of the one lot which has 
 fetched the highest price, not 
 to the purchaser of other lots, 
 which have together realised a 
 larger sum : Scott v. Jack man, 21 
 Beav. 110. 
 
 («) Above, p. 128. 
 
 (.(■) Above, p. 46. 
 
 {)/) O.venham v. Esdaile, 2 
 Y. '& J. 493, 3 Y. & J. 262. 
 
 {z) Above, pp. 34, 47, 48.
 
 OF THE COMPLETION OF THE CONTRACT. 685 
 
 power, of which the purchaser can always obtain good 
 evidence for himself (/i) . It does not therefore apply to 
 deeds of bargain and sale enrolled, or to copies of court 
 roll not remaining in the vendor's possession or power : 
 but where the vendor retains any copies of coui-t roll 
 forming part of the abstracted title, he must give an 
 acknowledgment and undertaking with regard to 
 them(i). It is strange that it is not settled whether 
 the probate of a will or letters of administration forming 
 part of the title should be included in an acknowledg- 
 ment for production (c). Of course an unproved will 
 of realty only (d) should ; for that remains in ])rivate 
 custody. And it seems that, on a sale of leaseholds, the 
 probate of a will or letters of administration forming 
 part of the title, should, if retained by the vendor, be 
 included in the acknowledgment ; as the probate, or an 
 exemplification thereof, and not the original will, is the 
 only proper evidence of the will, and the letters are the 
 proper evidence of the administrator's title {r). It 
 appears too that whenever executors as such have taken 
 an interest in or exercised a power over the land sold, 
 as under the Land Transfer Act, 1897, or Lf)rd St. 
 Leonards' Act (/), the probate of the will, being the 
 proper evidence of their appointment, ought, if retained, 
 to 1)6 included in the acknowledgment ; and this is 
 equally true with regard to the letters of administration 
 in the case of an administrator. And it may be 
 contended that, since the probate of a will has hoen 
 made admissible evidence of a devise of realty (//), it 
 ought always to be tlu> subject of an acknowledgment 
 
 {") Above, p. 48, and n. {a). until he has fully ;uliiiinistorcil : 
 
 't\ n !• ^ -ox, oQo '-f- above, p. 682. 
 
 \h) Cooper \. J: men/, I Fh. .iSS. /i\ au i^i i/^o 
 
 ^ ' '^ •" (it) Above, pp. 161, 162. 
 
 (r) It is submitted that, on a ,/■ Above, p. 161, n. (.)•) ; 
 
 sale of land by the executor of a Taylor on Evideuee, vS^ 420, 1;')S!), 
 
 will, oi- by au administrator, he Uth ed. ; 2 Wms. Exors. ISSO, 
 
 is entitled to retain the pmbate 7th ed. 
 
 orlettersof administration, which (/) Above, pp. 226, 232. 
 
 it is necessary that he should have (;/) Above, p. 161, n. {.r\
 
 ^86 OF THE COMPLETION OF THE CONTRACT. 
 
 and undertaking, where it forms part of the title and is 
 retained. As we have seen (/<), however, ofhce copies of 
 wills and letters of administration are accepted as good 
 evidence on a sale ; and office copies of wills may he put 
 in evidence in Court to prove a devise of realty under 
 the same conditions as the probates may {i). For these 
 reasons, perhaps, it has not been the general practice to 
 include probates or letters of administration in a covenant 
 or an acknowledgment for production of documents of 
 title : but it is submitted that a claim for their inclusion 
 could not be successfully resisted (/.•) . And it is not 
 usual in practice to include in acknowledgments copies 
 (whether attested, certified, official or otherwise) of any 
 documents, or certificates of baptism, marriage or burial, 
 or receipts of payment of any death duties (/.•) ; although, 
 as regards office copies and receipts for succession or 
 estate duty retained by the vendor, this seems hardly to 
 conform with tlie principle laid down by the Court (/). 
 St'itutory Statutory declarations, which the vendor would be bound 
 
 ' ' to hand over if the}' related solely to the land bouglit, 
 
 should, if retained by liim, be the sabjeet of an 
 acknowledgment. Tlie purchaser cannot require any 
 
 (//) Above, pp. 150, IGl. receipts remain in the vendor's 
 
 ,-\ a i. i .TA r ,n T7- i. -T possession or power, on what 
 (i) See stat. 20 & 21 Vict. e. /7, • • i i, j i- i. 
 
 ,J^(, principle can ne decline to give 
 
 ■ "' ■ an acknowledgment for their pro- 
 
 {k) See Cooper v. Ejiier!/, 1 Ph. duction 'r" The usual practice cer- 
 
 S88 ; Davidson, Prec. Conv. taiuly appears unjustifiable on 
 vol. ii. pt. i. 66;i, 664. n., 4th ed. ; principle iu the case of receipts 
 1 Key & Elph. Prec. Conv. 457, n. , for succession duty or certificates 
 4th ed. ; 464, n. (c), 8th ed. of discharge of estate duty ; for 
 (/) Cooper V. Emery, 1 Ph. 388. these are good original evidence 
 Of documents of which office of the discharge of a lien on 
 copies are issued, a purchaser the land and remain in private 
 can of course obtain as good and not official custody. It is 
 evidence himself, and copies of submitted that any official .state- 
 receipts for J aymeuts of death ment in writiDg, or certificate 
 duties will be issued by the purporting solely to declare tliat 
 authoritie.-to persons applying in the land sold together with other 
 good faith and in proper circuin- land is free or discharged from 
 stances : Davidson, Prec. Conv. all claim of duty (see above, 
 vol. ii. pt. i. GG2, n., 4th ed. p. 681), ought certainly to be 
 But where .such office copies or included iu an acknowledgment.
 
 OF THE COMPLETION OF THE CONTRACT. 687 
 
 aoknowledo-mont for production of a document prodncod 
 moroly to prove that it does not affect the property sold, 
 unless it be in the vendor's own possession or power (/>/). 
 
 Sepondly, where any documents forming part of the wIkiv tlio 
 title contracted for are not in the vendor's possession, h^4 the ^le-'al 
 but he is entitled at law to the benefit of a covenant or rifrht to 
 statutory acknowledgment for their production, and the existing' cove- 
 leffal riarht to enforce this covenant or acknowledgment "'V^* "^, , 
 will pass to the purchaser on completion, the purchaser ment for 
 is not entitled to demand that a fresh covenant or ^"° miction. 
 acknoAvledgment shall be procured for him from the 
 person in possession of the documents ; for that would 
 confer upon him no better right than he will have 
 AN'ithout it : but he is entitled, if the deed of covenant 
 or the acknowledgment hy which this right is conferred 
 may be withheld from him, to have a statutory acknow- 
 ledgment for the production of that document (i/). 
 Hero it may be observed that the benefit of a covenant 
 to produce title deeds will run at law with the 
 covenantee's lands, to which the deeds relate : but it is 
 now considered that the burden thereof does not run at 
 law with the lands retained by the covenantor (o). It 
 is thought, however, that in equity the covenantor's 
 successors in title to the deeds (other than purchasei-s 
 for value without notice of the covenant) would be 
 affected by the duty of production ; for this seems to 
 resemble a restriction on the free use of the deeds rather 
 than an obligation positively affirmative, such as a 
 
 («/) Sug. V. & p. 436 ; Dart, which he had not and th(> piir- 
 
 V. & P. 676, ')th cd. ; 761, (ith chaser would not have the benefit 
 
 ed. ; 69"), 7tli ed. of a coveuant for production. 
 
 (w) See Sug. V. & P. 4r>3, n. ; 
 
 Gabriel v. Smith, 16 Q. B. .S47, (o) See Anolrrbrrn/ v. Old/mm, 
 
 8,52—854, S61, where note that 29 Ch. D. 7oO, 773. 775— 7^8, 
 
 the vendor had only the benefit 7M— 784 ; Farwell. J., J!of/rix v. 
 
 of covenants for jiroduction of Jloicf/ond, 1900, 2 Ch. 3S!S, 3s)4 — 
 
 the bulk of the fitle lUeds, but :<5)6 ; 1 Davidson, Prec. Conv. 
 
 that the objection made was that Ivi., ;>th ed. ; 1 Key A: Elpli. 
 
 there were two title deed.s of Prec. Conv. •'» 11, n., 4th ed.
 
 H88 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 liability to lay out money {p). And it appears that, 
 where the ownership of any land held under one title is 
 divided, whether by sale, settlement or otherwise, and 
 the title deeds remain in the possession of the owners 
 of a part, the owners of the rest of the land have an 
 equitable right, independently of any covenant, to 
 enforce production of the title deeds in order to defend 
 their title or effect any sale or like disposition of their 
 lands {q) . It is thought, however, that this right, like 
 any other equity, may be lost, if the deeds come to the 
 liands of a purchaser for value who has acquired a legal 
 interest in them in good faith without notice of the 
 right. But the fact that the purchaser will on com- 
 pletion have this equitable right to production of the 
 title deeds does not prevent him from claiming an 
 acknowledgment for their production ; he is entitled to 
 have secured to him either the ler/a/ right to enforce 
 a covenant for production or the benefit of an acknow- 
 ledgment (;■). The vendor is therefore bound to 
 procure such covenant or acknowledgment for the pur- 
 chaser, if he can ; and must, it is thought, use his best 
 endeavours to do so (-s). But if these fail, then by the 
 Vendor and Purchaser Act, 1874 (/), the inability of 
 the vendor to furnish such covenant or acknowledgment 
 will not be an objection to the title, if the purchaser 
 will, on the completion of the contract, have an equit- 
 able right to the production of the documents. Where 
 
 {p) See An.sterbern/ V. Oldham, 
 29 Ch. D. 750; Sug. V. & P. 
 453 and n. ; 2 Dart, V. & P. 
 775, 5th ed. 
 
 (f/) See as to a purchaser of 
 jiart, Fain v. Ai/ers, 2 S. & S. 
 533 ; as to joint tenants, tenants 
 in common, and co- parceners, 
 Sug. V. & P. 443 ; Lambert v. 
 Roffcru, 2 Mer. 489 ; Elton v. 
 El'lou, 6 Jur. N. S. 13G ; Shore v. 
 CoUett, G. Coop. 234 (after parti- 
 tion) ; as to remaindermen, 
 
 Lempster v. Tomfret, 1 Dick. 238 ; 
 Davis V. Dy.wrt, 20 Beav. 405 ; 
 and see Sug. V. & P. 442—445, 
 453 and n. 
 
 (r) See Barclay v. Baine, 1 S. 
 & S. 449; Sug. V. & P. 452, 
 453, n. ; Gabriel v. Smith, 16 
 Q. B. 847, 861. 
 
 (s) See Bay v. Sinqleton, 1899, 
 2 Ch. 320. 
 
 {t) Stat. 37 & 38 Vict. c. 78, 
 s. 2, rule 3.
 
 OF THE COMPLETION OF THE COSTRACT. 689 
 
 the purchaser will have neither the benefit of a good 
 statutory acknowledgment or legal covenant for the 
 production of the title deeds, nor any equitable right to 
 obtain their production, it is thought that he may 
 decline to complete the contract ; unless of course the 
 case has been duly pro^-ided for by special stipulation. 
 
 It is considered that in any case in which a vendor Vendor must, 
 would, according to the law in force before the Con- botli ack'uow- 
 veyancing Act, 1881 (n), be bound to give an unqualified ^^'^?'"':",V^°'^ 
 covenant for the production and safe custody of title 
 deeds (.r), he is now bound to give a statutory acknow- 
 ledgment and undertaking for the same purposes. And 
 if he pr(jpose to do tliis, he is not bound to enter into a 
 covenant in the old form ; for by that Act (//) an 
 acknowledgment shall satisfy any liability to give a 
 covenant for production and delivery of copies of any 
 documents, and an undertaking shall satisfy any liability 
 to give a covenant for safe custody of documents (~). 
 If, therefore, a man sell laud under an open contract or 
 apparently as beneficial owner, lie is bound to furnish 
 tlie purchaser not only with proper statutory acknow- 
 ledgments, but also with proper statutory undertakings 
 with regard to any documents of title (exeei)t as above 
 mentioned (a) ) which may rightly be withheld from the 
 purchaser. But if a man sell as trustee or as mortgagee, 
 
 [tt) Stat. 44 i: 4.') Vict. c. 41. acknowledgment and nndertak- 
 
 U-) See Sucr. V. & P. 4.V2 ; 1 j"^'" ^f the .tatulory aekn.nv- 
 
 Dart V & P 55:> othed • li'^gmei'ts and undortakings are 
 
 1 T»' J T>' ]•> .).!>' better for botli parties than the 
 
 1 Davidson, Pree. Couv. 221, , . ^ . ^i u 
 
 „ /t\ ooj e.i\-> ifv. „,i . \\T.. . covenants in use under the old 
 n. (0, 226, 092, 4th ed. ; Wnis. . _,i • i» • i 
 
 n ct 1 i>- !/>.» practice. Iho "ivcr obtaiu.s the 
 
 Conv. Stat. 9<, 102. {• .. .. - , .^ ,. . .,. . ., 
 
 ' limitation of his liability to the 
 
 (y) Sect, i) (9), (11). time during wliieli he has posses- 
 
 (;) A vendor is apparently at siou or control of the documents: 
 
 liberty to covenant absolutely for and the receiver gets the benefit 
 
 production and safe custody in of the statutory obligation run- 
 
 the old form, if he will; for his ning with the documents at lnw: 
 
 liahUilii is to give such a cove- see .stat. 44 & 4.') Vict. c. 41. 
 
 nant, though that liability may s. 9 (2), (9); above, p. GS7. 
 be satisfied by his giving an (") Above, pp. G84 — 6.S(j. 
 
 w. 44
 
 690 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Proper 
 acknowledg- 
 ment and 
 undertaking 
 can only be 
 given by the 
 person retain- 
 ing possession 
 of the docu- 
 ments. 
 
 Sale by mort- 
 gagor with 
 mortgagee's 
 concurrence. 
 
 it is tliouglit that lie will be bound to give an acknow- 
 ledgment only (b) : although it is advisable {r^ for 
 trustees and mortgagees selling as such to stipulate 
 expressly that they shall not be required to give the 
 statutory undertaking. It should be particularly noted 
 that only the person who refdinn possession of documents 
 is capable of giving a proper acknowledgment for their 
 production and undertaking for their safe custody, which 
 will have the right statutory eifect (d). Thus, if a 
 mortgagor sell part of the mortgaged lands, proposing 
 to convey the same with the concurrence of the mort- 
 gagee, who will of course retain possession of the title 
 deeds, the mortgagee is the only person who can give a 
 valid statutory acknowledgment and undertaking with 
 respect to them, and the mortgagor cannot do so. The 
 mortgagee does not, as a rule, object to give the 
 acknowledgment ; but it is objectionable to him to give 
 the undertaking, which involves a joersonal liability. 
 The mortgagor's liability to covenant or undertake for 
 safe custody is therefore properly satisfied, not by his 
 purporting to give a statutory undertaking {c), but by 
 his covenanting that he will give a statutory undertaking 
 when the documents shall come into his possession, and 
 that in the meantime, until such undertaking shall be 
 given, the possessor of the documents shall keep them 
 safe, whole, uncancelled and undefaced, unless prevented 
 
 {/,) Be Agn-nunlner, 25 Gh. D. 
 GOO ; Davidson's Concise Prece- 
 dents, 30, 090, n., 18th ed. 
 
 (<■) The reason is that, imder 
 the old practice, trustees used to 
 covenant for safe custody : though 
 it was considered doubtful whether 
 they were obliged to do so; see 
 Davidson, Prec. Conv. vol. i. 
 222, n. {t), 223, r)92, GI3; vol. ii. 
 pt. i. 667, and n. {a), 670, 4th ed. 
 
 {d) See Stat. 44 & 45 Vict. 
 0. 41, s. y ; Ite Piirsdl mid 
 
 Dt'dlui's Cull met, IS!)3, W. N. 
 15.'. 
 
 [e] If ho were to do so, tliat 
 would apparently create a con- 
 tract at common law fixing him 
 with an absolute liability for the 
 safe custody of the deeds, with- 
 out the exception of fire and 
 inevitable accident : see Expte. 
 lSf<niJ\,nh 17 Q. B. D. 259, 271. 
 But such an undertaking would 
 not have the statutorj"^ effect ; 
 not oven if the deeds should 
 afterwards come into the under- 
 taker's possession.
 
 OF THK COMPLETION OF THi: CONTRACT. 691 
 
 from doing so by fii'e or other inevitable accident (./). 
 And it is thought that the mortgagor is bound to give 
 such a covenant, in the absence of stipulation to the 
 contrary, the regular practice in this case prior to the 
 Conveyancing Act, 1881, having been for tlie mortgagor 
 to covenant both for production and safe custody of the 
 title deeds {</). It would bo very unreasonable in such 
 a case for the mortgagee to refuse to give an acknow- 
 ledgment, which involves him in no personal liability : 
 but the purchaser could not, of course, compel him to do 
 so, if he were no party to the contract (//). The mort- 
 gagor would, as we have seen, be bound to use his best 
 endeavours to proeui'e an acknowledgment from the 
 mortgagee : but if the mortgagee, though willing to 
 concur in the conveyance, should persist in refusing to 
 give an acknowledgment, the purdiaser would, it 
 appears, be obliged to accept the title. For he would, 
 it is thought, have an equitable right against the 
 mortgagee, as being a party to the conveyance to him, 
 to i)roduction of tlie title deeds for all proper pur- 
 poses («'). In such case, liowover, the purchaser should 
 
 (/) This is the duty imposed n. {/■), 7th ed., that a mort^ag'ee 
 
 hy a statutory acknowled^nent : not fully paid off and retaininjr 
 
 Stat. 44 & 4.) Vift. o. 41, s. 9 (9). the title deeds hy virtue of his 
 
 (//j Davidson, Prec. Conv. mortgage is bound to give an 
 
 vol. ii. pt. i. 318, n. (rf), 321, acknowledgment is not warranted 
 
 n. ((•], 4th ed. : Rr J'ursr// and by the authorities cited ( Iw/'v v. 
 
 Jhiil:,Hst'uii(r,((t,\-^Qi,\W.^.\.yl. riit»)hi\ 2 Sm. i Gitf. 174.; 2 
 
 The mortgagor's liability is tf) Dart, V. «.V P. 'j7S, 5th ed. ; 7C(J, 
 
 give an ab.solute covenant for Gth ed. ; 697, 7th ed.) ; for in that 
 
 safe custody : but it is more case the mortgagees were retain- 
 
 bcneficial to both parties that he iny the deeds, not only in rijiht 
 
 should covenant tti give an under- of their mortgage, but also aLd 
 
 taking and for safe custody in the chiefly as owners of a larger 
 
 meantime : see above, p. 689, estate of which the mortgaged 
 
 n. {:). lands formed part, and it was as 
 
 (//) In Kiich cases the mortgagee sui;h owners that they were held 
 
 is usually under no contract with liable to covenant for ])roduction. 
 
 the mortgagor, and can refuse to See now 1 Key & Elph. Prec. 
 
 join in thfc conveyance e.xcept on Conv. 483, n. (<), 8th ed. ; i'>20, 
 
 his own terms or on being paid n. [/i], 9th ed. 
 off altogether. It is submitted i Above, pp. 687— 689; David- 
 
 thut the suggestion made in son, Prec. Conv. vol. ii. pt. i. 
 
 1 Key .% Elph. Prec. Conv. 461, 321, n. (<•), 4th ed. 
 
 44(2)
 
 692 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Person iu 
 constructive 
 possession of 
 documents. 
 
 require the vendor to covenant that he will give a proper 
 statutory acknowledgment, as well as undertaking, with 
 regard to the title deeds, when they shall come into his 
 possession, and also for production and safe custody of the 
 deeds in the meantime (/r). Here it may be observed that 
 a person in constructive possession of documents of title 
 appears capable of giving an effectual acknowledgment 
 and undertaking with regard to them ; so that where title 
 deeds remain in the possession of solicitors as bailees 
 for safe custody only, their owner can nevertheless enter 
 into a statutory acknowledgment and undertaking for 
 their production and safe custody. It is not equally 
 clear that this is the case where the documents are in 
 the possession of solicitors who have a lien upon them 
 for their charges : but it is submitted that a man retains 
 possession of documents within the meaning of the 
 9th section of the Convej^ancing Act of 1881 (/), where 
 the documents are in the custody of his solicitors as 
 bailees for him, notwithstanding that his solicitors have 
 the usual solicitors' lien thereon for their charges. And 
 having regard to the nature of solicitors' lien on their 
 clients' title deeds (iii), it certainly appears that where a 
 vendor's solicitors, who act for him generallj^ in the 
 matter of the sale, have the custody of the title deeds, 
 apparently on his behalf alone, and produce them for 
 the purchaser's inspection and approve on the vendor's 
 behalf of a conveyance or an agreement containing a 
 statutor}^ acknowledgment and undertaking by the 
 vendor with regard to them, without insisting on or 
 giving notice of any lien thereon, they must be taken 
 to have waived their lien as regards the creation of the 
 rights conferred by the acknowledgment and under- 
 taking (/O- The regular practice is to take acknowledg- 
 
 (A) Above, p. GOO. 
 (/) Stat. 11 & 4o Vict. c. 41. 
 (ill) See above, pp. 128 — 130; 
 Wms. Pers. Prop. Gl- 63, 16th ed. 
 
 {ii) It is thouo^ht that they 
 would be estopped by their con- 
 duct from settiuy- up any lien 
 thei'eon.
 
 OF THE COMPLETION OF THF CONTRACT. 693 
 
 nients and undCTtakiogs from the owners of any 
 documents retained, and not from tlieir solicitors (o). 
 
 According- to the okl practice, a covenant for pro- Acknowledg- 
 duction of title deeds was usually taken by a separate to be O-iven 
 deed and not contained in the conveyance, unless the ^y separate 
 
 ,.,,,. . . , . document, 
 
 deeds to be included therein were recited or noticed in 
 
 the conveyance {p). And it is thought that this practice 
 may still be usefully followed as regards statutory 
 acknowledgments and undertakings (q). Where these 
 relate only to documents recited or noticed in the 
 conveyance, it appears more convenient that they should 
 be contained therein. It was always desirable under Endorsement 
 the old practice, where title deeds were retained and randum on 
 covenanted to be produced, to obtain an endorsement conveyance, 
 on the leading title deed of a memorandum of the 
 covenant in order to affect all persons claiming there- 
 under with notice thereof (r) : but it was considered 
 that this could not be insisted on, if not provided for 
 by special stipulation (.v). There is not the same 
 necessity for tliis in the case of a statutory acknowledg- 
 ment and undertaking, as tliese are by force of the 
 statute enforceable at law against all persons wlio have 
 or may come into j)ossession or control of the docu- 
 
 ('/) There appears to be no bility<m his successors in interest 
 
 doubt thrtt a simple bailee of than he could otherwise impose 
 
 documents hits sucli a possession by virtue of his own interest in 
 
 thereof as enables him to jrive an th(> deeds. 
 
 ertectual statutory acknowled^'- ( ^,) Susf. V. & P. 4-50 ; 1 Dart, 
 
 m(!Dt and undertaking, if autho- y. A: P. '>.J4, .5th ed. ; Davidson, 
 
 rized to do so by the bailor. l>^.^,^. Conv. vol. ii. pt. i. 2SS, 
 
 Wli.ther he can do so without „. (/,)^ 319^ „. {ri), 4th ed. 
 
 the bailor's authority and whether / \ , n t ir id s-i .-.u 
 
 . , r 1 ('/) 1 l-Jart, V . & r. o.)4, .)tn 
 
 a wr.»n'''iiil possessor ot (i(«'u- j u.>r r,\ j — -.i j 
 
 ■^ , * . ed. ; 6'2G, Clli ed. ; ;>( <, lUi ed. ; 
 
 ments can do so are nice (lues- t-» • 1 ' /^ ■ t> 1 ^ 
 
 , ^ ^, ^ ^ ^ • XV JJavid.son s Concise I'rci cdetits, 
 
 tions : but the statute, in trie ,., , „ ,, ,0., , ax- 1 . 
 
 , J X 1 • i. 1 i. I''''. 1- ('';> lot" ed. ; \\ olsteii- 
 
 case of an undertakiu": at least. i. 1 ' r> • * » m 
 
 . . , ^ " holme 8 Conveyancinff Acts, VJ, 
 
 certainly appears to empower q.v j j o > > 
 
 one who has tlie lawful posses- 
 sion, but only a limited owiu-rship (''^ See above, pp. G.S7, OSS. 
 of title deeds isucli as a tenant (v David.s(m, Prec. Conv. vol. i. 
 
 for life), to inipo.se a greater lia- VJl ; vol. ii. pt. i. GGIi n., 4th ed.
 
 694 
 
 OF THE COMPLETION OF 'JHE CONTKACT. 
 
 nients {f), whether they have or have not notice thereof. 
 Where, however, a purchaser is obUged to rely on his 
 equitable right to the production of any documents of 
 title {i(), it is very material for him to obtain, if he can, 
 the endorsement of a memorandum of the conveyance 
 to himself on the leading title deed withheld from him ; 
 for he might lose this right if the legal riglit to the 
 documents were to come to a purchaser for value taking 
 in good faith without notice of the equity {x). But it 
 is considered that, in the absence of special stipulation, 
 a purchaser has no right to require such an endorse- 
 ment to be made (//). 
 
 Expenses of 
 acknowledg- 
 ment and 
 undertakiny. 
 
 By the Vendor and Purchaser Act, 1874 (;;), such 
 covenants for production as the purchaser can and shall 
 require shall be furnished at his expense, and the 
 vendor shall bear the expense of perusal and execution 
 on behalf of and by himself and all necessary parties 
 other than the purchaser. This enactment is now 
 aj)plicable where statutory acknowledgments and under- 
 takings are given instead of covenants. 
 
 Liability 
 created by 
 acknowledg- 
 ment or 
 undertakinsf. 
 
 A statutory acknowledgment only imposes the 
 obligation defined in the Act of producing and deliver- 
 ing copies of the documents included therein ; it does 
 not confer any right to damages for loss or destruction 
 of or injury to the documents, from whatever cause 
 arising (fr). But a statutory undertaking imposes the 
 liability to pay damages for any breach thereof {b). 
 It appears that a person entitled to the benefit of a 
 statutory undertaking cannot obtain compensation for 
 
 (t) Stat. 44 & 45 Vict. c. 41, 
 H. 9 (2), (9). 
 
 (») Above, p. G.ScS. 
 
 (.(■) Above, p. G88. 
 
 (y) Dart, V. & P. 69-2, 5th ed. : 
 783, 6th ed. ; 712, 7th ed. ; 
 Davidson, Prec. Conv. vol. ii. 
 
 pt. i. G63 n., 4th ed. 
 
 [z) Stat. 37 & 38 Vict. c. 78, 
 s. 2. rule 4. 
 
 (ff) Stat. 44 & 45 Vict. c. 41, 
 s. 9(4)-(6). 
 
 (/>] Sect. 9 (9), (10) ; see above, 
 I). 689, and n. (z).
 
 OF THE COMPLETION OF THE CONTKACT, 
 
 695 
 
 any depreciation of the market value of his hmd, which 
 might be supposed to arise from the loss of or injury to 
 the title deeds {a). But he may obtain compensation 
 for the expense of additional documents of title, 
 rendered necessary by such loss or injury {(/). 
 
 Since the Conveyancing Act of 1881 (c) took effect, Eudorsemeut 
 it has no longer been the practice to endorse on purchase ^^eceipt. 
 or other deeds a receipt for any purchase, mortgage or 
 other consideration money therein expressed to have 
 been paid and received : but the receipt clause usually 
 inserted in the body of such deeds is treated as a 
 sufficient acknowledgment of such paj^ment (/"). 
 
 The draft of the conveyance is prepared, as we Settling the 
 have seen {(/), by the purchaser's solicitors. It is then conveyance, 
 sent to the vendor's solicitors for approval on his 
 behalf ; and if there be any other necessary parties 
 to the conveyance besides the vendor (//), the draft is of 
 course forwarded to their solicitors also to bo settled on 
 their behalf. Here it may be mentioned that wlieu an Cuuveyaiiciu-'- 
 instrument of assurance drawn by one conveyancer, eti(]uettea.s 
 
 T • • 1 1 *o altering 
 
 whether counsel or solicitor, is sent to another to be 
 
 (f) Jiivicii V. Sciicll, 11 Hare, 
 ■li). 
 
 (//) Jforithij V. Midclidin, IG Sim. 
 oi'). 
 
 (c) Stat 44 & 4.) Vict. c. 11, 
 s. a.), making a reeeipt in the 
 liiidy r)f a deed or indmscd tlierecn 
 siitticient evidence of payment in 
 favour of a purcliaser without 
 m>tice of non-payment. 
 
 (./") For some time prior to tliat 
 Act it was tlic practici' to indorse 
 such a receipt ; and tlie absence 
 of on indorsed receipt was con- 
 •sidered sufficient to put a pur- 
 chaser npon iiupiiry wlietlier the 
 money had in fact been paid, and 
 to entitle him to furtlier t'vidence 
 of payment. U is thought that 
 at the present time, where a title 
 deed dated before 18S2 ha« a 
 receipt for considerutiou money 
 
 in the body thereof but not in- 
 dorsed thereon, and comes from 
 the custody in which it would 
 naturally be if th(> money had 
 been duly paid, it may, in the 
 absence of any other fact tending 
 to prove the contrary, be pre- 
 sumed tbat the money was paid 
 as state<l in the body of the deed. 
 See 3 Preston on Abstracts, 1;'); 
 While V. Wnhfiihl. 7 Sim. 401, 
 417 ; (iieoishidc v. Ihiie, 20 Beav. 
 •284. •29-2; KettUurll v. Watson, 
 •21 Ch. D. 685, 703 ; Rimmer v. 
 Web»tc>\ 1902, •2»Ch. 16.3, 173, 
 174; Wms. Real Prop. 193, 194 
 and n. (.c), 13th ed. : 61.). 627, 
 628, 21st ed. ; Wms. Conv. Stat. 
 228—230 : above, pp. 114, 118, 
 134, 144, 304. 
 
 (//) Above, p. 578. 
 
 (/() Above, p. 61S.
 
 696 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 by other 
 pructitioucrs. 
 
 drafts settled settled on belialf of some party, whom the framer of 
 the draft did not represent, the other should of course 
 make all such alterations as he considers necessary 
 to safeguard the interests of his client : but he should 
 not alter the draft further or otherwise than is 
 necessary to effect this end. In short, his alterations 
 should be directed to matters of substance only and not 
 of form ; and it is a grave breach of conveyancing 
 etiquette for one practitioner to amend another's draft 
 in any point, on whicli his client's interests would not 
 really be affected if the instrument were to stand 
 as originally drawn (/). When the parties are agreed 
 as to the form of the draft, the purchaser procures 
 it to be engrossed at his own expense (/.) . 
 
 Engro 
 iiieut. 
 
 Stamps on 
 couveyauce. 
 
 Iiioremeiit 
 value duty 
 stamp. 
 
 Stamp duty 
 on convey- 
 ances on 
 sale. 
 
 The deed of conveyance must of course be duly 
 stamped according to the ad ralorvin duty charged 
 on conveyances on sale by the Stamp Act, 1801 (/), 
 as amended by the Finance (1909-10) Act, 1910 {m) ; 
 and unless the convej^ance be executed in pursuance of 
 some contract made before the 29th of April, 1910, or 
 be made for transferring on sale a lease of some separate 
 tenement, flat or dwelling being part of a building 
 used for the purpose of separate tenements, flats or 
 dwellings, either the contract or the conveyance must 
 bear the appropriate increment value duty stamp (;/). 
 Let us first consider the stamping of the deed with 
 the amount of duty charged on conveyances on sale 
 as such. This is the concern of the purchaser; the 
 vendor is under no duty to see that it be done ; and the 
 deed ma}^ well be stamped after its execution (o). The 
 
 [l] See 1 Diy-t, V. & P. 564, 
 r)th ed. ; 6:37, 6th ed. ; 589, 7th ed. 
 
 {k) Ibid. 565, 5th ed. ; 638, 
 6th ed. ; 590, 7th ed. 
 
 {!) See stats. 54 & 55 Vict, 
 c. o9, ss. 14, 54—61, and First 
 Schedule ; 58 Vict. c. 16, Pt. II.; 
 Wms. Real Prop. 615, andu. (/>), 
 
 21st ed. ; above, p. 28, aiidn. {/■). 
 
 ()») Stat. 10 Edw. VII. c. 8,' 
 s. 73. 
 
 («) Stat. 10 Edw. VII. c. 8, 
 ss. 1, 4, 11. 
 
 [u) Conveyances on sale may 
 be stamped, without penalty, 
 within thirty days after their
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 vendor and his solicitor and conveyancing counsel are, 
 however, concerned to see that all the facts and circum- 
 stances affecting the liability of the instrument of 
 conveyance to duty, or the amount of the duty with 
 which it is chargeable, are fully and truly set forth 
 therein ; for every person who, with intent to defraud 
 the Crown, executes any instrument in which all such 
 facts and circumstances are not so set forth, or being 
 employed or concerned in or about the preparation of 
 any instrument neglects or omits so to set forth therein 
 all such facts and circumstances, incurs a fine of ten 
 pounds {])). Under the Stamp Act, 1891, as now 
 amended by the Act of 1910, the duty on conveyances 
 on sale is charged at the rate of one per cent, of the 
 amount or value of the consideration ; except where the 
 amount or value of the consideration for the sale does 
 not exceed five hundred pounds and the instrument 
 contains a statement certifying that the transaction 
 thereby effected does not form part of a larger trans- 
 action or of a series of transactions in respect of whicli 
 the amount or value, or the aggregate amount or value, 
 of the consideration exceeds five himdred pounds (y). 
 It is thought that, to bring a case within the terms of 
 this exception, the statement required must be contained 
 in the body of the instrument and not merely endorsed 
 thereon. This is a point of great importance, and must 
 be kept in mind in drafting conveyances on sales for 
 
 first executiou; or if first executed (//) Stat. 10 Edw. VII. <•. S, 
 
 out of the United Kingdom, s. "Jii, doubling (save in tlie ex- 
 
 within thirty days after they ecpted cases' the stamp duties 
 
 have been first received in tlie imposed on conveyances on sale 
 
 United Kingdom ; or if the Com- by the Stamp Act, 1891, stat. 
 
 missioners have been required to 54 & .ii) Vict. c. S'J, First Schedule, 
 
 adjudicate upon the stamp, within These were CtfL for every f)/. or 
 
 foiirteen days after notice of the fraction thereof up to '2.')/. ; 
 
 adjudication ; see stat. .') 1 & o/i '2s. Gd. for every 'lb/, or fraction 
 
 Vict c. li'J, 8.S. 12, lo, IT), amended thereof up to 300/.; and abovi' 
 
 by o.S Vict. c. IG, s. 15. '300/. .Vv. for every -oO/. or fraction 
 
 (p) Stat. 64 & 5o Vict. c. '69, thereof; and they are still ap- 
 
 s. 6. plicable iu the excepted cases. 
 
 697
 
 698 
 
 OF THE COMPLETION OF THE CONTKAC'l'. 
 
 Meaniiiy of 
 conveyance 
 on Kale. 
 
 How (id 
 ruliifciii duty 
 to be calcu- 
 lated in 
 respect of 
 stock and 
 securities. 
 
 five hundred pounds or less ; as it apjiears that a deed 
 purporting to carry out such a sale, and stamped at the 
 rate of one-half per cent only (>•), may be objected to on 
 some subsequent investigation of the title, as insuffi- 
 ciently stamped (.s), unless it comply exactly with the 
 terms of the exception. The conveyances chargeable 
 with (id vdlorciH duty under the 8tamp Act, 1891, 
 as above amended, include not only conveyances on 
 >i((Ie in the strict sense of the word {t), but also all 
 absolute conveyances of any property {ii) in con- 
 sideration of the transfer of stock, shares, securities or 
 other cliattels personal (.r), or of a covenant to pay 
 and indemnify against some mortgage or charge on the 
 property (//) or to pay a debt or other sum not charged 
 on tlie property, or of the release of a debt {z), or of 
 the grant of a rent-charge or an annuity. That Act 
 contains (besides sect. 59 set out above {a) ) the follow- 
 ing special provisions as to conveyances on sale : — 
 
 (Sect. 54.) For the purposes of this Act the expression " conveyance 
 on sale" includes every instrument, and every decree or order of any 
 Court or of any commissioners, whereby any property, or any estate 
 or interest in any property, upon the sale [b) thereof is transferred to 
 or vested in a purchaser, or any olher person on his behalf or by his 
 direction. 
 
 (Sect. ;5."> (1).) Where the consideration, or any part of the conside- 
 ration, for a conveyance on sale consists of any stock or marketable 
 security, the conveyance is to be charged with (id valorem duty in 
 respect of the value of the stock or security. 
 
 (2.) Where the consideration, or any part of the consideration, for 
 
 (r) See previous note. 
 
 (v) See above, pp. 4o, 40, loO, 
 174. 
 
 {t) Above, pp. 1, '26(1. 
 
 («) See Great Northern Hail. Vu. 
 V. Inland Mevmiie Comiiirs., 1901, 
 
 1 K. B. 416, 417. 
 
 [x) G. W. Rail. Co. v. Inland 
 lievenue Commrs., 1894, 1 Q. B. 
 507 ; Fester v. Inland Eercnue 
 Coiinnr.s., ibid. 516 ; J. iS' i'- Coata 
 V. Inland lievenue Coinmrx., 1897, 
 
 2 Q,. B. 4'23 ; Chesterjield Brewer ij 
 
 Co. v. Inland liccvnue Coiiiinrs., 
 1899, 2 Q. B. 7. As to the stamp 
 duty upon an exchange of lands, 
 see stat. .)4 & 55 Vict. c. o9, 
 s. 'I'A, and First Schedule. 
 
 [ij] Bristol V. Inland lievenue 
 Commrs., 1901, 2 K. B. 836. 
 
 (~) Ilantinffton v. Inland lie- 
 venue Commrs., 1896, 1 Q. B. 422 ; 
 Bristol V. Inland liiveime Commrs., 
 ubi sup. 
 
 (,/) r. 28, u. («'). 
 
 {I/} See notes («), (.*-■), above.
 
 OF THE COMPLETION OF THE CONTRACT. t)99 
 
 a CLUiveyaiicc on sale cousists of auy Hocurity nut being a marketable 
 security, the conveyance is to be charged with ad valorem duty iu 
 respect of the amount due on the day of the date thereof for principal 
 and interest upon the security. 
 
 (Sect. 56 (1).) Where the consideration, or auy part of the couside- How conside- 
 ration, for a conveyance on sale consists of money paj'able periodically ration con- 
 for a definite period not exceeding twenty years, so that the total T)ei.iQ5j(.al 
 amount to be paid can be previously ascertained, the conveyance is to payments to 
 be charged in respect of that consideration with ad ralurciii duty on be charged, 
 such total amount. 
 
 (2.) Where the cousideration, or any part of the cousideratiuu, for 
 a conveyance on sale consists of money payable periodically for a 
 definite period exceeding twenty years, or in perpetuity, or for any 
 indefinite period not terminable with life, the conveyance is to be 
 charged in respect of that consideration with ad valorem duty on the 
 total amount which will or may, according to the terms of sale, be 
 payable during the period of twenty years next after the day of the 
 date of the instrument (c). 
 
 (3.) Where the consideration, or auy part of tlie consideration, for 
 a conveyance on sale consists of money payable periodically during 
 any life or lives, the conveyance is to be charged in respect of that 
 consideration with ad ralnrem duty on the amount whicli will or may, 
 according to the terms of sale, be payable during the period of twelve 
 years next after the day of the date of the instrunreut. 
 
 (4.) Provided that no conveyance on sale chargeable with a l ralorrm 
 duty in respect of any periodical payments, and containing also pro- 
 vision for seeming the payments, is to be charged with auy duty in 
 respect of such provision, and no separate instrument made in that 
 case for securing the payments is to be eh irged with any higher duty 
 than ten shillings. 
 
 (Sect. .')7.) Where any property is cjnveycd to any persou in con- How convey - 
 sideration, wholly or in part, of any debt due to him, or subject either "•"^c ^'i (;ou- 
 certainly or contingently to the payment or transfer of auy money or j . . u . 
 stock, whether being or constituting a charge or incumbrance upon be chan'-cd. 
 the property or not, the debt, money, or stock is to be deemed the 
 whole or part, as the case may be, of the consideration in respect 
 whereof the conveyance is chargeable with nd valorem duty {d). 
 
 ^Sect. r)8 (1).) Where i)roperty contracted to be sold for one con- Duty on con- 
 sideration for the whole is conveyed to the purchaser in separate parts veyauce in 
 
 or parcels by different instruments (e), the consideration is to be ^^P*'^ ** 
 
 • 1 • 1 1 . , . , parcels ot 
 
 apportioned m such manner as the parties think fit, so that a distinct propertv sold 
 
 for one con- 
 sideration. 
 
 ((•) See UndenjroKiid KUclricliys. , [d) See liiutol v. Inland Rrcenuv 
 
 SfC. , Ltd. \. Inland Revenue Commrs., Commin-siuncrs, I'JOl, '2 K. B. 33(5. 
 1905, 1 K. B. 174, 1900, A. C. 
 
 '11. (t) See above, p. G18.
 
 roo 
 
 OF 'i'lIE COMPLETION OF THE CONTRACT. 
 
 On couvey- 
 ance iu sepa- 
 rate parcels of 
 pre )pert.y 
 boiight for 
 one considera- 
 tion by or for 
 several 
 persons. 
 
 Where there 
 are several 
 instruments 
 of conveyance 
 for completing 
 one sale. 
 
 Sub-sale by 
 purchaser 
 before con- 
 veyance. 
 
 Conveyance 
 in separate 
 parcels after 
 a sub- sale. 
 
 Where sub- 
 purchaser has 
 taken a con- 
 veyance of the 
 purchaser's 
 interest. 
 
 As to sale of 
 annuity or 
 right not 
 before in 
 existence. 
 
 consickTation for each separate part or parcel is set forth in the con- 
 veyance relating- thereto, and such con\eyance is to be charged with 
 ltd valorem duty in respect of such distinct consideration. 
 
 (2.) Where property contracted to be purchased for one considera- 
 tion for the whole by two or more persons jointly, or by any person 
 for himself and others, or wholly for others, is conveyed in parts or 
 parcels by separate instruments to the persons by or for whom the 
 same was purchased for distinct parts of the consideration, the con- 
 veyance of each separate part or parcel is to be charged with ud 
 valureni duty in respect of the distinct part of the consideration therein 
 specified. 
 
 (o.) Where there are several instruments of conveyance for com- 
 pleting the purchaser's title to property sold (/), the principal instru- 
 ment of conveyance only is charged with ad valorem duty, and the 
 other instruments are to be respectively charged with such other duty 
 as they may be liable to, but the last-mentioned duty shall not exceed 
 the ad valorem duty payable in respect of the principal instrument. 
 
 (4.) Where a person having contracted for the purchase of any 
 property, but not having obtained a conveyance thereof, contracts to 
 sell the same to any other person, and the property is in consequence 
 conveyed immediately to the sub-purchaser (f?), the conveyance is to 
 be charged with ad valorem duty in respect of the consideration moving 
 from the sub -purchaser. 
 
 (5.) Where a person having contracted for the purchase of any 
 property but not having obtained a conveyance contracts to sell the 
 whole, or any purt or parts thereof, to any other person or persons, 
 and the property is in consequence conveyed by the original seller to 
 dift'erent persons in parts or parcels, the conveyance of each part in* 
 parcel is to be charged with ad valorem, duty in respect only of the 
 consideration moving from the sub-purchaser thereof, without regard 
 to the amount or value of the original consit^eration. 
 
 (6.) Where a sub-i^urchaser takes an actual conveyance of the 
 interest of the person immediately selling to him, which is chargeable 
 with ad valorem duty in respect of the consideration moving from 
 him (//), and is duly stamped accordingly, any conveyance to be 
 afterwards made to him of the same property by the original seller 
 shall be chargeable only with such other duty as it may be liable to, 
 but the last-mentioned duty shall not exceed the ad valorem duty. 
 
 (Sect. 60.) Where upon the sale of any annuity or other right not 
 before in existence {i) such annuity or other right is not created by 
 actual gi'anfc or conveyance, but is only secured by bond, warrant of 
 attorney, covenant, contract, or otherwise, the bond or other instru- 
 ment, or some one of such instruments, if there be more than one, is 
 
 (_/') See above, pp. 618 
 (y) See above, p. CI6. 
 
 62 U. 
 
 (/() See above, p. 28, n. (r). 
 (t) Sec above, p. 434.
 
 OF THE COMPLETION OF THE CONTRACT. 701 
 
 to be charged with the same duty as an actual grant or conveyance, 
 and is for the purposes of this Act to be deemed an instrument of 
 conveyancs on sale. 
 
 (Sect. 61 (1).) In the cases hereinafter specified the principal Conveyance 
 instrument is to be ascertained in the following manner : — by several 
 
 (a) Where any copyhold or customary estate is conveyed by a ,, , , , ' 
 
 ■,-,,, 1 , • ,■,•,., Copyholds 
 
 deed(/), no surrender being necessary, the deed is to be (;ouveved 
 
 deemed the principal instrument : by deed. 
 
 (b) In other cases of copyhold or customary estates (/.), the sur- By surrender. 
 
 render or grant, if made out of Court, or the memorandum 
 thereof, and the copy of court roll of the surrender or grant, 
 if made in ('ourt, is to be deemed the principal instru- 
 ment (/) : 
 {(•) Where in Scotland there is a disposition or assignation executed 
 by the seller, and any other instrument is e.<ecuted for com- 
 pleting the title, the disposition or assignation is to be 
 deemed the principal instrument. 
 ("i.j In any other case the parties may doterniine for themselves 
 
 which of several instrumoats is to bs deemed the principiil instrument. 
 
 and may pay the m/ ruloreiii duty thereon accordingly. 
 
 As we have seen (/;/), on the sale of any equitable Sale of an 
 interest in lands the contract for sale may be stamped fut^restin 
 with the ad valorem duty, and in that case the con- l^inds. 
 veyanoe is not chargeable with any further stamp duty. 
 On the sale of an equity of redemption, as the purchaser Of ecpiity of 
 takes upon himself the burden of the mortgage debt (//), '''^'l^'"?*'""- 
 the conveyance i.'^ chargeable with ad ra/orcni duty, not 
 only on the price, but also on the total amount due for 
 principal and interest on the mortgage debt (o). 8o a 
 conveyance of the equity' of redemption by a mortgagor 
 to a mortgagee, in consideration of the release of the 
 mortgage debt, is chargeable as a conveyance on sale 
 with stamp duty on the aniouut of tlic debt (p). And 
 a conveyance executed by a mortgagor in pursuance of 
 an order for foreclosure absolute, obtained hy an 
 
 (/•) Above, pp. 235, IU6 xq. (h) Above, p. 672. 
 
 (/) See also sects. 6.') —68. No {o) See sect. ftT, above, p. 60'.), 
 
 stamp duty is chargeabh^ on an and below, p. 7<I2, n. (rj). 
 admittance : Elton on Co[)yholds, [p) See llrislul v. liilniiJ llrn ii'ir 
 
 2S2. WM, n. {b). Cnmmrs., IDtll, 2 K. B. .•J:?(i, and 
 
 {ill) Above, p. 2.S, n. (<). ne.xt note.
 
 702 OF THE COMPLF/riON OF THE CONTRACT. 
 
 rqiiifdhlc mortgagee and directing the mortgagor to 
 execute n conveyance of the legal estate, has been held 
 chargeable with stara]^ diitv as a conveyance on sale {q). 
 Foreclosure Jf was formerly supposed that an order for foreclosure 
 absolute obtained by a legal mortgagee was not an 
 order ti-ansf erring an estate or interest in property and 
 so chargeable with ad ralorom stamp duty under the 
 Stamp Act, 1891 (r). But by the Finance Act, 1898 (.s), 
 it was declared that the definition of conveyance on sale 
 in the Stamp Act, 1891 (/), should include decrees or 
 orders for or having the effect of an order for fore- 
 closure ; and it was provided that, where ad raJorcm 
 stamp duty is paid upon such decree or order, any con- 
 veyance following upon such decree or order shall be 
 exempt from the ad raJovcm duty. And it has since 
 been held that this enactment is retrospective, and 
 further considered that orders for foreclosure absolute 
 obtained by a legal mortgagee were chargeable with ad 
 valorem stamp duty under the Act of 1891 {u). As we 
 have seen (.r), not only a conveyance by deed, but any 
 instrument or order of any Court may be chargeable 
 with stamp duty as a conveyance on sale. Vesting 
 orders (//) may therefore be so chargeable ; and so may 
 Acts of Parliament (;::) . The stamp duty on conveyances 
 
 (^') Hnntingtmi v. InlandRevenuc Q. B. 507. Under the Finance 
 
 Commrs., 1896, 1 Q. B. 422. Act, 1895 (stat. .58 Vict. c. 16), 
 
 (?■) See above, p. 698 ; Jie s. 12, where after the passing 
 
 LorcU and CoUard' s Ctiiitrart, 190', thereof by virtue of any Act of 
 
 1 Ch. 249, 25.5. Parliament, whenever passed, any 
 
 (.s) Stat. 61 & 62 Vict. c. 10, property is vested by way of sale 
 
 p. 6. in any person or any person is 
 
 {t) Stat. 54 & 5.5 Vict. c. S9, authorised to purchase property, 
 
 s. .54 ; above, p. 698. then in the former case a King's 
 
 {/>) lie Lniell and ColhnrV.^ Con- piinter's copy of the Act or some 
 
 /rart 1907 1 Ch. 249. instrument relating to the vest- 
 
 / \' o i'ni 1, cno T) ing, and in the latter an instru- 
 
 (.i) Sect. 54, above, p. 698. By '^ \ c ■ +^ i « 
 
 ^ ',,,,,. '. in • 11 ment oi conveyance, is to be 
 
 sect. 122, instrument includes . j-i.ii.ij; j i. 
 
 '. , J , stamped with the ff'T iff fo>Y;« duty 
 
 every written document. f , „ ■' 
 
 ■^ payjible upon a convej'ance on 
 
 (//) See above, pp. 5;'.6, 561. sale of the property and "produced 
 
 (r) See G. W. Hail. ('v.. v. //(- to the Inland Revenue Commis- 
 
 land llevenne Commrs., lSi)4, 1 sioners.
 
 OF THE COMPJ.KTION OF THE CONTRACT. ~0-i 
 
 on sale is chargeable on the value of all property assurofl 
 by the conveyance ; so that where on a sale of land the 
 timber or fixtures is or are sold by valuation {o), the 
 amount of the valuation must be stated in tlie con- 
 veyance (fj). So must the value of tlie goodwill of a 
 business, where separately valued and assigned by the 
 conveyance of any land or chattels forming part of the 
 assets of tlie business, and also where it is separately 
 assigned (n). A conveyance of land in cf)nsideration CoDveyanoo 
 of a rent-charge to issue thereout (''/) is chargeable as tion of a 
 ])rescribed above in the case of periodical payments (c) ; I'fut-f'liajgf'. 
 and if a lump sum bo further payable immediately as 
 part of the consideration, "d ra/or/'iN duty is chargeable 
 on that also. But on a sale of land subject to an 
 existing rent-charge or any kind of rent, as rent service 
 on the sale of leaseholds, the payment of the rent is 
 held not to form any part of the consideration for the 
 purposes of stamp duty, notwithstanding that the 
 purchaser covenant to indemnify the vendor against 
 such payment (./') ; and this is so where part of land 
 subject to one entire rent is sold and the rent is appor- 
 tioned as between the parties to the sale (r/). By the 
 Finance Act, 1900 (//), a conveyance of sale made for 
 any consideration in respect whereof it is chargeable 
 with fK/ ra/orriii duty, and in further consideration of a 
 covenant by the purchaser to make, or of his having 
 previously made, any substantial improvement of or 
 addition to the property conveyed to him, or of any 
 covenant relating to the subject-matter of the con- 
 veyance, is not chargeable, and shall be deemed not to 
 have been chargeable, with any duty in respect of such 
 further consideration. So where land is conveyed in 
 
 (a) Altovo. p. GO. 'tl) Aliovp, pp. (!72 v/. 
 
 (//) 2 Dart, V. k P. (JO?, 'itli ir) Al.ov,., p. (i9<). 
 
 od. ; 78S, Otli ed. {/) Ah„vt\ pp. G67, 672. 
 
 (f) Seo I'littir V. Iiihiiid Rrniiiir (;/) .Suiii/iie v. Iiihititl lievriiiic 
 
 Commrs., 10 Ex. 117; msps fitf-d f'nmnns., i<l(»(), 1 Q. B. 172. 
 
 above, pp. 2*t, :<(>. (/,) Stat. b:j Vict. c. 7, s. 10.
 
 704 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 consideration of a rent-charge, and of a covenant to 
 
 build tliereon (/), or of the previous erection of 
 
 buildings thereon, no stamp duty is chargeable in 
 respect of the covenant or improvement. 
 
 Where several 
 transactions 
 are carried 
 out by one 
 instrument. 
 
 By the Stamp Act, 1891 (/.), except where express 
 provision to the contrary is made by this or any other 
 Act, an instrument containing or relating to several 
 distinct matters is to be separately and distinctly 
 charged, as if it were a separate instrument, with duty 
 in respect of each of the matters ; and an instrument 
 made for any consideration in respect whereof it is 
 chargeable with ad ra/oreni duty, and also for any 
 further or other valuable consideration or considerations, 
 is to be separately and distinctly charged, as if it were 
 a separate instrument, with duty in respect of each of 
 tlie considerations. So that where a conveyance takes 
 effect as upon sale and also as a mortgage (/), it is 
 chargeable with stamp duty on each of these transac- 
 tions (>;?). Where one holding land subject to any 
 kind of incumbrance {ii) sells the same free from incum- 
 brances and on completion of the sale the land is 
 conveyed to the purchaser by one deed, in which the 
 vendor and the incumbrancers concur to assure their 
 respective interests (o), stamp duty is only chargeable 
 as upon a conveyance on sale, notwithstanding that the 
 incumbrancers were no parties to the contract of sale 
 and receive no part of the consideration ; for, although 
 as between the incumbrancers and the vendor their 
 conveyance be voluntary, yet as between the conveying 
 parties and the purchaser, the assurance is for one 
 valuable consideration (p), and is nothing more than the 
 
 (i) Above, p. G74. 
 
 (/.) ?tat. 54 & ")5 Vict. c. 39, 
 s. 4. 
 
 (/) See above, pp. 624 — 627. 
 
 (ill) 2 Dart, V. & P. 70.5, ,5th 
 ed. ; 796, 6th ed. 
 
 (w) See above, p. 619. 
 {(>) See above, p. 620. 
 (p) Above, p. 636.
 
 OF THE COMPLHTTOX OF THE CONTRACT. 705 
 
 conveyance on sale to him of the whole estate contracted 
 for('7). But if in a deed of conveyance on sale some 
 interest is also assured, which is outside the transaction 
 of sale, as if an estate in remainder or reversion or 
 subject to some incumbrance were sold, and after the 
 sale but before completion the purchaser were to induce 
 tlie owner of the particular estate or incumbrance either 
 gratuitously or for value to concur in the conveyance, 
 then the deed would be chargeable with stamp duty, 
 not only as a conveyance on sale, but also in respect of 
 the assurance of the estate or interest not included in 
 the sale (/•). AVhere incumbrances are got in by a 
 vendor prior to conveyance to the purchaser (.s), the 
 deeds of reconveyance, release or other assurance are 
 chargeable with tlie stamp duty payable on such 
 transactions under the Stamp Act, 1891 (f), and the 
 duty must of course be borne by the vendor (-s) . Where 
 any instrument is duly stamped, as for its leading and 
 principal object, this stamp covers everything accessory 
 to that object (ii). The inclusion in a deed of convey- 
 ance of an acknowledgment or undertaking for pro- 
 duction or safe custody of any of the title deeds 
 does not therefore involve the payment of any 
 additional stamp duty (.r) . The purchaser must bear Expense of 
 the expense of stamping the conveyance with the *' ''"^P'"o- 
 amount of duty charged in respect of conveyances on 
 sale, as such (//) . 
 
 By the Finance (1009-10) Act, 1910 (-), a stamp Increment 
 duty (a) , called Increment Value Dut}', and levied on ^ "^"*' I>nty. 
 
 (q) See Sujf. V. & P. riTO ; 2 Revenue Commrs.. L. R. 7 Ex. 
 
 Dart, V. & P. 70ii, Sth ed. ; 79;"), 211, 217. 
 0th ed. (.i) See Su<j. V. & P. 571 ; 2 
 
 {)•) See Alpo'a Stamp Duties, Dart, V. & P. 70G, .'ith ed. ; 797, 
 
 124, 8th ed. (ith ed. 
 
 (.v) See above, p. 618. (</) Above, pp. 34, G9G. 
 
 (/) Above, pp. 691), 700. (.-) Stat. 10 Edw. VII. r. 8, 
 
 (n) Liinnin; iljr. Co. v. Iiihnid s. 1, pa.s.sed 29th April, 1910. 
 
 (rt) Sees. 15 (6).
 
 '06 
 
 OF THE COMPLl'.TTON OF THE CONTRACT. 
 
 the increment value as defined in the Act (h) of any 
 
 land, was made payable (subject to the exemptions 
 
 therein mentioned (c)), amongst other occasions (d), on 
 
 the occasion of any transfer on sale of the fee simple of 
 
 the land or of any interest in the land (c), in pursuance 
 
 of any contract made after the commencement of tlie 
 
 Sale of a Act (/). But the transfer on sale of any lease of any 
 
 sepM-ate'tene- separate tenement, flat or dwelling, being part of a 
 
 ment, flat or building used for the purpose of separate tenements, 
 
 dwelling-, . . . ■ 
 
 part of a hats or dwellings, is not an occasion on winch Incre- 
 
 larg-er 
 
 building. 
 
 (')) See ss. 2, 2.5—32. 
 
 (c) See PS. 7 (exempting agri- 
 cultural land, us defined in s. 41, 
 while it has no higher %'alue than 
 its market value at the time for 
 agricultural purposes only), 8 (as 
 to small houses and properties in 
 their owner's occupation). 9 (ass 
 to land used for games or rjcrea- 
 tion), 10 (as to Crown lands), 36 
 (exempting land held by rating 
 authorities), 38 (as to land held 
 by a statutory company for the 
 purposes of their undertaking). 
 
 {(l) These (see s. 1) are (1) on 
 the occasion of the grant, in 
 pursuance of any coutrnct made 
 after the commencement of this 
 Act, of anj' leaue (not btiug a 
 lease for a term of years not 
 exceeding fourteen years) of the 
 land (but see s. 22 as to mining 
 leases) ; (2) on the occasion of 
 the death of any person dying 
 after the commencement of this 
 Act, where the fee .simple of the 
 land or any interest in the land 
 is comprised in the property pass- 
 ing on the death ot the decea.sed 
 within the meaning of ss. 1 and 
 2, sub-s. (1) (a), (h), and (c), and 
 sub-s. ;i of the Finance Act, 1894 
 (stat. fu & .')S Vict c. 30), as 
 amended by any subsequent 
 enactment ; and (3) wlure the 
 fee simple ot the land f)r any 
 interest in the land is lield by any 
 body corporate cr Vpy any body 
 unincorporate as defined by s. 12 
 of the Customs and Inland 
 Revenue Act, 1S85 (stat. 48 & 49 
 
 Vict. c. 51), in such a manner or 
 on such permanent trusts that 
 the land or interest is not liable 
 to death duties, such periodical 
 occasions as are provided in this 
 Act (see s. 6, and s. 37 as to land 
 held for charitable purposes). 
 
 {(') By s. 41, in this part of 
 this Act, unle-^s the context other- 
 wise requires, the expres.sion 
 "land" does not include any 
 incorj)oreal hereditament issuing 
 or gr^iuted out of the land; and 
 the expression " interest " in 
 relation to land includes any un- 
 divided share in a fee simple in 
 possession and includes a rever- 
 sion expectant on the determina- 
 tion of a lease, but does not 
 include any other interest in 
 expectancy or an iu'junibrance as 
 defined by this Act or any fixed 
 charge as defined by this Act or 
 any purely incorpoieal heredita- 
 ment or anj' leasehold interest 
 under a lease for a term of years 
 not exceeding fnurti en years or 
 any tenancy whi(5h is, or is 
 deemed to be, subject to statutory 
 conditions under the Land Law 
 (Treland) Acts ; and the ex- 
 ])res.«ion ''fee .simple" means 
 the f( e .«imple in possession not 
 subject to any lease, but does not 
 include an undivided .shaie in a 
 fee simple in po.sses.sion. As to 
 the general meaning of the word 
 /in/il in Acts of Parliament, see 
 above, p. 98, n. (h). 
 
 (f) See note (c), p. 70;"), above. 
 
 I
 
 OF THE COMPLKriOX OK THE CONTRACT. 707 
 
 ment Value Duty is to be collected under this Act (fj). 
 With this exception, however, on any transfer on sale 
 of the fee simple of any land or of any interest in land, 
 Increment Value Duty is to be assessed by the Commis- 
 sioners of Inland Revenue (//) and paid by the trans- 
 feror!^/); and it is the duty of the transferor to present 
 to the Commissioners, in accordance Avith regulations 
 made by them, the instrument by means of which the 
 transfer is effected or agreed to be effected, or reason- 
 able particulars thereof for the purpose of the assess- 
 ment of duty thereon (/.). And any such instrument is 
 
 {ff) Sec't. 11, excepting also tlic in the execution of the iiistrumeut 
 grant and the passing on death by which the transfer is effected, 
 of any Nuch lease from the occa- or agreed to be effected, for the 
 sions on wliich this duty is t) be purpose only of conveying any 
 payable. estate vested in them as trustees 
 (/*) See sect. 96 (2). or incumbrancers, or of ackuow- 
 (i) Sect. 4 (1). By sect. 41, the ledging the receipt of the con- 
 expression "the transferor '" does sideration money, or of giving 
 not include any persons who join consent. 
 
 (/.) Sect, -1 (2 , also imposing a fine for failure to comply thei'ewith ; 
 sfe s. 4 (.')), and the Commissioner.s' Regulations; W. N. 4th June, 
 1!)10. By Regulation o, if the instrument itself be presented, the 
 presentation should take place, if possible, after execution by the 
 transferor. The instrument must be accompanied either by a copy, or 
 by an abstract such (but containing the further particulars required) 
 as is presented with an instrument lodged for adjudication under s. 12 
 of the Stamp Act, 1891. The abstract should set out fully, for pur- 
 poses of identification, the description of the property sold, and if the 
 instrument contains or refers to a plan, a copy of such plkn should be 
 furnished. A full statement should be made of any easements or 
 reservations affecting the land, of any covenant restricting its use, 
 and of any agreement or obligation to repair, or to pay outgoings. 
 An}' covenant or undertiiking or liability to discharge any incum- 
 brance, and any covenant or undertaking to erect buildings or to 
 expend any sums upon the projicity should be set out in full. If the 
 easement, covenant, A:c. is set forth in some other document than the 
 in.strument itself, that document shoul I be presented as well. The 
 official form (I. V. D. (A) ) of application for an Increment Value Duty 
 stamp, duly tilled up and signed, .should also be lodsred. The official 
 form of abstract (1. V. D. (B) ) can be \ised, if desired. By Regula- 
 tion 4, the in>trument, the abstract and t)ie form I. V. D. (A s when 
 presented, will be ret.-iined by the proptr officer of the (,^oinniissioiu>rs 
 lor examination, a ticket being given by way of receipt to rlie per.son 
 pre.sentmg tliem. By Regulation o, assuming that the various docu- 
 ments or papers are found on examinarion to cont;iin the particulars 
 necessary for the purpose of enabling tlie Commissioners to assess tlic 
 duty, and that if security has been re.|uired (see Regulation 14), such 
 security has been jjiven, the instrument will be imjiressed witli one of 
 
 45 (2)
 
 ro8 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 The Incre- 
 ment Value 
 Duty stamps. 
 
 Increment 
 value duty- 
 stamp, when 
 required. 
 
 not to be deemed duly stamped vmless it is stamped 
 either (1) with a stamp denoting that the Increment 
 Value Duty has been assessed and paid, or (2) a stamp 
 denoting that the necessary particulars have been de- 
 livered to the Commissioners and security given, where 
 required, for payment of the duty, or (3) with a stamp 
 denoting that no Increment Value Duty was payable on 
 the occasion : but where an instrument is so stamped, 
 it is, notwithstanding any objection relating to the In- 
 crement Value Duty, to be deemed to be duly stamped 
 as respects that duty (/) . Where any agreement for a 
 transfer is so stamped, it is not necessary to stamp any 
 conveyance or assignment made subsequently and in 
 conformity with the agreement, but the Commissioners 
 are required, on application made to them for the pur- 
 pose, to denote on the conveyance or assignment the 
 amount of duty paid {di). If an agreement for a transfer 
 is intended to be followed shortly by an actual con- 
 veyance, the Commissioners will not require the agree- 
 ment, or particulars thereof, to be presented under the 
 Regulations, but will accept the presentation in due 
 course of the actual conveyance, or particulars thereof, 
 as a compliance with the provisions of the Act {)i). 
 
 It appears from these enactments and regulations that, 
 after a sale of the fee simple or any interest in land as 
 
 the Increment Value Duty stamps, and will be returned on presentation 
 of the ticket after the expiration of the time mentioned therein. By 
 Regulation 11, if the instrument itself be not presented by the trans- 
 feror for tlie purpose of the assessment of Inirement Value Duty 
 thereon, reasonable particulars thereof in the form of the various 
 documents mentioned in Regulation 3 must be furnished by him ; 
 and a receipt will be given therefor. The form I. V. D. (A) duly 
 filled up should be lodged at the same time. And by Regulation 12, 
 provided the necessary particulars as above have been furnished by 
 the transferor, the appropriate stainp will be impressed at auy future 
 date, if the instrument and the receipt for the particulars are lodged 
 for the requisite length of time at tlie Head Office. 
 
 (I) Sect. 4 (3) ; and see above, {//) Commissioners' Regula- 
 
 p. 28, and n. {e). tions, No. 7. 
 
 (m) Sect. 4 (7).
 
 OF Tilt: COMPLETION OF 1 IIE CONTRACT. 709 
 
 defined in the Act (o), either tlie contract or the con- 
 veyance must be stamped with the a[>propriate Incre- 
 ment Value Duty stamp whenever the making of the 
 conveyance is a)t orcasio)i on which Increment Value 
 Duty is, or would but for the nature of the property 
 conveyed be, payable : but that the contract or convey- 
 ance need bot be so stamped where the conveyance does 
 not give rise to such an occasion, that is to say, where 
 it is made in pursuance of a contract made before the 
 commencement of the Act {p) or to effect the transfer 
 on sale of a lease of some such separate tenement, flat 
 or dwelling as above mentioned {q). But it appears 
 that, on sale after the Act of some property, which is 
 merely exempted from being charged with the duty, 
 such as agricultural land or small houses or properties 
 in their owners' occupation (/), the contract or convey- 
 ance must be stamped with the Increment Value Duty 
 stamp appropriate to the cftse (s). The vendor is liable The vendor's 
 to pay the Increment Value Duty ; and he is bound to respect, 
 present to the Commissioners either the contract or the 
 conveyance (accom[)anied in each case with the further in- 
 formation required) or else reasonable particulars thereof 
 in the required form for the purpose of the assessment of 
 the duty (7). But it lies in his option which of these alter- 
 natives he will select. The most convenient course for him 
 to choose seems to be to present the required particulars, 
 instead of parting with the possession of the contract or 
 the engrossment of the conveyance ; as this will enable 
 him to tender to the purchaser at the time for comple- 
 tion tlie conveyanci! executed l)y all necessary parties, 
 together with the ofKcial receipt for the particulars 
 presented (0- If he do this, it appears that he will 
 
 (o) See above, p. TOti, n. (r). Commissioners' Regulations, 
 
 (p) Abi>ve, p. 7(>'), and n. (:). No. 10. 
 (y) See above, p. 706 ; Com- (v) See above, p. 708. 
 
 mis.sioners' Kejrul;iti(ins, No. 1. (t) Above, p. 707, and u. (A). 
 
 {>■) See above, p. 70(1, n. (c) ;
 
 710 
 
 OF THE COMPLKTION OF THE CONTRACT, 
 
 The pur- 
 
 chaser's 
 
 joncern. 
 
 Whether the 
 contract or 
 the couvej- 
 ance should 
 be stamped 
 with the 
 above stamp. 
 
 Where it 
 seems advis- 
 able to stamp 
 the contract. 
 
 have discharged his duty to the purchaser under the 
 contract, and it will be the purchaser's concern to see 
 that the contract or the conveyance he duly impressed 
 with the appropriate Increment Value Duty stamp {ii). 
 But the purchaser is in no way concerned to see that 
 the duty in question be paid, for it does not appear to 
 be charged, if not paid, on the land sold (./•). It appears 
 that in the ordinary case of a contract of sale of land to 
 be followed by a conveyance, either the contract or the 
 conveyance alone may be stamped with the Increment 
 Value Duty stamp, or the contract may be so stamped 
 and the conveyance may. be stamped with a stamp 
 denoting the amount of duty paid (//). For the pur- 
 chaser, the most convenient coarse will usually be to 
 have the conveyance alone stamped with the Increment 
 Value Duty stamp ; since it is generally desired, as we 
 have seen {z), to avoid all reference on the face of con- 
 veyances to any written contract which preceded them. 
 If however the contract should contain any stipulation 
 giving rise to some obligation which will not be dis- 
 charged by conveyance and pajnient of the price {a) — 
 for example, an express stipulation providing for com- 
 pensation for errors of description (/>), or a stipulation 
 that the vendor shall build a wall on adjoining land of 
 his own — it would seem advisable to have the contract 
 impressed with the appropriate Increment Value Duty 
 stamp ; for it is at least a question whether the contract 
 would, alter the execution of the couveyanco, bo suffi- 
 ciently stamped without it {<■). 
 
 {■i) See above, pp. GOC, TOo. 
 
 (.i) See stat. !•) Edw. VII. 
 c. 8, s. 4 (4), making the duty 
 assessed a Crown debt due from 
 the transferor. But where In- 
 crement Value Duty is payable on 
 the death of any person, it sef-ms 
 to be charged like estate dutv on 
 any property liable to the duty 
 
 and not pas.sitjg to the e.Kei'utor 
 or administrator as such ; see 
 s. 5 ; below, chapter on the Death 
 Duties in Vol. II. 
 
 (y) See above, p. 708. 
 
 (-) Above, p. 629. 
 
 {(t) See below, Chap. XVIII. 
 
 §1. 
 
 {/>) Above, p. C6. 
 
 ((■) See stat. 10 Edw. VII. c. 8, s. 4 (3), stated above, |>. 7(18; and 
 note that " such instrument " refers to the inslrument by means of
 
 OF THE COMPLETION OF THE CONTRACT. 711 
 
 It does not appear to be strictly necessary, on a sale Conditions of 
 l>y auction, to make any stipulation for the vendor's incTement ^ 
 protection in respect of the Increment Value Duty Value Duty 
 stamp. If he present to the Commissioners the neces- 
 sary particulars for assessment of the duty, and tender 
 to the purchaser at the time for completion the convey- 
 ance executed by all necessary parties and the official 
 receipt for the particulars presented (d), it is thought 
 that the purchaser will have no right to reject such 
 tender and to refuse payment of the price on the ground 
 that the contract or the conveyance bears no Increment 
 Value Duty stamp (r). To avoid all misunderstanding^ 
 however, it seems advisable in ordinary cases to stipulate 
 expressly that the vendor will, on or before delivery to 
 
 which the transfer is effected or tu/reed lo be effected; sec sect. 4 (2), 
 stated above, p. 707. Note also that the Aft does not precisely say 
 that the contract need not be stamped with an Increment Value Duty 
 stamp, where the conveyan<;e is so stamped, though it makes express 
 jtrovisi( in for the converse case; above, p. 708. On tlie other hand, 
 where there is a contnut of siile followeil by ;i conveyau'C, it appears 
 that the Act will be satisfied if the conveyance alone be stamped with 
 such a .stamp ; and Regulation 7 assumes that this is the c:ise ; above, 
 \>. 708. It is submitted tliat a contract for the sale of land is iu its 
 inception sufticientlj' stamped, if stamped as required by the Stamp 
 Act, 1891 ; above, p. 28, and n. [e) ; airl further that, whci'c the con- 
 tract has not been completed by conveyatice, an Ini;remeut Value Duly 
 stamp is not necessary to mal<e the contract available as evidence in 
 any proceedings either to enforce it specifically or to recover damages 
 for its breach. The mere sale of land does not seem to be an occasion 
 on which such duty is payable, as the duty is cxpi'essiy charged on 
 the occasion of "any transfer on sale" ; above, pp. 70(3, 707; and 
 this expression seems to point to the conveyance completing the con- 
 tract. The vendor, moi'eover, is oidy bound to present the required 
 instrument or ])arliculars thereof on the occasion of any trau.'«fer on 
 sale ; above, p. 707. And it appears that in general an Increment Value 
 Duty stiiinp IS only recpjired for instruments evidencing some trans- 
 action, whicli is an occasion for the ])ayment of .such duty ; sec above, 
 p. 7(tS. Besides this, in any case where Increment Value I)utyhas 
 been paid, but the transaction, in respect of wliich the duty wa.s paid, 
 is subse<piently not carried into exe(!Ution, the iluty is to be icturncd ; 
 stat. 10 Edw. VII. c. 8, s. 4 (G). Tiiis seems to show that in any 
 proceedings for breach (before conveyance) of the contrai:t, no Incre- 
 ment Value Duty stamp can be required on the contract. And it is 
 submitted that any proceedings for specific performance must 
 neces.sarily be brought on the assumption that the contract has not 
 been completed by conveyance, an<l therefore that no occasion for 
 payment of Increment Value Duty has yet arisen. 
 
 {(() Above, pp. 707, and u. (/. }, 701). (c) See above, p. 71(i.
 
 712 OF THE COMPLETION OF THE CONTRACT. 
 
 him of the engrossment of the conveyance, present to 
 the Commissioners of Inland Revenue the necessary 
 parti-^ulars for assessment of the Increment Value Duty 
 to become payable on the completion of sale and apply 
 to liave the conveyance stamped with the appropriate 
 Increment Value Duty stamp, and the purchaser shall, on 
 delivery to him of the official receipt for such particulars, 
 complete the purchase as provided b}^ the contract, and 
 shall thereafter at his own expense procure the convey- 
 ance to be stamped with the appropriate Increment 
 Value Duty stamp (,/). If however the contract 
 should contain some stipulation which the vendor may 
 possibly require to enforce after completion, it would 
 appear advisable to provide specially in the conditions 
 of sale that the contract shall be impressed with such a 
 stamp {;/). It is thought that any condition for making 
 the purchaser bear the Increment Value Duty to become 
 paj^able on completion of the sale is likely to be depre- 
 ciatory and should be avoided. 
 
 ^ 4. — Of the ^I'lJiiHtiiiciit uf Acro/iJiis. 
 
 If the purchase should be completed at the proper 
 time for completion, the purchase money will be pay- 
 able without interest (//), and the only matter in respect 
 of which any adjustment of accounts may be neces^sary 
 is the apportionment of the rents or profits and the 
 oiitgoings (/'). In practice, however, it is exceptional 
 for a sale of land to be completed at the proper 
 time ; so that an account has usually to be taken of 
 what is chargeable against the vendor on account of 
 rents and profits received by him since the proper 
 time for completion and what is due to him for 
 
 ( /■) See Appendix A, below. [h) Above, i^p. 2G, 40, oO, 
 
 (t/j See above, p. 710 ; Appeii- 57 — GO. 
 dix A, below. (*) Above, pp. .50, 67, 517, 523.
 
 OF THE COMPLETION OF THE CONTRACT. "^^^ 
 
 intorest on the pureluise money (/•)• Besides this, the 
 amount of the purchase raonoy may in some cases be 
 diminished or increased by a valid claim for compensa- 
 tion on the part of eitlier purchaser or vendor. We 
 will consider each of these matters in turn. 
 
 First, as to the apportionment of rent. Where tlie Appmtiua- 
 lauds sold or any part of thnn are let, and tlie time for "IcJmpietiou. 
 completion of the solo does not fall on some rent-day, 
 we have seen that the vendor is either by laAv or express 
 stipulation entitled to an apportioned part of the rent 
 accrued due since the last rent-day (/). He cannot, 
 however (except b}' express stipulation), require the 
 purchaser to pay this apportioned part of the rent to 
 him on completion : but he must wait until the entire 
 rent for the current quarter, half-year, or other period, 
 for which the rent was reserved, has become due and 
 payable; when (if the purchase has been completed) 
 the purchaser will be entitled to recover the entire rent 
 from the tenant (ni) and the vendor to exact payment of 
 his apportioned part from the purchaser (;/). For this 
 reason it is not uncommonly provided in conditions of 
 sale b}' auction that the purchaser shall on completion 
 pay to the vendor the proportion due to him of the 
 current rents and shall retain the whole amount of such 
 rents for his own benefit (V>). As to the outofoiiif^s, Appurtiou- 
 
 • 1 1 1 -1 meiit i)f 
 
 where these are apportionable between the parties and outgoiugs. 
 payable in advance, as rates and taxes usually are (/>), 
 
 (/>■, AIhjvi', p. ol.'). CuTiv. C)6(). 4tli cd.. wIrtc tho 
 
 (/) Above, pp. oO, (17. .><peciiil condition would liavr bwn 
 
 {ill] Abovf, p. 401. uuuecessary if this wrn- nut. th»; 
 
 («) This is so provid<'<l by the law; and cf. Jims/ilv. Tai/ij, I'.tOO, 
 
 Apportionineni Ai;r, 1S70 (stat. 1 Ch. TM, lih. 
 
 'i'i & ;i4 Vict. f. ;5')), Hs. ;}, 4, iu («) See Appendix A, bidow. 
 
 theabsenceof express stipulation. [p] Above, p. ;'> 2.3. Before the 
 
 And it is thought that the same year ID 10, the t)nly taxes (other 
 
 law applies where the contract of than the death duties payable in 
 
 .sale contaiTis ati express stipula- res|)ect of land were land tax. 
 
 tion for apportionment of the property or income tax and iu- 
 
 reuta : see 1 Davidson, Prec. habited house duty ; Steph.
 
 714 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 the vendor having paid any such outgoings before the 
 time for completion is entitled to be recouj)ed bv the 
 purchaser to the extent of the proportion attributable to 
 the latter. And of apportionable outgoings, which are 
 not payable in advance (such as ground rent or tithe 
 rent-charge), and will become pa3'able after the proper 
 time for completion, it is thought that the purchaser is 
 entitled to claim that the proportion, which ought to be 
 
 Coinm. ii. 589—595, 60S-()10, 
 6th e;l. These are all amiual 
 charges aud, if payable pending- 
 completion of a sale of the pro- 
 perty, ill respect of which they 
 ari,»e, they are apportionable 
 between the vendor and the pur- 
 chaser under the usual stipulation 
 f(jr apportionment of the out- 
 iroings ; see above, p. 523 and 
 note (.v). The Finance (1909-10) 
 Act, 1910 (stat. 10 Edw. VII. 
 <^ 8), besides imposing Increment 
 Value Duty on the occasions above 
 mentioned (pp.70r),706,andn.(rf) ), 
 imposed thiee other new taxes in 
 respect of land, called Rever.-ion 
 IJuty (above, p. 40 1 ) , Undeveloped 
 Land Duty and Mineral Rights 
 Duty. Reversion Duty is payable 
 by the person, who is entitled to 
 the reversion at the time of the 
 determination of a- lease, on the 
 cesser of which the duty becomes 
 payable; see ss. lU — 15, 41. And 
 it is thought that, where the re- 
 version on such a leai-e is sold and 
 the lease determines at any time 
 before completion, the purchaser 
 ought ill all cases to bear the 
 whole of the Reversion Duty as 
 being the person actually entitled 
 to the benefit aci ruing from such 
 determination ; see above, pp. 401, 
 .')(I4- 508. If this be the right 
 rule, it follows tliHt on a sale of 
 the revei.sion to the lessee, the 
 Reversion Duty, which will arise 
 on the merger of the term (see 
 ;ibove, pp. 367, 368), should be 
 paid by the purchaser. Un- 
 developed Land Duty is a yearly 
 ta.x in re.-pect of the site value of 
 undeveloped laud (see ss. 16 — 19, 
 
 25) : but it appears to be payable 
 by the person, who is the owner, 
 meaniug the person entitled iu 
 possession to the rents and profits, 
 of the land at the time when the 
 duty becomes payable, and it is 
 to be borne by that owner not- 
 withstanding any contract to the 
 contrary; see ss. 19, 41. It 
 seems therefore that, if such duty 
 become payable pending comple- 
 tion of a contract of sale of the 
 land, in respect whereof it is 
 charged, it will fall entirely upon 
 the party then entitled to the 
 profits aud bound to discharge 
 the outgoinsrs, and will not be 
 apportionable under any express 
 stipulation in the contract; s' e 
 above, pp. 49, 50, 520— 52:{. 
 Mineral Rights Duty is a yearly 
 tax on the rental value of all 
 rights to work miuerals and of 
 all mineral wayleaves, and is 
 payable by the proprietor of the 
 minerals, where he is working 
 them, and in any other case by 
 the immediate lessor of the work- 
 ing lessee. As between sucli 
 lessor and lessee, the duty is to 
 be borne by the lessor, notwith- 
 standing any contract to the con- 
 trary, wliether made before or 
 after the Act ; see ss. 20 -24.41. 
 It appears that if any such duty 
 should become payable pending 
 completion of a sale of the land, 
 in respect whereof it arises, it 
 would be apportionable between 
 the vendor and the purchaser 
 under the usual stipulation for 
 apportionment of the outgoings ; 
 see above, p. 523, and n. (.v).
 
 OF TIIK COMPLETION OF THE CONTKACT. 
 
 borne by the vendor, f-hall be allowed in account and 
 deducted from the purchase money on completion. This 
 certainly appears to be so, where the vendor has ex- 
 pressly agreed to discharge or to clear the outgoings (q). 
 And it is thought that upon a sale by open contract the 
 vendor incurs the like liability to discharge the out- 
 goings (/•), and must equally clear off on completion his 
 lu'oportion of anj' outgoings which are apportionable by 
 law and not payable until after the time for completion. 
 As we have seen (.s), where any outgoings, which are 
 not apportionable, become charged upon the property 
 sold before the time for completion, the vendor is bound, 
 in the absence of stipulation to the contrary, to dis- 
 charge them before completion, although they may not 
 become payable nntil after completion. In such eases, 
 if the amount of the vendor's liability be exactly ascer- 
 tained before the date of actual completion, he must 
 either discharge the outgoing himself or allow the 
 amount to be set off' against an equal part of the pur- 
 chase money (f). If the liability be not exactly ascer- 
 tained before the time for completion, as whore a charge 
 has been created under the Private Street Works Act, 
 1S92, but no final apportioument of expenses made, 
 then, as the vendor cannot make a good title to the 
 property sold as being free from incumbrances while 
 the charge continues to subsist (»), the purchaser may. 
 it is thought, refuse to complete without some sub- 
 stantial guarantee that the vendor will duly perform his 
 obligation in this behalf ; as that part of the jiurchase 
 money sufficient to satisfy the incumbrance siiall be 
 deposited in their joint names until the charge shall 
 have been paid off. 
 
 [I/] See La ires V. Gi/mii,!,. R. (<) Jlr Bcltc.stvorlh an I liulur, 
 
 1 Eq. 135 ; above, pp. C7, 74, 523. 37 Ch. D. 535. 
 
 {)■) Above, p. 50. („^ See !Stock v. Mi;,l,u,, 1 -»()(•, 
 
 (») Above, pp. 60, 520 .wy. 1 Oh. G83 ; iibove, p. 521. 
 
 15
 
 7J6 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 Apportion- Here it may be mentioned that when a part of lands 
 
 tax and tithe I'^'^ed or charged together for the })urposes of land tax 
 rent-charge, or titlie rent charge is sold, the tax or rent-charge may 
 be apjiortioned {x) : but as land tax and tithe rent- 
 charge are not incumbrances [//), it does not appear that 
 it is the vendor's duty to procure this to be done ; the 
 purcliaser must see to it himself after completion {z). 
 So also the purchaser must see for himself after com- 
 pletion that tlie property sold is separately rated for the 
 purposes of imperial or local taxation. But when the 
 land sold is subject to some incumbrance charged 
 thereon and on other lands as well, such as a rent 
 reserved out of the entirety of leaseholds sold in lots or 
 Of rent-charge issuing out of the land sold and other 
 land, the charge is of course, in the absence of stipulation 
 to the contrary, an objection to the title {a) ; and if the 
 vendor should have sold the land as being subject only 
 to a jiart, proportionate to its value, of the rent or other 
 charge, he must procure the same to be legally appor- 
 tioned {h), or he cannot enforce the contract. In such 
 cases, therefore, as a legal apportionment cannot 
 generally be made by consent of the vendor and 
 purchaser alone, it is usual for the vendor to inake 
 special stipulations exonerating him from the obligation 
 of procuring a legal apportionment and providing for 
 the incidence of the charge as between the parties to the 
 
 Sale of land 
 subject to a 
 rent attaching 
 thereon and 
 on other laud. 
 
 (.(■) See stats. 42 Geo. III. 
 0. 116, s. 3o, as to land tax; 
 5 & () Vict. c. .')4, s. 14 ; 23 & ■-'4 
 Vict. c. W.i, a. 11, as to tithe 
 rent-charge. 
 
 (//) Above, p. 170. 
 
 (r) ^eo I{r Ehstcorlh and Tidij, 
 42 Ch. D. 23. If this were not 
 so, special stipulations would be 
 required on every sale of free- 
 holds in lot.s : but it is not con- 
 sidered that these are necessary, 
 except where the vendor repre- 
 sents ill the particulars or iigree- 
 ment for sale that the lots sold 
 
 are each subject to particular 
 sums payable in respect thereof 
 for land tax and tithe rent-charire. 
 In this case, he would, in the 
 absence of stipulation to the con- 
 trary, be bound to procure a 
 legal apportionment, if the whole 
 of the lots were rated or charged 
 together for these purposes. See 
 1 Davidson, Free. Conv. 616, 
 622, 689, 4th ed. ; 1 Key & Elph. 
 Free. Conv. 310, 8th ed. 
 
 («) Above, pp. 167, 176, 177. 
 301-363. 
 
 (/)) Above, pp. 363, 405, n. («).
 
 OF THE COMPl.l-niON OF THE CONTRACT. 
 
 7i: 
 
 sale (c) . Where the reversion of part of lands let on Sale of rever- 
 
 1 • i- ^ T \^ 1 i-ij sioii of part ot 
 
 lease at one entire rent is sold, the vendor snoiua land let at one 
 stii)ulate that the purchaser will be entitled to a certain ^'^'^*- 
 yearly rent (stating the amount) as an apportioned part 
 of the entire rent, and tliat the consent of the tenant to 
 this apportionment (d) shall not be required (c). If the 
 vendor should represent tliat the land sold were let at 
 the rent stated, witliout mentioning that tliis was only 
 an estimated part of a larger rent intended to be 
 apportioned, he would be bound to procure a legal 
 apportionment of the rent ; and further, if in such case 
 the land were sold with the benefit of a condition of re- 
 entry on breach of covenant, and this condition would 
 be destroyed by severance of the reversion ( /), he would 
 not be enabled to enforce the contract for sale {(j). 
 
 The rules respecting the purchaser's liability to pay Purchaser's 
 interest on the unpaid purchase money have been '^ interest. 
 already stated. As we have seen (//), this obligation 
 arises either by implication of law or express stipulation 
 at the time when the purchaser acquires the right to 
 enter into possession or receipt of the rents and profits 
 of the property sold ; the principle being that enjoy- 
 ment of the fruits of the contract by the purchaser 
 ought only to be had on condition of payment of the 
 price, and that if payment be deferred, interest should 
 be chargeable (/). In this respect the provisicms 
 implied by law in an open contract are far more Under an 
 equitable than tliose of the usual express stipulation 
 made on I^ondon sales by auction, whicli is grossl}' 
 
 [c) See 1 Dart, V. & P. 130, ed. ; 147, Gth ed. ; 148, 7th ed. ; 
 131, 6th ed. ; 147, 6th ed. ; 143, 1 Davidson. Prec. Conv. 540, 547, 
 7th ed. ; 1 Davidson, Prec. Conv. 4th ed. ; above, p. 81. 
 
 :'.44, (iSt .s7., GOlt SI/., 4th ed. ; (/) Above, p. 405. 
 
 1 K.y A: Elph. Pre<!. Couv. 293 {,/) See IFn/Cn- v. Mmnidr, 1 J. 
 
 and n. {d). 333 .sv/., 8th ed. ; & W. 181. 
 
 above, pp. 81, 303. (A) Above, pj). 50, 00, 07, ")I.">. 
 
 [d) See above, p. 405, n. (n). (i) Above, p. 50, n. {n). 
 
 [e) I Dart, V. & P. 131, 5th
 
 '18 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 unfair to purchasers and frequently works great hard- 
 ship (A). Thus, under an open contract, where the 
 vendor is in possession, the purchaser is only liable to 
 pay interest, if there he delay in completion, from the 
 time when he may safely take possession, that is, when 
 a good title has been shown (/) ; and this is the case, 
 although a day be fixed for completion, and owing to 
 delay attributable to the state of the title, or otherwise 
 to the vendor, a good title is not shown until after that 
 day (w). And if the purchaser be in possession at the 
 time of the contract for sale, or actually enter into 
 possession afterwards, but before completion, or if the 
 property sold be of such a nature that the enjoyment 
 thereof necessarily runs from the time of sale, as in the 
 case of a remainder expectant on a life estate returning 
 no rent {n), then interest is payable from the time when 
 actual possession or enjoyment by the purchaser as such 
 so commenced, that is, from the date of the contract for 
 sale or actual entry into possession (o). Then under an 
 open contract, if there be delay in completion which is 
 attributable to the vendor, the purchaser may, by 
 appropriating his money to the purchase and giving to 
 the vendor notice of such appropriation, relieve himself 
 of the liability to pay any greater interest thereon than 
 such, if any, as is allowed upon such appropriation. 
 Though he cannot escape his regular liability to pay 
 interest by making such appropriation, if there be delay 
 in completion which is attributable to himself {])). But 
 under the usual stipulation for payment of interest iu 
 London sales, ^g^g file contract shall not be completpd on the appointed 
 
 Under the 
 stipulation 
 usual on 
 
 (/.•) See above, pp. 07, G8, 75, 
 and n. {h), 8b. 
 
 {/) Above, pp. 26, 40, 50. 
 
 {w) Jones y. Aludd, 4 Russ. 118 ; 
 above, p. 00 ; Rr Hnihctt cnid 
 Bird's Contract, \WI, 2 Ch. 214, 
 217 (which appeiiiH to be quir.e 
 right in this respect ; see above, 
 p. 354). 
 
 («) Above, pp. 408, 576. 
 
 [o) Expte. Manning, 2 P. AV. 
 410; Vltidyer v. Cocker, 12 Ves. 
 25; J.-O. V. Chrinlchiirch, VA 
 Sim. 214 ; 2 Part, V. & P. 029, 
 630, 5th ed ; 711, 0th ed. ; 652. 
 653, 7th ed. 
 
 ( p) Above, p. 51.
 
 OF THE COMPLETrON OF THE CONTRACT. 719 
 
 day from any cause wliatever, or from any cause what- 
 ever other than the wilful default of the vendor [q], the 
 purchaser must pay interest at the rate agreed upon 
 (though far exceeding the return derived from tlie rents 
 and profits), if there be delay in completion arising from 
 the state of the title, a cause which would otherwise be 
 attributable to the vendor (r). And the purchaser can- 
 not, according to the better opinion, divest himself of 
 this liability by appropriating his money to the pur- 
 chase (.v). The ground on which the law has been so 
 established is that the purchaser having chosen to enter 
 into such a stringent agreement must abide by its terms, 
 and that owing to the difficulties attendant on making- 
 out a title to land, delays so caused cannot be ascribed 
 to the vendor's wilful default. Where the contract is 
 to pay interest, if from any cause whatever the contract 
 be not completed on the appointed day, it is considered 
 that the purchaser cannot escape the express obligation 
 so undertaken unless the delay be caused by the vendor's 
 vexatious conduct, dealing in bad faith, or gross negli- 
 gence (^). Where the purchaser has agreed to pay Contract to 
 interest if completion be delayed from any cause what- except <m^^ 
 ever other than the vendor's wilful default, he must vendor's wil- 
 show that the vendor has committed some wilful 
 default within the meaning of the clause, and must 
 further prove that such default was the effective 
 cause of the delay {n). As we have seen (.r), the late 
 Lord Bo wen remarked upon the futility of attempting 
 to formulate an exact definition of wilful default which 
 would cmer all cases, whilst a*" the s;rne time he 
 
 {q) Above, pp. (57, (iS. (.v) Above, p. (IS. 
 
 (/•) Sliencin v. Shak-spear. ft (f) Above, p. Hi. 
 
 De ix. IVf. & li. ;')17 ; Jri//iirms v. (//) See Rr Ma ■/or of Loii'lon 
 
 (i/riitoii, L. li. 1 Ch. iOO ; ],'" iiikI T'i'</>s' rontnir/, 1891, i Cli. 
 
 Miti/of of Ln,tii:ii mil Tii/i/x, IS!)|, oM ; /{ninif/ v. S/o>i<: lilt):!. I Ch. 
 
 2 Ch. ;V2» ; ISeiinitl v. Sloiif, :')()'.); lie /li(i//ii/- ll'iDt/iith/fuii ,ii,'l 
 
 liK):;. I Ch. .')(!.), ;')lti, .)•_»(). .')2.) ; Cohni's (;„„inirt, 1!) ID, I ("h. (i4S. 
 
 Uk liaijleij- II 'iiVthiiigloii and (.'ohni'.i M-i . 
 Cuntriict', lyoy, I Cli. G4S, G;J4. (./) Above, p. G8, and n. (■<).
 
 720 OF THE COMPLETION OF THE CONTRACT. 
 
 ascribed to each of these words a particular meaning. 
 And his explanation of this term has been religiously 
 adopted in subsequent cases, but has hardly proved a 
 satisfactory guide (//). The particular acts or omissions 
 which have been held to fall within or without the 
 expression "wilful default" have been already stated (;:) ; 
 and as we have seen, in the last of these cases four 
 judges were divided equally in opinion upon the 
 question, whether it is wilful default for a vendor to 
 insist mistakenly, but in apparent honesty, upon an 
 unreasonable contention with respect to the form of the 
 conveyance {a). The further point above alluded to, 
 that the purchaser must prove that the vendor's wilful 
 default (where it exists) is the effective cause of the 
 delay, is illustrated by the cases of Re Mayor of LomJon 
 and Tahhi<' Couiract and Betuieti v. Stone already cited [h). 
 In the first of these, it was considered by the whole 
 Court that, even if there were wilful default by the 
 vendor — as to which they differed in opinion — the 
 purchaser coidd not escape liability to pay interest, if 
 the delay were in truth caused by his own conduct in 
 making voluntary requisitions and his inability to find 
 the purchase money. And in the latter case, three 
 judges out of four held that, if the vendor were in 
 wilful default, yet the purchaser was not on that 
 account released from his obligation to pay interest, 
 where the real cause of the delay was his own inability 
 
 {y) See Re Ben/ley- W<irthi)ig1o)i The vendors would only agree to 
 and Cohen s Contract, 1000, 1 Ch. this with the addition of the 
 048, 657 — 664. words " to far as they are now 
 (;) Above, p. 68, n. (.v). at l;iw or in equity entitled to 
 [a) Bennett V. tStone, 1902, 1 Ch. assi<;:n the benefit of these core- 
 220, 1903, 1 Ch. r)09. The pur- nants without thereby warrant- 
 chaser was by the contract en- iug that such covenants are now 
 titled to the benefit of certain enforceable by their assigns." 
 covenants entered into with the See above, pp. 645, 652 ; and cf. 
 vendors by a third party. The Be Bay!ey- Jl'ort/iinyton andCij/icn'x 
 purchaser required that the ('(iiitr((vt, 1909, 1 Ch. 648. 
 benefit of these covenants should {ti) Above, pji. 6S, n. (.s). 
 be expressly couveyed to him.
 
 OF THE COMPLETION OF THE CONTRACT. 721 
 
 to provide the purchase money. "Where a purchaser To pay except 
 liad agreed to pay interest if from any cause whatever ^efluh; 
 other than " the default " of the vendor the sale were 
 not completed on the day fixed, and completion was 
 delayed on account of an objection to the title, which 
 was not obviously apparent on the face of the title 
 deeds and was not known to the vendor at the time of 
 sale, Lord Bowen's explanation of the meaning of 
 default (c) was adopted, and it was held that the pur- 
 chaser was not excused from paying interest, for the 
 vendor had not failed to do something which he ought 
 reasonably to have done ((/). Where the contract is purchaser in 
 that if completion be delayed from any cause whatever ^efaulttopay 
 
 • (• 5> 1 n • 1 • interest. 
 
 " the purchaser in default shall pay interest, he is not 
 obliged to pay interest if there be delay arising from 
 the state of the title or otherwise attributable to the 
 vendor (r) . Where there was in effect an express con- 
 tract to pay interest in the case of delay in completion, 
 unless it should arise from some other cause than the 
 neglect or default of the purchaser, and delay was 
 caused by the purchaser making a requisition, which on 
 appeal to the House of Lords was held to be untenable, 
 it was considered that the purchaser was in default in 
 insisting on such a requisition, and must pay interest 
 accordingly (,/'). 
 
 The various items which may be charged in account Items charge- 
 against or in favour of a vendor remaining in possession ^j. for^^ndor 
 after the time when interest on the purchase money has 
 become payable, have been stated in the preceding 
 chapter (//) ; where we have also explained what claims 
 
 (c) Above, p. 68, n. («). De G. & Sm. 689; Jomx v. 
 
 (d) Re iroods and Lewis's Cow Gardiner, 1P02, 1 Ch. 191. 
 tract, 1898, 1 Ch. 433, 2 Ch. {/) Re Bayley-WorthinQton and 
 211. Cohen's Contract, 1909, 1 Ch. 648. 
 
 (c) Denning v. Henderson, I (g) Above, pp. 515, 517 — 523. 
 
 W. 46
 
 722 OF THE COMPLETION OP THE CONTRACT. 
 
 Deterioration may be made against the vendor for deterioration of 
 perty. the property sold (//) . 
 
 Compensation The Only case in which the adjustment of a claim for 
 
 for errors of -• • - i • a L^ j. j. 
 
 description. compensation IS an act done m pursuance oi the contract 
 for sale is where an express agreement to make or allow 
 compensation for errors of description forms part of that 
 contract (/) . In all other cases a party claiming com- 
 pensation is really seeking, not to carry out the contract 
 as it stands, but to enforce its performance with a 
 variation. It will be convenient, however, to treat in 
 this place of these cases as well ; since any claim for 
 compensation will usually be allowed and adjusted 
 before completion and without litigation, if the claimant 
 can establish a clear right to enforce specific performance 
 of the contract with compensation. And in all cases of 
 innocent misdescription it is essential that the claim for 
 compensation should be made before completion, if the 
 contract contain no express agreement to make com- 
 pensation ; for, except in the case of such an express 
 agreement, the claim cannot afterwards be enforced (/•). 
 
 Claims to The position of the parties to an open contract with 
 
 compensation i.j.i*i? j.'ii ^ i 
 
 under an open respect to claims lor compensation has been already 
 contract. indicated (/). Any misdescription of the property sold 
 
 must result in a breach of the contract at law ; for in 
 such case the vendor cannot discharge his obligation of 
 producing a property corresponding with tliat which he 
 has purported to sell (/) ; and he is bound at law to 
 produce a property answering exactly to that described 
 in the contract, no difference between substantial and 
 insubstantial errors being admitted (m). But in equity 
 
 (A) Above, pp. 512—515. {iii) See Mortlock v. Buller, 10 
 
 («) Above, p. 65. Ves. 292, 306 ; Hakey v. Grant, 
 
 {k) Above, pp. 65. 610. 13 Ves. 73, 77 ; Clermont v. Tan- 
 
 {l) Above, p. 43, bmyh, 1 J. & W. 112, 120; 2
 
 OF THE COMPLETION OF THE CONTRACT. 723 
 
 it is held that, where there is an insubstantial error 
 innocently mado in the description of the property sold, 
 the vendor may nevertheless enforce the specific per- 
 formance of the contract, giving compensation for the 
 deficiency ; and this is the case whether the deficiency 
 be of acreage or quantity, or be of right, as in the case 
 of a quit rent not mentioned in the particulars, or where 
 a very small part of a property described as freehold is 
 copyhold or leasehold {)i). This relief, however, will 
 only be afforded in the case of an error made in entire 
 innocence and good faith. It will be refused if the 
 misdescription amount to a wrongful misrepresenta- 
 tion (o). And if the mistake occurred in any point 
 really material to the enjoyment promised by the 
 description in the contract, the vendor cannot oblige 
 the purchaser to perform the contract, whether the 
 misdescription were innocently made or not, and 
 whether it related to the quantity or situation of the 
 land sold, or to the vendor's tenui'e, estate or right (p). 
 As we have seen (</), compensation is not payable for 
 patent defects — those which are discoverable by an 
 inspection of the property sold — but may well be 
 claimed for defects which are latent and interfere with 
 the enjoyment promised by the contract; and will not 
 be allowed for defects, of which the purchaser had 
 notice when he bought. It is thought that the doctrine 
 
 Dart, V. & r. 9/56, 957. 5th ed. ; 32 Ch. D. 14, 29. 
 
 1083, 1084, Gth ed. ; 998, 7th ed. ; (p) Seo Breue v. Ramon, G 
 
 above, pp. 43, 44. Ves. 675, 679 ; Hakei/ v. Grant, 
 
 (w) Calcraft v. Roebuck, 1 Ves. 13 Ves. 73, 78, 79 ; Binkn v. 
 
 jun. 221 ; Hal.tey v. Grant, 13 Jiokrbi/, 2 Swanst. 222, 225 ; 
 
 Ves. 73 ; F.xdailc v. Stephenson, Peers v. Lambert, 7 Beav. 546 ;' 
 
 1 S. & S. 122; Svi.tt V. Hanson, Fry, Sp. Perf. 548— 557, 3rd ed. ; 
 
 1 R. & M. 128; Kiiiffv. in/son. Re Arnold, 14 Ch. D. 270; Jacobs 
 6 Beav. 124; Powelf v. Elliot, v. Rerell, 1900, 2 Ch. 858; Re 
 L. R. 10 Ch. 424 ; above, p. 170. I'uckett and Smith's Contract, 1902, 
 
 (o) (;iermont v. Tasburgh, 1 J. & 2 Ch. 258. (In the last three 
 
 W. 112, 120; Price v. Macaulaij, cases there was a condition ex- 
 
 2 De G. M. & (t. 339 ; Dimmock chiding compensation.) 
 
 V. Hallett, L. R. 2 Ch. 21, 28, 31 ; {q) Above, pp. 611. 612 ; Dyer 
 
 Re Terry and White's Contract, v. Hargrave, 10 Ves. 605. 
 
 46(2)
 
 724 OF THE COMPLETION OF THE CONTKACT. 
 
 euabling the vendor to enforce specific performance witli 
 compensation is only applicable where there is a dcficienrn 
 in the property offered in fulfilment of the contract as 
 compared with tliat described therein ; and does not 
 permit a vendor to enforce specific performance wdth 
 compensation in his own favour. Thus, if a man sell 
 for a particular price "" my house and lands called 
 Broadlands, containing 100 acres," and Broadlands 
 contain a little less than that quantit3% he may enforce 
 specific performance with compensation : but if Broad- 
 lands contain rather more than 100 acres, it is thought 
 that the vendor cannot oblige the purchaser to perform 
 the contract specifically on payment of a proportionately 
 increased price (r). But where a vendor makes in- 
 advertently and in good faith a serious error to liis own 
 disadvantage in the description of the property sold or 
 the price to be paid for it, the Coiu't will not compel 
 him to perform the contract specifically at suit of the 
 purchaser ; but will leave the latter to his remedy at 
 law, unless he elect to take "without compensation what 
 the vendor really intended to sell or to paj' the price 
 the vendor meant to ask. The Court will not, however, 
 rescind the contract at the vendor's instance in such a 
 ease (-s). 
 
 The pur- So far we have dealt with the vendor's case. The 
 
 chaser's right i i i i i • • 
 
 to specific purchaser under an open contract contammg a mis- 
 
 performance description of the property sold is in a different 
 with com- . / 11., 1 1 1 . 
 
 pensation. position. l" or the rule IS that the vendor, having 
 
 represented himself to be the owner of or to be entitled 
 
 (r) See il/fl'><*«' V. 2?«cX:. 6 Hare, 448; Leslie v. Tompson, 9 Hare, 
 
 443, 447, 448; 2 Dart, V. & P. 268 ; Alvtaiiei/ v. Einnatrd, 2 ^ac. 
 
 645, 5th ed. ; 729, 6th ed. ; 670, & G. 1. 7 ; ' Scott v. Littlednle, 8 
 
 7th ed. E. & B. 81.5; Webster v. Cecil, 
 
 (a) See Neap v. Abhutt, C. P. 30 Beav. 62 ; North v. Percival, 
 
 Coop. (1837-8), 333; He/sham y. 1898,2 Ch. 128; 2 Dart, V. & P. 
 
 Langley, 1 Y. & C. C. C. 175; 645, 5th ed. ; 729, bth ed. ; 670, 
 
 ^anser v. Back, 6 Hare, 443, 447, 7th ed. ; above, p. 45.
 
 OF THK COMPLETION OF THE CONTRACT. 725 
 
 to sell a particular property, is estopped from showing 
 ill avoidance of the contract that he has the right to 
 convey a part only and not the whole of what he 
 purjoorted to sell(/'). The purchaser therefore is, as a 
 rule, entitled, if it turn out that there is a mere 
 di'fciennj, whether of area, estate or right, and wliether 
 substantial or not, between the property described in 
 the contract and tliat' offered in fulfilment thereof, to 
 enforce the specific performance of the contract, taking 
 such interest in the property sold as the vendor i has and 
 receiving compensation for the deficiency. For example, 
 where a vendor described the land sold as containing a 
 much greater quantity than its actual area (m), where 
 a vendor could make no title to a considerable part of 
 the land sold (./), and where a vendor who purported to 
 sell the fee simple of certain land was entitled as tenant 
 for life (//), tenant in remainder subject to a life 
 estate (2), tenant pnr dutrc vie (a), or to an undivided 
 moiety only (b), he was obliged at the purchaser's suit 
 to convey what estate he had and to allow compensation 
 for the deficiency. The exceptions to this rule appear 
 to be the following : — The Court will not enforce 
 specific performance with compensation at the pur- 
 cliaser's suit, where sueli an order would be prejudicial 
 to the rights or interests of third parties {c) ; or where 
 the only property which the vendor can convey is an 
 entirely different kind of thing from that described 
 
 (I) Mutlluck V. Biillcr, 10 Vcs. (y) Chaton v. Gotcer, Fincli, 
 
 2\)2, 315 : 6Vm//« v. mikinson, 1(J4. 
 
 L. R. 5 Cti. .)34, o36 ; Rudil v. (r) Jioluifibroke'x caxr, I Sch. i: 
 
 /,ff,sw//A'.s. 1900, 1 Ch. 81.5. SIS. Lef. 19. n., cited 2 Ph. 605; 
 
 («) Hill V. liuckliij, 17 W's. Nelthorpev. Holg<tte, \ CoW. 2m : 
 
 394, in wliich case it was also Barker v. Cox, 4 Ch. D. 464. 
 
 held that, where the contents of (a) Barnrs v. Jf'ood, L. R. 8 
 
 any laud sold are stated in the Eq. 4U4. 
 
 desiriptioii thereof, it must be (h) Hooper v. Smart, L. R. 18 
 
 taken that the pric^r was tixcd Eq. 683 : Horrocks v. Itit/bi/, 9 
 
 with reference thereto. Ch. D. 180. 
 
 (.*:) ICr^'teni V. R'lsmll, 3 V. & (c) Thotiias v. Ihrnii/. 1 Keen, 
 
 B. 187, 192. 729. 6 L. J. (N. S.) Ch. 267: 
 
 inUniiitt V. Barber, 1.') Ch. D. 96.
 
 720 OF THE COMPLETION OF THE CONTRACT. 
 
 ill the contract and tlie difference is incapable of 
 estimation at a nioney value, as where land sold as 
 unincumbered freehold is subject to restrictive cove- 
 nants (rf) ; or where the vendor has innocently made a 
 serious error of description to his own disadvantage and 
 it would be a great hardship to enforce specific perform- 
 ance with compensation against him (e). And where 
 there has been a mistake in the description of land 
 put up for sale by auction, and the mistake has been 
 corrected orally by the auctioneer immediately before 
 the sale, the purchaser cannot enforce specific perform- 
 ance with compensation, notwithstanding that he did 
 not hear the correction (_/). Besides this, it appears 
 that where the purchaser bought with notice of the 
 vendor's defect of title, he cannot enforce specific 
 performance with compensation for the defect : except 
 where the contract contained an express agreement that 
 the vendor should show a good title or otherwise remove 
 the defect (g) . It is thought that if the contract for 
 sale contain no stipulation at all respecting compensa- 
 tion for errors of description, but include the usual 
 clause empowering the vendor to rescind in ease of 
 the purchaser's insistence on an unwelcome requisi- 
 tion (A), the vendor is at liberty to rescind the contract 
 under this clause rather than comply with a requisition 
 for compensation on account of a serious error of 
 description innocently made to his own disadvantage (i ) . 
 
 {d) Sudd V. Lascelles, 1900, 1 unwilling to complete without 
 
 Ch. 815; Fry, Sp. Perf. § 1276, compensation: see the case last 
 
 3rd ed. ; and cf. below, pp. 728, cited. 
 729,731. (//) Above, p. 203; CaMe v. 
 
 (e) Durham v. Legard, 34 Beav. TFilkinson, L. R. 5 Ch. 534; Fry, 
 
 611 ; liuddv. Lascelles, ubi sup. ; Sp. Perf. § 1271, 3rd ed. Dis- ' 
 
 above, p. 45. tinguish Barker v. Cox, 4 Ch. D. 
 
 (/) Manser v. Back, 6 Hare, 464, on the ground that there the 
 
 443 ; Ee Hare and 0'More''s Con- vendor expressly undertook to 
 
 tract, 1901, 1 Ch. 93, where there procure an assurance from all 
 
 was an express contract to make necessary parties, 
 compensation. The purchaser is, {h) Above, pp. 64, 182 — 1S7. 
 
 however, in such. case entitled to (i) Fry, Sp. Perf. § 1269, 3rd 
 
 rescind the contract, if he be ed. ; and see above, pp. 183, 187, 
 
 A
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 727 
 
 Where lands are sold under a stipulation that errors Condition 
 of description shall not annul the sale, but no eompen- ^ght to com- 
 sation shall he allowed therefor (/.•), the contract is not pensationfor 
 
 _^ ' ' errors of 
 
 broken at law by any small discrepancy between the desoription. 
 property sold and that offered in fulfilment of the 
 contract (/) ; and the vendor may enforce specific per- 
 formance of the contract without compensation, notwith- 
 standing any such discrepancy. But it is held that, as 
 regards the enforcement of the contract at the vendor's 
 suit, whether in equity specifically or at law, such a stipu- 
 lation only covers small errors of description, and does 
 not oblige the purchaser to accept a property which is 
 substantially different from that which the vendor 
 purported to sell (;;*'). The better opinion is, however, 
 that the purchaser is precluded by such a stipulation 
 from requiring specific performance of the contract 
 with compensation (ii), whether the eri'or of description 
 were small or great (o) . If the contract contain this 
 stipulation and also the usual clause enabling the 
 vendor to rescind {p), and the purchaser claim com- 
 pensation for a misdescription, made innocentl}^ but 
 involving a considerable error to the vendor's dis- 
 advantage, the vendor will be entitled to exercise the 
 right of rescission so reserved to him {q). 
 
 Where it is a term of the contract that errors of Condition 
 
 1 • • 1 1 1 1111 • allowing 
 
 description shall not annul the sale, but compensation compensa- 
 shall be made or allowed therefor (r), the contract is Yendor^s 
 enforceable by the vendor with compensation either at rights, 
 law or specifically in equity, even though there be a 
 considerable discrepancy in quantity or estate between 
 
 and cases cited below, pp. 727, [ii) Above, p. 725. 
 
 n. {</), 7S2, nn. (s), (m). (o) See cases cited above, 
 
 (/i) Above, pp. ().'), 7:^ p. 00, n. [b). 
 
 (/) yUvllv. riiitmbers, 1 1 C. B. [p) Above, pp. G4, 1S2— 187. 
 
 1»96. \q) Re Tern/ and White' x Coii- 
 
 (in) Jacobs v.Jicve/l, 1900, -iCh. tract, 32 Ch. D. 14; see below, 
 
 858 ; He Pucketl and SmitWs Con- p. 732. 
 tract, 1902, 2 Ch. 258. (>•) Above, p. 6G.
 
 728 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 He Fau'cett 
 and Holmes. 
 
 The rule in 
 Flight V. 
 Booth. 
 
 the property sold .ind tliat offered to be conveyed, 
 provided that this be not something substantially 
 different in kind from what was described in the con- 
 tract (s). Thus, where property sold as "a messuage 
 situate in T. Street, with the builder's yard, stables and 
 premises, as lately in the occupation of F., and contain- 
 ing 1,372 square yards" really comprised 1,033 only, 
 but otherwise answered the description, it was held that 
 the vendor was entitled to enforce specific performance 
 with compensation {f). And where the stipulation is 
 that compensation for errors of description shall be 
 allowed on either side, the vendor is entitled at law 
 to claim compensation for an error innocently made to 
 his own disadvantage {n). It is thought, however, that 
 as regards the specific performance of the contract, the 
 vendor could only enforce this with compensation in 
 his own favour in the case of small errors and could not 
 oblige the purchaser to take a property misdescribed by 
 the vendor's own fault at a substantial increase on the 
 price agreed upon {x) . But it is considered that the pur- 
 chaser could not in such case insist on specific perform- 
 ance by the vendor without allowing him compensation 
 according to the agreement (y) . It is established that, 
 under a contract containing an agreement to give com- 
 pensation for errors of description, the purchaser is not 
 bound, either at law or in equity, to accept in fulfilment 
 of the contract a substantially different sort of property 
 from what he agreed to buy ; the rule being that the 
 agreement in question has no application if there be a 
 misdescription which, •' although not proceeding from 
 fraud, is in a material and substantial point, so far 
 
 (s) Price v. Macanlay, 2 De G. 
 M. & G-. 339 ; Be Fawcett and 
 Holmes, 42 Ch. D. 1 50 ; Re Brewer 
 and HanMns, 80 L. T. 127. 
 
 [t) Re Faivcett and Holmes, ubi 
 sup. 
 
 («) Leslie \. Tompson, 9 Hare, 
 
 268 ; cf. above, p. 724. 
 
 (.r) See 2 Dart, V. & P. 61;')— 
 647, 5th ed. ; 729, 730, 6th ed. ; 
 669, 670, 7th ed. ; Price v. North, 
 2 T. & C. 620, 626. 
 
 (y) 2 Dart, V. & P. 646, 5th 
 ed. ; 730, 6th ed. : 670, 7th ed.
 
 OF THE COMPLETION OF THE CONTRACT. 729 
 
 affecting the subject-matter of the contract that it may 
 reasonably be supposed that, but for such misdescrip- 
 tion, the purchaser might never have entered into 
 the contract at all" (z). Thus, where leaseholds were 
 put up for sale as being subject to certain particular 
 restrictive conditions, and under an agreement provid- 
 ing that compensation should be made for en-ors of 
 description, and the restrictive covenants contained in 
 the lease were of a more onerous nature than was so 
 represented, it was held that the purchaser was entitled 
 to rescind the contract and recover his deposit (~ ) . The 
 same law was applied where an essential part of pro- 
 perty described as held for a term of twenty-three years 
 was held from year to year only [a] ; where land sold as 
 copyhold turned out to be freehold (b) ; where lands 
 sold as leasehold were held by underlease (c) ; and where 
 property described as a freehold ground rent was really 
 a sum payable yearly under a covenant and not rent 
 reserved on a demise of land {(I). It appears, too, that 
 where the deficiency is incapable of estimation at a 
 pecuniary value, the condition in question is not applic- 
 able {e). And it is not applicable where the misdescrip- 
 tion amounts to a Avrongful misrepresentation ; and this 
 is the case although the error might well be the subject 
 of compensation, if the misrepresentation had been 
 innocent (./'). 
 
 In the cases above mentioned (g) , where it was held Extent of the 
 that the agreement to give compensation was not compensation. 
 
 [zj Flu//il V. B00//1, 1 Biujr. C. A. 39 Ch. D. 110; above. 
 
 N. C. 370. pp. 101, n. (i), 350. 
 
 (a) Dobtll V. Hutehinxoti, 3 A. [d) Eranx v. Robins, S Jur. 
 
 & E. 355. N. S. 846 ; see above, p. 398. 
 
 (/') Aijlcs V. ('ujr, 1() Beav. 23. (/•) Brooke v. Itoiiufhwuili , o 
 
 {■) Mddclei/ v. Hoot /i, 2 De G. Ilai-e, "298; Ridfiicau v. f'i<nf, 1 
 
 A: Sni. 718. This case was ad- Mar-.. & G. 109 '; Fry. Sp. Perf. 
 
 versely criticised by . J esse], M.R., ^^ 1247, 3rd ed. ; cf. above, p]). 
 
 in ('ambirwell, i\r. Socif. v. Uol- 7'lit, 72G. 
 
 loian/, 13 Ch. D. 754. 7fiO : but (/) Above, p. 723. and n. (0); 
 
 its authority was recuyuised in of. above, p. 187, and n. (h). 
 
 lit BdjJ'itu and Miistos' Vuiifriict, [g] Above, nn. {z), [a), (b), (c), 
 
 id).
 
 730 OF THE COMPLETION OF THE CONTRACT. 
 
 applicable if the property produced were an entirely dif- 
 ferent thing from that sold, it will be observed that the 
 difference was in a matter of right, and not of physical 
 content. In all those cases the words of the agreement 
 were large enough to include a mere deficienty of estate 
 or right. The common form of tliis condition provides 
 for allowing compensation if any error, mis-statement 
 or omission, be discovered in the particidars of sale {h) ; 
 and it appears that these words are applicable (with the 
 limitations above mentioned) to an error or mis-statement 
 made in the particulars with regard to a matter of right 
 as well as of physical content (1). But where the con- 
 dition was that compensation should be made for errors 
 of description in the property, it was held that this was 
 only applicable to mistakes in describing the land sold 
 and did not extend to defects of title, as where land sold 
 i)ebenhaiH\. as leasehold is held by underlease (./). And where the 
 ait ucgi: condition was in common form, and some property not 
 belonging to the vendor was inadvertently included in 
 the particulars, but the property as sold was conveyed 
 to the ]Durchaser on completion, and the mistake was not 
 discovered until afterwards, it was held that the con- 
 dition was not applicable to a defect of title so as to 
 enable the purchaser to recover compensation under it 
 after coiiipletion (/.). But the real ground of this decision 
 was that, where the whole of that wliich was sold has 
 been actually conveyed, the entire contract is discharged, 
 and, in the absence of fraud, no compensation is after- 
 
 (/;) 1 Davidson. Prec. Conv. vendor had formerly owned that 
 
 611, n., 4th ed. ; 1 Key & Elph. land, but had parted with it 
 
 Prec. Conv. 255, 8th ed. before the contract, and had 
 
 (j) Thus, in Ec Fawcett nnd inadvertently sold by the old 
 
 Hohnes (above, p. 728), it was description; and see Cann v. 
 
 held that the clause of compen- Catui, 3 Sim. 447. 
 
 sation was applicable although {j) Ik Bcijfus and Masters^ Con- 
 
 the fact was that the vendor had tract, 39 Ch. D. 110; above, 
 
 no title to the land, which p. 729. 
 
 formed the difference between {k) DchoiJiam v. !Sawbrhl<jc, 
 
 that sold and that offered in 1901, 2 Ch. 98. 
 fulfihnent of the contract. The
 
 OF THE COMPLETION OF THE CONTRACT. 731 
 
 wards recoverable for a defect of title, except under 
 covenants for title (/). And there appears to be no 
 doubt that if in that ease the mistake had been 
 discovered before completion, compensation would have 
 been payable under the condition (m). 
 
 With respect to the purchaser's right to enforce the Purchaser's 
 contract with compensation, where there is an express condition pro- 
 agreemeut to make compensation for eiTors of descrip- ^'i^li^o for 
 
 . ^ compensation. 
 
 tion, regard must of course be had to the exact terms of 
 the agreement in each particular case : but the right so 
 given does not in general exclude, or add or subtract any- 
 thing to or from, the right to specific performance with 
 compensation which the purchaser would have without 
 it (»). His right in this respect under the express 
 contract appears therefore to be generally subject to the 
 like exceptions as the right given to him by the rules of 
 equity under an open contract (o). But it has been j 
 held that where there is an express agreement to make ! 
 comi)ensation, the vendor is boimd to allow it, notwith- 
 standing that the piu-chaser had notice of the mis- 
 description for which it is claimed (p). And it seems, 
 that where compensation is provided for by the parties' 
 express contract, the Court will be less inclined to allow 
 the vendor to resist specific p erf onnance with compensa- 
 tion on the ground of hardship than where the contract 
 is open as regards compensation for misdescription {(j). 
 And as we have seen (/•), under the express agreement, 
 
 (0 Above, pp. 611, G.Vi, (i53. ;Jr{i ed. ; 2 Dart, V. & P. 741, 
 
 {in} Tlie error was exactly 6th ed. ; 681, 7thed. ; see above, 
 
 parallel to that committed in Ji' p. 724. 
 
 I-'iftcccttfni(/Ho/iii(s{a,ho\e,'p'p.l2H, (o) Above, p. 72'). 
 
 730, n.(*)). In one sense it was a {p) Lclt v. liaiida//, 49 L. T. 
 
 mistake in describing the physical 71 ; cf. above, pp. 203, 353, 3.34. 
 
 contents of the property sold: '</) See Painter v. Xcwbij, 11 
 
 but the deficiency was in botli Hare, 26 ; Fry, 8p. Perf. ^v^ 1290, 
 
 cases due to the fact that the 1291, 3rd ed. 
 
 vendor had no title to part of tlie (/•) Above, pp. (io, 610 : but see 
 
 land described. p. 730. 
 («) Fry, Sp. Perf. j 1287,
 
 ^'^'^ OF THE COMPLETION OF THE CONTRACT. 
 
 the purchaser may claim compensation for an error 
 innocently made and not found out until after comple- 
 tion ; which he could not otherwise obtain. Where 
 the contract contained an express agreement to make 
 compensation for any mistake in the description of the 
 property or the vendor's interest therein, and also a 
 proviso enabling the vendor to rescind if the purchaser 
 persisted in any objection or requisition, and the vendor 
 did not show a good title to some minerals included in 
 the sale, it was held that he was entitled to rescind 
 under the proviso on the purchaser's persisting in the 
 objection to the title (.s). As we have seen (/), it is 
 now considered that where the contract empowers the 
 vendor to rescind, if any requisition be insisted on which 
 he is unwilling to comply with, he may well exercise 
 this power without giving any reason for so doing, pro- 
 vided only that he act in good faith and not arbitrarily or 
 capriciously ; and such a right of rescission appears to be 
 exercisable, if the vendor have innocently made a serious 
 error to his own disadvantage, notwithstanding that he 
 liave expressly agreed to make compensation for errors 
 of description and that the error be one which would 
 properly be the subject of compensation (;^). But where 
 the vendor has knowingly or recklessly (though without 
 intention to defraud) made some material misrepresen- 
 tation with respect to the property sold, so that he is 
 unable to convey a property answering to that which he 
 contracted to sell, he is not entitled to exercise such a 
 power of rescission so as to deprive the purchaser of ///-s 
 rights either to rescind the contract for misrepresenta- 
 tion or to enforce its specific performance Avith com- 
 jDensation (x). 
 
 («) Maw-sdii V. FlHcIicr, L. R. Contract, 32 Cli. D. 14 : Ash- 
 
 10 Eq. 212, 6 Ch. 91. bimier v. Scicell, 1891, 3 Ch. 405, 
 
 {t) Above, pp. 64, 182—187. 410. 
 
 («) Sec ]{' Terry mid Whitc^n (x) Above, p. 187, and n. («j.
 
 OF THE COMPLETION OF THE CONTRACT. 73m 
 
 If land sold be subject to some incumbrance or Neither party 
 liability, which the vendor cannot remove, neither the specific^per- 
 
 vendor nor the i)urchnser can enforce the specific per- f ormance with 
 
 ,1, ill! ^an indemnity. 
 
 lormanoe ot tlie contract on the terms that the vendor 
 shall give an indemnity against the defect (//) ; unless, 
 of course, the contract contain an express stipulation 
 that such an indemnity shall be given and accepted. 
 
 In connexion with the adjustment of accounts, the Costs of the 
 costs of the sale may be mentioned. As a rule, each party ^* ^" 
 pays his own solicitor's costs (~) : but, as we have seen (r/), 
 while the vendor must bear the expense of making the 
 abstract, and producing all evidence of title in his own 
 possession, the purchaser is bound, in the absence of 
 stipulation to the contrary, to pay the expense of 
 searching for. procuring and producing all evidence of 
 title which is not in the vendor's possession. The 
 purchaser, as a rule, bears the cost of preparing, making 
 and perfecting the conveyance to himself ; but the 
 vendor must pay the expense of his own execution of 
 the conveyance, including the charges of his solicitors 
 
 (//) Hahiiaiiiio V. Lmiilei/, 1 V. in the course of the transaction 
 
 & B. 224, 226 ; Fi/dfn v. Hooker. of the business agreed in writing 
 
 3 Madd. 19:5; Aijictt v. Ashtoii. signed by the party to be charged 
 
 1 My. & Cr. 1 05, 114; Xouaille for the remuneration of the soli- 
 
 V. FHifht, 7 Beav. ;V21 ; Ridgway citor in some other wav ; soe Re 
 
 V. Grail, 1 Mac. & G. 109; Rr Frape, l^^i,-! C\x.1S\\' Re Earn- 
 
 WestuH iinil Thomas" Contract, xhaw Wall, 1894,3 Ch. 156; Re 
 
 1907, 1 Ch. 24 t. Xei/Ks. 189.), 1 Ch. 73 ; Re Bai/lix, 
 
 (z) Under the Solicitors' Re- 1896. 2 Ch. 107 : also C'far'e v. 
 
 muneration Act, 1881 (stat. 44 & Joseph, 1907. 2 K. B. 369: and 
 
 4.') Vict. c. 44, ss. 2, 8), and s. 6 for the Act and Order and cases 
 
 of the General Order made there- thereon, see the Annual Practice, 
 
 under, the remuneration of either In order to be etfective, such 
 
 party's solicitor will he aciording election must be duly made by 
 
 t^) till' srale prescribed by that the solicitor before he does for 
 
 Order, unless the solicitor has, the client in the particular matter 
 
 before undertaking any business, any work, for which lie would be 
 
 elected by writing under his hand entitled to be paid ; Hester v. 
 
 communicated to his client that //«^cc. 34 Ch. D. (iO" ; Re Sfruarf, 
 
 his rennnicr.ition shall be a(;(ord- H Ch. D. 494 : Ri F',nis, 190.'), 
 
 ing to the previous system as I Ch. 290. 
 
 altered by Schedule II of that a) Above, pp. 32 — 34. 41, 4.'), 
 
 Order; or unless the solicitor and 84. 105, 116, 123, 124. 
 his client have before or after or
 
 734 OF THE COMPLETION OF THE CONTRACT. 
 
 and counsel for pernsing and settling the conveyance 
 on his behalf. Tliis rule must, however, be read in 
 connexion with the obligation, which is in strict law 
 incumbent on the vendor, of getting in at his own cost 
 prior to completion any part of the estate contracted to 
 be sold, which is not vested in himself or in his own 
 power (b). If it be necessary, in order to vest the 
 whole estate contracted for in the purchaser, either 
 that other persons than the vendor shall concur in 
 the sale or that some act shall be done by the vendor, 
 besides the mere conveyance of such estate as is his 
 own or in his own power, and the outstanding estate be 
 not got in or the act be not done before completion, 
 then the vendor must, in the absence of stipulation to 
 the contrary, pay the expense of the concurrence of 
 such other necessary parties in the conveyance, or of 
 the performance of the necessary act (c). And, as we 
 have seen(rf), he may in such circumstances be called 
 upon to bear any additional expense of the preparation 
 of the conveyance which is inciuTed by reason of j^art 
 of the estate being outstanding in other persons than 
 himself. For example, the vendor being sui Juris and 
 fully entitled, the purchaser must pay the expense of 
 registration of the conveyance on a sale of land situate 
 in a register county ; for in such case the vendor's 
 conveyance passes the whole legal estate to the 
 purchaser, who registers for his own protection against 
 third parties {e). So it is thought that the purchaser 
 must pay the expense of registration of the title, 
 where the land sold is situate in a compulsory dis- 
 trict ; for in such case the vendor's inability to convey 
 the legal estate by deed upon a sale is owing not to any 
 defect in his title, but to a requirement imposed by the 
 
 [b] See above, pp. 619, 620. [s) Above, pp. 373 sq. ; Mit- 
 
 [cj Above, pp. 35, 46, 619,620. ,^,„ ' ^ ' 
 
 {d) Above, p. 620.
 
 OF THE COMPLETION OF THE CONTRACT. 7^0 
 
 legislature ; and the rule is tliat tlie purchaser pays tlie 
 cost of conveyance to himself, save only the expense of 
 its execution by the vendor (/). But where the vendor 
 is a tenant in tail selling the fee simple (r/), and the 
 estate tail is not barred before completion, he must bear 
 the cost of the enrolment of the conveyance ; for he has 
 no power to convey tlie fee simple without barring the 
 entail (//). And where a married woman is the vendor, 
 or is a necessary party to the conveyance, and she can 
 only convey by deed acknowledged, tlie expense of 
 acknowledgment falls on the vendor ; for her inability 
 to convey otherwise than in this manner is a defect of 
 the vendor's title (i). So, on the sale of copyholds, 
 where the vendor is fully competent to convey the legal 
 estate, the purchaser must bear the expense of the 
 surrender and admittance (except in respect of the 
 vendor's execution of the surrender), including the 
 flue on admittance : but where the vendor or any other 
 person must be admitted before a proper surrender to 
 the purchaser's use can be made, the costs of and fines 
 consequent upon such admittance must be paid by the 
 vendor (A-). And as we have seen (/), in the absence 
 of stipulation to the contrary, the vendor must bear 
 the expense of the concurrence in the conveyance of 
 any mortgagees or incumbrancers or other persons, in 
 whom is vested any part of the estate contracted to 
 be sold. It has also been stated above (m) how the 
 expenses of the execution of statutory acknowledg- 
 ments and undertakings are to be borne. 
 
 If the vendor's interest in the contract or estate in 
 the liuid sold luive been transferred to any other 
 
 (/) Above, pp. 381—38.). (A) Dart. V. \- P. 710, ,5th ed. ; 
 
 {jf) See above, p. .)3'J. 801, Cth ed. : 717, 7th ed. ; above, 
 
 (A) Dart, V. A: P. 707, oth ed. ; pp. 349, 3-50. 
 
 798, 6th ed. ; 71 I, 7th ed. (/) Above, pp. 3.), 4(;. 06, 73, 
 
 (t) Dart, V. & P. 707, Hh ed. : and n. (w). 619—621. 
 
 798, 6th ed. ; 714, 7th ed. (m) Pp. 35, 48, 694.
 
 736 \ OF THE COMPLETION OF THE CONTRACT. 
 
 person pending completion, as by his death, bankruptcy 
 or otherwise («), those who succeed to his rights are of 
 course bound, if they complete the sale, to convey the 
 whole estate contracted for and must at their own 
 expense procure the conveyance to be executed by all 
 necessary parties. And if by reason of any such 
 transfer an application to the Court (as for a vesting 
 order (o) ) should be necessary in order to effect the 
 required conveyance, those who stand in the vendor's 
 place must bear all their own costs of the applica- 
 tion {p). But if the purchaser should also be a necessary 
 party to the application, as where the sale cannot be 
 completed without an action for specific perform- 
 ance {q) , it is held that where the application has 
 been occasioned, not by the vendor's default, but by 
 some cause beyond his control, as by his death or 
 lunacy, the purchaser will not be allowed his costs of 
 the application as against the vendor's representatives, 
 and no costs will be given on either side (r). If, how- 
 ever, the application were made necessary by some 
 default on the vendor's part, as where under the old 
 law (.s) he had by a will made qfier the contract devised 
 to an infant the land sold and had died pending 
 completion, the vendor's representatives will be ordered 
 to pay the purchaser's costs of the application {t) . 
 
 § 5. — Of the Execution of the Conveyance. 
 
 Completion. We have now arrived at the subject of the actual 
 
 completion of a sale of land. This usually takes place 
 
 («) Above, pp. 527 sq., iKG, 3 Drew. 632 ; Cresstutll v. Haines, 
 
 ,')60 .v<7. 8 Jur. N. S. 208 ; Barker v. 
 
 lo) Above, pp. 536, 561. Vennbles, 11 Jur. N. S. 480. 
 
 ( ;;) Williams v. Glenton, L. R. (s) See above, p. 528. 
 
 1 Ch. 200, 207, 211. \t] Wortham v. Bacre, 2 K. & J. 
 
 {q) See above, p. o37. 437 ; Purser v. Darby, 4 K. & J. 
 
 (>■) Hanson v. Luke, 2 Y. & C. 41 ; Sanderson v. Chadtvick, 2 
 
 C. C. 328; Hinder v. Strceten, 10 N. R. 414; Williams v. Glenton, 
 
 Hare, 18; Bannerman v. Clarke, L. R. 1 Ch. 200, 207, 211. 
 
 I
 
 OF THE COMPLETION OF THE CONTRACT. 737 
 
 at the office of the vendor's solicitors (x) ; and the con- 
 veyance is either executed there and then, or else, having 
 been previously executed by the vendor and all other 
 necessary parties, if any, it is then handed over to the 
 pui'cliaser in excliange for payment by him of the 
 amount due for the price and otherwise on the adjust- 
 ment of accounts between the parties (.r) . And at the 
 same time all the title deeds and other documents of 
 title, which were in the vendor's possession and which 
 he has no claim to retain (t/), are delivered over to the 
 purchaser. The purchaser must take care that he 
 receives a conveyance duly executed by all the convey- 
 ing parties and that he pays the purchase money 
 to such person or persons only as are entitled to receive 
 the same and can give a good discharge therefor. He 
 must also ascertain, as we have seen (z), that there is 
 no obstacle to his entering, immediately after comple- 
 tion, into actual possession or enjoyment of the property 
 sold ; and of course this shoidd be done before payment 
 of the purchase money. The vendor must see that he 
 gets proper payment of the price. 
 
 As regards the execution of the conveyance, it is Attestation of 
 enacted by the Conveyancing Act of 1881 (a) that on a a^^e byT' 
 sale the purchaser shall not be entitled to require that witness of the 
 the conveyance to him be executed in his presence or in choosina-. 
 tliat of his solicitor, as such, but sliall bo entitled to 
 have, at his own cost, tlie execution of the conveyance 
 
 (ii) Above, p. 73. presence of himself or his solici- 
 
 (x) Above, pp. 713 "'j. tor: but in special circumstances 
 
 (y) Above, pp. 6S0 ,s/y. he mi^ht require the vendor to do 
 
 (?) Above, pp. 609, 610. so, and the vendor was obliged to 
 
 («) Stat. 44 & 4o Vict. c. 41, comply with such a requisition, 
 
 s. 8. applying only to sales made if it were reasonable to make it. 
 
 after the year IMSl. Before this Whether this were .so wa.s a quea- 
 
 enactment, the law was that, tion of fact. See J'iiiri/ v. Chap- 
 
 prima fecit', n purchaser had no lin, 2 De G. ic J. 468, 478 ; Efiser 
 
 right to require the vendor to v. Dauiell, L. R. 10 C. P. 5.38. 
 
 execute the conveyance in the 
 
 w. 47
 
 738 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 attested by some person appointed by him, who may, if 
 he thinks fit, be his solicitor. It is thouglit that this 
 enactment extends to the execntion of the conveyance, 
 not only by the vendor, but also by all other neeessar}^ 
 parties. And where the conveying parties and their 
 solicitors are unknown to the purchaser or his solicitors, 
 it is a prudent precaution to insist on the exercise of the 
 right so conferred, in order to avoid all risk of forgery 
 or fraud {b). The vendor is bound, as a rule, to convey 
 the land sold in person, and the piu'chaser cannot be 
 required to accept the execution of the conveyance, on 
 behalf of any necessary party, by attorney, except where 
 circumstances make this course absolutely necessary [c). 
 The objection to the execution of any document by 
 revoked^ ^^^^" attorney is of course that a power of attorney is in 
 general revoked by the death (d), bankruptcy {e), or (it 
 is said) insanity (,/') of the donor of the power. Even 
 if given for valuable consideration, such a power is 
 revoked at common law by the donor's death (g), though 
 not by his bankruptcy (A) or insanity (i) , or if the donor 
 were a woman, by her marriage (/.) : but it appears that 
 equitable relief would be afforded against the revocation 
 of such a power by death (/). And if the power were 
 given for valuable consideration and expressly made 
 exercisable after the donor's death in the names of his 
 
 Vendor must 
 convey in 
 person. 
 
 Power of 
 
 (*) See Kviff v. Smith, 1900, 2 
 Ch. 425, where a landowner's 
 solicitor fraudulently procured 
 liim to execute a mortgage of his 
 land ; Jared v. Clements, 1903, 1 
 Ch. 428, a case of the forgery by 
 a solicitor of a receipt for the 
 money due on an equitable mort- 
 gage. 
 
 (c) Mitchely. ISeaJe, 2 Ves. sen. 
 679 ; Noel v. Weston, 6 Madd. 50 ; 
 Sug. V. & P. 563 ; Dart, V. & P. 
 569. 570, 5th ed. ; 641, 642, 6th 
 ed. ; 592, 593, 7th ed. 
 
 [d) Wallace \. Cook, 5 Esp. 117 ; 
 Watson V. King, 4 Camp. 272. 
 
 ((?) Hovill V. Lethwaite, 5 Esp. 
 158 ; Dawson v. Sexton, 1 L. J. 
 Ch. 185. 
 
 (/) Story on Agency, § 481. 
 
 {g) Watson v. King, 4 Camp. 
 272. 
 
 (A) Winch v. Keeleij, 1 T. R. 619 ; 
 Alley V. Hotson, 4 Camp. 325. 
 
 (i) Story on Agency, § 483. 
 
 {k) Parnham v. Hurst, 8 M. & 
 W. 743. 
 
 (/) See Bromley v. Holland, 7 
 Ves. 3, 28 ; Brasier v. Hudson, 9 
 Sim. 1, 10; Spoonerv. Sandilands, 
 1 Y. & C. C. C. 390.
 
 OP THE COMPLETION OF THE CONTRACT. 739 
 
 legal representatives, it appears that it would remain 
 valid, both at law and in equity, after his death (n/). By 
 tlie Conveyancing Act, 1.S82 in), a power of attorney 
 given after tliat year for valuable consideration and 
 expressed in the instrument creating the power to be 
 irrevocable, is not revoked, invalidated or affected, in 
 favour of a purchaser (o), by anything done by the 
 donor of the power without the concurrence of the donee 
 of the power, or by the death, man-iage, lunacy, un- 
 soundness of mind, or bankruptcy of the donor of the 
 power, or by notice of any of these things. And by 
 the same Act (p), a power of attorney given after that 
 year and expressed in the instrument creating the power 
 to be irrevocable for a fixed time therein specified, not 
 exceeding one year from the date of the instrument, is 
 not revoked, invalidated or affected, in favour of a j)ur- 
 chaser [r/), by the same events or notice of them. When Execution of 
 a purchaser accepts the execution of the conveyance by ance iiy 
 attorney on behalf of any necessary party, he should »^tto™fy- 
 not allow^ the purchase money to be paid over into the 
 entire control of the vendor's agent until he has received 
 satisfactory proof of the validity of the power at the 
 time at which it was acted on (r). And the best course 
 appears to be to stipulate for the investment of the 
 purchase money in the meantime in the names of trus- 
 tees, but at the vendor's risk (s). This course is unne- 
 cessary where the power of attorney is at the time of 
 execution of the conveyance irrevocable and extends to 
 authorize the purchase money to bo paid to the donee 
 of the power, and tlie purchaser is satisfied of the due 
 execution by the vendor of the power of attorney. But 
 
 (m) Pearson v. Amicable Asmir- as to the incauiii<r of imrchtncr in 
 
 auce Office, 27 Boav. 229, 233, this Act. 
 
 234 ; S Jarm. Con v. Pt. I. 39, {p) Sect. 9. 
 
 3rd ed. ; 1 Davidson, Prec. Conv. {q) See note (o). above. 
 
 475, 476, n., 4th cd. (r) Siig:. V. & P. ."JGS. 
 
 (;/) Stat. 45 & 4G Vict. c. 39, (.«) Dart, V. & P. 661, flth ed. ; 
 
 s. 8. 748, 6th ed. ; 686, 7th ed. 
 
 (o) See above, p. 247, n. (c), 
 
 47 (2)
 
 740 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 it is thought that the vendor cannot oblige the purchaser 
 to accept the execution of the conveyance by attorne}^ 
 on the ground that the power of attorney may be made 
 irrevocable under the Conveyancing Act, 1882, where 
 there is no other reason for the execution of the con- 
 veyance by attorney. Where the conveyance is to be 
 executed by attorney, the power of attorney should be 
 abstracted at the vendor's expense to enable the j)ur- 
 chaser's counsel to advise upon its sufficiency ; and it 
 should be handed over to the purchaser on completion. 
 
 Execution of 
 some title 
 deed by 
 attorney. 
 
 It has already been mentioned that, if upon the inves- 
 tigation of title any of the deeds or documents of title 
 appear to have been executed by attorney, the power 
 of attorney ought to be abstracted and produced, and 
 evidence must be furnished, if necessary, of the validity 
 of the power at the time when it was exercised {t). 
 
 To whom the Witli respect to the payment of the purchase money 
 
 purchase ^ ^ "^ ^ ^ '' 
 
 money should to the proper persons, where the purchaser has notice 
 
 ^ ^^^^ ■ of any incumbrance on the property sold, he must not 
 
 pay the purchase money to the vendor, but must take 
 
 care that tbe amount due to the incumbrancers in 
 
 respect of their charges is paid to them direct (ii) ; and 
 
 not until all such claims have been satisfied should tlie 
 
 surplus, if any, be paid to the vendor. As a rule, where 
 
 money is payable to any one, payment must be made 
 
 to him in person ; pa^anent to his solicitor, banker or 
 
 other agent is no discharge, unless he expressly or 
 
 impliedly authorised such payment (.r). But on the 
 
 completion of sales of land, the conveying party's 
 
 {() Above, pp. 119, 120. 
 
 {'() See above, pp. 237 vi?., 008, 
 566, o67, 625. 
 
 (.(■'1 Jf'ilkin.soH V. Cnndlish, 5 
 Ex. 91 ; Vmeij v. Chaplin, 2 De G. 
 & J. 468, 477, 481 ; BourdUlon v. 
 
 Roche, 27 L. J. N. S. Ch. 681 ; Cat- 
 terall v. mndle, L. E,. 2 C. P. 
 368; Withington v. Tate, L. R. 
 4 Ch. 288; £xpte. Swinhank.s, 11 
 Ch. D. 525.
 
 OF THE COMPLETION OF THE CONTRACT. 741 
 
 solicitor is usually authorised to receive the money 
 payable to him by the effect of the 56th section of the 
 Conveyancins- Act of 1881 (y). This provides that, Solicitor's 
 
 1 1- • -, V n 1 • . 1 1 1 authority to 
 
 where a solicitor produces a deed having m the body receive the 
 
 tliereof or indorsed thereon a receipt for consideration P^^'^nase 
 
 ■»■ money on 
 
 money or other consideration (z), the deed being production 
 
 executed or the indorsed receipt being signed by the conveyance. 
 
 person entitled to give a receipt for that consideration, 
 
 the deed shall be sufficient authority to the person liable 
 
 to pay or give the same for his paying or giving the 
 
 same to the solicitor, without the solicitor producing 
 
 any other autliority in that behalf. It is considered 
 
 that, under this enactment, the production by a solicitor 
 
 of such a deed as above mentioned has the same effect 
 
 as, and no greater virtue than, an exj)res8 autliority to 
 
 tlie solicitor to receive the money ; and it was therefore 
 
 held that, on a sale by trustees, the purchaser might On a sale 
 
 decline to act on the authority so conferred, because it 
 
 would in general be a breach of trust for trustees to 
 
 allow their solicitor to receive purchase money payable 
 
 to them (a). But it was afterwards enacted by the 
 
 Trustee Act, ] 888(b), now replaced in this respect by 
 
 the Trustee Act, l^*93 (c), with respect to the receipt of 
 
 money or valuable consideral ion or property after the 
 
 2 4 til of December, 1888, that a trustee may appoint a 
 
 solicitor to be liis agent to receive and give a discharge 
 
 for any money or valuable consideration or property 
 
 receivable by the trustee under the trust, by permitting 
 
 the solicitor to have the custody of, and to produce, a 
 
 deed containing any such receipt as is referred to in 
 
 section 50 of the Conveyancing and Law of Property Act, 
 
 1881 ; and a trustee shall not be chargeable with breach 
 
 of trust, by reason only of his having made or concurred 
 
 (y) Stat. 44 & 45 Vict. c. 41. {bj Stat, ol ic .32 Vict. c. 59, 
 
 (;; Above, p. G9.5, and n. (/). s. 2. 
 
 ^i() lie llilhtiiiii and MilriiiMililitii (c) Stut. 56 «!c 57 Vict. c. 53, 
 
 Buaid uf Works', 24 Ch. D. 387. a. 17.
 
 742 OF THE COMPLETION OF THE CONTRACT. 
 
 in making any such appointment ; and the producing 
 of any such deed by the solicitor shall have the same 
 validity and effect under the said section as if the 
 person appointing the solicitor had not been a trustee. 
 Since the law has been so altered, the purchaser on a 
 sale of land by trustees may safely pay the purchase 
 money to the trustees' solicitor on his producing the 
 deed of conveyance containing a receipt and executed 
 by them (d). 
 
 Where the Where a conveyance on sale is executed by attorney (c) 
 
 exeluted by' ^^^ 56th section of the Conveyancing Act, 1881, does 
 attoruey. not authorise the payment of the purchase money to 
 the solicitor of the attorney; it only operates as an 
 authority from the principal for payment to his own 
 solicitor {d). And where the conveyance is to be 
 executed by attorney, and the attorney is expressly 
 authorised to receive the purchase money, it must be 
 paid to him in person {e). Here it may be noted that, 
 if it be arranged that the conveyance shall be executed 
 by attorney, as where the vendor is obliged to go abroad 
 in the service of the Crown or on business before com- 
 pletion (,/*), the power of attorney should be expressed 
 to be irrevocable for a fixed time under the Conveyanc- 
 ing Act, 1882 {g), and should, if the vendor be not a 
 trustee, either authorise the attorney to receive the 
 purchase money (in which case it must be paid to him 
 in person) or appoint some solicitor therein named to 
 be the principal's solicitor to receive the money on pro- 
 duction of the executed deed of conveyance. If the 
 principal be a trustee, he may well appoint an attorney 
 
 {d) Re Hetling and Merton'' s Con- abroad before completion, that 
 
 tract, 1893, 3 Ch. 269, 276, 280. would seem to be a case where 
 
 (e) Above, pp. 738, 739. the purchaser would be bound to 
 
 (/) See above, pp. 738 — 740. If accept execution of the convey- 
 
 the vendor, being in the service ance by attorney. 
 
 of the Crown, were ordered to go [g) Above, p. 740.
 
 OF THE COMPLETION OF THE CONTRACT. ^43 
 
 to execute the conveyance for him (A) : but in such case 
 the power of attorne^y should follow the words above 
 set out of the Trustee Act, 1898 («), and appoint some 
 solicitor to receive the purchase money on his behalf by 
 producing the deed of conveyance under section 56 of 
 the Conveyancing Act, 1881. This course, being autho- 
 rised by statute, is free from objection ; whilst a trustee 
 may not otherwise expressly authorise his solicitor to 
 receive purchase money for him except in a case of 
 necessity (/.•) . 
 
 It appears that the solicitor referred to in the Payment 
 56th section of the Conveyancing Act, 1881 (/), is in made to the 
 general the solicitor acting on behalf of the person solicitor 
 entitled to give a receipt for the money or other con- person 
 sideration (m). Thus, where the purchase money is entitled to 
 
 \ > ^ r ./ giyg a receipt. 
 
 partly payable to incumbrancers, the piu-chaser should 
 not, it is thought, pay over the whole of "the purchase 
 money to the vendor's solicitor producing the deed of 
 conveyance duly executed (ii), without good independent 
 evidence that he was authorised to act in this respect on 
 the incumbrancers' behalf. But, of course, payment of 
 the amount due to the incumbrancers may be paid to 
 their solicitor on his producing the conveyance executed 
 by them. Where a solicitor, who produces such a deed Payment to 
 as is mentioned in that section (o), is ostensibly acting glbly act^u^'^" 
 for the person entitled to give a receipt for the con- for a con- 
 sideration money, it appears that the purchaser, in the 
 absence of any ground for suspicion, is not entitled to 
 requii'e any independent proof that the solicitor is 
 indeed authorised to act and is rightly acting as solicitor 
 
 (A) Re HetlitK) and Merlonis Con- («i) Bat/ v. Woolwich, S^c. Socy., 
 
 tract, 1893, 3 Ch. 269, 280. 10 Ch. D. 491 ; Re Hetlhig and 
 
 (t) Above, p. 741. Merton's Contract, 1893,3 Ch. 269, 
 
 (k) Re Bellamy and Metropolitun 280. 
 
 Board of Works, 24 Cli. D. 387, («) Above, p. 741. 
 
 394, 400, 403, 404. \o) Above, p. 741. 
 
 (J) Above, p. 741.
 
 744 
 
 OF THE COMPLETION OF THE CONTRACT. 
 
 for that person (7;). And if that person in any way 
 held out the solicitor as his agent, he wonld be estopped 
 from proving that he did not in fact authorise the 
 solicitor to receive the money on production of the deed. 
 Kitir/v. Smith. Thus, where a solicitor fi'audulently induced a client to 
 execute a mortgage of his land and obtained the mort- 
 gage money by producing the mortgage deed so executed 
 and made away with the money, but it was proved that 
 the client placed such confidence in the solicitor that he 
 would execute any deed on the solicitor's recommenda- 
 tion without insisting that the transaction should be 
 explained to him, it was held that he was estopped from 
 showing that the solicitor was not in truth empowered 
 to act as his solicitor in the matter of receiving the 
 money (q). But it does not appear that a purchaser 
 would be protected in paying money to a solicitor 
 ostensibly acting under the authority conferred by 
 section 56 of the Conveyancing Act, 1881, if the solicitor 
 had no real authority so to act, and the person to whom 
 the money was payable had not by his conduct or 
 otherwise held out the solicitor to be his agent (r). In 
 all cases where money is paid to a solicitor in reliance 
 on this enactment, the deed must be actually produced 
 at the time of payment to justify the purchaser in 
 making payment to the solicitor (s). Where a creditor 
 or other person entitled to receive money authorises 
 payment to be made to his soUcitor, it appears that 
 payment to the solicitor's managing clerk is, as a rule, 
 a good payment (t) ; and this rule seems applicable 
 
 The deed 
 must be pro- 
 duced at the 
 time of pay- 
 ment. 
 
 Payment to 
 the solicitor's 
 clerk. 
 
 [p) See Ec Hetling and Mertoyi'.s 
 Contract, 1893, 3 Ch. 269, 280 ; 
 King v. Smith, 1900, 2 Ch. 425, 
 432. 
 
 iq) Kmg v. Smith, 1900, 2 Ch. 
 425. 
 
 {r) See Re Hetling and Mertoti'ii 
 Contract, 1893, 3 Ch. 269, 280 ; 
 above, p. 743. 
 
 (s) iJay V. Woolwich, ^-c. Socy., 
 
 40 Ch. D. 491. 
 
 [t) See Moffat v. Parsonx, 5 
 Taunt. 307 ; Wilmot v. Smith, 3 
 Car. & P. 453 ; Bingham v. All- 
 port, 1 N. & M. 398 ; Kirton v. 
 Braithwaite, 1 M. & W. 310 ; 
 Watmn v. Hethcrington, 1 Car. & 
 K. 36 ; Hemming v. Hale, 29 L/. J. 
 (N. S.) C. P. 137 ; Finch v. Boning, 
 4 C. P. L>. 143.
 
 OF THE COMPLETION OF THE CONTRACT. 745 
 
 where the authority to pay to the solicitor is given by 
 virtue of the enactment above cited (u). 
 
 With respect to the vendor's securing for himself What i» a 
 proper payment, he is of course only bound to accept pl^y^'j^.^t 
 banknotes or coins, which are legal tender {x) ; he may 
 object to take a cheque or any other negotiable 
 security (//). At the present time sales of land are 
 frequently completed by means of bankers' drafts (s), 
 to avoid the risk and inconvenience of carrying about 
 banknotes of large amount ; but the vendor is not 
 obliged to accept this mode of payment, and it should 
 be ascertained before the time fixed for actual comple- 
 tion that he will make no objection to it. Where a 
 solicitor is authorised to receive the purchase money or 
 any part of it on behalf of the vendor or any other con- 
 veying party (a), he is not at liberty to accept payment 
 otherwise than in cash or notes being legal tender (i). 
 This is another reason for ascertaining beforehand that 
 no objection will be made to a banker's draft, if it be 
 desired to tender such a draft in payment. 
 
 The execution of the conveyance gives to the pur- Eftoot of the 
 
 cliaser, in the case of freeholds the legal seisin, and in tj^^*]"*'"" ^ 
 
 the case of leaseholds the like possession of the land i^^*^- 
 sold (6") ; and he is thenceforth free to enter into actual 
 
 (h) Above, p. 7H. ou themselves or branches of their 
 
 (x) Cun'eut gold coiu i.s legal office, 
 
 tender for any fimouut ; Bank of («) Above, p. 741. 
 
 England notes for all sums above (b) Fape v. WmtacoU, 1894, 1 
 
 5/., except by the BiiTik itself, but Q. B. 27L'. 
 
 not in Ireland ; current silver {c) See Copextake v. Uoper, 
 
 coiu for not more than 40*. ; 1908, 2 Ch. 10 ; articles by the 
 
 bronze ior not more than Is. : author in 51 Sol. J. 478, 40fi, 
 
 stats. 3 & 4 Will. IV. c. 98, s. 6 ; and b'l Sol. J. 510, .527 ; Wms. 
 
 8 & 9 Vict. c. 37, 8. (i; 3J Vict. Real Prop. 206, 551, 2l!st ed. ; 
 
 c. 10, .S.S. 4, 20. Williams on Seisin, 5, 54. On 
 
 (y) HI II III be i(/ V. l.tje Interenln, the (juestiou whether the pur- 
 
 i;c. (Jorpn., 1897, 1 Ch. 171 ; chaser obtains a seisin in law or 
 
 Juhiixton \. lifti/rx, 18'.)0. 2Ch. 7"5. an actual seisin where he is i« 
 
 (c) i.e. ,diuftsdi"awn by bankers under the Statute of Uses and 
 
 convey-
 
 746 OF THE COMPLETION OF THE CONTKACT. 
 
 possession or receipt of the rents and profits of the 
 property purchased (d). On the sale of copyholds, 
 admittance is necessary to vest in the purchaser the k(jal 
 title to possession : but on admittance being obtained, 
 the purchaser's legal title will relate back to the 
 surrender {c^. 
 
 not at common law, see Williams {d) Above, pp. 515, 516, 578. 
 
 on Settlements, 11—16; Wms. (e) Doe d. BemibKjton \. Ball, 
 
 Real Prop. 175 and n. [l], 178, 16 East, 208 ; 1 Wat. Cop. 125, 
 
 n. [z], 21st ed. 128, 4th ed.
 
 CHAPTER XIII. 
 
 OF MISTAKE. 
 
 § 1. Of Mistake as precluding true Consent. 
 § 2. Of Mistake in the expression of Consent, 
 and its Rectification. 
 
 In the previous part of this book the noi*mal course of 
 a contract for the sale of land has been traced from its 
 formation down to its completion. We will now treat 
 of the avoidance of the contract. This may take place 
 either because the consent of a party thereto is in some 
 way impeachable, as on the ground of mistake, fraud, 
 misrepresentation, duress or undue influence ; or because 
 the contract is tainted with illegality ; or because the 
 parties or one of them are or is not of full capacity to 
 buy or sell land (n) . We will consider these grounds 
 of avoiding the contract in the order in which they are 
 named. And first, of Mistake. 
 
 $^ I. — Of 3Ii.sta/ii' ((.s jjirrl/tdintj true Comcnt. 
 
 We have seen (//) that, in order to make a valid 
 contract, it is necessary that there should be true, full 
 and free consent of tlie parties ; that is, consent unim- 
 peachable as liaving been induced by mistake, mis- 
 representation, fraud, duress or undue influence. In 
 dealing \vith mistake, as the cause of the want of 
 
 {aj Above, pp. I, 1. {b) Above, p. 2.
 
 '48 
 
 OF MISTAKE. 
 
 consent, let us first eliminate the case where the pai-ties 
 are really agreed but there is an error in the expression 
 of their consent. In that case the error may generally 
 be rectified. And we will discuss the subject of mistake 
 as a ground for the rectification of the agreement, after 
 we have considered it as giving rise to a claim for 
 obtaining the avoidance or resisting the specific per- 
 formance of the contract. 
 
 Where the 
 contract is 
 impeachable 
 for mistake, 
 misrepreseu- 
 tatioii, fraud, 
 &c., there is 
 always an 
 apparent 
 consent. 
 
 No real 
 assent in the 
 case of 
 mistake. 
 
 In the case of 
 misrepresen- 
 tation, fraud, 
 &c., there is 
 real consent 
 induced by 
 belief in non- 
 existent facts 
 oi' by coercive 
 influence. 
 
 Averrable 
 mistake 
 makes the 
 contract void 
 from the 
 besrinninif. 
 
 Now in all cases where the validity of a contract is 
 impeachable on the ground of mistake, misrepresenta- 
 tion, fraud, duress or undue influence, there is an 
 apparent consent of the parties. At fu'st sight, their 
 minds are met. But the case of mistake appears to 
 differ from the other grounds above mentioned for 
 setting aside the contract in this, that where there is 
 mistake there never has been an intention common to 
 both parties — the one has never given any real assent 
 to what has been proposed b}^ the other. Apparently, 
 the one did an act which amounted in the law to 
 contract : but his mind did not accompany his overt act ; 
 he never intended to do what, to all outward appear- 
 ance, he did. But in the case of misrepresentation, 
 fraud, duress or undue influence, a consent, which is to 
 a certain extent a true consent, accompanies the act, 
 which is outwardly manifested. The party misled by 
 misrepresentation or fraud, or coerced or influenced, 
 really means to agree -with the other in the terms 
 expressed ; he truly intends to contract : only he would 
 not have been willing to do so, if he had known the 
 truth with regard to the fact, as to which he was misled 
 by the other, either innocently or fraudulently, or if he 
 had not been forced or influenced. The consequence of 
 this distinction is very marked. Contracts induced by 
 any mistake, which the mistaken party is not estopped 
 from asserting, are altogether void from the beginning ; 
 there never has been from the outset any agreement
 
 OF MISTAKE. 
 
 749 
 
 between the parties. But contracts induced by mis- Contracts 
 representation, fraud, &c., are voidable only. This ^isrepresen- 
 contrast is perhaps best illustrated in the case of nego- tatiou, fraud. 
 tiable instruments. A bill of exchange or promissory able only, 
 note, which was given or made by some averrable 
 mistake, excluding true consent, is void, and is there- 
 fore of no more avail in the hands of a holder in due 
 course than a forged bill or note {(■). But a bill or note 
 procured to be made by fraud, though voidable by the 
 giver or maker as against the party who misled liim, is 
 valid in the hands of a holder in due course, against 
 wliom the plea of fraud cannot prevail (d). 
 
 With regard to mistake as a ground for avoiding a The rule is 
 contract altogether, the rule of the common law appears „„^in<7to^'^ 
 to be that, in order to make a valid contract, there must mistake the 
 be true consent of the parties ; so that, Avhere owing to are not at one, 
 a mistake the parties' minds are not at one, the contract ^^^{^ ^\^° 
 
 ^ ^ ' contract. 
 
 is void; that is to say, there is no agreement at all (e). 
 
 (c) Foster v. Mtw/chiiio/i, L. R. law) the alienor i.s estopped from 
 
 4 C. P. 704 ; Lewis v. ('/(i>/, (57 disputing the assurance. Tims 
 
 L. J. Q. B. 224. As to forged if one disclaim a conveyance of 
 
 instruments, see next Chapter. lauds or goods made to him, the 
 
 § 1 , at end. conveyance is thenceforth void 
 
 (rf) Stat. 4o & 46 Vict. c. 61, as from the time of its executioiv: 
 
 ss. 29, 30, 38 ; Ttiltiiii v. inm/ar, but until disclaimer the estate or 
 
 23 Q. B. D. 345 ; Clutton v. Atte»- property passes to the alienee. 
 
 l,orou(/h, 1895, 2 Q. B. 306, 707; See Bract, fo. 15 b, 16; Y. B. 
 
 1897^ A. C. 90. 7 Eiw. IV. 20 (pi. 21), 29 (pi. 14); 
 
 (r) Siitith V. IliKjhvx, L. R. (i Litt. ss. 684, 685 : Thorotujhiimd' x 
 
 Q. B. .597, 607, 609; Benjamin nixe, 2 Rep. 9 ; liiitltr and Baker's 
 
 on Sale, 42, 2nd ed. The same case, 3 Rep. 25a, 26b ; Shep. 
 
 rule appears to hold good as re- Touch. 229, 267, 285 ; Thompson 
 
 gards the conveyance of any v. Leech, 2 Vent. 198, 202, 208 ; 
 
 property : if there be no true 2 Brest. Abst. 226 —228 ; Sigyers 
 
 a.ssent of the parties in parting v. Finns, 5 E. & B. 367, 380 .vi/. ; 
 
 with and accepting the thing Peacock v. East land, L. R. 10 Va[. 
 
 assured, the conveyance is void. 17 ; Exple. Cote, L. R. 9 Ch. 27, 
 
 But as regards the conveyance oi 32 ; Standing v. Bowring, iil Ch. 
 
 lands or goods, this rule is sub- D. 282 ; Mallott v. TTihon, 1903, 
 
 ject to the qualification that the 2 Ch. 494 ; Edmunds v. Edmunds, 
 
 assent uf the alienee is presumed 1904, P. 362, 374 ; JIuualson v. 
 
 until the loutrary be shown, and Jf'tbl/, 1907, I Ch. 537, 543 — 548, 
 
 in the meantime (if the convey- affirmed, 1908, 1 Ch. I ; li'ii/nl v. 
 
 ance were duly made in accord- Chapmm, 1907, 2 Ch. 222. 
 ance with the f ormfl prescribed by
 
 '50 
 
 OF MISTAKE. 
 
 Unilateral 
 mistake. 
 
 If one 
 mail if est 
 a certain 
 intention, he 
 is estopped 
 from proving 
 that his real 
 intention was 
 different. 
 
 And it seems that this rule may in some cases hold 
 good, notwithstanding that the mistake he that of one 
 party only, the other truly intending to contract in the 
 terms expressed (,/'). The rule is, however, subject to 
 the qualification, that " whatever he a man's real inten- 
 tion, if he manifest an intention to another party, so as 
 to induce the latter to act upon it in making a contract, 
 he will he estopped from denying that the intention as 
 manifested was his real intention " {[/). In other words, 
 the rule requiring true consent of the parties to a con- 
 tract is modified by the operation of the general rule of 
 law that every man is taken to intend the natural and 
 reasonable consequences of his own overt acts, including 
 his spoken or written words ; he is estopped from showing 
 that what he really intended was something different 
 from what a man of ordinary intelligence would natu- 
 rally and reasonably infer from those acts or words {//). 
 And this qualification is of enormous importance ; 
 indeed in practice the qualification overshadows the 
 rule. For the instances, in which a person truly mis- 
 taken is estopped from proving his real intention, are so 
 much more common than those in which there is no 
 such estoppel, that when we come upon a case where a 
 man's real intention may be set up to defeat an apparent 
 expression of his consent, we are apt to regard it as 
 exceptional (?'). 
 
 (/) See Thoroughgood' s case, 2 
 Rep. 9 ; below, pp. 753 — 755. 
 
 (g) BenjaminonSale, 45, 2nded. 
 
 (A) Freeman v. Cooke, 2 Ex. 654, 
 ()63 ; Cornish v. Abingtoii, 4 H. & 
 
 N. 549, 555, 556; Smith v. Hughes, 
 L. R. 6 Q. B. 597, 607, 609 ; 
 Smith V. Chadwick, 9 App. Cas. 
 187, 190; Little v. Spreadburij, 
 1910, 2 K. B. 658, 664, 665. 
 
 (i) The writer is aware that it is contended by eminent jurists that 
 the law has no concern at all with the real intentions of the parties to 
 a contract, but can only regard the intention which they have out- 
 wardly manifested ; O. W. Hohnes, The Common Law, 309 ; Holland, 
 Jurisprudence, 246 — 252, 9th ed. It is nevertheless submitted that 
 the common law of England is as stated in the text, and recognises, 
 as a rul(^ of pure law (so pure that it rarely emerges from the region 
 of abstract theory into concrete shape), that the true consent of the 
 parties is necessary to make a valid contract. This precept of per- 
 fection is almost always obscured by the operation of the qualifying
 
 OF MISTAKE. 
 
 751 
 
 Subject to tliis qualification then the rule is that 
 contracts purported to be made by spoken or written 
 
 law of estoppel by outward maiiifestatiou of consent. But it is con- 
 tended that the iirinciple, that true consent is necessai'y to make a 
 contract, is exhibited in the case where the terms of a written con- 
 tract contain a latent ambiguity with regard to the subject matter 
 thereof. Thus in the well-known case of Rajflis v. tVichelhcKs, 
 2 H. & C. 906, where the plaintiff sued for breach of a contract for 
 the sale of goods "to arrive ex Peerless," it was pleaded that the 
 defendant meant a ship so called which sailed from Bombay in 
 October, but the plaintilf had not oflfered any goods arriving by this 
 ship in f ulfilmeut of the contract, and had only offered goods arriving 
 by another ship of the same name ; and this was held upon the 
 plaiutitf's demurrer to be a good plea. This decision shows that 
 where there is no true consent, there is no contract. But if the plea 
 had been set up fraudulently, it would have been competent to the 
 plaintiff to join issue thereon and to give evidence that the defen- 
 dant really meant the same ship as the plaintiff ; see cases cited, 
 below, pp. 760, n. (.v), 782, n. («) ; Smith v. Thoinpson, 8 C. B. 14, oi), 
 60 ; Britffw Cunybcare, 13 C. B. N. S. 263, 274, 275. It thus appears 
 that ultimately the law does regard the parties' real intention. If 
 this were not so, and the law were never concerned with anything but 
 what the parties have said, every contract expressed in terms similar 
 to that in Raffles v. WiehelhuuH would be void for uncertainty so soon 
 as it appeared that the description could be applied to more than one 
 object, and no further evidence would be admissible. But that is not 
 the law; see Re lluhhmk, 190'), P. 129, 132—134. If I have two 
 estates called Blackacre, one in Hampshire and the other in North- 
 umberhmd, and I contract with J. S., who knows nothing of my 
 estate in Northumberland, but whom I have shown over my estate in 
 Hampshire as an intending piu'chaser, to sell to him " my estate 
 called Blackacre," this contract is not rendered void for uncertainty 
 on my proving that 1 have another Blackacre in Northumberland, 
 but J. S. is at liberty to give oral evidence that I took him over 
 Blackacre in Hampshire and offered to sell that property to him, and 
 so to prove that that property is what was really referred to or 
 meant by both parties in the written memorandum under the de- 
 scription of "my estate called Blackacre." It must be admitted, 
 however, that there is authority for the tlieory that, in such cases, 
 the question is not what did the parties intend, but is, what is the 
 signification of the words they have used ; Parke, J., Richardson v. 
 U'lilmn, 4 B. & Ad. 787, 800 ; and see L. Q. R. xx. 24.). This view 
 is upheld by Mr. Justice O. W. Holmes, The Common Law, p. 309, 
 where he maintains that tlie true ground of the decision in Raffles v. 
 IFieh'lhaus was, not that each party nuaiil, but that each said a 
 different thing ; see idso Harvard Law Review, xii. 417. But con- 
 sidering that each party, in so far as he said auytliing at all, u.sed 
 the very same wt)rils, it could only be established that they said 
 a different thing by showing that tlie word used signified to the mind 
 of the plaintiff one ship and to the mind of the defendaut another, or 
 held out to the defendant's mind one meaning and to the i^laintiff's 
 another. Tlie difference between proving what was in the parties' 
 minds as to the signification of the word used, and proving what was 
 their intention, secMiis to be ver}- fine. And uj)ou either view of the 
 matter, the plaintitf was at liberty to prove, if he could, that the 
 parties' minds were at one as regards the meaning of the word Peerless. 
 
 Mistake on 
 some point 
 going to the 
 whole subject 
 of the 
 contract. 
 
 Raffles V. 
 Wiehelhaiis
 
 752 OF MISTAKE. 
 
 words apparently expressing a true consent are void if 
 there be no real agreement of the parties' minds in 
 
 It seems therefore that the law dncn sometimes take account of what 
 passes in men's minds, and does in this instance require that the 
 parties' minds shall be at one. And it is submitted that, if the 
 (lutward manifestation were alone to be regarded, there could be 
 but one conclusion in all such cases, namely, that the parties 
 have said what is ambiguous and therefore void for uncertainty. 
 Again, where A. is induced by the fraud of B. to sign a contract 
 for the sale of his land to C. in the belief that he is signing an agree- 
 ment for a lease, A. would surely be bound, if the outward manifesta- 
 tion of his intention could alone be considered. But he is at liberty 
 to prove that his intention did not accompany his apparent act, and 
 is not bound, unless he be estopped by his negligence : see below, 
 pp. Irt'?, — 7''i5. It may perhaps be more readily maintained in this case 
 that A. is not bound because he and C have not really said the same 
 thing, have not in truth joined in the expression of consent ; see 
 O. W. Holmes, The Common Law, 308, 309. But it may be replied 
 that to all outward appearance A. and C. have said the same thing, 
 for A. has himself affixed his own signature to the document : but A. 
 did not mean to do so ; and in the particular circumstances he is not 
 precluded from giving evidence as to the state of his own mind at the 
 time when he signed the writing. It is further submitted that, upon 
 a general view of the law of England, taking in the rules of equity as 
 well as of common law, we can hardly fail to recognise the principle, 
 that there ought to be true consent to make a contract. It was on 
 this principle that Courts of Equity would refuse to enforce specific 
 performance of a contract wanting in the element of true consent, 
 though valid, on the ground of manifested consent, at law. Not until 
 the year 1880 was it decided that the law of estoppel through mani- 
 festation of consent may prevail over this principle in the matter of 
 enforcing specific performance of the contract as it may in determining 
 the validity of the agreement at law : TanipUn v. James, 15 Ch. D. 215. 
 And though the rule requiring true consent is now so qtialified, it is 
 nevertheless still open to Courts of Equity to give effect to it by 
 refusing specific performance where there is a want of true consent 
 and it would work great hardship on the mistaken party to apply the 
 law of estoppel. See below, pp. 774 — 776 and n. (:*), andabove, p. 724. 
 The case of Re Meyer, 1908, P. 353, appears to support the author's 
 position. In that case a lady executed by mistake a document intended 
 to be signed by her sister as a codicil to the sister's will ; and it was 
 held that the document was void for want of any true intention to exe- 
 cute it. Consider also i/^oorf v. McKinmm, 1909, 1 Ch. 476, where a deed 
 exercising voluntarily and without agreement with any other person 
 a power of appointment was set aside at the appointor's instance on 
 proof that she had executed it in forgetfulness uf a prior appointment 
 in favour of the same appointee and so under a mistake of fact. These 
 cases prove that, as regards any purely unilateral act affecting a man's 
 legal position or relations and purported to be evidenced by some 
 document, the rule is that execution of the document must be accom- 
 panied with true intention to do the act evidenced. But if this be the 
 law, it follows that the validity of a contract made by the unilateral 
 mistake of one party only must depend, where the mistake is not 
 averrable, on the principle of his not being allowed to depart from the 
 consent or intention manifested or held out to the other party, that is, 
 on the principle of estoppel.
 
 OF MISTAKE. , 753 
 
 some point which goes to the whole substance of the 
 contract (k). Thus on an apparent agreement for the 
 sale of land, if the parties' minds be not at one, owing 
 to an averrable mistake made on either side with 
 regard to the nature of the transaction, the personality 
 of the other contractor or the property to be sold, there is 
 no contract between them. But if the party mistaken Estoppel by 
 
 1 1 ^ • M! • ji'i J! £ manifestation 
 
 have expressed himselr m words which are tree trom of a particular 
 ambiguity and are apt to constitute a valid contract if intention. 
 taken in the meaning which they would naturally con- 
 vey to a man of ordinary intelligence, then he is estopped 
 from showing that his mental intention was not in 
 accordance with his overt act (/). To give examples, Mistake in 
 first, as to mistake in the nature of the transaction. If *!'^ nature of 
 
 ' _ tne trans - 
 
 one sign a contract for the sale of land under the action, 
 impression that he is executing an instrument giving 
 effect to some transaction of an entirely different cha- 
 racter, for instance, a mortgage, a lease or a power of 
 attorney, the contract may be void, because the man's 
 intention did not accompany his act (m). It seems 
 impossible to put a concrete ease of this kind in which 
 the mistake has not been caused by the fraud of the 
 other party to the alleged agreement, or by the fraud, 
 negligence or unauthorised interference of a third person, 
 nnd yet the party mistaken is not estopped from proving 
 his mistake ; for if a man of sound understanding sign 
 a legal document without reading it or having it read 
 to him, lie is bound by its contents («) ; and, as we 
 
 (k) Kennedy v. Panama, ^c. Mail Hoivatson v. Wcbh, 1907, 1 Ch. 
 
 Co., L. R. 2 Q. B. .080, 088 ; 537, 543—049, affirmed, 1008, 1 
 
 Honatson v. Webb, 1907, 1 Ch. Ch. 1 : Bagot v. V/iapinan, 1907, 
 
 •')37, 543—549, affirmed, 1908, 2 Ch. 222. The law is the same 
 
 1 Ch. 1 ; Layof v. Chapman, 1907, as regards the execution under a 
 
 2 Ch. 222; above, p. 749. mistake of a deed of conveyance 
 (/) Above, p. 750. or any other deed ; Thoronghgoocrs 
 \m) T/ioroug/igood'Kcase,2'Rep. case, ubi sup.; Pigot's case, 11 
 
 9 ; Simons v. Orad Western Ity. Rep. 26b, 27b ; see below, 
 
 Co., 2 C. B. N. S. 020 ; Foster v. pp. 756, 757. 
 3fa<;kinnon, L. R. 4 C. P. 704 ; («) T/ioroughgood's case, 2 Rep. 
 
 Lewis V. C/ai/, 67 L. J. Q. B. 224 : 9 a. b ; MaunrrVK fa»e, Moore 
 
 W. 4b
 
 754 
 
 OF MISTAKE. 
 
 Letter of 
 acceptance 
 sent without 
 the writer's 
 authority. 
 
 shall see, the party mistaken nidy be estopped by 
 reason of his negligence where a third person wrong- 
 fully misled him. But the rule is clearly estab- 
 lished where the mistake Avas made in consequence of 
 the other party's or by a third person's fraud. Thus if 
 a blind or an illiterate man, or even a man free from 
 any physical defect and of ordinary understanding, be 
 induced by the fraud of some person minded to entrap 
 him into a contract, or by the fraud of his own solicitor 
 or servant or some stranger (without any negligence or 
 carelessness on his own part), to sign a contract for sale of 
 his. land under the impression that he is executing some 
 document of an entirely different nature, the document 
 is altogether void. It is not his act, for he never 
 intended to utter such a document, and the case is 
 exactly the same as if his signature had beeu forged [o] . 
 Or it may be likened to the case where a man, who has 
 received an offer of sale or purchase of land, writes a 
 letter of acceptance, but, being in doubt whether he will 
 send it, places the letter in a drawer to remaiu there 
 until he shall reconsider the matter {p), and a third 
 party without the writer's authority takes the letter 
 from tlie drawer and sends it to the person who made 
 the offer ; in which case it is submitted that no contract 
 is concluded between the parties {q). In these instances 
 
 (K. B.), 182, 184 ; Shep. Touch. 
 56 ; Anon., Skin 159, pi. 6; Albe- 
 marle V. Bath, Freem. Ch. 193, 
 194; S.C. nom. Bath v. Moioi- 
 tague, 3 Ch. Ca. 55, 56, 59, 75, 
 76 : R. V. Lovfinor, 4 B. & Ad. 
 647; Mellish," L.J., Hunter v. 
 Walters, L. R. 7 Ch. 75, 87 ; 
 Tamplin v. James, 15 Ch. D. 215; 
 Farwell, L.J., Hoicotson v. IVebb, 
 1908, 1 Ch. 1,3,4; Chnplb, S; Co., 
 Ltd. V. Brammall, 1908, 1 K. B. 
 233, 234, 235; Alliance Credit 
 Bank of London v. Oiren, Times 
 Newspaper, 27th May, 1908. 
 (o) See previous note. As to 
 
 foro-ery, see next Chapter, J 1, 
 at end. 
 
 (;?) See above, p. 16. 
 
 {(j) See Phillips v. Edwards, 33 
 Beav. 440, 445 ; HenJcel v. Pape, 
 L. R. 6 Ex. 7 ; Baxendnle v. 
 Bennett, 3 Q. B. D. 525 ; Chitton v. 
 Attenlmrniigh . 1897, A. C. 90, 96. 
 The offer appears to be ostensibly 
 accepted through the agency of 
 a third person acting without tlie 
 authority of the party purported 
 to be bound ; and the writer of 
 the letter is, it is submitted, no 
 more bound than he would be if 
 the third person had, without his
 
 OF mi!=;take. 
 
 755 
 
 there is no reason why the party mistaken should be 
 estopped from proving that liis intention did not aceom- 
 pany his apparent act ; he has not held himself out as 
 expressing a contractual intention, nor has he been 
 guilty of negligence (>•). And it will be observed that Unilateral 
 in the cases where the mistake was caused, not by the °"^ ^ ^" 
 other contractor's fraud but by the wrongful or improper 
 intervention of a third person, the party mistaken is at 
 liberty to prove that his intention did not accompany 
 his outward act, notwithstanding that the mistake was 
 on his side only, the other party truly intending to 
 contract as expressed in the apparent agreement. But Estoppel 
 where a man makes a mistake of this kind solely b}'' a man's own 
 his 0"vvn inadvertence, he ^\ill in general be precluded carelessness, 
 fi'om alleging it. Thus we have seen that, where a 
 man executes a deed or signs a contract without reading 
 it, he cannot avoid it ; and it is submitted that if one in 
 absence of mind sign and send a letter accepting an 
 offf^r of sale or purchase, in the belief that he is accept- 
 ing an invitation to dinner, he is bound (.s). So also it is 
 contended that, where a man, who has written a letter 
 accepting an offer, but intends not to send it until he 
 has reconsidered the matter, by his own inadvertence 
 posts tlie letter or gives it to another to post, he would 
 be estopped, after the letter had been posted {t), from 
 
 authority, written a letter of and valid on the face of it, and 
 
 acceptance in his name ; see the same is taken out of his pos- 
 
 Ilollins V. Fowler, L. R. 7 H. L. session against his will, and put 
 
 TT)?. So where a deed or a similar into circulation, it appears that, 
 
 legal instrument is executed as as against a holder in duo course, 
 
 an escrow, ;ind entrusted to a he cannot avoid his liability on 
 
 solicitor to keep until perform- the ground that, owing to the 
 
 ance of the required condition, want of any consent between 
 
 and he fraudulently delivers the himself and the other party to 
 
 same without exacting perform- the instrument, there was no 
 
 ance of the condition, the person contract at all between them ; 
 
 who executed the deed is not see Cltittcm v. Atteiihorongh, 1897, 
 
 estopped from showing that it A. C. 90, 93, 96 ; and cf . Smith 
 
 was not his act ; LloiiiVs Bunh, v. Prosser, 1907. 2 K. B. 73o. 
 Lot. V. Hiillocl;, 1896. '2 Ch. 192, ()) See previous note. 
 
 191. It may be noted that where («) See above, p. 753, n. [)i). 
 
 one has signed, but not issued, a (/) Above, p. 16. 
 
 negotiable instrument complete 
 
 48 (2)
 
 756 
 
 OF MISTAKE. 
 
 Executing, 
 
 without 
 
 inquiry, a 
 
 document 
 
 presented 
 
 by one's 
 
 solicitor. 
 
 Misunder- 
 standing as to 
 effect of a 
 legal docu- 
 ment. 
 
 Difference 
 between 
 transactions 
 void and 
 voidable. 
 
 showing that he did not intend to contract as expressed 
 in the letter {ii) . Similarly, when a man knows that he 
 is executing at his solicitor's instance a document which 
 will have some legal consequence — which will he an act 
 on his part affecting his legal position or relations — 
 but he does not ask what will he its exact effect, 
 and has such confidence in his solicitor that he is 
 content to execute it in ignorance, then the document 
 is not mid; though it may be imdahle for fraud, if 
 his solicitor fraudulently misled him(.r). And in this 
 case the validity of the document, where it binds 
 the party to some transaction into which he did not 
 intend to enter, appears to depend on estoppel ; the 
 man's intention did not really accompany his act, but 
 he is precluded by his own negligence from setting-up 
 this objection. So also, if a man execute a document 
 intended to carry out some legal transaction, of the 
 general nature of which he is well aware, such as the 
 sale of his land, he cannot be heard to say that he did 
 not understand the legal effect of the words used, or 
 that he did not mean to enter into the legal obligations 
 or do the legal acts, which according to the proper legal 
 construction of those words are thereby expressed to be 
 undertaken or done (//). As we have seen {z), the case, 
 where a man executes a legal instrument by mistake 
 under the impression that he is entering into some 
 
 I 
 
 (m) See H. T. Chitty, argneyido, 
 Henhl v. Tape, L. R. 6 Ex. 7, 8 ; 
 Anson on Contract, 159, 160, 
 8th ed. It is submitted that the 
 remark of Collins, M. E,., in V((ii 
 Praagh v. Everidge, 1903, 1 Ch. 
 434, 436, that it was not clear to 
 him, whether the parties w^ere ad 
 idem, must not be taken in a 
 sense adverse to the above con- 
 clusion. In that case the parties' 
 minds were most certainly not in 
 truth at one : but the question 
 whether the defendant was not 
 estopped at law from proving the 
 
 truth was not argued or decided 
 in the Court of Appeal. 
 
 (.*■) See Mellish, L. J., Hunter 
 V. iraltcrs, L. R. 7 Ch. 75, 88 ; 
 King V. Smith, 1900, 2 Ch. 425, 
 430 ; Hoiiatson v. Webb, 1907, 
 1 Ch. 537, 1908, 1 Ch. 1 : above, 
 p. 743. 
 
 (y) Poirell V. Siiiitli, L. E. 14 
 Eq. 85 ; Tumplin v. Jatticx, 15 
 Ch. D. 215 ; Stewart v. Kennedij, 
 15 App. Cas. 108 ; Howalson v. 
 Jl'ebb, ubi sup. 
 
 (;) Above, p. 748.
 
 OF MISTAKE. 757 
 
 transaction entirely different from that evidenced by 
 the instrument, must be carefully distinguished fi'om 
 that where he is induced to make a contract or con- 
 veyance by a fraudulent misrepresentation as to some 
 fact, other than the nature of the transaction contem- 
 plated. In the one case, if the man is not estopped 
 from proving that his intention did not accompany his 
 overt act, the instrument is void (a). In the other, he 
 did really intend, at the time of executing the docu- 
 ment, to make the contract or conveyance tlierein 
 exj)ressed : but he would not have had this intention if 
 he had known the truth as to the fact misrepresented (6). 
 The document is therefore voidable by him, but it is 
 not altogether void from the outset (b). Attached to Couveyauce 
 this distinction is the very important consequence, as misrepresen- 
 
 regards the concei/ancc induced by such fraudident mis- tation, fraud, 
 . . <Kc. not void- 
 
 representation of lands or goods, that if the person who able as 
 
 has taken under such a conveyance dispose of the lands p^chLer for 
 
 or goods to a purchaser for value {c) taking in good faith ^^lue without 
 
 without notice of the fraud, the conveyance procured 
 
 by fraud is not voidable as against the purchaser {d). 
 
 («) Above, pp. 748 — 753. an equitable interest only ; Sturge 
 
 (i) Above, p. 748 ; JlniiUr v. v. i>t((rr, 2 My. & K. li)o ; rhillips 
 
 WaHers, L. R. 7 Ch. 7o, 82 ; v. PhiUips, 4 De G. F. & J. 208, 
 
 Onward litiUdiitg Socicfi/ v. Smith- 218 ; Hunter v. IFaltcrs, L. E.. 
 
 son, 189:5, 1 Ch. 1, 15; Lloyd's 7 Ch. 75 ; Lindley, L. J., J\rt<io«rt^ 
 
 JtfDi/,, Ltd. V. Bullock, IS96, 2 Ch. J'rovincial Bank of England v. 
 
 192, l'J6, 197. Jackson, 33 Ch. U. 1, 13 '; Lloiid\s 
 
 ((That is, a purchaser for Bank, Ltd. y. Bullock, IS9G, -I^Ch. 
 
 valuable consideration actually 192, 197 ; of. Cave v. Caic, 15 
 
 paid or executed ; Hardinijham v. Ch. D. G39, 647. As to the com- 
 
 Xicholl.i, 3 Atk. 304 ; Sug. V. & men law rule, see White v. Garden, 
 
 P. 789 ; above, pp. 566, 567, and 10 C. B. 919 ; Kint/sford v. Merry, 
 
 n. [b). 25 L. J.N. S. Ex. 166, reversed on 
 
 {(l) In this respect the rules of another ground, 26 L. J. N. S. 
 
 law and equity arc the sauic ; so Ex. 83 ; I'case v. Gloahcc, L. R. 
 
 that the conveyance procured by 1 P. C. 219, 229. 230; Cundy v. 
 
 fraud of uu equitable estate or Lindsay, 3 App. Cas. 459, 464 ; 
 
 interest in lands or goods is not Vihnont v. Bentley, 18 Q. B. D. 
 
 voidable as against a bond Jidc 322,330; 12 App. Cas. 471, 473, 
 
 purchaser for value without notice 483 (this decision gave rise to tlie 
 
 of the fraud ; and the conveyance amending stat. 56 & 57 Vict. c. 71, 
 
 so procured of a legal estate or s. 24 (2) ) ; stat. 56 & 57 Vict, 
 
 interest cannot be avoided as c. 71, s. 23 ; Wms. Pers. Prop, 
 
 against such a purchaser taking 543, 16th cd.
 
 758 
 
 OF MISTAKE. 
 
 Contracts 
 iuduced by 
 fraud remain 
 voidable, as 
 against the 
 other con- 
 tractor's 
 assia^ns. 
 
 Where a sale 
 of land is 
 executed by 
 payment of 
 the purchase 
 money. 
 
 This doctrine, however, relates only to conreynnces pro- 
 cured by fraud. Contmch induced by fraud may, as a 
 rule, be avoided, notwithstanding that the benefits thereof 
 have been assigned to one taking in good faith and for 
 value without notice of the fraud ; for the assignee of 
 the benefit of a contract takes subject to all equities 
 existing between his assignor and the other con- 
 tractor {e). To this rule, negotiable instruments are 
 an exception (./). But it should be noted, especially in 
 connexion with contracts for the sale of land, that the 
 rule is only applicable so long as the thing assigned is 
 tlie benefit of an obligation arising from contract, that 
 is to say, a thing in action. We have seen that where 
 a contract for the sale of land is executed by payment 
 of the purchase money, the purchaser becomes absolutely 
 and entirely entitled in equity to the land, the vendor 
 being thenceforward a bare trustee for him, and having 
 no longer any lien on the land (jj). In this state of 
 things the vendor is regarded in equity as having made 
 a complete conveyance of the land, and not as remaining 
 under contract to convey it; the parties' agreement has 
 in equity passed out of the stage of executory into that 
 of executed contract. It appears therefore that if a 
 contract so executed were induced by the purchaser's 
 fraud, and he resold or mortgaged the land to a pur- 
 chaser taking for valuable consideration paid or exe- 
 cuted (/?) , in good faith and without notice of the fraud, 
 the vendor could not set aside the sale as against such 
 subsequent purchaser (?"). But it seems that, until 
 this stage of the contract has been reached, it remains, 
 for the purposes of the rule in question, an executory 
 
 (e) Athenceum Life Assurance 
 Society v. Pooley, 3 De Gr. & J. 
 294 ; Graham v. Johnson, L. R. 
 8 Eq. 36, 43 ; Ee Palmer's, ^r. Co., 
 1904, 2 Ch. 743 ; above, p. 661. 
 
 (/) Above, p. 749. 
 
 {g) Above, pp. 505—507, 530, 
 538, 546, 558, 560. 
 
 (//) Sec above, p. 757, n. ((•). 
 
 (i) For this purpose it is, as 
 we have seen, immaterial that the 
 subsequent pvirchaser has not the 
 legal estate; above, p. 757, n. {d).
 
 OF MISTAKE. 759 
 
 contract, the parties' relations being those of mutual 
 obligation only (/.•). 
 
 Where one enters into an apparent contract under a Mistake as to 
 mistake as to the person with whom he is contracting, ^j^g other" ° 
 and tlie personality of the other party is a material P^rty to the 
 element iu determining his intention, there is no true 
 consent and the contract is void (/) ; unless he be 
 estopped from proving his real intention. Thus if 
 A. be induced by means of personation or any other 
 fraud to sign a contract for sale of his land to B. 
 under the impression that he is contracting with C, 
 there is no real consent, no true agreement between the 
 parties (m) ; the case is the same as if A. signed the 
 contract in the belief that it was a mortgage {n) ; and 
 A.'s supposed act in the law is altogether void. But if Estoppel from 
 B., acting in good faith and without any fraudulent fy the person, 
 intent, go to A. and olfer to buy A.'s land and A. sign 
 an agreement accordingly, A. cannot, it is submitted, 
 escape from the obligation so contracted by proving 
 that he supposed that B. was C, if B. did nothing to 
 induce that belief and a man of ordinary intelligence 
 would reasonably and naturally suppose from A.'s acts 
 and 'words that he intended to contract with B. (o), and 
 provided that B. were not aware that A. contracted 
 with liim under the impression that he was C. (p). If 
 OUH pai-ty to a sale of land bo under a mistake as to the 
 person of the other contractor, but the personality of 
 
 (/,-) See Ko.sr V. IVtiLson, 10 Street, 1899, 2 Q. B. (Ul, where 
 
 H. L. C. 672, 67.S. the defendant only pleaded that 
 
 {[) Boultou V. Joit's, 2 H. «}c N. the contract was voidable for 
 
 oGl ; Beujumin on Sale, 4(>. 2ud fraud, but might, it seems, have 
 
 ed. ; Smilh v. Whtatcyuft, 'J Oh. D. alleged that it was void on the 
 
 223, 230 ; X<ish v. Dix, 78 L. T. ground of mistake. 
 
 445, 448, 449. (w) Above, p. loi. 
 
 {ill) Jliirdiiiau V. Booth, 1 II. & C. (o) See above, p. 7<')0, u. (A). 
 
 803; Hnl/hi.s V. Fowkr, L. R. 7 {)>) See Sinit/i \. Hughes, 1,. R. 
 
 H. L. 7o7 ; C'uitdi/ v. Limliai/, 6 Q. B. 597 ; see below, pp. 773, 
 
 3 App. CaM. 459 ; Ke Cooper, 20 774. 
 Ch. D. 611 ; and see Gordon v.
 
 760 
 
 OF MISTAKE. 
 
 Smith V. 
 Wheatcroft. 
 
 the latter be not a material element in determining his 
 intention, he cannot avoid the contract on the ground 
 of his mistake. Thus, where B. bought land of A., 
 ostensibly on his own account but really as agent for 
 C, and it appeared that A., provided he got his price, 
 would have been equally willing to sell to any other 
 person, it was held that A. could not resist the specific 
 performance of the contract {q) . 
 
 Mistake as to 
 the property 
 sold or the 
 price. 
 
 The same rule holds, subject to the same qualifica- 
 tion, with regard to mistake in respect of the property 
 to be sold or the price to be paid, if the mistake go to 
 the whole substance of the consideration (r) . Thus, if 
 A. sell to B. his farm called The Grrange, and A. have 
 two farms of that name, one in Essex and one in 
 Hampshire, and A. intended to sell his farm in Essex, 
 but B. meant to buy the farm in Hampshire, there is 
 no true consent and no contract between the parties. 
 In this case there is a latent ambiguity in the descrip- 
 tion of the land pm-ported to be sold, and so parol 
 evidence is admissible to prove what land the parties 
 intended to sell, and it may be shown that they meant 
 different things and their minds were not at one (s). 
 But if one sign a contract for the purchase of a piece of 
 land, of which the description in the contract is free 
 from ambiguity and completely identifies it, he will be 
 estopped from proving that he really intended to buy a 
 different plot, if his mistake were due to his own inad- 
 vertence, and his outward acts and demeanom- would 
 naturally and reasonably lead the other party to suppose 
 
 {q) Smith V. Wheatcroft, 9 Ch. 
 D. 223 ; Nash v. Bix, 78 L. T. 
 445, 448, 449 ; Gordon v. Street, 
 1899, 2 Q. B. 641, 647. 
 
 ()-) Above, pp. 748—753. 
 
 (s) Raffles V. Wichelhaus, 2 H. 
 & C. 906 (sale of goods ex Peer- 
 less, there being two ships of 
 
 that name) ; above, n. H) to p. 750. 
 See Althani's case, 8 Rep. 150b, 
 155 ; Miller v. Travers, 8 Bing. 
 244, 248 ; Doe d. Gord v. Needs, 2 
 M. & W. 129, 139, 140 ; Doe d. 
 Hiscocks V. Miscocks, 5 M. & W. 
 363, 368, 369 ; below, p. 782, 
 n. («).
 
 OF MISTAKE. 761 
 
 that he meant to buy the land described (f). On this 
 point, as affecting the validity of the contract at law, 
 the (Ik'tion of Collins, M. R., in the case of Van Praagh v. '"«« P'-wyi' 
 ^(!.r>vV/^(' (//), is, it is submitted, misleading. The defen- 
 dant in that case, purely through his own inadvertence, 
 bid at an auction for Lot 1 under the impression that 
 he was bidding for Lot 2, and Lot 1 was knocked down 
 to him accordingly. He afterwards declined to sign a 
 memorandum of the contract : but the auctioneer signed 
 it for him (.r). The memorandum so signed ascribed a 
 wrong date to the contract. The vendor sued for 
 specific performance of the contract, which was granted 
 by Kekewich, J. This involved the decision that there 
 was a contract valid at law, as the Court has no jm-is- 
 diction to grant specific performance of a void agree- 
 ment (//). In the Court of Appeal, however, the judg- 
 ment of Kekewich, J., was reversed purely on the 
 ground that, as the wi-ong date had been inserted in the 
 contract, there was no sufficient memorandum to satisfy 
 the Statute of Frauds (;:) . But it had also been argued 
 that there was no true consent of the parties, their 
 minds being directed to different things. On this 
 point, Collins, M. R., said : " It is not clear to my mind 
 that the parties ever were <id idem ; I do not tliink that 
 they were, but it is unnecessary to say anything f m-ther 
 about that, as the plaintiff's case fails on the other 
 point." This was a most unfortunate remark ; it gives 
 the impression that, if the memorandum had been suffi- 
 cient to satisfy the statute, there would nevertheless 
 have been no contract between the pai-ties, because their 
 minds were not at one ; and the reporter has done 
 his best to fix this impression by recording it in the 
 headnote with a .scittb/r. But it is submitted that the 
 
 (t) Tamplin v. James, 15 Cb. D. 
 215. 
 
 (m) 1903, 1 Ch. 434, 436, re- 
 versing S;. a., 1902, 1 Ch. 266. 
 
 {x) Bee above, p. 21, n. (*■). 
 
 iu) Fry, 
 
 Sp. 
 
 Perfce. 
 
 ^k 
 
 277, 
 
 752, 3rd ed 
 
 
 
 
 
 [z) See above 
 
 pp. 4 
 
 8. 
 
 and 
 
 n. (/). 
 
 
 

 
 762 
 
 OF MISTAKE. 
 
 Mistake as 
 to price. 
 
 learned judge overlooked the qualification above men- 
 tioned to the rule of law, that true consent is necessary 
 to make a contract, and did not consider whether the 
 defendant was not estopped from proving his real 
 intention. And it is contended that, if the defendant 
 so conducted himself (as apparently he did) that the 
 auctioneer would naturally and reasonably infer that he 
 meant to bid for Lot 1, then it was not open to him, if 
 sued upon the apparent contract at law, to show that 
 the intention which he had so manifested was not his 
 true intention {a). A contract for the sale of land may 
 also be void for want of true consent owing to a mistake 
 as to the price. This may occur where one bids at an 
 auction under a misapprehension as to the amount of his 
 bidding (h) ; but in any such case the facts woidd be 
 likely to raise the question whether the party mistaken 
 were at liberty to prove his real intention or were 
 estopped by his conduct and outward demeanour from 
 doing so. It seems that upon a sale of lands, as on a 
 sale of goods, any mistake in the physical contents or 
 to the rout of quantity of the thing sold or the price, must necessarily 
 go to the whole substance of the consideration at law ; 
 since a contract is broken at law in case of the smallest 
 deficiency in quantity of the thing promised (c) . And 
 the same appears to be true of a mistake as to quantity 
 of estate or title ; as where one thought he was buying 
 unincumbered freehold and the other intended to sell 
 copyhold, or leasehold, or land subject to restrictive 
 covenants; for, as we have seen {d), it is an essential 
 
 Mistake as to 
 the property 
 or price goes 
 
 («) Above, pp. 750 — 756, 759. 
 It is further submitted that, ac- 
 cording- to the case of Tamplin v. 
 James, 15 Ch. D. 215, the fact that 
 the parties' minds were not in truth 
 at one, was not of itself alone a 
 sufficient ground for the defen- 
 dant to resist specitic perform- 
 ance, the mistake having been on 
 his side only ; and that, in the 
 absence of hardship, he would 
 
 have been equally estopped in 
 equity from alleging his mistake ; 
 see below, pp. 774 — 776. 
 
 {b) See FJtilUps v. BistoUi, 2 B. 
 & C. 511, 512 ; Benjamin on Sale, 
 43, 2nd ed. 
 
 ((") See above, p. 722, andn. (w); 
 atcicart V. Kennedij, 15 App. Oas. 
 108, 121 ; cf. above, p. 727. 
 
 (rf) Above, pp. 32, n. (5), 194— 
 197.
 
 OF MISTAKE. 
 
 763 
 
 condition of the sale of land that the vendor show a 
 good title. But a mistake as to the quality of the thing Mistake as 
 sold does not necessarily avoid the contract of sale ; for ^ ^^^ ^' 
 "aT warranty of quality is not an essential element of a "Warranty of 
 sale ; it is a collateral engagement to be attached to or ^^^ ^ ^' 
 omitted from it at the pleasure of the parties (c) . It 
 appears, however, that an apparent contract may be 
 void on account of a mistake as to the quality of the 
 thing sold, if the quality were an essential condition of 
 the sale in this sense, that the party mistaken would 
 not have entered into the contract at all unless he was 
 to have a thing of that quality, which he erroneously 
 supposed to be promised to him (/"). 
 
 With regard to mistakes in what may be termed the Mistake as to 
 quality of land sold, as for example, whether it be fit a 'th?n <^^ sold! 
 for growing corn, grazing cattle, or for building, or 
 whether a house or other building be in good repair or 
 well drained, the reader must bear in mind the following 
 distinctions : — The rule is carcat emptor. The purchaser The rule is 
 should inspect and make inquiry concerning the ju'operty 
 which he is buying {(j). If he omit this precaution, he 
 buys at his own risk, and cannot complain of defects in 
 the quality of the thing, unless they be not discover- 
 able by inspection and materially interfere with the 
 enjoyment promised by the contract (A),_or by any repre- 
 sentation which induced the contract, or be fraudulently 
 concealed (<). In the case of the sale of land, defects J^Lfectof 
 which are in one sense defects of quality, as interfering amouutiug to 
 with the physical enjoyment of the land sold, may 
 
 (e) See Scott v. Littledale, 8 E. (/) See Smith v. Hughes, L. R. 
 
 & B. 815: Benjamin on Sale, 45, G Q. B. 597, 607—611 ; Stewart 
 
 2nd ed. For an instance of a v. Kennedy, 15 App. Cas. 108, 
 
 collateral warranty on a sale of 121. 
 
 land, see I)e Lassallf v. Guildfurd, (ff) Edwards- Wood v. Majori- 
 
 1901, 2 K. B. 215 (warranty that hmiks, 7 H. L. C. 806, 809—811 : 
 
 thedrainH of a house were in good Sug. V. & P. 335 ; above, p. 610. 
 
 order). (A) Above, p. 611. 
 
 (i) See below, p. 769. 
 
 a defect of 
 title.
 
 764 OF MISTAKE. 
 
 involve a breach of the contract because they are incon- 
 sistent with the discharge of the vendor's obHgation of 
 showing a good title. Thus the existence of a right of 
 way, not discoverable by inspection and interfering 
 materially with the enjoyment of the property sold, is a 
 good ground of objection to the title (A). But in tlie 
 absence of fraud, a defect of quality, not amounting to 
 'a breach of the obligation to show a good title, is no 
 ground of objection on the purchaser's part, unless the 
 vendor exj)ressly or impliedly warranted or promised 
 that the property sold should have the quality, in Avhich 
 No wan-auty it is deficient. And no warranty is implied by the 
 implied by mere sale of land that it is fit for any particular 
 the sale of pm'pose (/). For example, if one sell a house which is 
 out of repair, or ill-drained or infested with vermin or 
 otherwise unfit for human habitation, without warrant- 
 ing or representing that it is in good repair, well- 
 drained or fit for habitation, the purchaser has no legal 
 Latent defects or equitable cause of complaint {i)i). This doctrine 
 o quality. applies not only to defects discoverable by inspection or 
 inquiry but also to latent defects of quality. Where 
 Unknown these are unknown to the vendor, and do not materially 
 
 latent defects. -- , n •,! ji • , • i i vi , , 
 
 mteriere with the enjoyment promised by the contract, 
 or any representation which induced the contract, they 
 are no ground for the purchaser to avoid the contract 
 or resist its specific performance {ii). And the same 
 
 (k) Ashbnrner v. Sewell, 1891, the principle is exactly the same 
 
 3 Ch. 405 ; above, p. 61 1. See in the case of an agreement to 
 
 also Wilde V. Gibson, 1 H. L. C. sell land; seeabove, p. 97, n. («). 
 
 605, where the defect, if dis- And the case of a lease seems 
 
 covered before conveyance, would stronger than that of a sale, since 
 
 certainly have been a good ground occupation leases are generally 
 
 of objection to the title ; above, taken with the object of using 
 
 pp. 611, 653, 654. the land in some particular way, 
 
 {I) Sutton. V. Temple, 12 M. & as farming it. 
 
 W. 52 ; Hart v. Windsor, ib. 68 ; (;«) Keatcs v. Cadoyan, 10 C. B. 
 
 Keates v. Cadoyan, 10 C. B. 591 ; 591 ; Cook v. Watty h, 2 Griff. 
 
 Spoor y.Green,'L.R.9'Ex. 99, lOd; 201; Cavalier v. Pope, 1905, 2 
 
 Wilson V. Finch Hatton, 2 Ex. D. K. B. 757, 763, 764, affirmed, 
 
 336, 342, 343. These are aU cases 1906, A. C. 428. 
 
 of agreement to lease land : but (w) Ltieas\. James, THjaxe, 4.10,
 
 OF MISTAKE. 
 
 765 
 
 rule applies at law, although the latent defect be 
 known to the vendor. Tlius if one sell his house 
 situate in a street of a disreputable character, the pur- 
 chaser cannot avoid the contract at law, unless the 
 vendor sold the house as a residence for a respectable 
 family or otherwise promised or represented that it was 
 fit for that purpose (o). A fortiori, if land or a house 
 be sold with all its faults ( p) or with all risks of error 
 in the description (q), the purchaser cannot reject it 
 on account of a latent defect of quality, of which the 
 vendor was aware. In equity, however, the rule has 
 been suggested that a latent defect of quality, which is 
 not discoverable by any inspection or inquiiy that a 
 prudent purchaser might reasonably be expected to 
 make, and is known to and not disclosed l)y the vendor, 
 is a good ground for refusing to grant specific per- 
 formance at the vendor's suit (>). But it is submitted 
 
 Latent defect 
 knowni to the 
 vendor. 
 
 Sale of a 
 thing with all 
 its faults. 
 
 The rule in 
 equity as to 
 mere silence 
 about a defect 
 of qualitj-. 
 
 418 : see Hope v. Jf'a/ter, 1899, 
 1 Ch. 879, 883, reversed, 1900, 
 1 Ch. 2o7 : below, p. 770. 
 
 (o) See Fiii/.hixon v. Ler, 2 East, 
 314, 322, 323, 324; Hi/xater v. 
 Jtichardsot), 1 A. tt E. 508 ; Chanter 
 V. Hop/.liK, 4 M. .*e W. 399 ; Con/- 
 fuot V. FowLe, 6 M. \- W. 358 
 (the correctness of the decision in 
 this case is discussed in the next 
 Chapter : but it sei-ins clear that 
 if there had been no reprosunta- 
 tion at all. there would have been 
 no (tause of action; ; (iomprrlz v. 
 liartlett 2 E. & B. 849, 8.")o ; 
 Jo)i,s V. Just, L. R. 3 Q. B. 197, 
 202 ; Ward v. Jfol,l>s, { App. Cas. 
 13, 21, 2.'), 26, 29. It is respect- 
 fully submitted that the dictum of 
 .loyee. J., in Curlish v. Suft, WHU). 
 1 Ch. 33.'), 341, as to the vendor's 
 duty of disclosure, is not well 
 founded; see the writer's cuticisni 
 in 50 Sol. .1 611. Note that the 
 statement in llornfull v. Thomas, 
 I H. & ('. 9'), 100, as to a maiin- 
 Jartiircr's duty to disclose a defect 
 known to him and not discover- 
 able by inspection applies only to 
 a contract to make a particular 
 
 thing- to order, when there is an 
 implied warranty that it shall be 
 reasonably fit for the purpose for 
 which it i.s ordinarily used or 
 specially ordered ; Jcjies v. Juxt^ 
 L. R. 3 Q. B. 197, 203 ; Ben- 
 jamin on Sale, 525, 2nd ed. 
 HorsfnU V. Ttiamax does not there- 
 fore support the proposition in 
 Fry, Sp. Perf. ^^ 708, 3rd ed., for 
 which it is vouched. 
 
 ( v) Baf/lchvliyf. Jf"ulters,3Cdm^. 
 154 ; Pickfrbifi v. Dow.snn, 4 Taunt. 
 779 ; JFard v. Hobbs, 4 App. Cas. 
 13 ; Benjamin on Sale, 384, 2nd 
 ed. : Sug. V. & P. 333, where 
 note that the proposition stated 
 at the beginning of § 21 cannot 
 be maintained ; see n. (r), below. 
 
 ('/) Jiroirii/ir V. Cuiiipbe/t, 5 App. 
 Cas. 925. 
 
 {r) Lucas V. James, 7 Hare, 410, 
 118; Hopry. Walfrr, 1899, 1 Ch. 
 879, 883. Note that the rule 
 there stated is qualified with 
 " perhaps " ; and that the state- 
 ment of the law in Sug. V. & P. 
 2, 333, which the rule purports to 
 follow, was apparently founded 
 on a case of Mcllish v. Molteux,
 
 766 
 
 OF MISTAKE. 
 
 Lucas v. 
 James. 
 
 that this rule is too broadly stated, and is properly 
 suBject to the qualification that the defect must be 
 such as will materially interfere with the enjoyment 
 jjro/iiiscd 1)1/ the contraci or the vendor's representation, 
 or the concealment must be fraudulent. Thus in Lncan 
 V. Jamosi. (.s'), where the"" rule is stated, a gentleman 
 entered into negotiations for taking a lease of a house, 
 the lessor being aware that he wanted it for his own 
 residence. He broke off the negotiations on the ground 
 that the street, in which the house was situated, was of 
 so disreputable a character that the house was unfit for 
 the purpose of a gentleman's private residence. The 
 lessor brought a suit for specific performance, alleging 
 that a contract had been concluded. Wigram, V.-C, 
 dismissed the bill with costs on tlie ground that no 
 contract had been formed: but incidentally he suggested 
 the rule as above mentioned. But it appears that in 
 that case the lessor was clearly promising a house fit 
 for the required purpose. If one sell a house situate 
 next door to a house known to the vendor but not 
 generally known to be a disorderly house, without 
 promising that the house sold is fit for a gentleman's 
 residence, and without making any promise or repre- 
 sentation at all as to the character of the neighbourhood 
 or the street, why should specific i)erformance be 
 refused at the vendor's suit ? Lord St. Leonards main- 
 tained that the vendor's silence as to a known latent 
 defect of quality could hardly be distinguished from his 
 active concealment of a defect which would otherwise 
 be patent (f). But it is held at law that this is not 
 so {iC). The active concealment alone is a fraud; mere 
 silence is no breach of any legal duty, unless tlie vendor 
 
 Peake, 115, expressly overniled 
 in Baf/lcholc v. IVaUcrx, 3 Camp. 
 154 ; aDcl Fxclcv'mq v Doicson, 
 4 Taunt. 779. 1 Dart, V. & P. 
 93, 5th ed. ; 103, 6th ed. ; 101, 
 7th ed., simply follows Sugden's 
 
 statement. 
 
 (s) 7 Hare, 410. 
 
 [t) Sug. V. & P. 333, 334 : but 
 see p. 335. 
 
 {ii) Above, p. 765, and n. (o) ; 
 below, p. 77'2,
 
 OF MISTAKE. 
 
 767 
 
 promised somo quality inoompatihle with tlio oxistpneo 
 of tlie defect, or were uiidor a particular obligation to 
 tMScIose defects, such as arises iu the case of a coutract 
 of insurance, which is a contract iilx'rrhmc fidei {x). 
 And it is stated by Sir Edward Fry in his treatise on 
 Specific Performance that mere silence as regards a 
 material fact, which one party is not under an obliga- 
 tion to disclose to the other, cannot be a ground for 
 rescission of a contract or a defence to specific per- 
 formance (//). And this rule has been lately followed 
 in equity, specific performance having been decreed at 
 suit of one, who kept silence as to a latent defect, 
 which was known to liim, but which he had not war- 
 ranted or represented not to exist (s). So also it is Silence of the 
 considered that mere silence on the purchaser's part as about 'a fact 
 to some fact known to Idm alone and enhancing the enhancinor the 
 value of the property sold (such as the existence of 
 valuable minerals) is no ground in equity for the 
 vendor to avoid or resist specific performance of the 
 contract (a). At the same time, it must be remembered 
 
 (.(•) See F.rpfe. irhi(tal:n\ L. R. access of light by the stranger's 
 
 10 Ch. 44H ; liii>w)iHc V. Cumpbell, licence : see above, p. 639, n. (/) ; 
 
 5 App. (Jas. 02o, 932. 937, 938, Be Ward ami Jordnn'x Coutrnct, 
 
 9H, 9.')0, 9.')4. As t<» the (/«•/?<;« 19()-2, I. R. Ch. 73; Seddvu v. 
 
 of Joyce. J., in (Jarlish v. Salt, North Eastern Salt Co., Ltd., 1905, 
 
 190G, 1 Ch. 335, 340, see above, 1 Ch. 326, 334, 33o. 
 p. 765, n. (o). (f/1 For \ . Ma<krHh,-lBvo.C.C 
 
 (//) Fry, Sp. Perf. ^ 705, 713, 400,' 420; Tiiruer v. Hnrrcij, Jac. 
 
 3rd ed. 169, 178; IFaltirs y. Moniun. 3 
 
 (;) Ttir'ier v. (hroi, 1S95. 2 Ch. Do G. F. & J. 7 IS, 723 ; Conkx v. 
 
 205, where spe(nfic porforiiiauci' lloswell, 1 1 Aj^p. Cas. 232, 235, 
 
 of an agn^i'iiioiit to (minpromise 236 ; Ptrcirnl v. U'rif/ht, 1902, 2 
 
 an action was ciit'orccd at suit of Ch. 421, 426 ; Sug. V. & P. 5; 
 
 one. wlio had, o)i making the 1 Dart. V. & P. 106. 5th ed. ; 
 
 agrcciMciit, kcj)t silonc!"' as to tlic 1 IS. (itli rd. ; 114, 7th ed. ; Fry, 
 
 fact that he hail just hccudefeatcil Sp. Perf. ^S^ 713, 714. 3rd ed. It 
 
 in a step in the proceedings ; is submitted that the dirtnm of 
 
 (irfcnhnliih v. llriiidlrij, 1901, 2 Kiudersley, V.-C, to the contrar}- 
 
 Cli. 324, where specific perform- in Fnlchr v. Graii, 4 Drew. 651. 
 
 auce was euforced at suit of a 5 Jur. N. S 645, ()46, is opposed 
 
 vendor, who had s'dd a house to the main curreut of authority 
 
 with windows overlooking a and would not now be followed ; 
 
 stranger's laml, and had not see Fry, Sp. Perf. ^^'i 444 — 446, 
 
 mentioned that lie only enjoyed 3rd ed.
 
 768 
 
 OF MISTAKE. 
 
 Specific per- 
 formance may 
 be refused on 
 grounds of 
 unfairness or 
 hardship. 
 
 Non-disclo- 
 sure of a fact 
 material to 
 the title. 
 
 tliat in granting or refusing the remedy of specific 
 performance, the Court may take into consideration 
 (>ircumstances wliich would be of no accoiuit at law 
 and would not affect the question of the rescission of 
 the contract {h) . Thus the Coiu-t may refuse specific 
 performance at suit of a party whose conduct has been 
 wanting in good faith or fairness {b), or against a party 
 on whom the specific performance of the contract would 
 inflict a great hardship (c) ; and it seems that on these 
 grounds the Court wat/ poH.nb/// decline to grant specific 
 performance at suit of either vendor or purchaser, who 
 has concealed a fact known to him and material to the 
 value of the property sold, notwithstanding that such 
 concealment may not amount to positive fraud {d). In 
 a recent case, however, where a vendor kept silence in a 
 manner which the Court considered to be unfair, that 
 was not allowed to stand in the way of his obtaining 
 tlie remedy of specific performance, though it was made 
 a ground for depriving him of costs (r). But it should 
 be noted that non-disclosure, on the sale of land, of a 
 fact material to the tit/c of the property sold stands on 
 a different footing from non-disclosure of a fact relating 
 to its quaUti/. The vendor's title is a matter which is 
 exclusively within his own knowledge, and he is bound 
 to state it fairly ; and his suppression of a fact material 
 to the title may, according to the degree in which it 
 
 (*) Above, pp. 37, 38 ; below, 
 n. (rf), and pp. 777, n. {c), 778, 
 
 (c) See Wedgwood v. Adams, 
 6 Beav. COO ; WatKon v. Marston, 
 4 De G. M. & a. '230 ; Falck'e v. 
 Gray, 4 Drew. 651, 659 ; Webster 
 V. Cecil, 30 Beav. 62 ; Durham v. 
 Legard, 34 Beav. 611 ; Freston v. 
 Lnc/c, 27 Ch. D. 497, 506 : Fi'dd 
 X. Ltiscelks, 1900, 1 Ch. 815, 820; 
 Goddard v. Jeffreys, 30 W. R. 269, 
 270 ; Van traagh v. Everidge, 
 1902, 2 Ch. 266, 271, reversed on 
 other grounds, 1903, 1 Ch. 434 ; 
 above, p. 39 ; below, p. 776. 
 
 {d) See EUurd v. Llandaff, 1 
 Ball & B. 241, where a lessee for 
 a life negotiating for a new lease 
 concealed the fact that cestui que 
 vie was at the point of death : 
 this decision is, however, adversely- 
 criticised in Turner \. Green, 1895, 
 2 Ch. 205 : FothcrgiU v. PhiUips, 
 L. R. 6 Ch. 770, where a pur- 
 chaser concealed the fact that he 
 had wrongfully abstracted a large 
 quantity of minerals from under 
 the laud sold ; Fry, Sp. Perf. 
 ^ 402, 715, 717, 3rd ed. 
 
 [e) Greeuhalgh v. Frindlcy, 1901, 
 2 Ch. 324.
 
 OF MISTAKE. 
 
 769 
 
 affects the title, be a ground for rescinding the contract 
 or for resisting its specific performance (,/'). 
 
 On the other hand, if the vendor represent that a 
 house is in good repair {y), or is not damp (/<), or that 
 the drains are in good order (/), or the cellars dry (A-), 
 or that a farm is in a high state of cultivation (/), or 
 sell land as being fit for building purposes [m), or as 
 business preinises (//), then any latent defect, which 
 prevents this representation from being fulfilled, will be 
 a good ground of objection by the purchaser to his 
 completing the contract (o). If, however, the defect 
 Avere patent or obvious, then the purchaser may be 
 obliged to perform the contract, notwithstanding tlie 
 representation, on the ground that he must be taken to 
 liave bought with notice of the defect {p). But any 
 (ictirc concealmont of defects which would otherwise be 
 discoverable by inspection is a fraud {q) ; and if a pur- 
 chaser be deceived tliereby (>•) he may avoid the contract 
 
 Representa- 
 tion that land 
 is fit for a 
 particular 
 purpose. 
 
 Representa- 
 tion obviously 
 inapplicable. 
 
 Active con- 
 cealment of 
 defects. 
 
 (/) Eihvards v. TViclnrar, L. R. 
 1 Piq. 68 ; Monti/n v. Vest Jfosti/ii 
 <'oal and Iron' Co., 1 C. P. D. 
 145 ; lie Marsh and Earl Gran- 
 ville, 24 Ch. D. 11 ; Hey wood 
 V. MalMieu, 25 Ch. D. 357 ; 
 Nottingham Brick and Tile Co. 
 V. Butler, 16 Q. B. D. 778 ; 
 Rene v. Berridge, 20 Q. B. D. 
 52.3, 528 ; Re Jhirin and Cavei), 40 
 Ch. D. 001 : Re While and Smith's 
 Contract, 189'.), 1 Ch. 637 ; Re 
 Haedicke and Lipski\'! Contract, 
 1901, 2 Ch. 66G : tJarlish v. Salt, 
 1906, 1 Ch. .'135, a.s to which case 
 SCO the writer's criticism in 50 Sol. 
 J. 611 ; above, pp. 73, n. [l), 77, 
 78. 196—198, 205, 351, 608, n. (q). 
 
 if/) Grant v. Mnnl, Gr. Coop. 
 173 ; Dyer v. Ifargrare, 10 Vos. 
 505 ; Cree v. Stone, Times News- 
 paper, 10th May, 1907. 
 
 (A) Strangicays v. Bishop, 29 
 L. T. O. S. 120. 
 
 (J) I)e Lassalle v. Guildford, 
 1901, 2 K. B. 215 : free v. Stone, 
 
 W. 
 
 Times New.spaper, 10th May, 
 1907. 
 
 {k) Lamare v. Dixon, !>. R. 
 6 H. L. 414. 
 
 {I) Dyer v. Hargrave, 10 Ves. 
 505. 
 
 (>/») Re Pitckett and Smith\t Con- 
 tract, 1902, 2 Ch. 258; Dongherti/ 
 v. Gates, 45 Sol. J. 119. 
 
 («) Re Davis and Carey, iOCh.T). 
 601 ; above, p. 205. 
 
 (o) Above, pp. 610—612. 
 
 (p) Above, p. 612 ; Di/cr v. 
 Ilaryrave, 10 Ves. .505. 508 \ Grant 
 v. Munt, G. Coop. 173, 177 ; Siig. 
 V. & P. 331, 332. 
 
 {q) Pickering V. l)oHson,4Tnuut. 
 779, 785 ; Schneider v. Heath, 3 
 Camp. 506, 508. 
 
 (r) See Horsfall v. Thomas, 1 H. 
 & C. 90, dissented from by Cock- 
 burn, C. J., Smith V. Hughes, 
 L. R. 6 Q. B. 597, 605, and 
 doubted in Benjamin on Sale, 
 385, 2nd ed. The decision seems, 
 however, to be in accordance with 
 
 49
 
 770 
 
 OF MISTAKE. 
 
 Misleading 
 conduct. 
 
 Specific 
 I^erformance 
 may be 
 resisted in 
 some cases 
 where the 
 contract 
 cannot be 
 rescinded. 
 Hopr V. 
 iralter. 
 
 accordingly. Tims if craclcs in the walls of a honso 
 be papered or painted over witli intent to conceal them, 
 and the house be then sold, thoug-h without any war- 
 ranty or verbal representation as to its state of repair, to 
 a purchaser, who has inspected it, the contract is void- 
 able for fraud (.s). And any conduct calculated to 
 mislead a purchaser with respect to some material fact, 
 or to divert him from inspection or inquiry, which 
 woidd discover a defect known to the vendor, is equally 
 fraudulent, and may be a ground for avoiding the 
 contract at law as well as resisting its specific per- 
 formance {t). It should be noted that an innocent 
 misrepresentation as to the quality of land sold may 
 be a good ground for the purchaser to resist the specific 
 performance of the contract, notwithstanding that it be 
 insufficient to procure the contract to be rescinded {u). 
 Tims Avhere a house let on a quarterly tenancy was 
 sold as an eligible freehold property for investment, 
 but was being used, unknown to the vendor, as a 
 brothel, the Court of Appeal refused to oblige the 
 purchaser to perform the contract specifically, but also 
 declined to rescind the contract (.r). Tlie reason given 
 by the Court was that the purchaser, if forced to com- 
 plete, would be liable under the Criminal Law Amend- 
 ment Act, 1885, to be fined unless he evicted the tenant. 
 It is submitted that this decision must be referred, in 
 principle, to tlie ground that the defect was incompatible 
 with the enjoyment proniiHed hi/ the coi/fracf, coupled, 
 possibly, with that of great hardship on the purchaser (//) . 
 A property, from which the rent-paying occupier must be 
 
 the law laid down in the cases 
 cited above, p. 7C5, nn. (o), {p), 
 and by Selborne, C, in Coaks v. 
 Hosirell, U App. Cas. 232,230. 
 And see Pollock on Torts, 285, 
 ;jth ed. 
 
 (.s) See Sug. V. & P. 333—335. 
 
 {t) IFalfem v. Moir/an, 3 De G. 
 F. & J. 718, 724 ; Coaks v. Bot- 
 well 1 1 App. Gas. 232, 235, 2.;6. 
 
 («) See Kennedy v. Faneima, S;e. 
 
 Mall Co., L. R. 2 Q. B. 580 ; Re 
 Ben/isier, Jlrond v. Mutiton, 12 
 Ch. D. 131 ; above, pp. 199, 204 
 —210. 
 
 [x) Hope V. IValfrr, 1900, 1 
 Ch. 257, reversintr the decision of 
 Cozens-Hardy, J., 1899, 1 Ch. 
 879, as to specific performmice, 
 and affirming it ou the other 
 point. 
 
 {y) Above, pp. 764, 769.
 
 OF MISTAKE. 771 
 
 immodiately ejocted, on pain of the purohasor becoming 
 liable to criminal proceedings, hardly fulfils the expec- 
 tation of enjoyment, which is raised by the description 
 of an eligible freehold property for investment (s) . Or Specific 
 perhaps the principle may be put in this way — that the nof ?™nt°d^ 
 Court will not enforce the specific performance of a where the 
 contract to purchase a thing, which is positivehj noxious positively 
 in quality, notwithstanding that there were no warranty noxious in 
 of quality, and that in other respects the thing answer 
 the description. For example, a house may be so ill- 
 drained that it is dangerous to live in it ; the vendor 
 may be aware that illness has been actually caused by 
 the state of the drains and maintain silence in this 
 respect ; and yet the purchaser may be unable to avoid 
 performance of the contract. He buys at his own risk ; 
 he ought to have the drains tested for himself; and 
 drains may be tested and put right without any extra- 
 ordinary danger to the workmen [a). If, however, a 
 house were infected witli the germs of disease, such as 
 plague or smallpox, so that any person entering it must 
 incur the danger of catching the malady, and the vendor 
 concealed this fact, it is thought that he could not 
 enforce specific performance ; for the thing sold was 
 actively harmful (/>). The house might indeed be dis- 
 infected, but only at the risk of the health and life of 
 those who entered it to do so. It appears therefore 
 that where one has bought land or a house imder a Purcliaso 
 mistaken impression as to its quality, he must in general ,'^'^taken 
 abide by the consequences of his own mistake, unless impression as 
 the vendor made by warranty or representation some ^^^ ^' 
 promise as to the quality, or actively concealed some 
 defect which was known to him. 
 
 [z) See Hope v. Walter, 1900. apparoutly this fact would not 
 
 1 Ch. '2;)9. be sufficient jjrrouud for rescinding' 
 
 (<i) Sec above, pp. 763 — 767. tlio coutract ; see above, p. 76;') 
 
 [h) See Conifiiiit v. Fotrf.r, 6 M. and n. (o) ; Jl'ayd v. Huhhs, \ App. 
 
 & W. .'<.')8, 3X0, 3S1 ; Chr.stir v. Cas. 13, 24, 25, 29. 
 
 VoicelK f^l L. T. 722, 723. But 
 
 49(2)
 
 772 
 
 or MISTAKE. 
 
 Vendor not 
 bound to 
 disabuse 
 purchaser of 
 his erroneous 
 belief as to 
 the quality 
 of the thing 
 sold. 
 
 It does not 
 alter the case 
 that the 
 purchaser 
 believed the 
 vendor to be 
 warranting' 
 the quality, 
 if the vendor 
 did not know 
 this. 
 
 Not ouly is there no legal obligation npon a vendor 
 of land to disclose to the purchaser any defects known 
 to him in the quality of the thing sold, but further the 
 vendor is not bound to disabuse the purcliaser of an}' 
 erroneous belief, which the purchaser has formed, and 
 whicli the vendor knows that the other has formed, as to 
 the quality of the purchased property (c) . A vendor may 
 well sell a house, which has got dry rot in all the wood- 
 work and is badly drained, to a purchaser, who knows 
 notliing of these defects, but believes to the knowledge 
 of the vendor that the house is in good repair and well 
 drained, and yet the purchaser will not be entitled to 
 claim the rescission of tlte contract ; provided always 
 that the vendor made no representation as to the quality 
 of the thing sold, and did not actively conceal the 
 defect. And tliis is equally the case, even though the 
 purchaser suppose the vendor to be warranting the 
 quality of the thing sold, provided that the vendor were 
 not aware of the purchaser's belief in this respect and 
 had done nothing to induce it. So long as the vendor 
 knows no more than that the purcltaser is mistaken as 
 to the quality, the purchaser's further erroneous belief 
 that the vendor is warranting the quality is no ground 
 for his avoidance of the contract {d). And it does not 
 appear that the above circumstances, namely, the ven- 
 dor's knowledge of the purchaser's erroneous belief or 
 the purchaser's further mistaken impression that the 
 vendor is warranting the quality (if not known to the 
 vendor), are of themselves a sufficient ground to enable 
 the purchaser to resist tlie specific performance of the 
 contract (c) , unless he can move the Court on the grounds 
 
 {(•) KraUs v. Cudo(/an, 10 C. B. 
 59i ; Edwards-Wood v. Majori- 
 bmiks, 7 H. L. C. 806, 809 : Smith 
 V. Hnffhes, L. R. 6 Q. B. 597, 
 607 ; Fry, Sp. Perf. §§ 705, 713, 
 3rd ed. : Turner v. Greet), 1895, 
 
 2 Ch. 205. 
 
 {d) See Stmth v. Jhajhes, L. R. 
 6 Q. B. 597. 
 
 (p) See cases cited above, 
 p. 767, n. '\z).
 
 OF MIS'lAKE. 773 
 
 oi' unfairness or liardsliip if). If, however, the vendor But if the 
 know tliat tlie })urc'haser believes him to be warranting ^f ^\^\^ belief, 
 the quality of the thing sold, and agree to the contract the contract 
 without the intention of warranting according to the want of true 
 purcliaser's expectation, but without disabusing the °°"^^°*'- 
 purchaser of his belief, in that case there is no true 
 consent of tlie parties, and on this ground the contract 
 is void {(j). The same law seems applicable where one, Acceptance of 
 who knows that tliere is a mistake in the terms of an twlce^^OT^' 
 offer, accepts it unconditionally and without coiTecting knows to be 
 the mistake, being minded to take advantage of the 
 other's error. Thus if A. offer to sell to B. Blackacre 
 and Whiteacre for 2,000/., and B., knowing that A. 
 really means to offer Blackacre only or to ask 4,000/., 
 but intending to hold A. to the letter and not to the 
 spirit of his proposal, at once close with the offer, it is 
 thought that A. is not estopped from proving liis 
 mistake, and the contract is void for want of true con- 
 sent. For B. knew that A. thought that B. was 
 promising to take Blackacre only or to pay 4,000/. ; 
 and he ought not to have sought to take advantage 
 of such a mistake (//) . In a case like this the accept- 
 ance of the offer, with knowledge of the mistake 
 in its terras, ai)pears to be plainly fraudulent ; and 
 the acceptor may not take advantage of liis own 
 wrong. The other party therefore has the choice 
 of two alternatives. He nuiy either treat the con- 
 tract as altogetlier void by reason of his mistake, or 
 he may affirm and enforce the contract according to 
 the terms which he had really intended to propose, 
 
 (/) Above, p. 768. man is not bound by the exact 
 
 ((/) Smith V. HiKjhcs, L. K. terms of a desiripti<in or repre- 
 
 Q. B. T)?)?. sentjition whicli lie has put for- 
 
 [h) See U'rlisfrr v. (Wif, 30 ward or made to another, where 
 
 Beav. G'l, as explained in Tniiip/in the other has notice that its terms 
 
 V. Jatms, 15 Ch. D. "21.5. 'Ill ; are iuaccuiate ; above, pp. Ol'i, 
 
 Ttiijct V. Mitixhitll, 28 Ch. D. 'i;)."), 7(;<l, andn. (/y) : Cn/rriffi/ v. ll't/- 
 
 ■_'l)0. The ease appears to be /(f//«.v, I Ves. jun. L'lO ; Tuwns/iciid 
 
 governed liy tlie same jirimiple v. Slmiijrovm, (> Vcs. 328, 311. 
 as is applied in holding thai a
 
 74 
 
 OF ISILSTAKE. 
 
 treating the acceptance as an assent to a contract, of the 
 real terms of which the acceptor had notice, and claim- 
 ing to have the written agreement rectified on acconnt 
 of a mistake comuion to both partie-s in the expression of 
 its terms. And if he choose this alternative, the acceptor 
 will be estopped \ij his condnct from setting up the 
 want of true consent as a ground for avoiding the con- 
 tract, or from objecting to rectification on the ground 
 that the mistake was made bj the other party alone, 
 and was not common to both of them (/). 
 
 Mistake as 
 avoiding true 
 consent in 
 equity. 
 
 Unilateral 
 mistake in 
 equity. 
 
 So far, in discussing the subject of mistake as ex- 
 cluding any true consent between the parties, and so 
 avoiding the contract altogether, we have dealt mainly 
 with the rules of the common law (/.•). Where the 
 contract is void on this ground, the parties are in the 
 same position in equity as at law. I'here can be no 
 question of any order for specific performance of the 
 contract, for this remedy is, as we have seen(/), only 
 granted to enforce a valid contract. But where one 
 party has entered into the contract under a mistake, 
 which is not shared by the other, and the one is 
 estopped at law from setting up his mistake and proving 
 his true intention, the parties are not always in the 
 same position, as regards the equitable remedies to 
 enforce the contract, as they are at law. Thus where 
 the vendor makes a mistake in the preparation of the 
 particulars of sale, and includes therein more than he 
 really meant to sell {m), but the description is precise, 
 so that a man would naturally and reasonably suppose 
 that the vendor meant to sell what he actually offered, 
 
 (i) See Garrard v. Fninkcl, 30 
 Beav. 445 ; Harris v. Pcppcrell, 
 L. Ti. f) Eq. 1 ; liloomrr v. Spittle, 
 L. R. i:^ Eq. 427 ; ragrt v. Mar- 
 kIkiII. '28 Ch. D. 'l'>h ; as explained 
 in .1/r/// V. I'latt, 1900, 1 Cli. OUi, 
 6Jo ; roUock on Contract, 495, 
 
 7th cd. : below, pp. 794 sq. 
 
 (/•) Above, pp. 749 sq. 
 
 {!) Above, p. 761. 
 
 [ill) See Rr Fairrr'tt (Did Hulmrs^ 
 42 Ch. IJ. 150: above, p. 728; 
 Maj V. I'liilL, V.m), I Ch. 016.
 
 OF MISTAKE. 
 
 tho contract is enforceable against the vendor at law, 
 since he would be estopped from proving his mistake (ii). 
 The vendor is also estopped from setting up his mis- 
 take in equity to this extent, that he is not entitled to 
 claim the rescission of the contract (o), or to insist 
 himself on its specific performance, except on the terms 
 of conveying the whole of the property described, 
 if he be able to do so { p). If he be not, he may, as we 
 have seen (7), enforce specific performance with an abate- 
 ment of the purchase money, where the deficiency is 
 insubstantial or the contract contained an exjjress sti]»u- 
 lation as to compensation for misdescription. But if 
 the purchaser sue for specific performance of the contract, 
 then the vendor may in certain circumstances be entitled 
 to set up his mistake as a defence to the action. This 
 is owing to the discretionary nature of the remedy of 
 specific performance, and to the fact that in granting 
 or withholding such relief the Court will have regard to 
 circumstances outside the contract and especially to the 
 conduct of the parties, and may refuse specific perform- 
 ance on the ground of great hardship (r). But it is not 
 in every case that a party sut^d for s[)ecific performance 
 may avail himself of his own mi^take as a defence to 
 the action. If the mistake were entirely due to the 
 defendant's own carelessness or inadvertence, the plaintiff 
 having done nothing to induce or contribute to the error, 
 nor having sought knowingly to take advantage of it, 
 and if it will inflict no great hardship on the defendant 
 to enforce him to perform the contract specifically, 
 then it appears that the defendant will be equally 
 precluded from resisting specific performance in etiuit}' 
 as from avoiding his liability at law (s). Thus 
 
 (m) Above, pp. 7o(),7o-{,7.')-'),7o9. nairU, 2 ilai-. \- CI. 1, S. 
 
 (o) ^lliiiiilei/ V. Kiiiiiiiini, '1 //) Aln)V(\ pp. ~T,i, 727—720. 
 
 Ma<-.. tc tJ. 1. 7. 8 ; Srof( v. (V) Abnv<>. pp. 39, 7('S. 
 
 Littlcdoh', 8 E. & B. 81."). (v) Taniplm v. Jumcs, \h C\\. J). 
 
 (p) Miiiisrr \. Kack, 6 Hare, IXr^; G<>.id<inl\\Jcftejf/60\\\li. 
 
 443, 447, 448; Ahanlcij v. Kut- 209, 270. 
 
 775
 
 776 
 
 OF MISTAKE. 
 
 Specific 
 performance 
 against a 
 party mis- 
 taken may be 
 refused on 
 the ground of 
 hardship. 
 
 where the vendor has in these circumstances in- 
 advertently included in the particulars of sale more 
 than he meant to sell, he will nevertheless be obliged 
 at the purchaser's suit to perform the contract specifi- 
 cally, and must convey the whole property described, 
 if he can ; or if he cannot, he must convey what he 
 can with a proportionate abatement of the price (/). 
 So it appears that, in the like circumstances, a pur- 
 chaser who has by his own mistake signed a contract 
 to buy a property smaller than be supposed it was {it), 
 or even different from that which he intended to 
 buy (,!■), cannot resist specific performance on thegroimd 
 of his mistake. But where it would be a great hard- 
 ship on the party mistaken to oblige him to perform 
 the contract specifically, the Court will not grant this 
 relief to the other party, but will leave him to pursue 
 his remedy at law (//). Thus where one wrote a letter 
 offering by mistake to sell his land for l,2o0/., meaning 
 
 {() MaelarAc v. Kcal^eth, 7 Gh. 
 D. GTo ; Diias v. Slaford, 7 L. R. 
 Ir. 590. 605, 606. 
 
 («) TaiiipliitY. Jd/if's, 15 Ch. D. 
 215; Guddanl v. Jeffreys, 30 W. R. 
 269. 
 
 (.r) Van Prnagh v. Enridtje, 
 1902, 2 Ch. 266, Kekewich, J., 
 reversed on other grounds, 1903, 
 1 Ch. 434 (above, p. 761), fol- 
 lowing the rule laid down in 
 Taiiiplin v. J(nius, ubi sup. in 
 preference to the decision in 
 Jlalins V. FreeiiKtii, 2 Keen, 25, 
 where specific performance was 
 refused at the vendor's suit in 
 exactly the same circumstances. 
 ]?ut note that Kekewich, J., held 
 that in the circumstances of the 
 case bi'fore him it was no great 
 hardship to enforce specific per- 
 formance against the purchaser, 
 and expressly recognised that, if 
 this were not so, specific perform- 
 ance might have been refused ; 
 see 1002, 2 Ch. 271, 272. It is 
 respectfully submitted, however, 
 that the learned judge was right 
 
 in recognising that the case of 
 Tniipliii v. Jdincs set definite 
 limits to the equitable rule ex- 
 pressed of old in the proposition 
 that the Court will refuse specific 
 performance on the ground of 
 mistake (see Xcap v. Abbott, C. P. 
 Coop. (1837-8), 333; 1 C. P. Coop. 
 t. Cottenham, 382; Manser v. Back, 
 6 Hare, 443, 447, 448). The 
 decision in Tamplin v. Jaiin-.s shows 
 that the Court will not now 
 refuse specific performance on 
 the ground of unilateral mistake 
 alone, and that, notwithstanding 
 that the parties' minds in making 
 the contract were not in truth at 
 one, a defendant to an action in 
 equity for specific performance of 
 the contract may be estopped from 
 saying so. See above, p. 762, 
 and u. («). 
 
 (y) Tumpl'iH V. Jamen, 15 Ch. D. 
 215, 217, 221 ; Goddardx. Jeffreijs, 
 30 W. R. 269, 270 ; Van Vraaifh 
 V. Kvcrldi/e, 1902, 2 Ch. 266, 271,
 
 OF MISTAKE. 777 
 
 to say 2,250/., and the ofPer was a(3cepted, tlie Court 
 refused to grant specific performance at tlie purchaser's 
 suit (~). And wliere a vendor has hy liis own mistake 
 included in the particulars of sale much more than he 
 meant to sell, it appears tliat the Court may decline, on 
 the ground of hardship, to order the specific perform- 
 ance of the contract at the purchaser's suit, unless he 
 elect to take, without compensation, what the vendor 
 really intended to sell (n). So also we have seen that 
 where a vendor has innocently made a serious error of 
 description to his own disadvantage, and has so pur- 
 ported to sell a much larger property than lie has, 
 tlie purchaser will not be entitled to enforce specific 
 performance with compensation, if this would be a 
 great hardship on the vendor (h). And where one I'arty Whereonehas 
 has contributed in any way to the other's mistake, as to ^}^^, other's 
 if the particulars of or contract for sale contain any mistake, 
 misrepresentation or any ambiguity likely to mislead a 
 man of ordinary intelligence using ordinary care, then 
 tlie other party may resist the specific performance of 
 the contract on the ground of his mistake (r). If the Wherconclias 
 description of the land sold in the written agreement error iu the 
 erroneously comprise more than the vendor means to particuhirs. 
 sell, but the purchaser have notice, before or at the 
 time of sale, what land the vendor really intends to 
 part with, the purcliaser cannot enforce the specific per- 
 formance of tlie contract according to the written descrip- 
 tion ; for the vendor may in defence prove b}' evidence 
 outside the written agreement that it does not express 
 
 (:) irc/i^/n V. r,ci/, 30 Ben v. (/;) Above, p. 726. 
 
 ii"2 ; see above, p. 773; truod v. , \ ir • „, , . -,- 
 
 Scarth, 2 K. & J 33. . , .'') ^Jf/ff'^^on^- Clowes, ,, \ es. 
 
 olO ; tiii.dislatid V. Diamleij, 29 
 
 (rt) Alcauk;/ v. Kbniaird, 2 Beav. 430 ; Tnmphn v.Jaiiiin, 1.) 
 
 Mae. & (J. 1. 7; Ihirliam v. Ch. D. 21o, 216, 221; Gnddard 
 
 l.iyiird, 34 Beav. 611. 614; Uiidd v. .IvfTrei/s, 30 W. R. 2(!9, 270: 
 
 v. LimvclU", r.XtO, 1 (Jh. SI."), S20 : ///// Vr'mnih v. lucridyr, 1002. 2 
 
 above, p. 724. (li. 266, 271, 272.
 
 778 
 
 OF MISTAKE. 
 
 Iho parties' true iutentiou (d). And as wo have seen (c), 
 if in sucli case the vendor have no title to the land 
 erroneously comprised in the contract, the purchaser is 
 not entitled to claim specific performance with com- 
 pensatifm. If one party were aware of the other's mis- 
 take and wrongfully took advantage of it, he (sannot 
 souo-ht totake ^^^^'^^^ ^^^^ Specific performance of the contract against 
 advantage the party mistaken ( /'). Indeed in this case, as we 
 have seen (//), it may be contended that the contract 
 is void at law. 
 
 Where one 
 knew of the 
 other's mis- 
 take and 
 
 Common mis- 
 take as to 
 some faiit 
 which is a 
 condition 
 precedent to 
 the formation 
 t)f A contract. 
 
 Not only may a contract be void on account of a 
 mistake excluding any real consent of the parties, 
 where the mistaken party is not estopped from assert- 
 ing his error (h) ; it may also be void where the parties' 
 minds are really at one as regards the present intention 
 of contracting, but they are under a coiiwion ininfah-e 
 with respect to si^nie fact, the existence of which is a 
 condition precedent to their uniting in the formation 
 of a contract. On this ground a contract for the sale 
 of a thing which both parties believe to be in existence, 
 but whicli has really ceased to exist, is altogether void (/). 
 For example, where an apparent contract is made for 
 the sale of a life estate, both parties believing the 
 tenant for life to be alive, when in truth he is dead, 
 the contract is altogether void ; the purchaser may 
 resist its performance ; and if it should have been 
 completed by conveyance the conveyance may be set 
 aside, and the purchase money may be recovered as 
 money paid under a mistake of fact(/i). The same 
 
 [d) Cahcrleij v. Wdlwutti, 1 Vcs. 
 j un. 'ilO ; lhiv)ish(iid v. Stamjroom, 
 (5 Ves. 328, 311 ; above, pp. 729, 
 769, and u. {p); below, pp. 782^v/., 
 788. 
 
 (f) Above, p. 72G. 
 
 (./■) IVrlister V. Cecil. 30 Beav. 
 02, as explained in Tmnpliit v. 
 James, lo Ch. D. 215, 221, 222. 
 
 (//) Above, 13. 773. 
 
 {ft) Above, pp. 749 .■.'/. 
 
 (j) Hitchcock V. GuiiliiHis, 4 
 Price, 135 ; Strickland v. Tiirtur, 
 7 E.\. 208 ; Cottturier v. Ilantie, 5 
 H. L. C. 673. 
 
 (/,) See Hitclicuck v. Oiddinys, 
 4 Price, 135 ; IStricklaiidv. Turner, 
 7 Ex. 208 ; Cochrane v. Willis,
 
 OF MISTAKE. 
 
 law applies to the sale of an estate in remainder or 
 reversion expectant on a life estate, if made on tlie 
 basis that the tenant for life is living, when he is in 
 fact dead ; or to the sale of a. reversion or remainder 
 expectant on an estate tail, if actnally barred at the 
 time of sale, the parties supposing it to be still in 
 existence (/). So it appears that if a contract be made 
 for the sale of land or a house in the belief that tlie 
 property is existing in its usual state, the agreement is 
 void if at the time that it was made the land were 
 washed away by the sea, or the house destroyed by 
 fire (tn). In sucli cases, liowever, the thing sold must 
 have been utterly destroyed so as to have ceased to 
 exist at tlie time of sale ; mere deterioration in quality, 
 though unknown to both parties, is not sutficient to 
 avoid the contract, if there remain in existence some- 
 thing which answers to the description of the thing 
 sold {ii). For example, a contract for the sale of laud 
 would not be void if the land Avere, imknown to the 
 contracting parties, temporarily flooded. And in the 
 ease of the sale of a house destro3'ed by fire, the 
 validity of the contract would appear to depend on the 
 question, wdiether the house were a principal object of 
 the sale, or were merely accessory to the land sold. 
 Thus the sale of a single house in a town seems to be 
 void if the house were no longer in existence at the 
 time of sale. But on the sale of a large estate, com- 
 prising several farms, the fact that some cottage or 
 farm house or building was burnt down before the sale 
 appears to amount to no more than a depreciation in 
 quality and to be insufficient to render the contract 
 altogether void on the ground of common mistake. A 
 
 L. R. 1 Ch. ")S; Scvtl v. Couhoii, Beav. 188. 
 
 l!)0;j. -1 Cli. •J4'.); also Hood v. (m) Hi(,/,cor/,- v. (iii/dui./s. 1 
 
 Mrk'iii'.oii. l!)0;t, 1 Ch. 47G, .stated Tric^, 13.j. 141. 
 above, p. 752, n. (/). («) See Jinrr v. (^i/mu;,. 3 M. A: 
 
 1,0 .S6. CC. ; Coli/cr v. 67./y, 7 W. o'd\i. 
 
 79
 
 780 
 
 OF MISTAKE. 
 
 Depreciiitiou 
 in quality 
 unknown to 
 the contract- 
 ing' parties^. 
 
 mere depreciation in quality, which was imknown to 
 both parties at the time of sale, appears to be governed 
 by the same law as applies to the case of unknown 
 latent defects (o). If, however, it were an essential 
 condition of the sale that the thing sold possessed a 
 certain quality or were in some particular state of 
 fitness (j)), then it seems that, in case of a depreciation 
 in quality unknown to both parties at the time of sale, 
 tlie contract would be void on account of tlieir common 
 error as to a fact which formed the basis of their 
 contracting. 
 
 ( 'nniuiou 
 niistaki' a 
 private rij 
 
 < to 
 :ht. 
 
 For this purpose a mistake in a matter of private 
 right, such as a man's title to some particular piece of 
 land, stands on the footing of a mistake of fact. Thus 
 if A. agree to sell Blackaere to B., both parties believing 
 it to belong to A., and it turn out afterwards that the 
 land really belonged to B., the contract is void, B. may 
 resist its performance either at law or in equity, and if 
 it have been completed, the conveyance may be set aside 
 and the purchase money recovered (y). 
 
 Mistake in the 
 expression of 
 consent. 
 
 !^ 2. — Of Jlisfaki' ill the v.rprcHHioii of CoHwiif, (did if.s 
 licet ificdf ion. 
 
 It has been already mentioned (r) that, besides mis- 
 take avoiding an apparent contract or conveyance on 
 the ground of want of true consent, there may be 
 mistake in the expression of a true consent ; and that 
 in this case the agreement may generally be rectified. 
 We will now consider this subject. 
 
 (o) Above, p. 764. 
 
 \p) See above, p. 763. 
 
 [q) JiinijIiiDii V. li'ni;//iHiii, 1 Yes. 
 sen. \'1G : Bro/n/htoii v. Hntt, 3 Do 
 G. &J.oOr; Cuijjjrrv. r/nbbs,L.'R. 
 2 H. L. 149; Joins v. Clifford, 3 
 
 Ch. D. 779 : Huddersjicld Biiiikiug 
 Co., Ld. v. Hciinj Lister tj- Sux, I.d., 
 1.S95, -2 Ch. 275, 281 ; Allcurd v. 
 M'alkcr, 1896, 2 Ch. 369; lie 
 Huberts, 1905, 1 Ch. 704. 
 (r) Above, p. 748.
 
 OF MISTAKE. 781 
 
 Tlie rectification of a written instrument (in wliicli Rectification 
 form, as we have seen, a contract for the sale of land is '.'* written 
 
 J ' ^ instruments a 
 
 required to be made (s) ), on the ground of its not matter of the 
 
 1 £ £ 1 • i. 1 i.1 i. • exclusive 
 
 expressmg, by reason or iraud or mistake, tlie true m- jurisdiction 
 
 tention of all parties thereto, is a matter depending "f Courts of 
 
 entirely on the jurisdiction of Courts of Equity now 
 
 vested in tlie Su})reme (Jourt of Judicature [t). And -A-n exception 
 
 we will beghi by reminding the reader that the exercise that extrinsic 
 
 of this jurisdiction forms an exception to the general rule e^'i'lenceisnot 
 
 "' . [> T • admissible to 
 
 applied equally in Courts of Law and Equity (»), that explain or 
 extrinsic evidence of the intention of the parties to a i^uJt"^i]^ents^ 
 written instrument is not admissible to explain or vary 
 the terms of the writing (,r) . In other words, the 
 general principle is that the parties are not at liberty to 
 prove by evidence outside the instrument that thn in- 
 tention expressed therein was not their intention ; or 
 more briefly, tliat they are bound by the words which 
 tliey have used in the writing, no matter what they (the 
 parties) u/caiif (//). The result of this general principle 
 is that some matters, which are really errors in the 
 expression of consent, are dealt with by tlie Courts in 
 the course of their construction or interpretation of 
 written instruments which they are prayed to enforce. 
 Thus the Court will correct all errors which are apparent Correction of 
 on the face of any written instrument as a matter of the errors!^ 
 construction or interpretation of its terms and without 
 admitting extrinsic evidence to explain them (s). So 
 
 {.«() Above, p. 3. W. 374 ; Dnrd. Norton v. Webster, 
 
 (/) Ball V. Storic, 1 Sim. & Stu. 12 A. cfc E. 442 ; linrlon v. Dawes, 
 
 210,211); sf>c Wms. Real Prop. 10 C. B. 261 ; Abro/ v. Cru.r, 
 
 107, 21st ed. L. R. 5 C. P. 37 : Er'aris v. Ro, , 
 
 {it) Parteric/iev. Poir/rl, 2 Atk. L. R. 7 C. P. H'.S : Henderson 
 
 383, 384; Rir/i v. Jar/.son, 4 Bro. v. Arthur, 1907, 1 K. B. 10; see 
 
 C. C. r)14, 6 Ves. 334, n. ; Jlall above, pp. G40, G41, 6()0. 
 
 V. Storii, 1 Sim. A: Stu. 210, 218, (y) J>oed. Templcmaxx. Marthi, 
 
 21!); Itrailfordw Rimniei/,:^ Beav. 4 B. & Ad. 771, 783, 786 ; Doe d. 
 
 431. (iwillim v. Gaillim, b B. & Ad. 
 
 (.r) Rat land's rase, .i Rep. 26 ; 122, 129 ; Ricknian v. Carstairs, 
 
 Vrestonv. Mermia,'! W. Bl. 1249 ; ib. 6.')1, 663 ; above, p. 750. 
 
 Ooss V. Xufient, o B. & Ad. .)8, 64, {:) foles y. Halme, 8 B. & C. 
 
 65 ; Adams v. Jf'urdlc;/, 1 M. & .'>68 ; Ifilson v. Jnison, r, H. L.
 
 782 
 
 OF ISriSTAKE. 
 
 also where the terms of some agreement embodied in a 
 written instrument are upon the face of it ambiguously 
 or inexactly expressed, the Court will not, as a rule, 
 admit extrinsic evidence of what the parties' intention 
 was, but will gather their intention from the written 
 instrument alone, and decide, on consideration of the 
 words used therein, what interpretation shall be given 
 to them, or whether they bear any meaning at all {a). 
 
 Eectification Having thus adverted to the rule, to which rectifica- 
 
 ™med*Avhe're ^^'^'^ forms an exception, let us pass on to rectification 
 
 a written itself. Courts of Equity have jurisdiction to rectify a 
 
 instrument 
 
 C. 40, 66, 67 ; Sug. V. & P. 171, 
 note (1) ; lir DnnieVx Setf/ciiinif, 
 1 Ch. D. 375 ; Greenimod v. 
 Gnetmood, T) Ch. D. 951 ; Moiir- 
 ninndx. Le Clair, 1903, 2 K. B. 
 2 Hi; Be Dayrell 1904, 2 Cli. 
 lOT) ; R<' Alexander'' s Sfiltlrinoit, 
 1910, 2 Ch. 225 ; Norton on 
 Deeds, pp. 82 tq. 
 
 (a) AHham's case, 8 Rep. loOb, 
 155 ; Cronmc v. Lediard, 2 My. & 
 K. 251 ; Sanndersov v. Pijjcr, 5 
 Bing. N. C. 425 ; Norton on 
 Deeds, p. 98 ; see also Hic/j/yno)/ 
 V. C/oices, 15 Ves. 516 : Cloues 
 V. Mic/ffiiisoii, I V. & B. 524 ; 
 Sug. V. & P. 161 ; Jfarshall v. 
 Berridf/e, 19 Ch. D. 233. This 
 is hardly the place to state in 
 full the rules, with their ex- 
 ceptions, as to the admission of 
 extrinsic evidence in interpreta- 
 tion of written instruments. The 
 reader is referred to Stephen on 
 Evidence, Arts. 90—92 ; Norton 
 on Deeds, Chaps. VI., VIII. ; 
 Wiu'ram on Wills; L. Q. R. xx. 
 245. But it may be pointed out 
 that, whilst extrinsic evidence of 
 external facts, of her than the fact 
 of what the parties actually in- 
 tended, is admissible to elucidate 
 descriptions, apparently capable 
 of being reduced to certainty by 
 such evidence, of persons or 
 thing.s mentioned in the writing, 
 evideuco of the actual intention 
 
 of the parties is onli/ admi.s.sible 
 where it turns out, after attempt- 
 ing to elucidate a desci'iption of 
 the above character by proof of 
 xi/ch exteniHl facts, that the de- 
 scription is equally applicable to 
 several objects. Sef above, p. 760 ; 
 aiifit/neii'' a ciine, 5 Rep. 68 ; Alt- 
 hani's case, 8 Rep. 155 ; Jones v. 
 Xeu-man, 1 W. Bl. QQ\ Miller v. 
 Travers, 8 Bing. 244. 248 ; Doe d. 
 Mor'/an v. Morgan, 1 C. & M. 235 ; 
 Boedi. Gord v. Needs, 2 M. & W. 
 129, 139, 140; Doe d. Bibcocks v. 
 Hiseocks, 5 M. & W. 303, 368, 
 369; Be Hahbuck, 1905, P. 129; 
 NortononDeeds, p. 104. We may 
 also mention here that the rule in 
 question does not prohibit the 
 proof by oral evidence of some 
 stipulation collateral and addi- 
 tional to a written contract and 
 not inconsistent with the terms 
 expressed in the writing; Zindlei/ 
 V. Lacei/, 17 C. B N. S. 578"; 
 Jfalpas V. London (S,- South Western 
 Bl/. Co.,!.. R. 1 C. P. 336; Morffan 
 V." Griffith, L. R. 6 Ex. 70 ; 
 Erskine v. Adeane, L. R. 8 Ch. 
 756 ; Lamarc v. Dixon, L. R. 6 
 H. L. 414 ; Angellv. Duke, L. R. 
 10 Q. B. 174"; De La.<<s(ille v. 
 Gmldford, 1901, 2 K. B. 215; 
 Frith V. Frith, 1906, A C. 254; 
 Be Taiihr, 1910, 1 K. B. 502, 
 572, 581.
 
 OF MISTAKE. 783 
 
 written instrnmpnt purportino^ either to contain or to '^^^•^ "»* 
 
 express thp 
 
 carry out an agreement between the parties tJiereto, it parties' real 
 it be proved by clear evidence that the instrument as ^^^ement. 
 drawn does not embody or give effect to their real 
 agreement {h). In order to make out a case for rectifi- 
 cation, it must be sliown tliat the parties have actually 
 concluded an antecedent contract at variance in some 
 respect witli that expressed to be contained in or carried 
 out by the written instrument, and that they intended 
 to embody or give effect to that antecedent contract in 
 or by the writing. In the first place, there must be an 
 antecedent contract ; no inconclusive negotiation or 
 honourable understanding void at laAv is sufficient (c) . 
 Secondly, there must be a common intention of embody- 
 ing or giving effect to that contract in or by the 
 writing (ff). That this is an essential condition of 
 obtaining rectification appears from the fact that, if tlie 
 parties agree to omit some term of their real contract 
 from the written instrument, no rectification thereof 
 can be obtained (r). It is likewise shown in the case of 
 contracts required by the Statute of Frauds (/) to be 
 put into writing. If the antecedent contract were one of 
 these and there were a common intention to embody or 
 give effect to all the terms of that contract in or by the 
 writing, the writing may be rectified (r/) ; and it is no 
 defence to an action for rectification to plead that the 
 
 lf>) Uvidiife V. Hiilfpetiny, 2 P. C. C. 02 ; rurtinorr v. Morris, 2 
 
 W. 151; Mottciix y.' J.o),th,)i As- Bn.. C. C. 219; Toini-^hni'l v. 
 
 snrance Co., 1 Atk. .54.); llexkle StiDttjroom, 6 Ves. 328, X\'l, ;};j3 ; 
 
 V. Jlui/(il Kxchiiixjc Axsurame (Jo.. Voiii/lon v. Staifs, 2;i L. J. Cl». 
 
 1 Ves. sen. 317; Baker v. I'liinc, ib. 87o. 
 
 4.")6 ; Ball v. Sinrif, \ Sim. & Stu. (/) Stat. 29 Car. II. c. 3, s. 4 ; 
 
 210; Cowen v. Truefitt, Lil., 1899, above, p. 3. 
 
 2 Ch. 309; above, p. 644, n. {k). [q) Mortimer v. Shorlall, 2 Dru. 
 {c) Mnrkeiizie v. (Joiihou, L. K. & War. 363, in which ra.sc a loaso 
 
 8 E(j. 368 of land for life cxccutetl in jiur- 
 
 {dj See T'nultr v. I-'otrkr, 4 Do suanco of a jiarol atrrponu-iit was 
 
 (j. & J. 2.')0, 26-5. rt'otiticd : ('owr/i v. Triafiti. I.,l., 
 
 (<-) Pitcnini v. Oi/hoiirnf, 2 Ves. ISdO. 2 Ch. 309. 
 
 sou. 37-'); Irnhainw (.'hilil, 1 Bro.
 
 784 
 
 OF MISTAKE. 
 
 antecedent contract was one wliicli the Statute of 
 Frauds (/-•) requires to be in writing, and that it was 
 made b}' word of mouth only (i). For if made by- 
 word of mouth, the contract was not void, but 
 only not enforceable (/.•) ; and if the parties really 
 assented to such a contract and had also a common 
 intention of reducing or giving effect to all the terms 
 of that contract to or by writing, and this intention 
 were frustrated owing to the omission or mis-statement 
 by mistake of some material term of the contract, it 
 would be giving countenance to fraud to allow the 
 defendant to repel proof of the mistake under cover 
 of the statute (/). If, however, the writing purport to 
 contain the contract, but omit some material part thereof, 
 and there were no common intention to put the whole 
 contract into writing, the document cannot be rectified. 
 If this were not so, the Statute of Frauds could never 
 be enforced. But, as we have seen (/>?), a person charged 
 upon such a contract evidenced by a written memoran- 
 dum is at liberty to plead in defence tliat tlie memo- 
 randum is insufficient to satisfy the statute by reason 
 of its not containing the parties' Avhole agreement ; and 
 it does not appear that this defence can be met by a 
 claim for rectification, unless it can be shown that there 
 was a common intention of signing a perfect memo- 
 randum and that the omitted terms were left out by 
 mutual mistake. Thirdly, the antecedent contract and 
 the common intention of embodying it or carrying it 
 out by tlie writing must be proved by very clear evi- 
 
 (//) Stat. 29 Car. II. c. 3, s. 4 ; 
 above, p. 3. 
 
 (i) Thomas v. Darix, 1 Dick. 
 301, 303 ; Johnson v. Brayge, 1901, 
 1 r;h. 28, 3G, 37. 
 
 (Z-) Above, p. 11. 
 
 (/) See Fitcairn v. Of/bourne, 2 
 Ve8. sen. 37o ; Tvmher v. Mathcm, 1 
 Bro. C. C. 52, :^\ ; Clarkex. Grant, 
 14 Ves. r)19, 524 ; Fry, Sp. Perf. 
 
 \\ 567. 814, Srded. ; above, p. 12. 
 It is submitted that the dictum to 
 the contrary of Alderson, B., in 
 A.-G. V. Situ-ell, 1 Y. & C. Ex. 
 559, 583, takes no account of the 
 earlier authorities cited in this 
 and the preceding notes and is 
 not good law. 
 
 [in) Above, pp. 4, 8, 9.
 
 OF MISTAKE. 
 
 V »o 
 
 denoe ; for, as we have seen (n) , the rule is that, when 
 several persons have joined in embodying some legal 
 agreement or act in writing, they are bound by the 
 intention expressed in the writing ; and the whole 
 burthen of proof lies on the person who asserts that 
 the writing does not express the parties' real inten- 
 tion (o). For this reason the Court attaches great 
 weight to the denial by the party, against whom rec- 
 tification is claimed, of an}' intention at variance ^\ith 
 that expr.-ssed in the writing : though it does not allow 
 such denial to be a bar to the relief claimed, if overcome 
 by clear evidence to the contrary ( p) . And for this 
 reason also, where it is shown that the instrument 
 sought to be rectified was executed in pursuance of and 
 actually carries out at all points a j^rior agreement in 
 HTifing, extremely strong evidence is required to induce 
 the Court to believe that a mistake has occurred in 
 drawing up the subsequent instrument. In such cir- 
 cumstances it is obvious that there could have been no 
 mistake in the subsequent instrument unless the parties 
 had come to a new agreement after they had made the 
 agreement in writing, or had made a mistake in the 
 
 (w) Above, p. 7S1. 
 
 (o) Htnkh V. Royal K.rchnHffv 
 AxHurancf Co., I Ves. sen. 817,319; 
 Townxhetvl v. Stangronm, (J Ves. 
 3i8, 333 ; Fouler v. Fouler, 4 De 
 G. & J. 2oO, 264 ; T>icker v. Ben- 
 nett, 38 Ch. D. 1,9. 
 
 ( p) I'itrairn v. Of/bourne, 2 Ves. 
 sen. 37o, 379 ; Toicnuhend v. 
 SluHf/room, (5 Ves. 328, 334 ; 
 Bloom-r v. Spittle, L. R. 13 Eq. 
 422, stated below, p. 796. It is 
 submitted that there is no rule, 
 as sug-gested by the dicta of Lord 
 St. Leonards in Morfinnr v. 
 Shoriall, 2 \)r. & War. 363, 374, 
 and AJderson, B., in A.-G. v. 
 SUwell, 1 Y. & C. 0.59, .5S3 (ac- 
 cepted in Pollock on Contract. 
 .513, 7th ed.). that if the alleged 
 niLstake be denied by one of the 
 parties to the written instniment, 
 
 V/. 
 
 jiarol eNadence alone is inadmis- 
 sible to prove it. Such a rule 
 would obviou.sly be an inducement 
 to fraud ; and the weight of 
 authority is against Lord St. 
 Leonards' dictum. Parol evidence 
 was admitted and prevailed in 
 face of the defendant's denial in 
 Pitcairn v. Oyhonruf, 2Ves. sen. 37'), 
 379; Garrard \ Fran/,rl,,iOBt'll\. 
 445 ; and I'aaet v .Marshall, 2S 
 Ch. D. 2,55 ' And Baron Alder- 
 son's true meaning appears to 
 have been that the Statute of 
 Frauds prohibits the admission 
 of parol eviden<te to pro\'e a aise 
 for rectification in the face of the 
 defendant's deuial. But as we 
 have seen, this pr(i]>c>.>ition can- 
 not be upheld ; al><)ve. pp. 7S3, n. 
 (.</), 784, n. (i). 
 
 50
 
 786 
 
 OF MISTAKE. 
 
 prior agreerapnt in writing as well as in the instrument 
 purporting to give effect to it. In the former case 
 the plaintiff, who would scarcely be claiming rectifica- 
 tion except to obtain the inclusion of some term in his 
 own favour, is in this difficulty, that if tlie new term 
 were gratuitously agreed to by the other party, there 
 is for want of a consideration no contract between them 
 to execute the subsequent instrument as alleged {q) : 
 though if there were a consideration for the new term, 
 it appears on principle that he ought to be admitted to 
 prove the contract so constituted. In the case of an 
 alleged mistake, both in the antecedent agreement in 
 wi'iting and in the instrument giving effect to it, the 
 plaintiff is in truth claiming the specific performance 
 with a parol variation of the antecedent contract in 
 writing ; and in this case the authorities regarding his 
 right to obtain relief are conflicting. These authorities 
 it is now proposed to examine. 
 
 It has ever 
 been held that 
 one may claim 
 rectification 
 as plaintiff. 
 
 Now it has been clearly established from the earliest 
 times of modern equitable jurisdiction that a man may 
 well claim, as plaintiff, the rectification of a Aviitten 
 instrument on the ground of a mistake common to all 
 parties thereto in the terms of the writing, and may 
 prove by extrinsic evidence that they entered into some 
 antecedent contract at variance with the terms of the 
 instrument and had a common intention of embodying 
 or carrying out that contract in or by the \vi-iting (r) . 
 And it is, as we have seen (s) , equally clear that the 
 (Statute of Frauds is no bar to obtaining such relief, 
 notwithstanding that the antecedent contract were one 
 of those required by that Act to be put into writing, 
 but were made by word of mouth. It is also perfectly 
 
 (q) Price v. Dyer, 17 Ves. 356, 364; above, p. 783. 
 {r) Above, pp. 783, 784, and notes {b), {g), (t). 
 (s) Above, p. 783.
 
 OF MISTAKE. TS"! 
 
 well settled that rectification will be granted in equity Rectification 
 not only of written instruments in the nature of executed fnstruments 
 
 contracts, those which are meant to give effect to some embodying 
 
 p . . 1 . 1 executory- 
 
 antecedent agreement, out also of writings which are as well as 
 
 merely intended to embody an agreement of an execu- ^^^eem t 
 tory nature {f). For example, a written contract to sell 
 land may certainly be rectified just as well as a convey- 
 ance of land upon sale(/0- Fvu-thermore, it appears Claim for 
 that under the old Chancery practice a claim for the ^JJJ^jft'ifJ''" 
 rectification of a written instrument, which embodied joinod with 
 an agreement of an executory nature, might Avell be relief under 
 ioined with a claim for equitable relief in respect of the the writing 
 
 A 1 1 1 1 roctined. 
 
 enforcement of the agreement (x) . And under the rules 
 of practice introduced by the Judicature Act of 187'i (//), 
 the Supreme Court is required, in every cause pending 
 before it, to grant all such remedies whatsoever as any 
 of the parties thereto may appear to be entitled to in 
 respect of any and every legal or equitable claim pro- 
 perly brought forward by them respectively in such 
 cause ; so that, as far as possible, all matters in con- 
 troversy between the said parties respectively may be 
 completely and finally determined, and all multiplicity 
 of legal proceedings concerning any of such matters 
 avoided. Now it would appear to be a necessary con- 
 sequence of these rules that a man may first apply as 
 plaintiff for the rectification of a written contract for 
 the sale of land, and may afterwards sue for the specific 
 performance of that contract, as rectified ; and further, 
 tliat he may well combine these claims in one action {z). 
 
 [f) Henkley.Roijal EichfDigr Ak- 18 Vos. o4(). 
 
 snra)icpCo.,\Ye».fKen.Z\'t\B(tke)- (.r) See the last three oases 
 
 V. I'ahif. ib. 406; IJodykiiisoii v. cited in note (/), above. 
 
 U'liutt, 9 Beav. 566 ; Strdmau v. (//) Stat. 36 & :{7 Vict. c. 6G, 
 
 CollHl, 17 Beav. 608. s. 24 (7). 
 
 (m) OUey V. Fisha; 34 Ch. D. (c) Fry, Sp. Perf . ^ ;J17, p. 227. 
 
 367, 369; see also Fife v. Clayton, Ist ed. ; ^ 7S1, p. 346, 2nd ed. 
 
 50 (2)
 
 788 
 
 OF MISTAKE. 
 
 On this point, however, the law is at present uncertain. 
 The reason of this is as follows : — 
 
 Rule that 
 specific per- 
 formance of 
 a written 
 contract with 
 a parol varia- 
 tion cannot 
 be enforced by 
 a plaintiff. 
 
 Hich V. 
 Jackson ; 
 Woollnm V. 
 Hearn. 
 
 Davies v. 
 Fitton. 
 
 The defendant 
 in specific 
 performance 
 may set up a 
 parol 
 variation. 
 
 It was decided before the commencement of the 
 Judicature Acts, that a man is not entitled to enforce, 
 as plaintiff, the specific performance of a written agree- 
 ment with a parol variation. This decision was placed 
 on the ground of the general principle above stated {<() 
 that, if one seek to enforce a written contract, he is 
 bound by the words used in the -writing in which it is 
 expressed, and extrinsic evidence is not admissible to 
 show that the parties' real intention is different from 
 that expressed in the writing {h). It is true that in the 
 principal cases so det?iding no express claim for rectifi- 
 cation of the agreement appears to have been made : 
 but as the bill was for the specific performance of a 
 written agreement to grant a lease alleging a mistake 
 in the amount of rent therein stated to be reserved and 
 claiming to have a lease at the rent really agreed upon, 
 it is obvious that rectification of the written agreement 
 w^as incidental!}' or at least substantially claimed (c). 
 Besides this, the same rule was applied by Lord St. 
 Leonards in a case where rectification was claimed of a 
 lease, which had been executed in strict accordance with 
 an antecedent written agreement, on the ground of a 
 common mistake in the lease and in the written agree- 
 ment {(l). A distinction was, however, taken with 
 respect to the assertion of a parol variation of a written 
 (!imtract as a defence to proceedings for specific per- 
 formance of the agreement (^). And it has been clearly 
 
 {a) Above, p. 781. 
 
 [b) Rich V. Jackson, 4 Bro. C. C. 
 ol4, 6 Ves. 334, ii. ; Woollam v. 
 Hearn, 7 Ves. 211, 218, 219; 
 Davies v. Fiction, 2 Dru. & War. 
 225, 232 ; see also Squire v. 
 Campbell 1 My. & Cr. 459, 480 ; 
 Manser v. Back, 6 Hare, 443, 447 ; 
 Thompson v. Hickman, 1907, 1 
 
 Ch. 550, 561. 
 
 (c) See liich v. Jackson, 4 Bro. 
 C. C. 514; Woollam v. Hearn, 7 
 Ves. 211. 
 
 (d) Davies v. Fitton, 2 Dru. & 
 War. 225, 232. 
 
 {e) Above, p. 778 and n. (d). At 
 law the defendant is bound by 
 the writing and cannot allege any
 
 OF MISTAKE. 789 
 
 establislied that a dofendant to such proceedings may 
 insist that the written contract does not contain the 
 parties' real agreement, but that some stipulation made 
 orally in his favour has by mistake or inadvertence been 
 omitted from the writing, and that it would therefore be 
 inequitable for the plaintiff to enforce against him the 
 extraordinary remedy of specific performance, except on 
 the terms of submitting to the parol variation. And 
 the defendant may adduce extrinsic evidence in support 
 of this contention (/'). And the further distinction has 
 been admitted, that if the parol variation be to one 
 party's disadvantage, he may submit to it, even though 
 he claim specific performance as plaintiff ; for he is 
 allowed to waive a right given to him by the written 
 agreement, or to claim performance of that agreement 
 as it stands, but with the addition of some extraneous 
 act or promise which he offers to do or fulfil to his own 
 detriment {(j). But although the decisions were precise 
 which refused specific performance at the plaintiff's suit 
 of a written contract with a parol variation, there were 
 not wanting expressions of judicial opinion that it was 
 equally inequitable to deny at the defendant's instance 
 the specific performance of a written agreement with 
 the addition of some stipulation to his detriment, which 
 luid by a common mistake been left out, as to enforce 
 the same remedy against him without a term so omitted 
 aud enuring to his advantage (//). As we have seen(/), 
 the general principles established in equity with respect 
 
 parol vai-iatioii ; above, pp. TM — ;/) -Uartiii v. F;/erofl, 2 De G. 
 
 IS'i ; I'orvill V. Edmtoids, 12 East, M. & G. 78o ; cf. PresUm v. Luck, 
 
 6 ; Ford v. Yalcs, 1 Man. & Gr. 27 Ch. D 497. 
 549. (A) See Walker v. Walker, 2 
 
 (/) Joytics V. iStathaiii, 3 Atk. Atk. 98, 100 ; Joynes v. iStatham, 
 
 388 ; llamsholtom v. Gusdon, 1 V. 3 Atk. 388, 389 ; Pembrr v. 
 
 * B. 16o; Witich V. Wuichester, Malhrrs, 1 Bro. C. C. 52, ;)4 ; 
 
 ib. 37') ; London and Birniinyhain Townslwnd v. Stanyroom, 6 Ves. 
 
 Jiy. Co. V. Winfer, Cr. & Ph. 57, 328, 339 ; Fry. Sp. Porf. 232 .sq., 
 
 6'i ; Jfnnsrr v. Hark, 6 Hare, 443 ; 1st ed. ; 350 sq., 2iid pd. 
 Smith V. Whcateroft, 9 Ch. D. (i) Above, pp. 786, 787. 
 
 223.
 
 790 
 
 OF MISTAKE. 
 
 Olley V. 
 Fisher. 
 
 May V. Piatt. 
 
 Thompson v. 
 Hickman. 
 
 to the rectification of written instruments appear to lead 
 us to a conclusion exactly opposed to the rule in ques- 
 tion. This view prevailed with the great American 
 jurists, Mr. Justice Story and Chancellor Kent (/.■)• 
 And the same opinion was maintained by Sir Edward 
 Fry (/), who also suggested that, since the enactment 
 of the above-mentioned provision of the Judicature 
 Act (>w), the rule was no longer applicable. This sug- 
 gestion was followed by North, J., in OUei/ v. Fisher {n), 
 who considered that the plaintiff's claims for rectifica- 
 tion of an agreement to grant a lease and for specific 
 performance of the agreement as rectified might well 
 be enforced where (as in the case before him) the 
 Statute of Frauds was not pleaded {o). An agreement 
 to sell land of course stands exactly on the same 
 footing (/j). The rule against granting specific per- 
 formance with a parol variation at the plaintiff's suit 
 was, however, followed by Farwell, J., in Mai/ v. 
 Plaft {q^ : but in that case neither Olki/ v. Msher nor 
 Sir Edward Fry's opinion was cited. And more recently 
 the decisions in Baviea v. Fifton (/■) and Ma// v. P/aff 
 were followed by Neville, J., who considered that he 
 was bound by them, but declared that he had great 
 difficulty in following the reasoning on which they 
 appear to be based, and pointed out that to refuse 
 relief to a plaintiff claiming specific performance with 
 rectification of a written agreement is exactly contrary 
 to the principles of equity on which the entire doctrine 
 of rectification is founded (.s). In this case again, 
 neither 0/lei/ v. Fisher nor Sir Edward Fry's opinion 
 
 {k) 1 Story, Eq. Jur. § 161 ; 
 Gillespie v. Moon, 2 John. Ch. N. 
 Y. 58.5 ; Keis.selback v. Livingston, 
 4 John. Ch. N. T. 144. 
 
 (J) Specific Performance, pp. 
 227 sq., Isted. ; 346 «/., 2nd ed. ; 
 §§ 811 sq., 3rd and 4th ed. 
 
 (/») Above, p. 787. 
 
 [n] 34 Ch. D. 367. 
 
 (o) See above, pp. 11, 12. 
 
 {p) Above, p. 764, n. [l). 
 
 (-7) 1900, 1 Uh. 616; see below, 
 p. 797. 
 
 {}■) Above, p. 788. 
 
 (*•) Thompson v. Hickman, 1907, 
 1 Ch. joO, 561, 562.
 
 OF MISTAKE. ~91 
 
 was eited. Having regard to these omissions and to 
 Mr. Justice Neville's pronouncement on the point of 
 l)rinciple, it is submitted that the decision in Ollci/ v. 
 Fisher is to be preferred ; and further that, if that 
 decision be right, there is no reason for not extending 
 it to a case where the Statute of Frauds /s- pleaded. 
 For as we liave seen {t), it is settled that that statute 
 can afford no defence to an action for rectification, if 
 otherwise well founded. 
 
 Care must be taken to distinguish the cases in which Distinction 
 a defendant to proceedings for specific performance variation is 
 effectually sets ui) a parol variation of the written agree- proved, and 
 
 •^ i ^ _ ^ where the 
 
 ment from those in which, though pJeadhuj the same defendant's 
 in 1 ii v- • A 1 1 • own mistakeis 
 
 defence, he proves no more than nis own mistake and is ^^^^^^ proved, 
 really obliged to resist the plaintiff's claim on the 
 ground of some njisrepresentation or conduct contri- 
 buting to his mistake, or of hardship [v). In the former 
 case the defendant is really relying on a mistake common 
 to both parties ; he insists that their minds were in 
 truth at one, but their real intention is not found in the 
 writing. In the latter, his real defence is that the 
 paiiies were not in truth agreed, though at Jmc he is 
 estopped fi'om saying so, and he seeks to escape the 
 application of the same rule of estoppel in equity also 
 ou the plea of misrepresentation or hardship {x). Hence Where a parol 
 it is that wliere a parol variation is pleaded as a defence pleaded in 
 to specific performance, the nature of the relief granted ^^^ence, the 
 may vary according to the facts established by the vary acrord- 
 evid(mce, and that it depends on the particular circum- facts^proved 
 stanches of each case whether the defence will merely 
 defeat the plaintiff's claim, or whether the Court will 
 order the performance of the contract according to the 
 variation so set up (//). Thus if the alleged i)arol varia- 
 
 (0 Above, pp. 783, 78G. iij) London S; Birmxnqham Jiy. 
 
 («) Above, pp. 776, 777. Co. v. Winter, Cr. & Ph. 57, 02. 
 
 [x) See above, pp. 776, 777.
 
 792 OF MISTAKE. 
 
 tion be plainly proved, so that the Court is satisfied that 
 the agreement so varied was the parties' real agreement 
 entered into with their true consent, it -svill not only- 
 reject the plaintiff's claim but will in the same action 
 order, at the defendiOifx. instance, the specific performance 
 of the agreement as so varied {%). But as a rule the 
 Court will not make an order in the same action upon 
 the plaintiff^ H application for specific performance with 
 the variation set up against him, unless he have by his 
 pleading or (it seems) at the opening of the trial 
 abandoned his claim to enforce the agreement as con- 
 tained in the writing alone and submitted to perform it 
 with the modification alleged. If the plaintiff maintain 
 his own original contention to the end and fail to establish 
 his claim, and the defendant do not ask for specific per- 
 formance with the variation, then the Court will simply 
 dismiss the plaintiff's action, but without prejudice, in 
 general, to his suing for such specific performance in 
 another action {a). It seems, however, that, if the 
 defendant do not object, the Court may give the 
 plaintiff the option of having his action dismissed or 
 accepting an order for specific performance with the 
 variation claimed {h). On the other hand, if the defen- 
 dant do not establish by the extrinsic evidence admitted 
 a true agreement between the parties as to some supple- 
 mental terra omitted by mistake from the writing, but 
 merely show that lie was under a mistake in making 
 the written contract, and that the plaintiff's conduct 
 • contributed to this mistake or that it would be a hard- 
 ship on him (the defendant) to have to perform the 
 written contract, the Court will in general leave the 
 
 (z) Juynex v. Utathum, 3 Atk. crufl, 9 Ch. D. 223 ; Marshall v. 
 
 3H8 ; Fife v. Clayton, 13 Ves. Berridye, 19 Cli. D. 233; Preston 
 
 546. V. Luck, 27 Ch. D. 497. 
 
 («) Leyal v. Miller, 2 Ves. sen. {b) See Clarke v. Grant, 14 Ves. 
 
 299 ; Clowes v. Miyyinson, 1 V. & 019 ; liamsbottom v. Gosdon, 1 V. 
 
 B. 524, 534 ; Lindsay v. Lynch, 2 & B. 165. 
 Sch. & Let". 1 ; ISinith v. Wheat- 
 
 I
 
 OF MISTAKE. 793 
 
 plaiutiit" to his remedy at law, but may, it seems, give 
 him the option of having his action dismissed or of 
 having an order for specific performance of the contract 
 as claimed to be varied by the defendant (c) . And as 
 we have seen {d), where the defendant has by mistake 
 innocently made a misrepresentation to his own detri- 
 ment in the written contract and fails to prove the 
 plaintiff's real assent to a parol variation, the (Jourt 
 may give the plaintiff the option of rescinding the 
 contract or of completing it according to the defendant's 
 contention. If the defendant fail both to establish his 
 claim, and to show any misleading conduct by the 
 pLdntilf or any hardship in his being obliged to per- 
 form the contract, the Court will order the specific 
 performance of the written contract as prayed by the 
 plaintiff [e). 
 
 It follows from the principles explained above (,/) Xo obtain 
 that, in order to obtain the rectification of a written rectificatiou, 
 
 . there must be 
 
 instrument, a mistake common to all parties thereto a connw.n 
 must be proved. As we have seen {cj), there must be ™^'^*'*'^^'- 
 an antecedent confracf ; this necessarily involves the 
 true consent of all (//) ; and there must be a common 
 intention of embodying that contract in or carrying it 
 out by some writing (/). It follows that it is in general 
 
 (c) See Hig(j'in.\ijn v. Cloicea, lo and one of tlieiu undertake to 
 
 Ves. 51b ; Gordon v. Hertford, prepare the inxtrunieut ou behalf 
 
 '1 Madd. 106 ; Fry, Sp. Perf. of all, it is his duty to prepare 
 
 ^^ 773 •%■(/., 3rd ed. ; above, pp. what is in all respects a proper 
 
 776, 777. instrument, and if the instrument 
 
 (</) Above, p. 720, and n. (/). prepared fall short of this, but 
 
 [e) Above, pp. 775, 77*5, and be executed by the others in the 
 
 notes («), {x). belief that it was an in.strument 
 
 (/) Pp. 78 i xq. proper to effect their intention, 
 
 ((/) Above, pp. 7S3, 7.S(). it may be rectified at their suit ; 
 
 (A) Above, p. 749. Corleii v. Stafford, 1 De G. & J. 
 
 {!■) Here it may be noted th.it, 228 ; (,'lark v. Girdirood, 7 Ch. D. 
 
 if several persons agree generally 9 ; Lovesy v. Smith, 15 Ch. D. 
 
 upon some act in the law to bo 655 ; cf . Tucker v. Bennett, 38 
 
 embodied in a written instrument Cii. D. 1.
 
 794 
 
 OF MISTAKE. 
 
 Cases where 
 rectification 
 witli the 
 alternative, 
 at the defen- 
 dant's option, 
 of rescission, 
 has been 
 i)i-dered on 
 the ground 
 of unilateral 
 mistake. 
 Gurrard v. 
 Frankcl. 
 
 a good defence to a claim for rectification to prove that 
 the written instrument carries out the real intention of 
 the defendant and the intention manifhsfcd (/.•) by the 
 phiintiff ; in other word«, that unilateral mistake, the 
 error of the plaintiff alone, is not sufficient ground for 
 rectification (/). There are certain cases, however, in 
 which an exception to this rule has been admitted. 
 Thus in Garrard v. Fraiiliel {ni), the parties signed a 
 memorandum endorsed upon a draft lease and express- 
 ing that the plaintiff would let, and the defendant would 
 take, the premises within described at the rent of 230/., 
 and upon the terms of the within lease. It appears 
 that at that time the amount of the rent was left in 
 blank in the draft lease. Afterwards the plaintiff filled 
 up the blank, inserting the figures 130/. by mistake ; 
 and the lease was thus engrossed and executed, without 
 the plaintiff's observing his error. On discovering the 
 mistake he sued for rectification. The defendant 
 strenuously contended that the rent of 130/. was the 
 rent really agreed upon. Romilly, M. E,., however, 
 entirely declined to credit the defendant's evidence on 
 this point ; he found in effect that at the time of sign- 
 ing the memorandum both parties really intended the 
 rent to be 230/., and that the defendant was aware of 
 the discrepancy between the lease and the agreement. 
 But he treated the memorandvmi as if it had been 
 signed after the figures 130/. had been inserted in the 
 draft, and held that the case was one where the docu- 
 ment which constitutes the whole agreement contains in 
 itself contradictory statements as to the amount of rent. 
 And he further considered that the defendant executed 
 the lease, not fraudulently, but in the innocent belief 
 
 (/■) Above, p. 7oO. 
 
 (/) Exeter V. Exeter, 3 My. & 
 Cr. 321 ; Walsh v. Trcvannion, 16 
 Sim. 178 ; Roolce v. Kensington, 2 
 K. & J. 753, 763, 764 ; Eowlev v. 
 Fowler, 4 De G. & J. 250, 264, 
 
 265, 273 : Sells v. Sells, 1 Dr. & 
 Sm. 42 ; Thompson v. Whitmore, 
 1 J. & H. 268 ; Bradford v. 
 Ronmeij, 30 Beav. 431, 438 ; May 
 V. Flatt, 1900, 1 Ch. 616. 
 («») 30 Beav. 445.
 
 \ 
 
 OF MISTAKE. 795 
 
 that the plaintifiF was gratuitously granting her (n) a 
 lease at about half the rent which ho had asked I In 
 this state of affairs the learned judge cut the knot by 
 deciding that he could neither permit- the defendant 
 to derive any advantage from the mistake, nor oblige 
 her to accept a lease different from that which she 
 supposed slie was executing. He therefore gave her 
 tlie option of accepting the lease with the rectification 
 claimed or having it set aside altogether. In Harria Hants v. 
 V. Pcppcrcll {o), a memorandum was signed for the ^^^^'^ 
 sale of " two houses in Teddington." The purchaser's 
 solicitor inquired what property was comprised in the 
 sale, and sent a plan showing wliat he supposed the 
 defendant was buj'ing. In reply, the vendor's solicitor 
 sent a correct plan of what the vendor intended to 
 convey : but the defendant's solicitor had the convey- 
 ance engrossed referring to a different [)lan, whieli 
 comprised more, and sent the deed for execution with- 
 out calling attention to the fact that he liad not 
 accepted the [)laintiff 's contention as to the parcels ; 
 and the vendor executed the conveyance without dis- 
 covering the discrepanc3^ He afterwards sued for 
 rectification of the conveyance. The defendant pleaded 
 that Ilia intention was carried out by the conveyance, 
 and that the mistake, of the plaintiff alone was no 
 ground for rectification. Romilly, M. E,., said that, as 
 the Court will not enforce specific performance of a 
 contract which one party has made under a mis- 
 take [})), so the Court may interfere where rectification 
 is claimed on the ground of uuilateral mistake, if tlio 
 parties can be placed in statu quo ; and on this ground 
 lie gave the defendant the option of accepting the 
 rectification claimed or of annulling the contract. At 
 
 (m) The defendant was a lady. the face of the decision in Tampliii 
 
 [o) L. R. ;') Eq. 1. ' v. James, l.i Oh. D. 'llh, cannot 
 
 < p) It is mibmitted that tliis now be upheld; .see above, 
 
 statement is far too wide, and in pp. 77o, 770. and n. (j).
 
 796 
 
 OF MISTAKE. 
 
 Bloomer v. 
 Spittle. 
 
 Paget v. 
 
 Marshal/. 
 
 the same time, lie intimated pretty clearly that he 
 thought that the defendant had behaved dishonestly. 
 In Bloonwr v. iSpiff/e {q), the parties entered into an 
 agreement in writing for sale of certain land, not 
 excepting the mines thereunder, but the mines were 
 excepted from the conveyance. Four years afterwards 
 the purchaser sued for rectification on the ground of 
 common mistake. The vendor by his answer denied 
 the mistake, and alleged that the conveyance carried 
 out the parties' real agreement. The vendor died 
 before he could be cross-examined. Romilly, M. R., 
 expressed the opinion that there had been a common 
 mistake, and that the defence was not honest : but on 
 account of the lapse of time since the execution of the 
 conveyance, he gave the defendant's representatives 
 the option of accepting the rectification claimed or of 
 having the transaction set aside. In Pcifjef v. M(tr><h(ill[r), 
 the plaintiff wrote to the defendant offering him the first 
 and other upper floors of three houses, which offer the 
 defendant accepted in writing ; and a lease was executed 
 accordingly. Afterwards the lessor sued for rectifica- 
 tion on the ground that it was not intended that the 
 first floors should be comprised in the lease. Upon the 
 evidence given, Bacon, Y.-C, expressed a strong in- 
 clination to the opinion that the defendant had clear 
 notice from the negotiations which led up to the plain- 
 tifl's letter that he had no intention of letting the first 
 floors. But the learned judge hesitated to iDronounce 
 that the defendant's conduct was actually fraudulent, 
 and so he followed Lord Romilly's decisions, declaring 
 that because of the plaintiff's mistake, the defendant 
 
 [q) L. K.' 13 Eq. 427. 
 
 (»•) 28 Ch. D. 25.5. This de- 
 cision, as reported, was pro- 
 nounced by Neville, J., to be 
 wholly unintelligible ; Beale v 
 Kyte, 1907, 1 Ch. 564, 565, in 
 which case the judge alyo pointed 
 
 out that the right rule is that, 
 for the purpose of e.stimating: any 
 laches in applying for rectifica- 
 tion, time hrgins to run from the 
 date of the discovery of the mis- 
 take.
 
 OF MISTAKE. 797 
 
 sho'iM b'^ put to the elftotion of accepting the rectifica- 
 tion claimed or having the lease set aside (.s). 
 
 These cases liavc met with adverse criticism. Thus Criticisiu of 
 the learned editors of Dart on Vendors and Purchasers meatioired 
 remarked (f) : " It is difficult to understand the ground cases, 
 of these decisions. Either there has been originally a 
 contract, in which case the Court cannot make a new 
 one, or there has been no contract, in which case 
 neither at law nor in equity is there anything to 
 enforce." And in Jla// v. F/aff (u), Farwell, J., ex- 
 pressed his concurrence in this comment, and delivered 
 the further opinion that iu the cases so criticised, the 
 judges who decided them shrank from stigmatising tlie 
 defendants' conduct as fraud, but treated it as equiva- 
 lent to fraud, and that, in the absence of fraud, they 
 would have had no jurisdiction to grant the relief they 
 did. In Ma// v. P/fift {.r), the defendant apparently Jfcj/ y. Pfati. 
 agreed in writing to sell to the plaintiff certain lease- 
 hold land including by the defendant's mistake a plot 
 which he had already parted with. A conveyance was 
 executed in accordance with tliis agreement, the de- 
 fendant assigning all the land described tlierein, in- 
 cluding this plot, and entering into the statutory 
 covenants for title. On discovery of the defendant's 
 want of title, the plaintiff sued him for breach of these 
 covenants. The defendant alleged common mistake 
 and alternatively unilateral mistake and counter-claimed 
 for rectification of the conveyance. His case was that 
 the plaintitf had notice that he did not intend to sell 
 the plot parted with. Farwell, J., gave judgment for 
 the plaintiff both in iiis action and upon the counter- 
 
 (*) It its very siguiticaut that the .)tli od., vol. ii. 744 ; see 
 
 in tliis ca.se the defendant accepted vol. li. p. 743, 7th ed. 
 
 the rectification. (,/) 1900, 1 Ch. 016, 618, 623, 
 
 (/) 2 Dart, V. & P. 839, 6th ed. U) 1900, 1 Ch. 616. 
 This criticism does not oinur in
 
 798 
 
 OF MISTAKE. 
 
 claim ; lie held that unilateral mistake was not sufBeient 
 to support a claim for rectification ; and he rejected the 
 evidence that the plaintiff had notice of the intention 
 not to sell the plot upon the groimd that the defendant's 
 counter-claim for rectification of a written instrument 
 canying out an antecedent contract in writing was 
 equivalent to a claim made by a plaintiff for specific 
 performance of that written contract with a parol 
 variation, and that it was established by authority that 
 such a claim could not prevail. As we have before 
 pointed out (//), neither the criticism of Sir Edward Fry 
 upon the rule so laid down, nor the case of OlJo]! v. 
 Fkher (^), was cited. And it is submitted that in this 
 respect Mr. Justice Farwell's decision was wrong ; 
 though he was right to refuse rectification for unilateral 
 mistake (r/). 
 
 Analysis of 
 the oiroum- 
 stances in 
 ■which rectifi- 
 cation may- 
 he claimed. 
 
 Common 
 mistake. 
 
 Plaintiff 
 mistaken, but 
 estopped at 
 law. 
 
 Thus the decisions are conflicting, and the law is in 
 a most unsatisfactory condition. And it does not appear 
 that the dilemma put b}' the editors of Dart and 
 crowned with Mr. Justice Farwell's approval, that there 
 must either be an antecedent contractor not, is sufficient 
 to remove all difficulties. It seems that the evidence 
 offered in support of a claim for rectification of a 
 written instrument may disclose the existence of any 
 one of the following states of things: — (1) An ante- 
 cedent contract founded on the parties' real assent and 
 at variance with the terms of the written instrument. 
 In this case it is plain that the plaintiff has established 
 his title to relief. (2) An antecedent contract, which 
 the plaintiff alleges that he made by mistake, but 
 which bound him by estoppel at law (/^), followed by 
 an instrument containing or carrying out such contract, 
 
 (y) Above, p. 790. 
 (z) 34 Ch. D. 367. 
 
 («) Above, p. 790. 
 \b) See above, p. 750.
 
 OF MISTAKE. 7f>9 
 
 th« (lef<^nd:mt contenrling that both the contract and 
 the subsequent wi-itinf2^ expressed his true intention. 
 This was what occurred in the cases of Paget v. Mar- 
 xhall {c) and Mdi/ v. Pl(tff{(l). Now the whole burthen 
 of proof is on the plaintiH' claiming rectification {c), 
 and if in such circumstances he fail to prove that the 
 contract and subsequent Avi-iting did not express the 
 defendant's true intention, it is submitted that liis 
 (ilaim for rectification ought to be rejected. He him- 
 self manifested an intention in accordance with that 
 expressed and earned out. What equity tlien has he 
 to be relieved against the writing binding him at law, 
 if he cannot show that the defendant was equally in 
 error? On the other hand, if the plaintiff can by 
 extrinsic evidence prove a mistake common to both 
 parties and occurring in the contract as well as the 
 subsequent writing, it is questionable whether this 
 evidence ought to be rejected. On principle, the better 
 opinion seems to be that there is no objection to com- 
 bining a claim for rectification of a written agreement 
 with a claim for its specific performance (./'). But on 
 what ground can such an order as was made in Paget v. 
 Mtirsltdll [<i) be supported r' If the Court gave any 
 credence to the defendant's story, why should he have 
 been put to the alternative of rectification or rescission ? 
 As to rectification, the plaintiff had not discharged the 
 burthen of proof ; and as to rescission, if the contract 
 liad not been completed, the plaintiff's mistake would 
 liave been no ground in equity for his obtaining tlie 
 rescission of the contract (//), although it might luivc 
 availed him, coupled with the plea of hardship, as a 
 defence to specific performance (/). If on the otiier 
 hand the Court believed in the truth of the plaintiff's 
 
 (c) 28 Ch. D. 255. {g) 28 Ch. D. 25.-). 
 
 {d) 1900, 1 Ch. 616. (h) Above, p. 774. 
 
 [e) Above, pp. 784, 785. (i) Above, p. 776. 
 (/) Above, pp. 78G— 7aO.
 
 800 
 
 OF MISTAKE. 
 
 Defendant 
 mistaken but 
 estopped at 
 law, and 
 subsequent 
 correction of 
 the error. 
 
 allegationp, why should he have had to suhmit to the 
 chance of the defendant's electing for rescission? If 
 there were fraud on the part of the defendant, the 
 election should, it is submitted, have been offered to 
 the plaintiff either to treat the contract as void or to 
 hold the defendant to its performance with rectifica- 
 tion (/.■). The truth is that in Paget v. Mai'fihall {!), as 
 in the cases which the judge there professed to follow (?n), 
 the Court attempted to give an equitable judgment on 
 the hypothesis that both stories were true, the plaintiff's 
 allegation of fraud equally with the defendant's asser- 
 tion of innocence. (3) There may be disclosed an 
 antecedent contract, into which the defendant alleges 
 that he entered by mistake, but which would estop 
 him from proving the mistake at law (/?), followed by 
 a written instrument embodying or carrying out what 
 the defendant alleges to have been his real intention 
 and the parties' true agreement. This is the case of 
 BJoomfif V. 8pfff/e{o). Here again it seems that the 
 whole burthen of proof is on the plaintiff ; it does not 
 appear to be really shifted by his production of the 
 antecedent contract ; he is still bound to show that 
 the subsequent instrument is not in accordance with 
 the real intention of all parties ; and if the defendant 
 give evidence in reply showing prima facie that the 
 parties abandoned the intention expressed in the ante- 
 cedent contract as not being theii' real intention and 
 determined to execute the subsequent instrument ac- 
 cording to the terms therein contained, or even showing 
 merely that the defendant entered into tlie antecedent 
 contract by mistake and that the subsequent instrument 
 expressed his own true intention and the plaintiff's 
 manifested intention, then, it is submitted, the onu.^ 
 
 [k) See above, p. 773 ; below, 
 p. 802. 
 
 {I) 28 Ch. D. 2o5. 
 
 [in) Above, pp. 794 — 796. 
 
 («) Above, pp. 750, 781. 
 [o)' L. R. 1 3 Eq. 427 ; above, 
 p. 796.
 
 OF MISTAKE. SOI 
 
 lies on the plaintiff of disproving this and showing that 
 the true intention of all was that the subsequent instru- 
 ment should accord with the antecedent contract (7?). 
 If he fail in this, he has not made good his claim to 
 rectification; if he succeed, he has; and if the defence 
 were dishonest, he ought to succeed. There seems to 
 be no place for the alternative relief granted in BJoome)- 
 V. Spittle (5-), except on the supposition that the plaintiff's 
 claim was both adequately supported and insufficiently 
 proved, and the defence at once dishonest and respect- 
 able. (4) There may be disclosed an apparent ante- No anteoedcnt 
 cedent contract with regard to which there was no real f a a . 
 
 assent of the parties and no estoppel from putting this 
 in e\idence. Such, it is submitted, were the cases of 
 Garrard v. Fraiilrl (r), as treated by Lord Homilly, and 
 Jfarn'ft v. Pcpporell {h). If, as held by Lord Romilly, 
 tlie memorandum of the antecedent agreement proved 
 in Garrard v. Frauhcl were such that its statements as 
 to the amount of the proposed rent were contradictory on 
 the face of it(/), then the agreement was void for 
 uncertainty ; and in that case, if it were shown, as the 
 Court found, that tlie lease executed earned out the 
 defendant's intention and what she really and in good 
 faith believed to be the plaintiff's intention, the plaintiff 
 had failed to prove an antecedent agreement at variance 
 with the terms of the lease, and his claim for rectifica- 
 tion sliould liave been rejected. Whilst if it were 
 establislied that the defendant, knowing of the plaintiff's 
 mistake as to the rent named in the lease, was minded 
 wrongfully to take advantage of it, the option of recti- 
 fication or rescission should have been given to him and 
 not to her. In Harris v. Prpprrell, it appears that the 
 
 (;>) See above, pp. 784— 786. (.v) L. R. .) Eq. 1; above, 
 
 \q) L. R. 1:5 Eq. 427. p. 795. 
 
 (V) 30Bcav.44.'); abovo,p. 794. (/) Above, p. 794. 
 
 w. 61
 
 802 
 
 OF MISTAKE. 
 
 autecedent agreement in writing- to buy " two houses at 
 Teddington " was either void for uncertainty (ii) or 
 contained such a latent ambiguity as allowed of the 
 admission of parol evidence to explain the parties' real 
 intention (.r). In the latter case, if the parties' minds 
 were not at one as to the property sold, the contract was 
 equally void(//). Consequently, the plaintiff could not 
 substantiate liis claim for rectification without disproving 
 the truth of the defendant's assertion that the convey- 
 ance was in accordance Avith his intention. If the judge 
 believed the defendant, he ought to have given judg- 
 ment in his favour. If he considered that the defendant 
 was wrongfully seeking to take advantage of the 
 plaintiff's mistake, the option of rectification or rescis- 
 Frand. gion should have been the plaintiff's. (5) It may be 
 
 shown that the defendant knew of the plaintiff's mistake, 
 and yet accepted his oifer according to the literal terms 
 thereof, well knowing that the plaintiff would believe 
 him to be accepting tlie offer which the plaintiff sup- 
 posed that he had made and not that which lie //rid 
 made. Such a state of mind would certainly be frau- 
 dulent ; the defendant would have been wrongfully 
 attempting to take advantage of the other's mistake. 
 Tlie cases above mentioned (z), especially Garranl v. 
 Fni)i];rl [a) and Paget v. Mar-'<//(i// {/)), may all serve for 
 examples of this state of things, if we assume that tlie 
 fraudulent intention so strongly suspected by the Court 
 did in truth exist. If, however, the defendant's fraud 
 be proved, it is submitted that the plaintiff has estab- 
 lished his claim for rectification. The defendant's 
 fraudulent acceptance of his offer left two courses 
 open to him. He might treat tlie contract as 
 
 (h) Above, pp. G, and n. (f), (s) Above, pp. 794 — 70G. 
 
 '^^^^ Av -p« -co f ^ («) 30 Beav. 445. 
 
 (.r) Above, pp. /bO, <S2, n. [fi). ^ ' 
 
 {■!/) Above, p. 760. (A) 28 Ch. D. 255. 
 
 I
 
 OF MISTAKE. '^03 
 
 void for want of the parties' true consent ; or lie 
 miglit hold tlie defendant to his acceptance of tlie 
 offer according to the terms whicli he (the plaintiff) 
 really intended to put, and which the defendant knew 
 that he believed to bo accepted (c). And by suing 
 for rectification the plaintiff has elected to affirm the 
 contract. 
 
 The rig-lit to obtain rectification of a wjitten instru- Rectification 
 ment is a mere equity (d) and not an equitable interest (e) . ance cannot 
 It is like the right to set aside a conveyance induced by be had against 
 
 PT/\TPip • a purchaser 
 
 fraud (/). If therefore the legal or equitable estate or for value 
 
 interest in any property be assured to any one by a ^^l^^^ 
 conveyance liable to be rectified on account of a common 
 mistake, the right to rectification cannot be asserted as 
 against a purchaser taking from or through some party 
 to the unrectified conveyance for value (r/) , in good faith 
 and without notice of the mistake (//). But as in the 
 case of fraud (/), this doctrine applies only to pur- 
 chasers claiming under conveyances and does not, as a 
 rule, extend to assignees of the benefit of a contract ; 
 although a contract for the sale of land, which has been 
 executed by payment of the whole purchase money, 
 appears to stand, as regards the passing of the equitable 
 estate in the land sold, upon the footing of a con- 
 veyance. 
 
 As we have seen (/r), upon the sale of land, rectifica- ^'^ sale of 
 tion may be obtained oi an error common to lioth parties cation maj- 
 either in the written contract prior to completion or in ^^ obtaiiiwl 
 
 I ^ cithor beiore 
 
 tlie couvcvance. Ami it is no bar to an action for or after 
 
 convovance. 
 
 (r) Ahove, pp. 77.'5, 774. (//) Thomas v. Darin, Dick. 301, 
 
 {(i) Above, pp. 7Sl sq. 304; Blackir v. Clark, lo Beav. 
 
 {e) See J'/iil/ip.s v. VhUUps, 4 595; Garrard \. Fra)iki'1,'M'Rcn-v. 
 
 De G. F. & J. 2()S, -218 ; Care v. 445. 
 
 Cave, 15 Ch. D. G39, 647. (t) Above, p. 768. 
 
 (/) Above, p. 757. [k) Above, pp. 644, G50, 665, 
 
 (^) See above, p. 757, n. [c). 786, 787. 
 
 51 (2)
 
 804 
 
 OF MISTAKE. 
 
 rectification cm this ground of a conveyance on sale that 
 the contract has heen completed (/). The case has no 
 resemblance to that of a contract induced by an innocent 
 misrepresentation but completed by actual conveyance 
 according to tlie representation made(;»). Thus, where 
 by mutual mistake parcels liave been omitted from the 
 conveyance (ii), or too much land has been conveyed 
 by reference to a plan (o),or an easement intended to be 
 granted has been incorrectly defined ( />), or an exception 
 or a reservation has been left out(«7), or proper words 
 of limitation have not been iised (r), or the expressions 
 importing the statutory covenants for title have not 
 been put in or have not been restricted as they ought 
 to have been (.s), or any covenant not intended to be 
 made has been inserted (/), the conveyance may be 
 rectified ; except to the prejudice of a purchaser for 
 value claiming thereunder in good faith and without 
 notice of the error (n). If in any of these cases the legal 
 estate in any hereditaments failed, by reason of the 
 error, to be assured as agreed, and an order of the 
 Court for rectification of the conveyance be obtained, 
 there is no need of any further express assurance of 
 such legal estate ; for it will pass by the effect of tlie 
 order in the manner in which it is limited by the con- 
 veyance as so rectified (r). 
 
 {/) See Bcaiotwnt v. Bramlcy, 
 T. & E. 41, rvi ; and cases cited 
 above, pp. 644, n. (/), 787, nn. 
 [t), («), and in notes (w), (/;), (<■/), 
 (>•), below. 
 
 (;«) Above, pp. 611, 6o3, 6.')4, 
 730. 
 
 {u) Wlnir V. White, L. R. 15 
 Eq. 247. 
 
 (o) Brale v. Ki/tv, 1907, 1 Ch. 
 564. 
 
 (p) Cuweiiv. TrHc/itf,TAL,l899, 
 2 Ch. 309. 
 
 [q) Exeter v. Exeter, 3 My. & 
 Cr. 321 : Mortimer v. Short all, 2 
 
 Dru. & War. 363; above, pp. 040, 
 641. 
 
 (/•) Re BlriVs Tntsts, 3 Ch. D. 
 214 ; Jie Ethel and Mitehells and 
 Butler^'' Contract, 1901, 1 Ch. 945, 
 948; Re Tringhnm's Trtixts, 1904. 
 2 Ch. 487, 495 ; above, p. 650. 
 
 (.«) See above, pp. 644, 665. 
 
 [t) Rob V. Butteririck, 2 Price, 
 190. 
 
 («) Above, p. 803. 
 
 [x] White V. White, L. R. 15 
 Eq. 247; Hanle>i v. Feursoi/, 13 
 Ch. D. 545.
 
 805 
 
 CHAPTER XIV. 
 
 OF FRAUD, MISKEPKESENTATIOX, DIJUE.SS AND 
 UNDUE INFLUENCE. 
 
 ^1. Of Fraud tiud Misrepresentatiou. 
 ^2. Of Duress and Undue Influence. 
 
 § t. — Of Fnaid and MkrepreHentatioH. 
 
 LiKK otlier contracts, a contract for the sale of land C'^"*'*''^''^ , 
 
 . voidable for 
 
 may be avoided by either party, if he were induced to fraud or 
 
 ent(!r into it by fraud or misrepresentation, that is to ["t-o^,^'*^^^*"'"' 
 
 say, by a false representation made to him by the other 
 
 }»arty, either fraudulently or innocently. A representa- Represen- 
 
 tion is a statement made by one party to a proposed 
 
 contract to the otlier, before or at the time of entering 
 
 into the contract, with regard to some fact relating 
 
 thereto (^/). But in order that a false representation The represcu- 
 
 may give rise to a riglit to avoid a contract, it must have induced 
 
 liave induced the party, to whom it was addressed, to *^^ contract. 
 
 enter into the contract ; that is to say, that he would 
 
 not have given Ins assent to the contract at all, but for 
 
 his belief that tlie statement was triu' {l>). A statement 
 
 ol" ihis kind may be made cither outside the contract or 
 
 withiu it ('■). Thus the vendor of a liousi; may state 
 
 orall}^ to a purchaser about to sign a contract to buy it 
 
 (rt) Jiehn V. liuinvss, \i 15. & S. luttj. 7 H. L. C. 7.')0, 775. 776 ; 
 
 7r)l, 753. Smith V. /.and ami House Proprtlij 
 
 (/;) See Fliqhl v. Itnnth, 1 Pin-r. Corp., -JS Ch. D. 7. 
 
 N.O. 070. :{77 : All,v<,<,d\. Smull, (,) Mm x. /ItinirKs, S B. A: S. 
 
 G CI. A: Fin. '^32, 444 ; Hmtt/i v. 751, 753, 754.
 
 806 OF FRAUD, miski-:pkesentation, 
 
 that the drains are in good order or the coUars dry {>/), 
 or he may make the same statement in tlie particalars 
 of sale ; and in either case the representation may 
 induce the purchaser's consent to the sale {c). The ^ 
 
 presint law as to the effect of misrepresentation, frau- ■ 
 
 dulent or innocent, in giving to the party misled the -S 
 
 right to avoid the contract is a compound of the prin- 
 ciples of common law and equity. It seems necessary, 
 therefore, in order to arrive at a right understanding of 
 the suhjeet, to explain how false representations inducing 
 a contract were treated in courts of common law and 
 equity before their jurisdictions were united in the High 
 Court of Justice. 
 
 Fraudulent At coiumou law, if an untrue representation inducing 
 
 a?coramoii'"" ^ contract were made fraudulently, that is to say, either 
 law. with the knowledge that it was untrue or in reckless 
 
 ignorance whether it was true or false ( /"), the party so 
 misled might at his election adopt one of two alternative 
 courses. He might, where the parties could be restored 
 to their former position, avoid the contract, not only 
 pending its completion, but also after it had been com- 
 pletely performed (//), and sue for the recovery of any 
 money paid or property conveyei thereunder, he on his 
 part surrendering any benefit received thereby ; or he 
 miffht affirm the contract and bring an action of deceit 
 to recover any damages caused by the fraudulent mis- 
 Innocent mis- statement (_ A). And the common law allowed the like 
 representation • i ^ £ avoiding the Contract, though not the same 
 
 and even to ^ p ' o 
 
 non-disclosure action of deceit, if a party to some contract of the class 
 
 (d) Above, p. 769. Gas. ^37. 
 
 {e'j See the cases cited at the {;/) See above, p. 654. ,fl 
 
 end of note (n), p. 782, above, as (/() Deposit and General Life 
 
 to the admissibility of oral evi- Assurance Co. v. Ayscoitgh, 6 E. &: 
 
 deuce in proof of a representation B. 761 ; Oakes v. Tarquand, L. B. 
 
 which has induced a written con- 2 H. L. 325 ; Cloujh v. London 
 
 tract. iV Xorth IVestern Rij. Co., L. R. 7 
 
 [f) Bean v. Barness, 3 B. & S. Ex. 26 ; Benjamin on Sale, 33G, 
 
 751, 753 ; Derry v. Peek, 14 Ajjp. 342, 359, 2nd ed.
 
 DURESS AND UNDUE INFLUENCE. 807 
 
 dest'i'ibed as /f/v^^'r/V/y/r/'AVA'/ (principally contracts of in- might avoid 
 
 SLirauce) wore induced to enter into it by a false repre- Xlril^*^'^ /• /i; • 
 
 sentation made innocently or even by the non-disclosure 
 
 of some material fact (/). But apart from fraud and Ett'ect of 
 
 except in the case of contracts iibern'md' fidci, a i°n"''«nt mi,s- 
 '■ _ • ' repre.sentatioii 
 
 representation, at common law, could only alfect a :it commun 
 
 contract if it amounted to a warranty or promise of the care 'of other 
 truth of the fact stated and so formed a part of the contracts. 
 whole agreement entered into (/.) : otherwise it had no 
 ctl'cct at all(/). If it did form part of the contract, it 
 niiglit cither be an essential term thereof, going to the 
 whole substance of the contract — that is to say, it might 
 be a stipulation, on the performance of which the per- 
 formance of the rest of the contract was conditional ; or 
 it might be a term independent of the parties' main 
 agreement — that is to say, a stipulation, on the perform- 
 aiuic of which the performance of the rest of tlie contract 
 was not dependent. In other Avords, the representation 
 might be either a condition or a pure warranty [in) ; and 
 this question was determined by the parties' intention 
 to be gathered from all the circumstances of the case [ii). 
 In the former case the untruth of the representation 
 amounted to such a breach of contract by the party, 
 who made the statement, as discharged the other from 
 the performance of his part of the agreement (>/). In 
 the latter case, the party misled was not justilied in 
 repudiating the contract if the statement proved untrue ; 
 ho was obliged to perform the main agreement : but 
 he was entitled to damages for the breach of warranty 
 
 i() Carter v. Buthiit, \i Burr. /) llopkiii'< v. Tuii'iiu lai/, \'t 
 
 \'.)0'): Miirrisoiiv. r/iir<rxii/ Marii'i: C. B. i;ilt: Kmini/i/ v. I'diiiiniii, 
 
 liit^unmce Co., L. K. 8 Ex. l'.)7 ; ;)r. Mud Co., L. II.' 'l Q. B. JoU. 
 lonidcs V. Finder, L. R. 9 Q. B. [m) Above, p. 763. 
 
 531 ; London Assurance Co. v. [n) Fliijht v. Booth, 1 Bing. N. 
 
 Mnmel, 11 Ch. D. 363; Jlitaz v. C. ftSI ; lianiierinan v. White, 10 
 
 Genussi, 6 Q. B. D. 222 ; above, C. B. N.S. 844 ; Jlrhnv. Jinrn'M,, 
 
 p. 767. 3 B. & S. 701 ; uud see J)e Las- 
 
 (/.) liehn V. linrnrss, 3 B. A: S. ml/c v. (JuUd/ord, 1901, 2 K. B. 
 
 7J1, 7<J3. 213.
 
 808 
 
 OF FRAUD, MISKEPKESKNTATION, 
 
 committed (o). And even in tlie former case, moreover, 
 if the contract liad been executed in favour of the party 
 misled, so that he liad received the consideration for liis 
 promise, he could not thoi refuse entirely to perform his 
 part of the contract, unless the representation had 
 amounted to (i •■ipecial ■sfipiiiafi())t that the contract should 
 be void in case of its non-fulfilment {p) ; if not, he 
 could only claim damages for breach of the warranty {q). 
 It will thus be observed that in no case (apart from 
 fraud and contracts uberrimce fidei) was misrepresen- 
 tation considered to affect the formation of the contract. 
 The view was not taken that the parties only gave their 
 consent, whereby they made a contract with each other, 
 coii(tilioi)(iIhj upon the representation being true ; and 
 that the contract was therefore avoided if it were un- 
 true. On the contrary, the contract was treated as 
 having been fully formed ; the imtruth of the repre- 
 sentation occasioned a breach of the entire contract or a 
 part of it ; and even where it was held that the contract 
 might be avoided after its execution in favour of the 
 party misled, it was considered that this result was 
 effected, not by an annidment of the parties' consent, 
 but by their crprc^sa ityi-cciiioit that the contract should 
 be so avoided (;•). 
 
 The common 
 law treatment 
 of mit-repre- 
 sentation was 
 a particular 
 instance of its 
 rules respect- 
 ing the 
 dependence 
 of mutual 
 stipulations. 
 
 Here it may be pointed out that, as the common law 
 took no account of a representation made innocently 
 except as a atipuhitiou forming part of the contract, its 
 treatment of a representation as a condition or a war- 
 ranty according to the parties' intention was no more 
 than a particular instance of the rules of law respecting 
 
 (o) Hei/icorth v. Mitlchinsoii, L. 
 R. 2 Q.'B. 447, adopted as law 
 in the Sale of Goods Act, 1893, 
 Stat. 56 & 57 Vict. c. 71, s. 53; 
 see Benjamin on Sale, 448, 741, 
 748, 74'j, -iud ed ; abore, p. 32, 
 u. {b). 
 
 {p) Bannernian v. White, 10 
 C. B. N. S. 844; Bchn\. Buniess, 
 3 B. & S. 751, 755, 756. 
 
 i>j) Street V. Ji/ai/, 2 B. & Ad. 
 456. 
 
 {)■) See last note but one.
 
 DURESS AND UNDUE INFLUENCE. 
 
 the dependence or independence of mutual stipulations 
 contained in a contract. At common law, if the obliga- 
 tion of one party to a contract be dependent on tlie 
 fultilment by the other either of his part of the contract 
 or of some particular stipulation embodied therein, so 
 that the performnncc of the latter party's duty under 
 the contract or the particular stipulation is a condition 
 precedent to his enforcing the obligation incumbent on 
 the former, then a breach by the latter of his part of 
 the contract or of the particular stipulation will dis- 
 charge the former from his obligation under the agree- 
 ment ; and the former may, if he choose (.s), rescind the 
 contract and sue independently of the contract (under 
 the old practice, in ax.Hi{i)qmt) for the recoyery of any 
 money paid thereunder [t). But in order tliat the breach 
 of some particular stipulation in a contract may discharge 
 the party entitled to the benefit thereof from the per- 
 formance of his part of tlie contract, the stipulation 
 must sro to the root of the whole consideration ; its 
 performance must be an essential ccmdition of his in- 
 curring liability under the agreement {i<). For example, 
 we have seen that, upon a contract for the sale of land, 
 the vendor's obligation to convey the land and the 
 purchaser's (jbligation to pay the price are, as a rule, 
 dependent on each other, and neither party can enforce 
 tlie other's liability without performing or having 
 offered to perform his own duty (.r). 80 on a contract 
 for the sale of land, the; ])erformance of the particular 
 
 W He hHS the option of re- null v. llcimn, 1900. T Ch. 2'J.S, 
 
 Hciuding the contract, or attirmin); 'MYi, :J04 ; Klhnger \ . Mutual Life 
 
 it and i*uititf midrr the laiilinct for bisurnnfc Co. of Nru- York, 190."), 
 
 daniajLre.s for its brcHch ; Miihiiel 1 K. B. '41 \ (iiunal Bill Poslhig 
 
 V. Hart. 190-2. 1 K. B. 482. Co. v. Atkni.sou, 1909, A. C. lis': 
 
 {() Fliyht V. Booth, 1 Bing. N. see 1 Wms. Saund. 320, n. (4 ; 
 
 C. 370. 1 id. 3oL', n. (3) ; 2 Smith, L. C, 
 
 ((/) Dukr of St. A'batix v. Shore, notes to Cutter v. Poirell. 
 
 1 H. Bl. 270; Campbrll v. Juuex, (x) Above, pp. ')7S. o79 : Gluze- 
 
 (■) T. R. -MO: lirllnn V. di/c, 1 hruok v. Woodroir. S T. R. 3(i6. 
 
 Q. 15. D. is;; : Mrrs,,/, S;c. Co. V. Sue I'oo/c v. ///V/. (i M. I't W. S35 ; 
 
 ymjlor, 9 App. Cub. 434 ; (.'oru- Laird v. I'iiii, 7 M. iSc W. 474. 
 
 809
 
 810 OF FRAUD, :\II8Kt:PKFSENTATION, 
 
 stipulatiou implied therein, that tlie vendor i?liall show 
 a good title, is an essential condition of the purchaser's 
 liability ; and if this sti[)idation be broken, he may at 
 once repudiate the contract and sue for the recovery of 
 his deposit {//). Similarly, on an executory contract for 
 the sale of goods with an undertaking that they sliall 
 be of a particular qualitj^ compliance with tliis under- 
 taking (;:) is in general an essential condition of the 
 sale, and the purchaser may, when the property has not 
 yet passed to him under the contract, reject the goods 
 on breach of the undertaking and altogether repudiate 
 the agreement {a). But, although a man bound by a 
 contract may refuse to perform his promise till the 
 other party lias complied with a condition precedent, 
 yet, if lie has received and accepted a substantial part 
 of that which was to be performed in his favour, the 
 condition precedent changes its character, and becomes 
 a- warranty in the strict sense of the word (A), that is, a 
 collateral agreement independent of the rest of the 
 contract ; and non-compliance therewith will no longer 
 aiford a defence to an action to enforce his liability on 
 the contract, but will only give rise to a counter-claim 
 for damages (r). Thus where specific goods are sold 
 with an undertaking that they shall be of a particular 
 quality, the purchaser cannot return the goods after the 
 property has passed to him, and he has so enjoyed the 
 benefit of the contract : but if the goods be not of the 
 
 (//) Above, pp. 32, ii. {//}, 167, uu Sale, 748, 2nd ed. ; see stat. 
 
 168, 187, 190. o6 Ac o7 Vict. c. 71, .s.s. 11, f)2, 
 
 (r) Such au undertaking is ui and note that in the Act the tcriii 
 
 course commonly called a war- »vr)vrt«///is(!ontined to cases where 
 
 rantj^ of quality : I ut we avoid it is not a condition. Cf. above, 
 
 usingihe word "warranty" iu the pp. o2, u. {//), 763. 
 
 text on account of the strict sense (A) Above, p. 76'.). 
 
 in which the word is used iu the (c) Benjamin on J^ale, 4)2, 2ii(l 
 
 Sale of Goods Act, 1893; see next ed. ; K/la/ v. Topp, 6 Ex. i24, 
 
 uoto. 441 ; Ilffui V. Jiiniic-s, 3 B. <V; S. 
 
 y(() Stfvrl V. /V/"v. 2 H. ^: Ad. 7'">l, 7-3.3 ; and see Jiinlscn v. 
 
 4o6, 463 ; llvttbnlt v. Uu-knijii, 2)>ylvr, 1893, 2 Q. B. 274. 
 L. Ii. 7 C. P. 438, 4 jl ; Benjamin
 
 DURESS AND UNDUE INFLUENCE. 811 
 
 quiility promised, lie is entitled to damages (d). In the 
 same way, if one be induced to sign a contract for pur- 
 chase of a house by the vendor's oral representation 
 made untruly but not fraudulently that the drains are 
 in g(jod order, he may, if he discover the truth before 
 completion, repudiate the contract at law and sue for 
 the recovery of his deposit (/') : but if he accept a con- 
 veyance before he become aware of the defect, he cannot 
 then rescind the contract (./), though he may sue for 
 damages for breach of the warranty implied in the 
 representation {(/). 
 
 Let us now turn to the principles of equity. Couiis Equitable 
 
 . . ,. . " . , rules as to 
 
 of Equity enjoyed a concurrent jurisdiction with the fraud or mis- 
 Courts of Law in the matter of fraud, but had a [^S;;^^-;"^''^'''" 
 further exclusive jurisdiction to compel the delivery up contract. 
 and cancellation of written instruments, which had been 
 forged or procured to be executed by fraud, duress or 
 undue influence (//). As regards the avoidance of a Contract 
 contract induced by a fraudulent representation, the JraudmiHIit 
 rule of equity was the same as the rule of law ; the be set a«iao 
 contract was regarded as, not void, but voidable (/) at ^" ^^^ ^' 
 the option of the party defrauded. He might therefore 
 ])lead the fraud as an absolute bar to proceedings against 
 him for specific performance of the contract (/•). But, 
 further, he might sue in equity as plaintiff, either before 
 completion of the contract, to have the agre<'menl 
 rescinded and any written instrument (;ontaining it 
 delivered up to be cancelled ; or after completion, so 
 long as the parties could be restored to their former 
 
 I'rf) Sfyret v. lihii/, 2 B. & Ad. (h] "VVin.s. Real Prop. IGo. n.(«f), 
 
 406; Feujamiu on Sale, 741, 744. "Jlst ed. : and oases cited below, 
 
 748, 753. 'ind ed. : stat. 56 & 57 p. 812, n. (/). 
 Vict. c. 51, 8. 11 (1 c). (') (fakcM v. T/'n/iiaiid, L. R. _' 
 
 (r) Smith V. /-rtw/ ftiid Hoicr H. L. 325; Jir Duncan, 181)9, I 
 
 I'ropert,, Corp., 2S Ch. D. 7. Ch. 387, 3S9. 390. 
 
 ( /■ Above, pp. ()1 1, 65;;, 654. (/.) Cln-ihont v. Tn.ibiirijh, 1 J. 
 
 (11) llr I.'is^ollr V. Uxtldfunl, & W. 112, 120. 
 1901, 2 K. B. 215.
 
 m 
 
 OF FRAUD, MISREPRESENTATION, 
 
 |)(jsitiou, to have the whole transaction set aside (/). 
 Courts of Equity of course had no jurisdiction to enter- 
 tain an action of damages for deceit {nt) : but they had 
 jurisdiction to entertain a personal demand against any 
 one, who had by a fraudulent representation induced 
 another to act thereon to his detriment ; they would in 
 such case grant specific relief in the way of compelling 
 the guilty party to make good his representation ; and 
 they might order him to recoup any definite pecuniary 
 loss sustained by the part}' defrauded [n). A person 
 induced by fraud to make a contract for the sale of 
 land had therefore the like election in equity as he had 
 at law ; that is, he might either rescind the contract, or 
 he might affirm it and claim to have the representation 
 made good (o) . But if he chose to affirm the contract 
 and his loss by the representation were not capable of 
 adjustment by some definite specific relief but could 
 only be assessed at an uncertain sum of money, then he 
 could only claim compensation in Courts of Equity 
 pending the completion of the contract in proceedings 
 brought either by or against him for its specific per- 
 formance ( /-i) ; for there was no original jurisdiction in 
 equity to give damages except as ancillary to some 
 specific relief. If in such case the defrauded party 
 chose to complete the contract or did so before he 
 detected the fraud, and still })roposed to retain the 
 benefit of the transaction and not to set it aside, lie 
 
 (/) Edwards v. McLcoji, G. 
 Coop. 808, 2 Swanyt. ' l28S) ; 
 Attwnod V. Smiill, 6 CI. & Fiu. 
 Ti-l, 330, ;VU, 338, 395, 444 .sy., 
 oO'i ; Loicll V. Hkks, 2 Y. & C. 
 Ex. 46. 
 
 [m) Arkicright v. Xcn-bohl, 17 
 Ch. D. 301 ; Smith v. Chadicirk, 
 9 App. ('as. 187, 193; Derr;/ v. 
 rc(l\ 14 App. Cas. 337, 3G0. 
 
 («) Juaits V. JiickncU, Vu.s. 
 174, 183 ; Iliiiroucti v. Luck, 10 
 Vos. 470, 475 ; Jlill V. Lane, 
 
 L. R. 1 1 E([. 21.) ; T'eck v. Gi<rinu, 
 L. R. G H. L. 377, 390; Low v. 
 noiirrru; 1891, 3 Ch. 82, 94, ii., 
 
 107 .sq. 
 
 (o) RawUns v. H'tckham, 3 De 
 G. & J. 304, 314, 315, 321, 322. 
 
 {p) See above, pp. 721 — 726, as 
 tu the purchaser' M right to .specific 
 perforinaufe with coinpeiisatiou. 
 ^l furtiori, he lia.s tlie like right 
 whci'C the rcpreseiitatioii was 
 fraudulent.
 
 DURESS AND UNDTTE INFLUENCE. ^13 
 
 could not thon recover in equity .any mere unliquidated 
 pecuniary compensation for the false representation, 
 but could only sue therefor as damages in an action of 
 deceit at law (q). 
 
 Witli regard to innocent misrepresentation, it was Innocent inis- 
 
 early established in equity that if one were induced to in equity. 
 
 enter into a contract by a false representation as to 
 
 some material fact made honestly and not fraudulently, 
 
 as by mistake or inadvertence, such misrepresentation 
 
 was a good ground for resisting the specific performance 
 
 of the contract. But it was at the same time asserted 
 
 that a much greater degree of misrepresentation was 
 
 necessary in order to justify the party misled in suing 
 
 to rescind the contract (>•) ; and it was long considered 
 
 that to justify an order ff)r rescission of the contract, 
 
 even before its completion, tlie misrepresentation must 
 
 be fraudulent, that is, made knowingly or recklessly (s). 
 
 But this position was not maintained ; and Courts of 
 
 Equity afterwards held that, where one was induced 
 
 to enter into a contract by a material misrepresentation, 
 
 tliough made without fraud, the contract was voidable 
 
 at his option, and he might sue to have it set aside and 
 
 (if written) delivered up to be cancelled (0- It had. No rescission 
 
 liowever, been decided, before the Courts of Equity liad misrepresen- 
 
 abandoned their former position with respect to rescis- t"tiou after 
 
 ^ '■ completion. 
 
 (r/) Xruhnm v. Mai/, \?, Price, Fin. "i^-i, 330, 338, 39.), 444 xq., 
 
 749 ; Lviiti) V. Hillas, 2 De G. & oO'i; Lorellv. Hicks, 2 Y. & C. Ex. 
 
 J. 110; JolifTe V. Bii/.-rr, 11 Q. 46, ol ; Barthtt \. Salmon, (\ De 
 
 B. D. 2io, 267 : Claiiton v. Lerch, G. M. & G. 33 ; (M)ii)hi'ar,- v. Xrw 
 
 41 Ch. D. 103 ; Sug. V. & P. 235, Urunswirk, ^-c. Co., I De G. F. & 
 
 261; 2 Dart, V. & P. 904, 6th J. 578, 595; Sn<r. V. & P. 243, 
 
 eri. : 812, 7th ed. 244. 
 
 {)■) Cadmaii v. Homer, 18 Ves. {t) Fii/.s/ord v. Richavdx, 17 
 
 10; Savage \. Jiiocl.sopp, \h. 3'6iS, Beav. 87, 95, 96; Stanton v. 
 
 338 ; THMe v. Gi/tson, 1 H. L. C. Tattrrsall, 1 Sm. & G. 529 ; Abn-- 
 
 605, 632, 633 ; Xew lirintsivick, nman Ironicorks v. JFirkens, L. R. 
 
 i^c. Co. V. ^fa(^f|tlldgr, 1 Dr. & Sm. 4 Ch. 101 ; Reese Itirer Silver 
 
 363, 383 ; La'nuire v. Dhon, L. R. Mi/iin;/ Cn. v. Smith, L. R. 4 
 
 6H. L. 414; above, p. 769. H. L. 6t. 79, 80; Torrance v. 
 
 («) Attwood V. -Small, 6 CI. & Jinlton, L. R. 8 Ch. 118.
 
 814 
 
 OF FRAUD, IMTSREPRESENTATION, 
 
 sion for innocent misrepresentation, that a contract for 
 the sale of land would not be set aside on this ground, 
 where there liad been no fraud, after it had been com- 
 pleted by conveyance and payment of the purchase 
 money {ii) . 
 
 Diflference 
 in principle 
 between the 
 rules of com- 
 mon law and 
 equity as to 
 innocent 
 misrepresen- 
 tation. 
 
 The law since 
 the Judicature 
 Acts. 
 
 The later rule so adopted in the Courts of Equity 
 differed in principle from that applied in the Courts of 
 Law ; for the equitable rule treated innocent misrepre- 
 sentation as a matter affecting the formation of a 
 contract and invalidating the parties' consent in the 
 manner accomplished at common law by fraud only 
 with respect to ordinary contracts and without fraud in 
 the case of contracts uhcrrhuw fdci alone (.r). Practi- 
 cally, however, the difference was not great (y). To 
 give rise to the right of rescission in equity, a false 
 representation must have been a part of the transaction 
 ending in the formation of the contract, and must 
 have induced the consent of the party misled to the 
 agreement [z). And in the same circumstances the 
 representation would have been considered, at common 
 law, to form part of the contract itself and to amount 
 to a condition precedent to that party's liability under 
 the contract ; in which case he might, on breach of the 
 condition, rescind the contract entu-ely [a). After the 
 commencement of the Judicature Acts, the equitable 
 rule in question became enforceable in all Divisions of 
 the High Court of Justice ; it has been followed and 
 approved of by the highest authorities ; and as a branch 
 
 {,() Wihlc V. Gibson, I H. L. C. 
 ()05, 632, G33. It should be 
 noted that this decision, though 
 professedly founded on the piin- 
 ciple that a Court of Equity will 
 not rescind a contract for misre- 
 presentation unless made knoir- 
 biglji (that is, fraudulently), ac- 
 cords with the rule of the common 
 law, which allowed no rescission 
 
 for innocent misrepresentation 
 after the contract had been sub- 
 stanti-dly performed ; above, 
 pp. 808, 810, 811 ; Seddon r. North 
 Eaxtern ISalt Co., 1905, 1 Ch. 326. 
 
 (.(■) Bee above, pp. 806, 807. 
 
 (y) Bowen, L. J., Xcuhigqxnq 
 V. 'Adam, 34 Ch. D. 582, 592.' 
 
 {z\ See below, p. 821. 
 
 (ff) Above, pp. 807,809—811.
 
 DURESS AND UNDUE INFLUENCE. -^lo 
 
 of the law of contract, it has prevailed over the rules of 
 common law (b) . Any contract therefore of whatever 
 kind may now be rescinded by any party, who has been 
 induced to enter into it b}'- a material misrepresentation 
 made to him without fraud by any other party thereto (e) . 
 And this right, if promptly asserted after the discovery 
 of the untruth, will not be defeated by the fact that the 
 contract has been partly performed (d), so long as the 
 party misled has not received substantially the whole 
 consideration due to him under the contract (r). But 
 it has been held since the Judicature Acts, following 
 the above-mentioned decision in equity to the same 
 effect (/■), that where a contract induced by misrepresen- 
 tation, without fraud, has been entirely performed, so 
 that the party misled has received the whole conside- 
 ration due to him thereunder (as happens when a con- 
 tract for the sale of land has been completed by 
 conveyance and payment of the purchase money), he 
 can no longer assert any right in equity to set the 
 agreement aside (.7). It has been decided, however, 
 that in such case he may still sue at law for damages 
 sustained by him in consequence of the false repre- 
 sentation, if it amounted to a warranty (//). Otherwise 
 he has no remedy, unless he can claim damages for a 
 
 (f)) Jic(fffritvev. JIii)-(f,20Ch.TJ. (r/) Selborne, C, Itrounlh- v. 
 
 1, 12; Smith V. Land niid House Camphfll, 6 App. Cas. U2o, 937, 
 
 Propertif Corp., '28 Ch. D. 7 ; referring' the case of Jlarf v. 
 
 yeirhif/ffiiiff v. Adam, 34 Ch. D. Swaiiie, 7 Ch. D. 42, to the 
 
 582 ; affirmed, nom. Adam v. ground of fraudulent misrepre- 
 
 Xi'wbififiDiQ, 13 App. Cas. 308; seiitation ; JuUff v. Baler, 11 
 
 l),rr>i V. Vcch, 14 App. Cas. 337. Q. B. D. 2oo. 27J : Cotton. L. J.. 
 
 34 7. 3.')y; Kmbrni'x case, 1892,3 Sipcr v. Arnold, 37 Ch. D. i'C, 
 
 Ch. 1, 13; Jrhittington v. Scale- 102; Clayton v. Lcceh, 41 Ch. D. 
 
 7/rti/w, 82 L. T. 49. 103; Laguuas Nitrate Co. v. 
 
 (<■) Admitte<l and applied, lie Laqnnus Syndicate, lS!t9, 1 Ch. 
 
 Hare and <)' M ore's Contract, 1901, 392, 41G, 423 ; Farwell, J., Mai/ 
 
 iCh. 93, 96; Jf'auton y. Coppard, v. Piatt, 1900. 1 Ch. 61G, 623"; 
 
 1899. 1 Ch. 92; above, p. 726, Jlebcriham v. Sau-hridi/e, 1901. 2 
 
 n. (./■). Ch. 98 ; Sfddon v. North Eastern 
 
 {d) See last note but one. Salt tJo., 190.). 1 Ch. 320; above, 
 
 (e) See above, pp. 80S, 810, pp. fill, r).-)3, 6oJ. 
 
 811, 813, 814, n. («). {h)Dg Laxsalle v. Guildford, 
 
 if) Above, p. 813. 19ol, 2 K. B. 21.') ; above, p. Gil.
 
 816 
 
 OF FRAUD, MTSREPRFPENTATTON, 
 
 To be fraudu- 
 lent, a false 
 representation 
 must be made 
 kuowUn/hj or 
 recklessly. 
 
 No obligation 
 to take pains 
 to ascertain 
 the truth. 
 
 breach of some eovenant for title (/). It has further 
 heen finally established since the Judicature Acts that, 
 in order to give rise to an action of deceit or any other 
 proceedings (/.•) for a fraudulent misrepresentation, the 
 representation must have been made either knowingly 
 (without belief in its truth) or irrkkss/// (without caring 
 whether it was true or false) ; and that if a representa- 
 tion inducing a contract were made honestly in the 
 belief that it was true, it is not sufficient to support an 
 action of deceit that the party making the mis-statement 
 had no reasonable grounds for this belief. In other 
 words, a man making such a statement is under no 
 obligation to take reasonable pains to ascertain that it 
 is true (/). 
 
 What must be 
 proved to give 
 rise to the 
 right to 
 rescind a 
 contract for 
 misrepresen - 
 tation. 
 
 1. Falsity 
 essential. 
 
 2. There must 
 be a represen- 
 tation. 
 
 In order to give rise to a right to rescind a contract 
 for misrepresentation, whether innocent or fraudulent, 
 it appears that the following facts must be established : — 
 There must have been a false representation made as to 
 some material fact by one party to the contract, or his 
 agent, to the other, as a part of the transaction ending 
 in the formation of the contract ; and the other must 
 have entered into the contract on the faith of that 
 representation, not knowing that it was false and reason- 
 ably believing it to be true (w«). Let us make a fm'ther 
 analysis of this statement. First, falsity is essential ; 
 there is no cause of action if the representation be 
 true {)i). Secondly, there must be a rcpresenfation, that 
 is, a statement of fact (o) , either in words or by conduct 
 
 ((■) See last note but one. 
 
 [k) Above, pp. 806, 811, 812. 
 
 (l) Derri/ v. Peek, 14 App. Cas. 
 337 ; Apff'us X. Clifford, 1891, 2 
 Ch. 449 ;ZcZ(>nrv. Gould, 1893, 
 1 Q. B. 491 ; United Shoe, S;c. Co. 
 v. Briniet, 1909, A. C. 330, 338. 
 This law has been altered with 
 respect to statements made by 
 directors or promoters of com- 
 panies in prospectuses inviting 
 
 subscriptions for shares or deben- 
 tures ; stat. 53 k 54 Vict. c. 64. 
 
 {)n) See Pollock on Contracts, 
 561 sq. 7th ed. ; United Shoe, dfr. 
 Co. V. Brwiet, 1909, A. C. 330, 
 338. 
 
 [n) See Smith v. Chaduick, 20 
 Ch. D. 27, 9 App. Cas. 187 ; 
 Bellairs v. Tucker, 13 Q. B. D. 
 562. 
 
 (o) Above, p. 769.
 
 DURESS AND UNDUE INFLUENCE. 817 
 
 (as in the case of active concealment of a defect) (p). 
 As has been already shown, mere silence is not sufficient 
 to confer the right to rescind {q) ; except in the case of 
 contracts iiherriime fidci, which may be avoided for non- 
 disclosure of a material fact (r). And there must be a 
 definite assertion of some fact as distinguished from a 
 mere expression of the party's opinion or belief as to 
 some circumstance relating to the contract, or a vague 
 affirmation of the excellence of the property to be 
 sold (.s'). For example, a distinct statement by a vendor 
 of land that limestone embedded therein is capable of 
 producing lime of first-rate quality fit for the London 
 market {f), or that a house erected thereon is not 
 damp {u) , or that the property is let to a most desirable 
 tenont (.r), amounts to a representation sufficient, if 
 false, to avoid the contract (r) . But the incorrect 
 description of renewable leaseholds as nearly equal to 
 freehold [y) or of a small liouse as a desirable residence 
 for a family of distinction (s) has been held not to 
 amount to 'a representation affecting the contract {a). 
 
 With regard to statements, which are ambiguous, being Ambiguous 
 
 statements. 
 
 {p) Above, p. 769. was barely established ; see above, 
 
 {q) Above, pp. 765 — 767. p. 813. There can be no doubt 
 
 (r) Above, pp. 768, 807. at the present time that such a 
 
 («) Fcnton v. Browne, 14 Ves. misrepresentation would be suffi- 
 
 144 ; Trower v. Ncucoinc, 3 Mer. cient to avoid the contract. 
 
 704 ; Scott V. JIanso)/, 1 Sim. 13, (k) Utrangways v. Bishop, 29 
 
 lo ; Power v. Barhani, 4 A. & E. L. T. 0. S. 120. 
 
 473 ; Benjamin on Sale, 500, 2ud {x) Smith v. Land and House 
 
 ed.; Brf/uirsy. Tucker, 13 Q. B.D. Property Corp., 28 Ch. D. 7 ; and 
 
 562. ' see Tibbatts v. Boulter, 73 L. T. 
 
 (<) Higyins v. Sameh, 2 J. & H. 534, where the representation was 
 
 460. The actual decision was that certain licensed property was 
 
 that the statement was a misre- subject to mortgages for jiarti- 
 
 presentatiou sufficient to bar the cular sums, and that the mort- 
 
 vendor from enforcing specific gagees were willing to allow 
 
 performance. The question whe- these amounts to remain on the 
 
 ther the misrepresentation was security ; cases cited above, p. 
 
 .sufficient to avoid the contract 709, iin. (y),(/i), (»),(/•),(/), («(),(/»). 
 
 was not decided : though it was (i/) Fenton v. Browne, 14 Ves. 
 
 referred to as a difficult point. 144. 
 
 But at that time the equitable (s) Magennis v. Fallon, 2 Moll, 
 
 jurisdiction to rescind a contract 561, 587. 
 
 for innocent misrepresentation (a) See also above, p. 770. 
 
 w. 52
 
 818 
 
 OF FRAUD, MISREPRESENTATION, 
 
 true if accepted in one sense, but false if taken in 
 another, it must be shown, in order to found a right to 
 rescission upon them, tliat the party, to whom the}^ 
 were made, understood them in the sense in which the}- 
 were imtrue(/v). And it may be observed that a 
 collateral promise to do some act, tliough it may effec- 
 tivel}^ induce the j^romisee to enter into a contract (c), 
 is not, properly speaking, a representation at an(^/). 
 3. Therepro- Thirdly, the false representation must be of some fact (r) 
 
 Promise not 
 properlj' n 
 represPTita- 
 tinii. 
 
 {/') Siiiif/i V. Chndiricli, 9 App. 
 Gas. 187. 
 
 (c) See cases cited at the end 
 of note [a) to p. 782. above. 
 
 id) Expte. Barren, 1 Ch. D. 
 537, .5,52. See next note. 
 R.epresenta- ''") It has been held that a re- 
 
 tion of inten- preseutatiou made by a party to a 
 tion, wliether proposed contract of his intention 
 a represen- to do some act, but not amounting 
 tation of fact, to a promise to do the act, may, 
 if unfulfilled, be a ground for 
 resisting the specific performance 
 of the contract ; Mi/frs\. IVatsiOh, 
 1 Sim. N. S. .523': S. C, nom. 
 Uone V. TFt^fsoii, 10 H. L. C. 671, 
 681, 682 ; Lnmnrc v. DUou, L. R. 
 6 H. L. 414, 428; or even for 
 avoiding the contract ; Trai/l v. 
 Sori//fj, 4 De G. J. & S. 318. 
 These decisions appear inconsis- 
 tent with the law laid down in 
 Jovflt-)! V. jrn)iei/, 6 H. L. C. 18.5; 
 Maddisoii v. Ahlersoii, 8 App. Gas. 
 4G7, 473 ; and they are criticised 
 in Pollock on Gontract, 52.5, 718 
 — 720, 7th cd. ; see also Atkin- 
 son, L.A., Caralier v. Pope, 190(), 
 A. G. 428, 432. It certainly ap- 
 pears that in those cases it would 
 have been more consistent with 
 principle to treat the representa- 
 tion according to the common law 
 doctrine as a collateral promise. 
 And indeed it was stated by Lord 
 Westbury in Eosr v. IVatson, 10 
 H. L. G. 681, 682, that the re- 
 presentation was regarded in 
 equity as a substantial part of 
 the contract. But it has been 
 held that a false statement as to 
 a man's intention may be a re- 
 presentation of fact, since it is a 
 
 representation as to the state of 
 his mind, and may at least give 
 rise to liability if made fraudu- 
 lently. Thus it is considered that 
 if a man contract to buy goods 
 with the intention of not paying 
 for them, that is a fraud sufficient 
 to justify the avoidance of the 
 contract on the vendor's part ; 
 Load V. Green, 15 M. & W. 216 ; 
 CJoii'/li V. London S; Xorth JVrster)i 
 llil.'f'o., L. R. 7 Ex. 26; Expte. 
 IJ'hiftaker, L. R. 10 Gh. 446, 449 ; 
 7?^' Enstf/afr, 190.5, 1 K. B. 465. 
 And it has been decided that a 
 false statement made knowingly 
 (that is, fraudulently) by the 
 directors of a company invitiog 
 subscription to debentures, that 
 it trail intend/din apply the money 
 so borrowed to a particular pur- 
 jiose, was a statement of fa'-t and 
 a good cause of action of deceit 
 against them ; Edqington v. Eitz- 
 manrice, 29 Gh. D. 459. As to a 
 false statement of a person's 
 motive in agreeing to buy or sell 
 at a particular price, see Vernon 
 V. AV//,v. 12 East, 632, 4 Taunt. 
 488, criticised in Benjamin on 
 Sale, 356—358, 2Dd ed., and 
 Pollock on Gontract, 563, 564. 
 7th ed. ; LAndsat/ Petrokiim Co. v. 
 Ifnrd, L. R. 5' P. G. 221, 243. 
 Statement of belief that some 
 event will happen in the future 
 must of course be ciirefulh' dis- 
 tinguished from statement that 
 some event has happened in the 
 past ; B'-Unirs v. Tucker, 13 Q. 
 B. D. 562. By stat. 6 Edw. VII. 
 c. 41, s. 20 (3, 5), an untrue re- 
 presentation as to a matter of 
 
 ^^ 
 
 I
 
 DURESS AND UXDi:i: IXFLUEXCE. 
 
 819 
 
 and not, it appears, of law ( /') . But for this pur- sentation 
 
 ... ', ii /< • i must be of 
 
 pose any repn^sentation as to a matter oi private gome fact, 
 riglit is a representation of fact ; such as a statement 
 that one is the owner of some property which he offers 
 for sale, or is invested with some power or authority 
 under the particular constitution of some corporation or 
 compan}' or by virtue of some private Act of Parlia- 
 ment ({/), or that the property is free from restrictive 
 covenants (//). And it .-^eems that misrepresentation as 
 to some proposition of general law may give rise to 
 a right of action, if made in deliberate fraud (/). 
 Fourthly, the representation must be of some material ^- The fact 
 fact, having relation to the proposed contract (/.•). But matonal. 
 if the fact asserted relate to the contract and did actually 
 induce the party, to whom the statement was made, to 
 enter into the contract (/), it is a material fact (m) ; 
 unless the circumstance alleged were such that no 
 reasonable person would allow his judgment to be 
 
 intluenced by the statement (;/). Fifthly, the represen- ">. The repre- 
 sentation 
 
 oxpcftatinn or belief may avoid A'ifsnn, 13 Q. B. D. 3G0 ; and 
 
 a contract of marine insurance. consider Kettleirell v. Refuge 
 
 Sucli a contract is, liowever, Atomriinci: <'u., 1908, 1 K. B. .04.'), 
 
 iiheniDia; fidei ; see sects. 17 — 19; affirmed 1909, A. C. 'l\'i : cf. 
 
 above, p. 807, and n. (i). above, p. 780. 
 
 /: Leicis V. Jones, 4 B. & C. (/*) Above, pp. 19G, 197. 728, 
 
 506. 'j12 (cf. above, p. 756) ; Rasf,- 729. 
 
 da/f V. lord, L. R. 2 Eq. 7.50 : (i) Hirschfield v. London, 
 
 Jieattie V. Ehiini, L. R. 7 Ch. Brighton, ic' Ry. Co., 2 Q. B. D. 
 
 777, 800. 7 H. L. 102, 130; I, 5, G; Bowen, L. J., IVest 
 
 Eaglesjirld v. Londondemi, 4 Ch. D. London Commercial Bank v. Kitson, 
 
 693, 7<l9; Halhut v. Lens, 1901, 13 Q. B. D. 360, 3G2, 363. 
 
 1 Ch. 344, 350; Harse v. I'earl, (k) Above, pp. K16, 817. 
 
 ffc. Co., 1904, 1 K. B. 558. (/) See above, p. 805. 
 
 [g] Above, p. 651 ; f'rippx (m) See Smitfi v. Kfig. 7 H. L. 
 
 V. Jteade. 6 T. R. 606| stated C. 750, 759, 769, 77u, 775 ; *'«i/M 
 
 below. Chap. XIX. § 5 ; and v. Land and JIokm Property Corp., 
 
 «ee Hume v. I'ocnek, L. R. 1 28 Ch. D. 7; Cordon V. Street, 
 
 Ch. 379, 385, where the contract 1899, 2 Q. B. 041. 646. 
 
 ■was held to be for the purchase (w) See Magmnis v. Fathn, 2 
 
 of such interest as the vendor had Moll. 561, 587; Sentf v. Ilmison, 
 
 (see above, p. 20"2) ; Richardson v. 1 Sim. 13, in which case however 
 
 iruHamson, L. R. (! Q. B. 276 ; it is doubtful whether the law 
 
 Mostyn V. Went Montgn Coal and laid down was correctly applied 
 
 Iron Co., Ld., 1 C. P. D. 145; to the i)arti<'ular faets. Under 
 
 ll'est London Commercial Itank v. the present law of misrepresenta- 
 
 02 (2)
 
 820 
 
 OF FRAUD, MISREPRESENTATION, 
 
 False repre- 
 sentation by 
 asrent. 
 
 must be made tatioii must be made by some party to the contract or 
 the'contract*^ ^^^ agent ; not by a third person (o) . For the purposes 
 or his agent, of ^]je rescission of the contract before completion, a 
 false representation made by the party's authorised 
 agent within the scope of his general authority has 
 exactly the same effect as if it were made by the prin- 
 cipal himself ; it is immaterial whether the principal 
 did or did not give any express authority for the state- 
 ment to be made, and whether it was made fraudulently 
 or innocently {p). And it is within the general autho- 
 rity of an agent employed to sell or to find a purchaser 
 for any property to make statements as to its quality {q) 
 or otherwise as to matters affecting its value (r). If, 
 however, it be sought on the ground of misrejaresenta- 
 tion to rescind a contract for the sale of land after 
 completion, it appears that, as this relief is then only 
 granted on account of a fraudulent misrepresentation (s) , 
 the plaintiff must establish a false representation made 
 by the agent in such circumstances as to give rise to a 
 good cause of action of deceit against the principal {f). 
 
 tion (above, pp. 814, 815) the 
 decision would scarcely be the 
 same. 
 
 (o) Lmr/an''s ca.ic, 1902, 1 Ch. 
 707. \ 
 
 (j)) Abinger, C. B., Coriifocl v. 
 Fowke, 6 M. & W. 3.58, 380 sq. ; 
 Western Bank of Scotland v. Addir, 
 L. R. 1 Sc. 145, 1-58 ; Benjamin 
 on Sale, 371, 375, 2nd ed. ; Mul- 
 
 Irn.s V. Miller, 22 Ch. D. 194 ; 
 Smith V. Lnnd and Souse Troperti/ 
 Corpn., 28 Ch. D. 7, 13 ; TFmito'n 
 V. Coppard, 1899, 1 Ch. 92 ; Cree 
 V. Stone, Times Newspaper, 10th 
 May, 1907. 
 
 (q) See above, pp. 769, 817. 
 (r) See previous note. 
 («) Above, p. 815. 
 
 {t) JFilde V. Gibson, 1 H. L. C. 605, 616, 617, 633, 634 ; Broicnlir 
 V. CampholU 5 App. Gas. 925, 937, 938; see below, pp. 823, 824. It 
 is submitted that the decision of Rolfe, Alderson, and Parke, BB., in 
 Cornfoot v. (Jornfoot v. Foirke, 6 M. & W. 358, is good law if confined to the point 
 
 Foa'ke. that, where it is necessary to prove a /rff^rfwy^wi! misrepresentation as 
 
 a ground for rescinding a contract, and the misrepresentation was in 
 fact made innocently by an agent and not r.rpressli/ authorised by the 
 principal, conduct actually fraudulent on the part of the principal 
 must be shown. In that case the defendant, wishing to take a short 
 lease of a furnished house, asked an agent employed to let it for the 
 plaintiff, if there were anything objertionable about the house. The 
 agent answered, " Nothing whatever " ; he honestly believed this to be 
 true. The house was in fact next door to a brothel ; but the agent 
 did not know this. The plaintiff knew it, but had not expressly
 
 DURESS AND UNDUE INFLUENCE. 821 
 
 Sixthly, in order to give rise to the right to rescind the 6. The repre- 
 
 coutract, the representation must have been made as a must be'a 
 
 part of the transaction ending in the formation of the P-'^'^ of the 
 
 contract. It must not have been a statement made in- ending with 
 
 depeadently of the negotiation preliminary to the t^eformation 
 
 contract (u). Seventhly, the representation must have tract. 
 
 actually induced the party misled to make the contract ; 7. The repie- 
 
 it must have been an effective cause of his entering- into must have 
 
 the agreement (./). If he did not act in reliance on the I'l^'i^^c'l the 
 ^ ^ ' , . ^ contract. 
 
 statement made, but used his own judgment, there is 
 no ground for rescinding the contract (//), or for main- 
 taining an action of deceit where the misrepresentation 
 
 authorised the agent to make the statement. The defendant found 
 out the untruth of the statement on the day after he had signed an 
 agreement to take the house for two years, and immediately repu- 
 diated the agreement and declined to take possession. The plaiutitf 
 afterwards sued for the rent due under the agreement ; and the 
 defendant pleaded that he was induced to enter into the agreement 
 by the fraud of the plaintiff and others in collusion with him. It 
 was held, that to support this plea, it was not enough to sliow that 
 the plaintiti's agent innocently made a false repi'esentatiou, which 
 the plaintiff knew to be untrue, but did not expressly authorise : but 
 the defendant must show that the plaintiff himself had acted fraudu- 
 lently. Substantially, however, the facts there alleged appear to have 
 been sufficient to give the defendant a right to relief under the common 
 law as to innocent misrepresentation. That is to say that, if he tiad 
 relied on the agent's representation as forming a part of the contract, 
 he might have e.stablistied the right to rescind it before it had been 
 executed in his favour (and apparently it had not been so executed, 
 6iuce he had not taken possession : see Mosti/n v. West Mosttjn Coal 
 inid Iron Co., 1 C. P. D. 14.')^ ; or if the agreement had been so per- 
 formed he might have recovered damages for breach of warranty that 
 the representation was true ; see 6 M. it W. o69, IJT'i, 373 ; Xatmial 
 Kic/i(in(/r Co. V. J)i-nt\ 1 Macq. 103, 108, 109, 145; Willes, 3 ., Barttivk 
 V. Jui(//ish Joint. ^tocA- Bank, L. R. 2 E.x. 269, 202 ; above, pp. 807, 810, 
 81 1. Under the present law of rescission for innocent misrepresenta- 
 tion, it can scarcely be doubted that a party to a contract for the sale 
 of lautl would be entitled, it misled in the same circumstances as the 
 defendant in Cunifoot v. FowI.e, to rescind the contract before com- 
 pletion : but if he were to claim rescission after completion, it appears 
 that the decision in that case would still be iu point. It is thought 
 however that he might, after completion, recover damages for breach 
 of the warranty implied l)y the representation ; JJc Lassalle v. Guildford, 
 1901, 2 K. B. 21."). , 
 
 («) See llupkiim v. Taiiqiuruij, (.<) Above, p. 805, and n. (6). 
 
 15 C. B. 130; Way \. Hmrn, \'i [y) Jenniiiyx v. BroiightoiK 17 
 
 C. B. N. S. 292 ; Peek v. Gunny, Beav. 234, 238, 239, 5 De G. M. 
 
 L. R. 6 H. L. 377 ; and of. & G. 126, 138. 
 above, p. 814.
 
 822 
 
 OF FR-VaD, MLSREPRK.SENTA riOX, 
 
 8. The parly 
 claimiuyr to 
 have been 
 misled must 
 not have 
 known that 
 the statement 
 was false. 
 
 was fraudulent (;:). So it has been held, iu a ease 
 where active concealment of a defect was alleged as a 
 fraud justifying the rescission of a contract, that a 
 purchaser who had made no inspection of the defective 
 article before buying it, did not ad upon any implied 
 representation of its soundness, and so could not avoid 
 the agreement {a) . But if an}^ artifice were used to 
 conceal a defect prior to the sale of land, it is thought 
 that the. vendor could not enforce the specific perform- 
 ance of the contract, although the purchaser had not 
 inspected the property (/>). Where a person has acted 
 on the faith of a false representation made to him, it is 
 no defence to any proceedings founded thereon that he 
 mierht have found out the truth if he had made 
 in(piiry (e) . Lastly, the pai'ty to whom the represen- 
 tation was made must not have known that it was false ; 
 he must reasonably have believed it to be true. We 
 have seen that he has no cause of action if he were 
 aware of the true facts of the case (''/). 
 
 What is 
 requisite to 
 maintain an 
 action of 
 deceit for a 
 false repre- 
 sentation 
 inducing a 
 contract. 
 
 Motive, as a 
 rule, im- 
 material. 
 
 To maintain an action of deceit for a false representa- 
 tion, which has induced one to enter into a contract, the 
 same conditions are in general necessary as are required 
 to confer the right to rescind the contract {<') ; and in 
 addition to these, it must be shown that the false state- 
 ment was made, either knowingl}', that is, without 
 belief in its truth, or recklessly, that is, without caring 
 whether it were true or false (/'). Where these con- 
 ditions are fulfilled, it is not necessary to prove that 
 
 {z) Smith V. (JhadK-icli, 9 App. 
 Cas. 187, 195, 196; Nash v. 
 (Jidthorpe, 190.5, 2 Ch. 237. 
 
 [a) Eorsfall v. Thomm, 1 H. & 
 C. 90 ; see above, p. 769, n. (r), 
 as to this case. 
 
 {b) See above, p. 770. 
 
 (c) Dijcr V. Hargrave, 10 Ves. 
 .50.5, 509, 510; Dohell \. Slevens, 
 ■6 B. & C. G23 ; licynell v. Spryc, 
 
 1 De G. M. & G. 6GU, 710 ; Price 
 V. Macauhiy, 2 De G. M. & G. 
 339, 346 ; Central lii/. Co. of 
 Vniezuehi v. Kisch, L. R. 2 H. L. 
 99, 120 ; Redgrave v. Hitrd, 20 
 Ch. D. 1. 
 
 [({) Above, p. 769. 
 
 (e) Above, pp. 816 "fy. 
 
 (./■) Above, ijp. 806, 816.
 
 DURESS AND UN'DUK INFLUEN'CK. 823 
 
 the false stateiiieut was made with the actual inteutiou 
 of defraudiug, cheatiag or wrongfully gaining some 
 advantage over the party so deceived ; for if the state- 
 ment were made knowingly or recklessly, a fraudulent 
 intention will be inferred (^). 80 also where an action 
 of deceit is founded, not on a false statement in words, 
 but on a fraudulent representation made by conduct (as 
 in the case of active concealment of a defect (h) ), it 
 appears that an intention to defraud or cheat the 
 party misled is of the gist of the action, but such inten- 
 tion may be inferred from the facts of the case (/). A Pnucipal, 
 
 ■,.,.,,. ,. p , •, p PI when liable in 
 
 principal is liable in an action ot deceit tor a lalse an action of 
 representation made by his agent, if it were untrue or ^e«eit for a 
 
 *• "^ '^ false reprc- 
 
 reckless to the knowledge of the jirincijxil and were sentation 
 
 c.rpir-s.s/// authorised by him (/i) ; or if it were untrue or ^^raut ^' ^^ 
 reckless to the knowledge of the ((t/oif (though not of 
 the princi})al) and were made either with the principal's 
 express authority or without such authority within the 
 scope of the agent's employment (/). But if the prin- 
 cipal were aware of the untruth f)r recklessness of the 
 statement, and the agent were not, and the representa- 
 tion were made by the agent, without fraud and in the 
 honest belief that it was true, and without the cj-press 
 authority of the pnncipal but within the scope of the 
 
 (j) lUltill V. iralter, 3 B. A: 289; Parke, B., Com/w/ v. /iy«/r, 
 
 Ad. 114, 1L';5 ; Wildr v. Gibson, 1 (5 M. & W. 3o<», 37:? ; U'lnrick v. 
 
 H. L. C. (i()'). ()33; I'cekx. diinin/. Kih/IisIi JouU SIocIc Jinn/,; L. R. 2 
 
 L. K. H. L. 377, -lOK : Smi't/, Ex. 2.')9 ; Sirl// v. ir,,ili>botliam, 
 
 V. ChiifhricI:, 9 App. Cas. 1S7, L. R. S Q. B. '244; Mdcka^/ v. 
 
 201 ; Jtemi v. I'lcl:, 14 App. Ca.s. Coiiinurcutl liiiiik of Xtw Jiruiis- 
 
 337, 365, 371, 372, 374 ; Le I.icir inrk, L. R. T) P. C. 391 ; Swire 
 
 V. Gonld, 1893, 1 Q. B. 491, 498, v. Fntiuis, 3 App. Cas. 106; 
 
 jOO. l{<iulds>rorth V. (Ttfif of O/axt/oir 
 
 (/i) Above, p. 769. Ihm/,; fi App. Ca>'. 317 ; Geori/r 
 
 (i) Selbome, C, Coaks v. Jiux- WJiitechurvh, Ld. v. (Javunagli, 
 
 tce/l, 11 App. Ca«. 232, 236; see 1902, A. C. 117, 140; Gibhn v. 
 
 the casets cited below, p. 824, n. Xatioiiiil, ^-c. Cnion, 1903, 2 K. B. 
 
 (0), and <f. above, pp. 765 — 767. (>00 ; 6'. reaixon 4" Son, Ld. v. 
 
 (k) Rolfe, Aldeisou, BB., Tor//- /hdlin Curpn., 1907. A. C. 3.51; 
 
 foot V. I-'oirkr, 6 M. & W. 3.)8, .sec also Keith nrll v. Refuge An- 
 
 ■370,371. mranc, Co., 1908, 1 K.'B. 545, 
 
 (/) Hem V. Xichol.s, 1 Salk. 1909, A. C. 243.
 
 824 
 
 OF FRAUD, MISREPRESENTATION, 
 
 agent's employment, it appears tliat, in order to cTiarge 
 tlie principal in an action of deceit (m) , the party misled 
 must prove some conduct positively fraudulent on the 
 part of the principal ; as for instance, that the principal, 
 being aware of the agent's ignorance of the true state 
 of the facts, purposely employed him to transact the 
 business with the object of avoiding any discovery 
 which would or might be made by inquiries put to the 
 principal himself. Such conduct would, it is considered, 
 amount to an active concealment {)i) by the principal, 
 for which he would be personally liable (o). But 
 unless such fraudulent conduct on the part of the prin- 
 cipal himself could be shown, it is thought that there 
 would be no cause of action of deceit against him ; for 
 he could not be liable for his agent's tort, as the agent 
 did no wrong ; nor would the agent's statement amount 
 to a tort committed by the principal himself, if the 
 principal did not expressly authorise it to be made, and 
 did not in any way wrongfully conceal the truth {p) . The 
 principal is not liable for a fraudulent representation by 
 his agent which is not within the scope of the agent's 
 general authority {q), or is made by the agent for his 
 own personal advantage and not for the benefit of the 
 Agent, where principal (r). The agent is himself liable to the party 
 misled in an action of deceit, if he made the false 
 
 liable. 
 
 (;h) See above, p. 820, as to the 
 right of the party misled to re- 
 scind a contract so induced. 
 
 («) Above, p. 769. 
 
 (o) Parke, B., C'ornfootv. Fowke, 
 6 M. & W. 358, 362, 373, 374 ; 
 above, p. 770, n. {t) ; Ludgater 
 V. Love, 44 L. T. 694. 
 
 [p) It is submitted that this 
 particular case is not covered by 
 the remarks of Lords Loreburn 
 and Halsbury in S. Pearson ^ Son, 
 Ld. V. BuhUn Corpn., 1907, A. C. 
 351, 354, 357—359, Avhere the 
 representation made was actually 
 fraudulent on the part of the 
 
 agent, who made it. 
 
 {q) Burnett v. South London 
 Trnmivays Co., 18 Q. B. D. 815 ; 
 George TFhitechurch , Ld. v. Cava- 
 nagh, 1902, A. C. 117. 
 
 (r) British Mutual Banking Co. 
 V. Charmvood Forest Ry. Co., 18 
 Q. B. D. 714 ; Thome v. Heard, 
 1894, 1 Ch. 599, 1895, A. C. 495, 
 502 ; Georqe TVhitechurch, Ld. v. 
 Cavanagh,'l^Q2, A. C. 117, 141 ; 
 and see Ruben v. Great Fingall 
 Consol. Ld., 1904, 2 K. B. 712, 
 725, 731, 1906, A. C. 439; and 
 cf. Hambro v. Burnand, 1904, 
 2 K. B. 10.
 
 DURESS AND UNDUE INFLUENCE. 825 
 
 representation knowingly or recklessly : but other- 
 wise not (s). If both principal and agent honestly 
 believed the statement to be true, neither is liable to an 
 action of deceit (t) . Of course an action of deceit for a Action of 
 false representation inducing one to enter into a contract a"-ainsroifo '^ 
 may be brouo-ht, not only against a party to the con- "°*^ '^ P^'^ty 
 
 1 J 1- 1 . r 1 . .', -^ ,. . , , to the con- 
 
 tract or his agent, but also under similar conditions [u) tract. 
 
 against any other person, who has fraudulently (.r) 
 
 made a false statement with the intent that the party, 
 
 to whom the statement was made, should act upon it or 
 
 in a manner apparently calculated to induce him to act 
 
 upon it (//). 
 
 It has already been pointed out (z) that contracts for Contracts for 
 the sale of land are not, as regards defects in the quality are^uot void- 
 of the land itself or any building thereon, in the able for non- 
 class of contracts ?^/>^>v7>«rg ^V/r/ ; the vendor is under no 
 obligation to disclose any such defect, and if he merely 
 keep silence regarding it, there is no ground for the 
 purchaser to avoid the contract, or even, it is thought, 
 to resist the specific performance thereof. The law is Except in 
 different, however, witli respect to the suppression of a yreLion^of ' 
 defect of title ; as a man's title to land must necessarily (\efects of 
 lie within his own knowledge alone, and is not generally 
 to be ascertained by independent investigation {((). 
 Thus if a vendor of land suppress the fact that it is Suppression 
 subject to restrictive covenants, or disclose some only of tence of^^^" 
 such covenants and keep silence as to tlie rest, that is restrictive 
 equivalent to a representation that the land is free fi-om 
 
 (») Swift \.lFintrrbotl,a,n,L,.'ii. M. & W. al'J, 4 M. \- W. .537; 
 
 5 Q. B. 244, affirmed on this see Cann v. ll'i//so)i, .i\) Ch. D. 39, 
 point, Siri/t v. Jcnshiiry , L. R. 9 oveiTuled on tlie ground that the 
 Q. B. 301 ; lierrij v. IWh\ 14 representation there made was 
 App. Cas. 337. not fraudulent ; Lc Lxvvre v. 
 
 (t) Varke,B.,('onifoolv.Fou/>/', Gould, 1893. 1 Q. B. 491, 498. 
 
 6 M. & W. 3n8, 373. 499— oOl. 
 
 (m) Above, pp. 816 sij., 822. (;) Above, pp. 764—768. 
 
 {x) Above, pp. 806, 816. (a) Above, pp. 768, 769 and 
 
 \y) Polhlll V. JFaltn; 3 B. & u. (/). 
 Ad. 114 ; Laugriiifte v. Lcrii,
 
 826 
 
 OF FKAiri), miski:i'j;ksentation, 
 
 Misrepi'esen- 
 tatiou as a 
 defence to a 
 elaini for 
 specific 
 perfonriancc. 
 
 such covenants or is only subject to those mentioneil (//) ; 
 unci if this representation induced the purchaser to make 
 the contract, he may rescind it (c) . And where a vendor 
 makes a special condition of sale in general terms suffi- 
 cient to preclude objection to some defect of title, but 
 omits to disclose the defect or to bring it to the pur- 
 chaser's notice, the purchaser may nevertheless resist 
 the specific performance of the contract in equity, 
 though he may be unable to rescind it {d). 
 
 Any misrepresentation, whether fraudulent or inno- 
 cent, which is sufficient to avoid a contract (r) , is a good 
 defence to proceedings against the party misled for the 
 specific performance of the contract ( /). But, further, 
 the Court may refuse to enforce specific performance 
 of a contract at suit of a party, who has innocently 
 made a misrepresentation to the other, in cases where 
 the party misled would have no right to rescind the 
 contract {[/). This is owing to the discretionary nature 
 of the relief of ordering specific performance, and to 
 the fact that, in granting or withholding this remedy, 
 the Court may have regard to considerations of unfair- 
 ness or hardship and as to the parties' conduct, which 
 could have no weight at law (//). We have already 
 quoted several instances of innocent misrepresentation 
 affording a bar to specific performance but not confer- 
 ring the right to rescind the contract (//). It appears 
 that an innocent misrepresentation may be a good 
 
 {l>) See above, pp. 41, 195, 728, 
 72<J. 
 
 ((■) Flii/ht V. liooUi, 1 Biug. 
 N. C. :57(): P/iilUpn v. Caldcleinjh, 
 L. R. 4 Q. B. 159; above, pp. 195, 
 351 and n. (m), 728. 
 
 {(i) Eduanh v. Wickunr, L. R. 
 1 Eq. 68 ; Henwood v. Mallaluii, 
 25 Ch. D. 857 ; Nuttuigham Patent 
 lirick nnd Tdc Co. v. liutlei; 15 
 Q. B. D. 261, 16 Q. B. D. 77S ; 
 lir Mnrsli and Earl Granville, 24 
 Ch. D. 11 ; Itc Davis and Cavcy, 40 
 
 Ch. D. 601 ; above, pi?. o8, 7o, 
 n. (0, 196—198, 204, 205; and 
 see p. 211. 
 
 {r) Above, pp. S16 nq. 
 
 if) Above, pp. 811, 813. 
 
 ((/) Laiiiarr v. Dixvii, L. R. 6 
 H.' L. 414, 428; Mr Baiiutrr, 
 Broad v. M>nito,i, 12 Ch. D. 131, 
 142, 147, 149; above, p[.. U»9, 
 770. 
 
 (A) See the cases stated and 
 cited above, pp. 37, 38, 190 — 199, 
 204—207, 768, 770, 776. 
 
 I
 
 DURESS AND L'NDIJK IXKLUENCK. 827 
 
 cause for resisting specific perfornianee, altlioiigli it 
 may uot have actually induced the party misled to 
 make the agreement; that is to sa}', where it cauuot 
 reasonably be supp )sed that lie would not have entered 
 into the contract except in the faith that the representa- 
 tion was true (/). 
 
 Here we may mention a form of mis-statement in Sale by 
 connexion with the sale of land, which has not exactly through "^"^ 
 the true characteristics of a misrepresentation inducing fraud of land 
 the contract, but partakes of the same nature. That is vendor has 
 where a man bv mistake or inadvertenc:?, or through ^'^ '''*^®- 
 fraud, sells some property, of which he is not entitled 
 to dispose (/r). In this cas'3 there will, in the ordinary 
 coarse of things, be a breach of his obligation to show 
 a good title. We have seen (/) that such a breach oF 
 the vendor's obligation under the contract will justify 
 the purchaser in rescinding it : but in these circum- 
 stances the right of rescission is founde 1 rather on the 
 fact that the vendor cannot deliver the article con- 
 tracted for, than on a false representation inducing the 
 jturchaser's consent (m). At the same time the vendor, 
 b}' making the contract of sale, impliedlj^ represents that 
 he has the property described to dispose of ; and it is 
 on the ground of his estoppel by this representation 
 that the Court allows the purchaser to claim specific 
 performance with compensation, where the vendor has 
 go(jd right to a part, but not the whole, of the pro[)erty 
 sold (ii). And if this implied represeuttition were 
 fraudulently made, the same consequences follow as if 
 there luul been a positive assertion in words of the 
 
 (i) Sec previous note; und cf. Vendor and Purchaser summons, 
 
 above, pp. 80.'), 821. a proceedinjr iu which there iH no 
 
 (k) Above, pp. 724, 7-S, I'M. jurisdiction t<.> rescind for mis- 
 
 (/) Above, p. SI 0. representation us s'nh ; below, 
 
 [m) See Re Hair and 0\)f ore's p. S"28, n. (//). 
 
 CoiUtact, 11)01, 1 Ch. 93, where n) Above, p. 724 . 
 the contract was rescinded in a
 
 828 
 
 OF FRAUD, MISREPRESENTATION, 
 
 Election to 
 loscind oi" 
 affirm a con- 
 ti'iict induced 
 by misrepre- 
 sentation. 
 
 Purchaser's 
 right to 
 specific 
 performance 
 with com- 
 pensation. 
 
 Election to 
 rescind must 
 be made 
 within a 
 reasonable 
 time. 
 
 Must be com- 
 municated. 
 
 vendor's ownership, and that representation had induced 
 the other to enter into the contract (o). 
 
 As before mentioned { p) , a person induced by mis- 
 representation, whether fraudulent or innocent, to enter 
 into a contract for tlie sale of land, has the option of 
 rescinding or affirming it : but the contract is voidable 
 only, not void, and remains good until set aside (y). If 
 the party so misled, being the purchaser, elect to affirm 
 the agreement, he may, as a rule, enforce specific per- 
 formance with compensation for the deficiency ; and the 
 limits of his right in this respect have been already 
 explained (r). If the party misled propose to rescind 
 the contract, his election to do so must be made within 
 a reasonable time after the discovery of the misrepre- 
 sentation ; for long delay in claiming rescission after he 
 has become aware of the true facts may be evidence of 
 an intention to affirm the contract (.s) . And his election 
 to rescind the contract must be communicated to the 
 other party {t). If he elect to rescind the contract, he 
 is entitled to take active proceedings under the equitable 
 jurisdiction of the Court to have the agreement set 
 aside and cancelled ; he is not obliged to wait for this 
 relief until he is sued thereon by the other party (t(). 
 
 {o) Above, pp. 654, 819. 
 
 Ip) Above, pp. 80t), 81:i. 
 
 (<;') Uiiiled tShoc, ^-c. Cu. v. 
 Brunct, 1909, A. C. 330, 339. 
 
 ()•) Above, pp. 724—732, 812. 
 
 (s) Clouyh v. London and North 
 Western Rij. Co., L. K. 7 Ex. 26, 
 34, 35 ; Morrinon v. Universal 
 Marine Inmrance Co., L. li. 8 
 Ex. 197, 203 ; Lindsay Petrotenm 
 Co. V. Hard, L. R. 6 P. C. 221, 
 239 nq. ; Erlangcr v. AVw tiomhrtro 
 Fhoapkate Co., 3 App. Cas. 121S, 
 1277 ; Me Liuncan, 1899, 1 Ch. 
 387, 390 ; HedUon v. North Eastern 
 Salt Co., 1905, 1 Ch. 326; United 
 Shoe, ^v. Co. V, JSrunct, 1909, A. C. 
 330, 33y ; and see Charter v. Tre- 
 
 relijan, 11 CI. k. Fin. 714, 720; 
 Lmpertal Ottoman Bank v. Trmtecs, 
 ^■c. Corp., 13 R. 287. If the party 
 misled point out the misrepresen- 
 tation, and the other make pro- 
 posals for removing its eifect, the 
 right of rescission is only sus- 
 pended and may be exercised, if 
 the proposals fall through ; 'Lib- 
 l/att.s V. Botilter, 73 L. T. 534. 
 
 [t) Bwlch-y-iiwm Lead Mining 
 Co. V. Bai/nes, L. R. 2 Ex. 324 ; 
 Ashley's case, L. R. 9 Eq. 263 ; 
 and see lie Duncan, 1899, 1 Ch. 
 387, 390. 
 
 («) Above, pp. 811, 813—815 ; 
 Hoarex. Brcmridgc,'L.'R. 8 Ch. 22, 
 26 ; Londonand Brovmeial Insurance
 
 DURESS AND UNDUE IXFLUENCE. 
 
 829 
 
 Election to affirm the agreement may not only be 
 expressly declared, but may be inferred from the acts 
 of the party cioncerned (.r), as by a purchaser's exer- 
 cising acts of ownership in respec^t of the property 
 bought {>/) . When tlie party misled, being aware of 
 tlie misrepresentation made, has once elected to affirm 
 the contract, he cannot afterwards rescind it (:;). And 
 where through the act of the person entitled otherwise 
 to avoid the contract it has become impossible to restore 
 the parties to their former position, the contract can no 
 longer be rescinded (a) ; tliougli a mere deterioration 
 through use of some property' purchased under a con- 
 tract voidable for fraud will not prevent the rescission 
 of the contract, if a payment in money would be an 
 adequate compensation therefor (A). Thus if one in- 
 duced to purchase mines by a fraudulent misrepresenta- 
 tion have entered into possession and worked out the 
 mines, it appears that he cannot afterwards rescind the 
 contract {c) ; but if in such circumstances mines or 
 similar properties be only partially worked, so that tlieir 
 depreciation would be a proper subject for compensa- 
 tion, that will be no bar to a claim for rescission, though 
 
 Election may 
 be evidenced 
 bv acts. 
 
 No rescission 
 after an 
 election to 
 aflKrm the 
 contract. 
 
 Nor where 
 by the act of 
 the party 
 claiminir to 
 rescind 
 reMitiitio in 
 integrion has 
 become 
 impossible. 
 
 ''». V. fif'i/inour, Li. R. 17 Eq. 8"). 
 If sued, he may counter-claim for 
 rescission ; J{<'d(/rar/' v. Jlnrd, "Jd 
 (Jh. D. 1 ; Siiilth V. Laud mid 
 lloitsr rrnpnty t'irrp., '2X Ch. ]). 
 7. But a claim to rescind the 
 contract for misrepresentation 
 cannot be made in a vendor and 
 jjurchaser summons ; /'/■ lliujhi s 
 (Hid Ashlei/x i'outrart, 1900. 'JOh. 
 595 ; see "below, C'liMp. XIX. ^\ 4. 
 
 (.(•) ('lough V. Lduditn mid Xort/i 
 fl'i'tfr))) lii/. Co.. L. R. 7 E.\. 2(). 
 :?7 ; Lfiir v. Lmr, 1905, 1 Ch. 140, 
 158, 1.59. 
 
 (y) Kxpti. Jhiffi/s, L. R. 1 Kij. 
 488 : Sclmle;/ v. r'tiitm/ Idj. (Jo. of 
 ]'e)iizitlii, L. R. t) Eq. "iGO, n. ; 
 Srddiiu V. Xortli EdKfcrn Salt (Jo., 
 1905, 1 Ch. :5J() ; cf. above, 
 pp. 190, 191. 
 
 [z) Clough V. London and North 
 H'entcrn Ity. Co., L. R. 7 Ex. 26, 
 34 ; Law v. Law, 1905, 1 Ch. 
 140, 158, 159; rnitrd Shoe, ^c. 
 Co. V. Biinict, 1909, A. C. 330, 
 389. 
 
 [a) Clarke v. Didson, E. B. & 
 E. 148 ; ffesfcrn Bank of Scotland 
 V. Addic, L. R. 1 Sc. 145, 159, 
 165 ; Julant/cr v. Xcir Sombrero 
 I'hos/jhatc Co., 3 App. Cas. 1218, 
 1278 ; Romer, J., lins v. Di lier- 
 iiardi/, 1896, 2 Ch. 437, 446. 
 
 (A; Erlanger v. Xcic Sombrero 
 I'hosphate Co., 3 App. Cas. 1218, 
 1278; Laijunas Xitrate Co. v. 
 Lai/una.s Si/ndica(r, 1899, 2 Ch. 
 392, 433, 456. 
 
 (r) See Vii/er." v. I'l/.e, 8 CI. A: 
 Fin. 562, 650.
 
 830 
 
 OF FRAUD, MfSREPRESENTATIOX, 
 
 No rescission 
 as against a 
 purchaser for 
 
 in taking the accounts {(f) the purchaser will be charged 
 with a due allowance for tlie deterioration (r) . These 
 rules, however, apply only where the act of t/tf pfd'f// 
 cJ(tii))i))g to rofic'nid has made complete restitution impos- 
 sible. The defrauding party cannot resist rescission on the 
 ground that Jn>i act has prevented the possibility of such 
 restitution ( /'). Thus on a sale of mines voidable at the 
 vendor's instance, he may set aside the sale, notwith- 
 standing that the purchaser has worked them {g). As 
 was pointed out in the previous chapter, the right to set 
 value without aside a contract of sale or a conveyance of lands induced 
 by fraud cannot be enforced, either at law or in equity, 
 as against any person who has acquired the land sold, 
 or any part thereof or interest therein, as a purchaser 
 for valuable consideration in good faith and without 
 notice of the fraud (h). A fort fori, the equity to set aside 
 a contract for innocent misrepresentation would not 
 be enforceable against any such purchaser. In the case 
 of innocent uiisrepresentation, however, this point can 
 liardly arise ; since it is held that contracts for tlie sale 
 of land induced by innocent misrepresentation cannot 
 be set aside after completion (/) ; and the plea of pur- 
 chase for value without notice cannot be set up by an 
 assignee of the benefit of the contract, whilst it remains 
 a mere chose in action (/.•). Subject to the limitations 
 indicated in this paragraph, a contract to sell land may, 
 if induced by fraud, be set aside after as well as before 
 completion (/). And as we have seen, an action can be 
 maintained, after completion, to recover damages at 
 law for a false representation innocently made in con- 
 nexion with the formation of a contract for the sale of 
 
 No rescission 
 for innocent 
 misrepresen- 
 tation after 
 completion. 
 
 Id) See below, p. 836. 
 
 («) Above, p. 829, n. {b). 
 
 ( /") riidsphatf Spu-aqe ('it. v. 
 llarlmont, T) Ch. D. 394, 448, 449, 
 452 ; Uces v. Dr Jtmnmbj, 1896, 2 
 Ch. 437, 446. 
 
 ((■/) See Gresleii v. M<i)islcy, 4 
 I)e G. & J. 78. 
 
 (A) Above, p. 757. 
 
 (/•) Above, pp. 813-81.0. 
 
 (/■) Above, p. 758, 
 
 (/) Above, pp. 653, 654, 811, 
 812.
 
 DURKSS AND UNDTTE IKFLUENCK. •'^'31 
 
 land, if the representation amounted to a warrant}' 
 collateral to the contract, but otherwise not {in). 
 
 The riglit to rescind a contract for the sale of land ^y ^liat 
 
 on the ground of misrepresentation, fraudulent or inno- ri<riit of 
 
 cent, is not personal to tlie conti-actinsf party ; it may rescission is 
 ^ , . PI- exercisable, 
 
 he exercised by his representatives after his deatli ; and 
 
 in the vendor's case, the right forms part of his real 
 estate, and the benefit thereof will belong to his heir or 
 devisee (y/). So also the contracting party's assigns in 
 liis lifetime by operation of law, who take the benefit of 
 the contract, as his trustee in bankruptcy (o), have the 
 same election to avoid or confirm it as he had himself. 
 The vendor's right to set aside after completion a con- 
 tract for the sale of land induced by fraud appears to 
 be so far an interest in the land that it is devisable by 
 his will, and will pass under a general devise of all his 
 real estate ( p) . It has been held, however, that an 
 a^siarnment bv act infrr riros of a bare riofht of suit in 
 equity to set aside a conveyance or a relea<'e for fraud 
 is obnoxious to the laws of maintenance and diamperty 
 and is therefore void (7) : but such an assignment may 
 be made by a trustee in bankruptcy under the special 
 ]irovisions of the Bankrui»tcy laws (;•)• If either the Assisfnei' of a 
 vendor or tlie ])urcliaser assign over the wliole benefit traVrpeudii''^ 
 of the contract pending completion (.s) without being '-""'FJleti'^'i- 
 aware of some misrepresentation by the other party 
 sufficient to avoid the contract, it appears that tli(^ 
 assignee, for whom tlie assignor would be a trustf^e of 
 
 (ill) Above, pp. (ill. SI 0. 811. (y) I'l-osiicr v. Edmonds, I Y. &: 
 
 (;/) See Tieciii/an v. ll'/iilr, 1 C. Ex. iSl; D ffoi/liton v. .Uonn/, 
 
 Boav. 588; Chiiih-r \. Trevrhi'iii, L. It. 2 Ch. 1(51, 109; Hi// v. 
 
 1 1 CI. & Fiu. 7U; Sttimp vJ/n/ii/, lioi/le, L. R. 4 Eq. 260 ; Fitzrui/ 
 
 •1 De G. M. & G. 625, 6:J0 ; v. VWr*, lOOo. 2 K. B. a64, :171.' 
 (,'iii>/i'i/ V. Mitiin/ri/. 4 De (Jr. & J. (») Secfir v. Lairsou, 1.) Ch. ]). 
 
 78. <):'>; iilxivo, pp. oi" SI/., ry,i'). 42fi: f/m/ v. f'/nnr/ii/l. 40 Cli. I). 
 
 ((/) Ali'ive, pp. olli, .'t')!. See 4Hi; and Hfo fii I'm/.- d'li/r frui/i/mi 
 
 also. p. 004. //'"/•/« *■'".. 17 Cli. D. 284. 
 
 {p) Gii-s/iii V. .Mims/ II, \ De G. [s] Above, p. .'>()8. 
 
 &J. 78, 9:$.'
 
 832 
 
 OF FRAUD, MISREPRESENTATION, 
 
 all his rights under the contract, would have the benefit 
 of the option to rescind or affirm the contract, and of 
 the right to specific performance with compensation. 
 But if the assignor were aware of the misrepresentation 
 when he assigned over the benefit of the contract, then 
 it seems that the assignment, being the exercise of an 
 act of ownershi}), would be evidence of an election to 
 affirm the contract {t) ; and in such ease it appears that 
 the assignee could no more rescind the contract than 
 the assignor himself {u). But the assignee would have 
 the original contractor's right to claim compensation in 
 proceedings either for specific performance or for breach 
 of any warranty implied in the representation (.r) . 
 
 Against what 
 persons tlie 
 right of 
 rescission is 
 exercisable. 
 
 The right of rescission is exercisable, with the 
 limitations above mentioned, against the other party's 
 representatives after his death, his assigns for value or 
 otherwise of the benefit of the contract so long as it 
 remains a mere chose in action (//), and in the case of a 
 j)urchaser, against his assigns, taking by operation of 
 law (3) or by his own act, but either gratuitously {a) or 
 on pm'chase ivifh notice of the fraud (h), of the property 
 purchased or any interest therein. 
 
 Action of An action of deceit for a false representation, whereby 
 
 tahmble after ^ man's personal estate has sufi'ered damage, is main- 
 death of party tainable under stat. 4 Edw. III. c. 7 {c), by his 
 executors or administrators after his death (r/). But an 
 action to recover damages for deceit cannot, in general, 
 
 (t) Above, p. 829. 
 
 {11) Above, p. 829. 
 
 (.(■) Above, pp. 806—808, 810— 
 813, 828 ; and see below, p. 833. 
 
 (v) Above, p. 758. 
 
 (z) Load V. Gree», 15 M. & W. 
 216, 221 ; Re EmU/afe, 1905, 1 
 K. B. 465; Tilleij v. Bowman, 
 Lcl., 1910, 1 K. B. 745. 
 
 (a) Bridgeman v. Green, Wilm. 
 
 58, 64, 65. 
 
 {b) Tnvclya)i v. Whitt, 1 Beav. 
 588; Charter v. Trevelyan, II CI. 
 & Fin. 714. 
 
 (c) See Wms. Pers. Prop. 148, 
 16th ed. 
 
 {d) Twyvross v. Grant, 4 C. P. 
 D. 40 ; and see Hatchard v. Jleijfc, 
 18 Q. B. D. 771 ; Oa/ro/ v. Baffon, 
 35 Ch. D. 700.
 
 DURESS AND UNDUE INFLUENCE. 
 
 833 
 
 be maintained after the death of the deceivino' party (e) . ?"* ."?* °* 
 
 o ^ v' \ / deceiving 
 
 If, however, the wrong were done within six calendar party, 
 months before the wrongdoer's death (,/'), it is thought 
 that an action would be maintainable therefor against his 
 executors or administrators under stat. 3 & 4 Will. lY. 
 c. 42, s. 2 (g). For as the personal representatives of 
 the party deceived may sue for the wrong done, as 
 being an injury to his personal estate (A), it appears 
 that the cause of action must be a vei-ong done in 
 respect of liis property within the meaning of that 
 statute («). The direct assignment of a bare right of 
 action of deceit appears to be obnoxious to the laws 
 of maintenance and champerty and to be void on that 
 account (/.■) . But it may be contended that, where the 
 whole benefit of a contract induced by fraud has been 
 assigned over in good faitli and for value, pending 
 completion and before the discovery of the fraud (/), 
 the assignee should be entitled, if he elect to affirm the 
 contract, to succeed by subrogation to all the assignor's 
 rights to compensation for the fraud ; and should be 
 enabled to sue the wrongdoer for damages at law in 
 the assignor's name in the same manner as an insurer, 
 who has paid compensation for damages caused by a 
 
 (e) Peek v. Gurnnj, L. R. 6 
 H. L. 377, 392 ; Ee Duncan, 
 1899, 1 Ch. 387. It appears 
 from the latter case that the 
 suggestions to the contrary 
 thrown out in Twycross v. Grant, 
 4 C. r. D. 40, 42, 46, 47, were 
 not well founded in law. 
 
 (/) See Kirk v. T<M, 21 Ch. D. 
 484. 
 
 (<7) See Wms. Pers. Prop. l.')0, 
 16th ed. The action must be 
 brought within six calendar 
 mouths after the executors or 
 administrators have taken upon 
 themselves the administration of 
 the deceased person's estate. See 
 Re Jni/iamrs, 52 L. T. 41. 
 
 {fi) Note {d), p. 832, above. 
 
 W. 
 
 (i) See also Erskine v. Adeane, 
 L. R. 8 Ch. 7.56, 760 ; Morgan v. 
 Raveij, 30 L. J. Ex. 131 ; Jenks 
 V. Clifden, 1897, 1 Ch. 694. 
 
 (^•) Above, p. 831 ; Co. Litt. 
 368b ; Vin. Abr. Maintenance 
 (B., C.) ; Prosser v. Edmonds, 1 
 Y. & C. 481 ; Be Hoghton v. 
 Moneii, L. R. 2 Ch. 164, 169; 
 Ball V. Warwick, .50 L. J. C. P. 
 D. 382 ; James v. Kerr, 40 Ch. J). 
 449 ; Guy v. ChurchiU, 40 Ch. D. 
 481, 48.5." The question, to wliat 
 extent a right of action in tort 
 is a.ssignablo, is discussed by the 
 writer in L. Q. R. x. 147 sq., 
 and Wms. Pers. Prop. 153—16.5, 
 16th ed. 
 
 (/) See above, pp. 831, 832. 
 
 53
 
 834 
 
 OF FRAUD, MISREPRESENTATION, 
 
 wrong, may have the benefit of any action maintainable 
 against the wrongdoer for the tort (;;?) . 
 
 On what 
 
 terms the 
 contract wiU 
 be rescinded 
 befoi'e com- 
 plehion. 
 
 Purchaser's 
 lien, where 
 the contract 
 is rescinded. 
 
 If a contract for the sale of land be lawfully rescinded, 
 before completion, on the ground of misrepresentation, 
 the party rescinding is entitled to be recouped all pay- 
 ments made and expenses inciuTed by him in the 
 discharge of any obligation imposed on him by the 
 contract, and to be indemnified against all liabilities 
 assumed by him pursuant to any such obligation : but 
 he is not entitled, where the misrepresentation was 
 not fraudulent, to recover damages for what may be 
 called his collateral losses — those which were not occa- 
 sioned by or in the course of his discharge of some duty 
 under the contract {n) . Thus if the party rescinding be 
 the purchaser, he is entitled to recover Jbis deposit or 
 any other instalment of his purchase money paid by 
 him, with interest thereon at the rate of 4/. per cent, 
 per annum, and to be recouped his expenses of the 
 investigation of title (o) ; and he has a lien on the land 
 sold for the amount so due to him until repayment (p). 
 But if one be induced to buy land by a false represen- 
 tation innocently made that it is fit for the purposes of 
 some particular business, and enter into possession 
 pending completion, but pursuant to the contract, and 
 
 {m) See Randal v. Cockran, 1 
 Ves. sen. 98 ; Mason v. Hainshury, 
 
 3 Doug. 61, 64 ; Yates v. Whyic, 
 
 4 Bing. N. C. 272, 283, 284 ; 
 Simpson v. Thomson, 3 App. Gas. 
 279, 284—286, 290—295 ; Castcl- 
 lain V. Preston, 11 Q. B. D. 380, 
 388, 403, 404 ; King v. Victoria 
 Insurance Co., 1896,' A. C. 250 ; 
 "Wms. Pers. Prop. 154, 155, 16th 
 ed. : L. Q. R. x. 160, 151, 156, 
 157' 
 
 (n) liedgrave v. Kurd, 20 Ch. 
 D. 1 ; Ncwbigging v. Adam, 34 
 Ch. D. 582, 589, 593—595, 596 ; 
 Adorn V. Neichigging, 1 3 App. Gas. 
 308, 324, 33 1"; Whittington v. 
 
 Sealc-Hagne, 82 L. T. 49, 51. 
 
 (o) Smith V. Land and. House 
 Property Corp., 28 Ch. D. 7, 9 ; 
 Re Hare and 0''More''s Contract, 
 1901, 1 Ch. 93, 97 ; Cree v. Stone, 
 Times Newspaper, 10th May, 
 1907. 
 
 {p) ^fgthes V. Ler, 3 Drew. 
 396 ; Rose v. JFatson, 10 H. L. C. 
 671, 682 ; Aberaman Ironicorks v. 
 Wickcns, L. R. 4 Ch. 101, 109, 
 110 ; Ml/cock V. Beatson, 13 Ch. D. 
 384 ; Whitbread &; Co. v. Watt, 
 1901, 1 Ch. 911, 1902, 1 Ch. 
 835 ; Kitton v. Hewctt, 1904, 
 W. N. 21 ; and see Ridont v. 
 Fowler, 1904, 1 Ch. 658.
 
 DUEESS AND UNDUE INFLUENCE. 835 
 
 carry on the business there at a loss, and then discover 
 the untruth of the representation and rescind in con- 
 sequence, he cannot recover compensation for his losses 
 in the business (q) . If the vendor of land rescind the con- 
 tract, pending completion, because of misrepresentation, 
 it is submitted that, on the principles above stated, he 
 is entitled to be recouped his expenses of proving his 
 title pursuant to the obligation in that behalf imposed 
 upon him by the contract. But it seems questionable 
 whether either party rescinding for innocent misrepre- 
 sentation can recover his expenses of entering into the 
 agreement ; this loss seems to be in the nature of 
 damage suffered by reason of the representation rather 
 than outlay made in discharge of an obligation im- 
 posed by the contract (r). If, however, the represen- 
 tation were fraudulent, the defrauded party would be 
 entitled to recover all damages attributable to the 
 fraud, and he would certainly have the right to be 
 re-imbm*sed these expenses (.s-) ; and it appears that, in 
 the case of a defrauded purchaser, he should have a lien 
 for them (t) . 
 
 {{/) JVhittington v. Seak-Hayne, fraudulent, before completion but 
 
 S2 L. T. 49. It is submitted that after the purchaser has taken 
 
 this case and those cited above, possession under the contract, it 
 
 p. 81.5, n. [h), show that it is no is thought that the like accounts 
 
 bar to the right to rescind a con- would be ordered to be taken, for 
 
 tract for innocent misrepi'esenta- tbe purpose of replacing the 
 
 tion that the purchaser has taken parties in their former position, 
 
 possession, pending completion, as are directed when the contract 
 
 in pursuance of the contract ; and is set aside for fraud after cora- 
 
 that under the present law the pletion ; see below, p. 836. 
 case of Blarkbiirti v. Smith, 2 E.x. (*•) As to the expenses recover- 
 
 783, is no longer of authority on able as damages for breach of the 
 
 thispoint; and see above, pp. 190, contract, see below, Chap. XIX. 
 
 191. The mere occupation of § 2. 
 
 land is not considered, in equity («) Edwards v. McLeaij, G. 
 
 at least, to prevent restitutio in Coop. 308, 318, 2 Swaust. 287, 
 
 inteyruni : and even the commis- 289 ; Berry v. Armistead, 2 Keen, 
 
 sion of waste, as in working 221, 229 ; Hart v. Swaine, 7 Ch. 
 
 mines, may not have that effect ; D. 42, 47. 
 
 above, p. 829. Wliere a contract [t) See Mycock v. Bealsoti, 13 
 
 for the sale of land is rescinded Ch. D. 386 ; and the cases cited 
 
 for mi.sropresuntation, innocent or in the previous note. 
 
 53 (2)
 
 836 
 
 OF FRAUD, MISREPRESENTATION, 
 
 On what 
 terms the 
 contract will 
 be rescinded 
 after comple- 
 tion. 
 
 If a contract for the sale of land be set aside, on the 
 ground of fraud, after completion, the vendor rescinding 
 is entitled, not only to be restored to the possession of 
 the land, but also to recover the amount of the rents 
 and profits thereof during the time when the purchaser 
 was in possession ; and the purchaser must account for 
 all rents and profits, which he has received, and will be 
 charged with an occupation rent for any part of the 
 land which he has occupied himself {i() . The vendor is 
 also entitled to recover his expenses incurred in con- 
 nexion with the sale (r), or with enforcing his right to 
 set it aside, such as money paid to redeem some mortgage 
 which the purchaser has made (x). On the other hand, 
 the vendor must return the piu'chase money with interest 
 at the rate of 4/. per cent, per annum (?/). And the pur- 
 chaser ^vill be entitled to an allowance for all necessary 
 outgoings and also, it seems, for substantial repairs and 
 lasting improvements (z). Similarly, the purchaser so 
 rescinding is entitled to be repaid the purchase money 
 with interest at the same rate and his expenses incurred 
 in connexion with the purchase (r), but must account 
 for the rents and profits received by him and pay an 
 occupation rent for any land in liand, and compensa- 
 tion for any deterioration caused by his use of the 
 property, as in working mines (a) ; and he is entitled 
 to the like allowance for necessary outgoings, substantial 
 repairs and improvements (//). But it seems that, if an 
 
 («) Donovan v. Fricler, Jac. 
 165 ; Treveltjan v. White, 1 Beav. 
 588 ; affirmed, Charter v. Tre- 
 velyan, 11 CI. & Fin. 713 ; Hay- 
 garth V. Wearing, L. R. 12 Eq. 
 320, 330. 
 
 {v) Edwards v. McLeay, G. 
 Coop. 308, 318, 2 Swanst. 287, 
 289 ; Berry v. Armistead, 2 Keen, 
 221, 229; Hart v. Swaine, 7 Ch. 
 D. 42, 47. 
 
 (.r) See Tilley v. Boivman, Ltd., 
 1910, 1 K. B. 745, deciding that 
 
 money so paid by the vendor may 
 be set off, in case of the piu-- 
 chaser's bankruptcy, against the 
 vendor's obligation to return the 
 price. 
 
 {y) See Silkstone, ^-c. Co. v. Edey, 
 1900, 1 Ch. 167, 171. £4 per 
 cent, still appears to be the rate 
 of interest chargeable ; see also 
 Ee Hinit, 1902, 2 Ch. 318, n. ; Be 
 Davy, 1908, 1 Ch. 61. 
 
 (c) See notes (w), (?.•), above. 
 
 (V/) Above, pp. 829, 830.
 
 DURESS AND UNDUE INFLUENCE. ^37 
 
 action be brought to set aside the conveyance, any claim 
 to an allowance for substantial repairs and improvements 
 ought to be specially made (b). If the amount charge- 
 able against the purchaser for rents and profits exceed 
 the interest on the purchase money, tlie accounts may 
 be directed to be taken with annual rests, so that the 
 excess of the profits above the interest may be applied 
 in reduction of the principal (c) : but a special case 
 must be made out for taking the accounts in this 
 way(f/). The purchaser may in a proper ease be directed Whether 
 to account for any rents and profits which lie might, charo-eable on 
 but for his wilful default, have received : but it *^-?/l'J"J^ ?^ 
 appeal's that special circumstances must be shown 
 in order to obtain this direction (e). A special case 
 certainly seems necessary to charge the purchaser on 
 the footing of wilful default, where he is the party 
 defrauded {/). But where the fraud was his, he 
 would, it is thouglit, be more readily charged on 
 that footing (y). The purchaser is not chargeable 
 with interest on the rents and profits for which he 
 is accountable (//). But where the vendor is entitled 
 to rescind (/), the pm'chaser is chargeable with any 
 depreciation in the value of tlie land caused by 
 
 (/)) Edwards v. McLcaij, G. (/) Such an account was di- 
 
 Coop. 308, 318, 2 Swanfit. 287, rected as against a purchaser held 
 
 289 ; see also Baii'ih v. Fikr, 1 entitled to rescind in Gilmon v. 
 
 Wils. K. B. 320, 322 ; Haygarth v. D' Este, 2 Y. & C. C. C. 542, 581. 
 
 Weariiir/, L. R. 12 Eq. 320, 330. reversed as mentioned above, n. 
 
 (c) Donovan v. Frickcr, Jac. {c). But it is submitted that this 
 
 165. was clearly wrong ; see lEowcll 
 
 {d) Necxom v. Vlurhno)!, 4 Hare, v. Hourll, 2 My. & Cr. 478, 486. 
 97, lOo. (;,) See Houcll v. Eotall, 2 My. 
 
 [e) See the cases cited p. 836, nn. & Or. 478, 486 ; Ada»in v. Swordrr, 
 
 (m), {v), above; Hourlly. HoinlK 2 2 De G. J. & S. 44, 61 ; Tate v. 
 
 My. & Cr. 478,486; Murray v. WiUiaimoti, L. R. 2 Ch. 55; 
 
 Palmer, 2 Sch. & Lef. 474, 489, Seton on Judgments, 2320, 6th 
 
 where however the decree made ed. ; Silkstom, ijr. Co. v. Edey, 
 
 does not accord with the judg- 1900, 1 Ch. 1G7. 
 ment ; GihsuD v. I)' Est,, 2 Y. <!c (A) See cases cited above, p. 836, 
 
 C. C. C. 542, r)81; reversed, Wilde nn. («), (c); HilAstoiie, 4-c. Co. v. 
 
 V. Gibnon, 1 H. L. C. 605, 636 ; Edn/, 1900, 1 Ch. 167. 
 Frees v. Coke, L. R. 6 Ch. 645, (i) See above, p. 830. 
 
 651 ; above, p. 516.
 
 838 
 
 OF FRAUD, MISREPRESENTATION, 
 
 any act of waste or deterioration, which he has com- 
 mitted (A-) . And, as we have seen (/), the purchaser 
 rescinding may have to make a similar allowance. 
 
 Forged In connexion with the subject of fraud, it may be 
 
 mentioned that a forged document, whether it be a deed 
 or a simple writing, is, as a rule, an absolute nullity (w?) . 
 If it be a conveyance, no interest passes thereby (w) ; if 
 it be a power of attorney, it confers no authority (o) ; 
 and if it take the form of a contract, it imposes no 
 liability on any party whose seal or signature thereto is 
 forged (j!?). And if it assume the shape of a negotiable 
 instrument, it acquires no validity in the hands of a 
 purchaser for value in good faith and without notice of 
 the forgery (q) . A forgery, being an illegal act, cannot, 
 strictly speaking, be ratified by the person whose seal 
 Adoption of a or signature is counterfeited (r). But the seal or sig- 
 strument." nature, or the forged document, may be adopted by him 
 as his own and may acquire validity as against him 
 under the doctrine of estoppel by conduct (s) . Thus 
 if one admit or represent a forged document to have 
 been signed or sealed by him, he will be liable there- 
 under to any person who has altered his position on 
 
 [k) See Expte. Bennett, 10 Ves. 
 381, 400, 401 ; Robinsmi v. Ridley, 
 6 Madd. 2 ; Gresley v. Moxsley, 
 4 De G. & J. 78. 
 
 (/) Above, p. 830. 
 
 {m) Johnson v. Windle, 3 Bing. 
 N. C. 225 ; Robarts v. Tucker, 16 
 Q. B. 560 ; Brocklesby v. Temper- 
 ance Bdg. Soc, 1893, 3 Ch. 130, 
 135, 137, 1895, A. C. 173, 184; 
 Ruben v. Great Fingall Consol.,Ld., 
 1904, 2 K. B. 712, 1906, A. C. 
 439. 
 
 («) Boursot V. Savage, L. R. 2 
 Eq. 134; Re Cooper, 20 Ch. D. 
 611 ; Barton v. North Staffs. Ry. 
 Co., 38 Ch. D. 458; Jared V. 
 Clements, 1903, 1 Ch. 428. 
 
 (o) Bank of Ireland v. Trustees 
 of Evans'' Charities, 5 H. L. C. 
 
 389 ; Corp. of Staple v. Bank of 
 England, 21 Q. B. D. 160 ; Ulivcr 
 V. Bank of Em/land, 1901, 1 Ch. 
 652, 654; affirmed, 1902, 1 Ch. 
 610, and nom. Starkcy v. Bank of 
 England, 1903, A. C. 114. 
 
 '\p) See note [ni), above, and 
 next note. 
 
 [q) Esdaile v. La Naiize, 1 Y. & C. 
 Ex. 394 ; Fearn v. Filica, 7 Man. 
 & Gr. 513; Burchfield v. Moore, 
 3 E. & B. 683 ; Bohbett v. Finkctt, 
 1 Ex. D. 368, 374; Arnold v. 
 Cheque Bank, 1 C. P. D. 578 ; 
 Capital and Counties Bank v. Gor- 
 don, 1903, A. C. 240. 
 
 (»•) Brook V. Hook, L. R. 6 Ex. 
 89. 
 
 (.s) Above, p. 750.
 
 DURESS AND UNDUE INFLUENCE. 
 
 839 
 
 the faith of this representation (f). So if one endorse 
 a forged bill of exchange, he will be liable thereon to 
 a holder in due course (?<) . Money paid on the faith 
 that a forged document is genuine is paid under a 
 mistake of fact and may in general be recovered back (x) : 
 but if the amount payable under a forged bill of ex- 
 change or promissory note be paid by a person liable 
 thereon to a hand fide holder in the belief that it was 
 genuine, the sum paid cannot be recovered from him, 
 unless notice of the forgery be given to him at once 
 before he has altered his position in consequence of 
 the payment, and at latest on the same day (//). If an 
 agent innocently make use of a forged authority from 
 his piincipal or supposed principal, he is liable under 
 the doctrine of implied warranty of authority to make 
 good any damage suffered by any person whom he has 
 induced to act on the faith of the authority being 
 genuine (s). 
 
 Recoveiy of 
 money paid 
 on the tiiith 
 of a forged 
 document. 
 
 Liability of 
 agent pro- 
 pounding a 
 forged 
 authority. 
 
 55 2. — Of JJnr ess and Undue Injliieme. 
 
 We have seen {a) that, in order to make a valid 
 contract, there must be free consent of the parties. 
 Contracts induced by duress or undue influence are 
 
 [t) Letich V. Buchuiuot, 4 Esp. 
 ■226 ; Ashptttl v. Bii/au, 3 B. & S. 
 ■174, 492, 49;j : M'luHzi) v. Bnthh 
 Limit Co., b App. Cas. S'2, 1)9 — 
 101, 10!) ; and see Re Biihiu and 
 Hun Fruucixco Rij. Co., L. R. 'i 
 Q. B. o84 ; ISiiiiiti v. Anglu- 
 American Ti'legraph Co., •'> Q. B. 
 D. 188 ; Shaw v. I'orr. rhilip 
 Gold Mhniiy Co., i:{ Q. B. D. 
 103 ; Shejfield Corp. v. Banlfii/, 
 1903, •! K. B. 08O ; Ruben \. 
 Great Ftinjall Con.so/., Ld., 1904, 
 2 K. B. 712, 1906, A. C. 439. 
 
 («) Bunk of EiKjlund v. Viu/liiiHo, 
 1891, A. C. 107, IIG. 
 
 [x) Junes V. Rjide, Taunt. 488 : 
 Wilkinson V. John>>ton, 3 B. & 0. 
 428, 434 ; Gtirneij v. Il'omrr.slei/, 
 4 E. & B. 133. As to the re- 
 
 covery of money paid under a 
 mistake of fact, see Kclli/ v. 
 Sohiri, 9 M. i: W. 54 ; Re Bod^ija 
 Co., Ld., 1904, 1 Ch. 276 ; Baker 
 V. Conraye, 1910, 1 K. B. 56 ; and 
 as to the recovery from an agent 
 of money so paid to him, see 
 I'oUard v. Bank of Enqland, 
 L R. 6 Q. B. 623,630; Taylor 
 V. Metropolitan Ry., 1906, 2 K. B. 
 55, 63. 
 
 (y) CockH V. Master man, 9 B. & 
 C 902 ; London and Rwcr Plate 
 Bunk V. Bank of Liverpool, 1896, 
 1 Q. B. 7. 
 
 (;) Starkey v. Bank of Englan/l, 
 1903, A. C. 1 14 ; Bank of England 
 V. Cutler, 1908, 2 K. B. 208. 
 
 (a) Above, p. 2. 
 
 Contracts 
 induced by 
 duress or 
 undue influ- 
 ence arc 
 voidable.
 
 840 
 
 OF FRAUD, MISREPRESENTATION, 
 
 Duress at 
 common law, 
 
 Equitable 
 doctrine of 
 undue 
 influence. 
 
 wanting in this element of validity : but in such con- 
 tracts, as in the case of agreements induced by fraud, 
 there is not the entire absence of consent which is 
 characteristic of mistake (/^). The party coerced or 
 unduly influenced does really consent to the proposed 
 agreement ; only he would not have done so had he 
 been a free agent (c). Contracts induced by duress or 
 undue influence are therefore not void : but they are 
 voidable at the option of the party whose consent was 
 so procured {d). The common law did not go beyond 
 avoiding contracts induced by duress, that is, actual 
 force or threats of violence. And it is laid do\\Ti that 
 the duress must be of the person and not of property 
 (as by wrongfully taking or withholding goods, or 
 threatening to do so) ; and that if actual force were not 
 used, there must be the fear of losing life or limb, or of 
 unlawful imprisonment. Thus battery was duress, but 
 not the mere threat of battery (e). And the duress 
 must have been used to the party to the contract him- 
 self or to his wife, child or parent ( /) . In equity, 
 however, a far wider jurisdiction was assumed to set 
 aside contracts made without free consent ; and it was 
 adjudged to be sufficient to avoid a contract or a con- 
 veyance if there were such constraint of the will of the 
 party making it that his consent {g) thereto were not 
 
 (Zi) Above, pp. 748, 757. 
 
 (c) Cf. above, p. 757. 
 
 (d) Bract, fo. 100b (§ 13), 396b 
 (§ 3) ; 2 Inst. 482 ; TFhelpdalc' s 
 case, 5 Rep. 119, and cases cited 
 below. It may be noted that, in 
 tbe case of the marriage contract, 
 which is peculiar and of which 
 the initial validity or invalidity 
 depends partly on considerations 
 foreign to the common law, a 
 consent induced by fraud, force 
 or fear, may be treated as being 
 no consent at all ; see Ftilwood's 
 case, Cro. Car. 488, 493 ; Harford 
 v. Morris, 2 Hagg. Cons. 423, 
 
 425, 436; FieWs 3Iarriagc, 2 
 H. L. C. 48, 58—62 ; Scott v. 
 Sebright, 12 P. D. 21 ; Cooper v. 
 Crane, 1891, P. 369, 376; Ford 
 V. Stier, 1896, P. 1 ; 1 Black. 
 Comm. 433 — 436 ; Bishop on 
 Marriage and Divorce (Chicago, 
 1891), vol. i. § 548 ; Moss v. 
 Mos!<, 1897, P. 263, 271 sq. 
 
 [e) 2 Inst. 483; Bac. Abr. 
 Duress (A) ; 1 Black. Comm. 130, 
 131, 136; Skcate v. Bcale, 11 A. 
 & E. 983, 990. 
 
 (/) Bac. Abr. Duress (B). 
 
 {gi See above, p. 749 and n. le).
 
 DURESS AND UNDUE INFLUENCE. 841 
 
 free, although the constraint did not amount to duress 
 at common law (A) . And this doctrine of equity is by 
 no means confined to the inducement of consent by 
 outward force or fear ; it extends to every case in which 
 such influence is exerted by one party to a contract or 
 conveyance over the mind of another that the other 
 does not in fact consent thereto of his own free will (/). 
 The question to be determined in each case is wliether 
 the party, who alleges that he was unduly influenced, 
 agreed to the contract or conveyance made as a free 
 agent exercising his own untrammelled voUtion ; and 
 if he did not, he may avoid the transaction {i). 
 
 The cases, in which a contract or conveyance may Two classes 
 be avoided for undue influence, are usually divided "q^uT^ ^ 
 into two classes. The first is where the alleged ground influence. 
 of avoidance simply is that the one party did in fact ^- ^^^^f 
 
 '■ '' , L J exercised 
 
 actively exercise sucli influence over the other's mind independently 
 that he was not a free agent, and it is not asserted that relaMon^^^^^^ 
 the one stood in any confidential relation to the other {k). between the 
 The second is where it is claimed that (oidue influence ., .^, 
 
 2. Where 
 
 should be implied from the fact that there was a con- implied from 
 fidential relation between the parties, which invested of^somo ^°^^ 
 the one mth a peculiar authority over the otlier, or confidential 
 imposed on him a special duty of advising the other (/). 
 In both classes the question to be determined is the 
 same ; was such influence exerted as to interfere witli 
 the freedom of the other's will ? But they differ with 
 
 (A) A.-O. V. 'Sot/ion, 2 Vem. licaiis v. Bayley, L. R. I H. L. 
 
 497 ; Ifuffurnin v. Buseley, 14 200, 212, 219 ; Lord Penzance, 
 
 Vea. 273, 294 ; Peel v. , 16 Parfitt v. Latdess, L. R. 2 P. & 
 
 Ves. 157, 159; and (^ Chester- M.' 462, 468, 469; AUcard v. 
 
 Jifld V. Janssoi, 2 Vcs. sen. 12-5, S/ciiinn; 36 Ch. D. 145, 183 — 186, 
 
 155 — 157, where this jnrisdictiou 190; Morlcij v. Loughnan, 1893, 
 
 is alluded to as a branch of the 1 Ch. 736, 751, 752. 
 
 equitable jurisdiction to relieve {k) Jfi/liaiiis v. Bayley, L. R. 1 
 
 against fraud. H. L. 200. 
 
 (t) See previous note; Dent v. (/) Alleard v. Skinner, SGCh.D. 
 
 Bennett, 4 My. & Cr. 269, 277, 145, 171, 181 ; Morky v. Loiiffh- 
 
 279; Lord Kinirsdown, Smith v. nan, 1893, 1 Ch. 736, 751, 752. 
 Kay, 7 H. L. C. 750, 779 ; JFil-
 
 842 
 
 OF FRAUD, MISREPEESENTATION 
 
 Examples of 
 relations 
 where 
 influence is 
 presumed. 
 
 The doctrine 
 not confined 
 to any parti - 
 cidar set of 
 relations. 
 
 respect to the burthen of proof. This lies, in the first 
 class, entirely on the party who seeks to set the trans- 
 action aside {m). In the second, the plaintiff must 
 show that the alleged confidential relation existed : but 
 when this has been established, it is presumed, until the 
 contrary be shown, that advantage was taken of it ; and 
 the obligation then lies on the defendant of proving 
 that the plaintiff was not unduly influenced and that 
 his consent was quite free {>/). This class of cases is 
 exemplified in the relation of solicitor and client (o) , 
 parent, or other person in loco pn j-cnf is and child (7;), 
 guardian and ward {q), confessor or other spiritual 
 adviser or religious superior and penitent or disciple (/•), 
 and doctor and patient (s). But the doctrine is not 
 confined to any particular set of confidential relations. 
 If any relation be established between the parties, 
 of which the natural consequence would be that the one 
 would come under the other's influence, the same rule 
 applies, and the onus is on the party occupying the 
 
 [m) Blackie v. Clark, 15 Beav. 
 595 ; Toker v. Taker, 31 Beav. 
 629, 3 De G. J. & S. 487- 
 
 («) Gibson v. Jeycs, 6 Ves. 266, 
 276 ; Bent v. Bennett, 4 My. & 
 Cr. 269, 273 ; Archer v. Hudson, 
 7 Beav. 551, 560 ; Lyon v. Home, 
 L. R. 6 Eq. 655, 681 ; Parfitt v. 
 Lcntless, L. R. 2 P. & M. 462, 
 468, 469 ; AlUard v. Skinner, 36 
 Ch. D. 145, 171, 181—185. 
 
 (o) Gibson V. Jeyes, 6 Ves. 266, 
 276 — 278 ; Eclwurds v. Meyrick, 2 
 Hare, 60, 68—70 ; Holman v. 
 Loyms, 4 De G. M. & G. 270 ; 
 Savery v. King, 5 H. E. C. 627, 
 656; Spencer v. Topham, 22 Beav. 
 573, 577 ; Gresley v. Monsley, 4 
 De G. & J. 78; Pisani v. A.-G. 
 for Gibraltar, L. R. 5 P. C. 516, 
 536 ; }Fri()ht v. Carter, 1903, 1 
 Ch. 27. 
 
 {p) Archer v. Hudson, 7 Beav. 
 551 ; Harvey v. Mount, 8 Beav. 439 
 (elder sister) ; Hoyhton v. Hoyh- 
 ton, 15 Beav. 278, 299, 300 ; Sharp 
 v. Leach, 31 Beav. 491 (brother 
 
 with whom a sister was living) ; 
 Savery v. Kitty, 5 H. L. C. 627, 
 655 ; Turner v. Collins, L. R. 7 
 Ch. 329 ; Knnpson v. Ashbee, L. R. 
 10 Ch. 15 ; Bainbriyye v. Browne, 
 18 Ch. D. 188 ; Pou-ell v. Powell, 
 1900, 1 Ch. 243. As to the 
 principles ou which the Court 
 act.s in setting aside or upholding 
 •family settlements or resettle- 
 ments made between father and 
 son of the family estates or pro- 
 perty, see Hoghton v. Hoghton, 
 15 Beav. 278, 298, 300 sq. ; 
 Hatherley, L.C., Turner v. 
 Collins, L. R. 7 Ch. 329, 339; 
 Fane v. Fane, L. R. 20 Eq. 698 ; 
 Hoblyn v. Hobli,n, 41 Ch. D. 200. 
 {q) Hatch y.' Hatch, 9 Ve^9i-, 
 (r) Nottidye v. Prince, 2 Giff. 
 246 ; Lyon v. Home, L. R. 6 Eq. 
 655 ; Allcard v. Skinner, 36 Ch. 
 D. 145 ; Morley v. Loughnan, 
 1893, 1 Ch. 736, 752. 
 
 (s) Dent V. Bennett, 4 My. & 
 Cr. 269, 276 ; Mitchell v. Hom- 
 fray, 8 Q. B. D. 587, 589.
 
 DURESS AND UNDUE INFLUENCE. 843 
 
 position of influence to prove that the other gave his 
 unbiassed consent (t). It is enough, for instance, that 
 one has taken upon himself or come to be the other's 
 confidential adviser in business matters or the manager 
 of his property (i<)- But there is no presumption of Hiisbaudaud 
 undue influence on the part of a husband in trans- ^^ ^' 
 actions between himself and his wife (.r) ; though of 
 course undue influence may in fact be exerted by a 
 husband over his wife with respect to her making 
 some contract intended to bind her (y). The equitable 
 rules as to the avoidance of transactions induced by 
 undue influence apply, not only to contracts and con- 
 veyances for value, but also (and of course more readily) 
 to voluntary conveyances, settlements and gifts, when Voluutaiy 
 made infer vivoH {z). But the presumption of undue '-""^^y""'''^''- 
 influence from the establishment of a confidential rela- 
 tion between the parties has no application in the case 
 of gifts by will ; and to upset such a gift, it must be Gifts by will, 
 shown, not merely that the legatee soUcited or put 
 forward claims to the testator's bounty, but that the 
 testator's volition to the contrary was overborne by the 
 legatee's influence {a). 
 
 (t) Uridffemanv.Grcetiy'lVeii.sen. man-y ; Payt- v. Home, 11 Beav. 
 
 627, Wilm. 58 : Hioiier v. Atkins, -ITt ; Cobbctt v. Brock, 20 Beav. 
 
 3 My. & K. 113, 136, 140, 141 ; 524, 530; and in special circum- 
 
 J)cnt V. limnctt, 4 My. & Cr. 269, .stiinces betweeu a man and a 
 
 277, 279 ; Smith v. Kaij, 7 H. L. woman, with whom he has g'onc 
 
 C. 750, 779 ; Morlc;/ v. Louyhnari, through a marriage ceremony, 
 
 1893, 1 Ch. 736, 752. v/\i\ch.i»\oi^, but which she believes 
 
 {u) See Hugueitin v. Basiley, 14 to h valid ; Voulson v. Allison, 2 
 
 Ves. 273; Himtrr v. Atkins, 3 De G. F. & J. 521; see Fanner 
 
 My. & K. 113 ; Tate\jrilliamson, v. Farmer, 1 H. L. C. 724, 752. 
 L. R 2 Ch. 55 ; Morlei/ v. Lough- [y) See Turnbullv. Duval, 1902, 
 
 nun, 1893, 1 Ch. 736. 752. A. C. 429, 432—435; (Jhaplin df 
 
 {x) Griybi/ v. Co.r, 1 Ves. sen. Co., Ltd. v. Drammall, 1908, 1 
 
 517, 51.S ; Nedbii V. Ncdby, 5 De G. K. B. 233. 
 
 &Sm.377; Barronv. Willis, 1899, {z) Huyuertin v. BaseUy, 14 Ves. 
 
 2 Ch. 578, 585 (reversed on the 273; Allmrd\. Skinner, 'i&Ch.'D. 
 
 facts, 1902, A. C. 271) ; Hours v. 145, 171, 181 sq. ; and cases cited 
 
 liishoi), 1909, 2 K. B. 390. It has above, pp. 841, 842. 
 been held that a fiduciary relation («) Htiidson v. Weatherill, 5 
 
 of the kind above mentioned may De G. M. A: G. 301 ; Boysc v. 
 
 exist between a man and the Rossborouyh, 6 H. L. C. 2, 49 ; 
 
 woman, whom he is engaged to Walker v. Smith, 29 Beav. 394 ;
 
 844 
 
 OF FRAUD, MISREPRESENTATION, 
 
 Undue 
 influence 
 l^resuined 
 from confi- 
 dential rela- 
 tion on the 
 ground of 
 public policy. 
 
 What the 
 duty of 
 advising- 
 another 
 imports. 
 
 It includes 
 the duty of 
 communi- 
 cating facts 
 material to 
 the value. 
 Non-disclo- 
 sure of these 
 avoids the 
 sale. 
 
 It is on the ground of public policy that contracts 
 and conveyances are presumed to be voidable by one 
 party, if the other occupied a position of influence over 
 him, or were under a duty of giving him advice (/;). 
 As regards this duty, the person on whom it is incum- 
 bent is bound to give the other as good advice in the 
 matter of any contract or conveyance made between 
 them as if the transaction were carried out with some 
 third person and not with himself. The burthen is 
 therefore laid on him of proving that the terms of any 
 such contract or conveyance executed in his own favour 
 are in all respects fair and reasonable ; such, in fact, as 
 a competent adviser, acting exclusively on behalf of the 
 other party would reasonably advise him to accept (c). 
 The duty of so advising a vendor or piu'chaser of land 
 includes the duty of communicating to him any circum- 
 stance known to the person bound to advise and en- 
 hancing or depreciating the value of the property (d) ; 
 and it follows of course that the mere non-disclosm-e 
 of any such circumstance is sufficient to avoid the 
 sale {e). This principle is exemplified, not only in the 
 case of a purchase by a solicitor from his client (/), but 
 also where land is bought by the vendor's agent having 
 
 Hall V. Hall, L. R. 1 P. & M. 
 481 ; Tarfitt v. Lawless, L. R. 2 
 P. & M. 462, 469, 470 ; Baudaim 
 v. Richardson, 1906, A. C. 169, 
 184, 185. 
 
 {b) Above, pp. 842, n. (o), 843, 
 n. {t). 
 
 (c) Above, p. 842, n. (o). 
 
 \d) See Fopham v. Brooke, 5 
 Russ. 8 ; Edwards v. Meyrick, 2 
 Hare, 60, 68—70, 74, 75 ; Mohnan 
 V. Loyncs, 4 De G. M. & G. 270. 
 It was held in Edwards v. Mey- 
 rick that a purchase by a solicitor 
 from his client was not avoided 
 by the mere fact that he had not 
 pointed out to his client, that it 
 was possible that a railway might 
 at some future time be made near 
 the land sold, which would in- 
 
 crease its value, no project for 
 making such railway being then 
 actually on foot. It is conceived 
 that a solicitor purchasing from 
 his client would not be justified 
 in concealing from him any fact 
 known to himself which would 
 certainly tend to increase the 
 value of the property, as that a 
 project was actually on '^feot ^or 
 making a railway through or near 
 it ; and it seems immaterial that 
 the information was not acquired 
 in the course of his employment 
 as that client's solicitor, but from 
 an entirely distinct source. 
 
 {e) Tate v. Williamson, L. R. 2 
 Ch. 55. 
 
 (/) Above, p. 842.
 
 DUKESS AND UNDUE INFLUENCE. 845 
 
 the management of liis property (r/), or his steward (A), 
 or any person who has undertaken to advise him as to 
 liis financial affairs (/) ; and wliere a share in a partner- 
 ship business is bought from one partner by another, 
 who knows and is aware that he knows more than 
 the vendor about the partnership accounts (/.•) . And Purchase by 
 it is further applicable in the case of a purchase by centui-que- 
 a trustee of his coHfiii-que-ti'usfs interest in the trust ^''"■''■ 
 property (/). Where a solicitor or other adviser 
 purchases from his client for value, what he has to 
 prove in order to maintain the transaction, is that 
 the terms he gave were fair and reasonable, that 
 is, as good as could have been obtained from any one 
 else ; and if this be made out, the circumstance tliat the Ho^^; far a 
 client was not advised by a separate solicitor or adviser buyino- from 
 
 actinff independently for him, will not of itself avoid ^^^ (^^^^^^ 
 
 '^ \ -r, • • must see that 
 
 the sale {m) . But it appears that m such eases the the client has 
 
 solicitor's proper course is to insist that the client shall ad\dce°' ^"* 
 
 be so separately advised ; and the fact, that he has not 
 
 done this, will be weighed in connexion with the other 
 
 evidence and so may tell against the validity of the 
 
 sale («) . And a voluntary conveyance or gift by a client 
 
 to his solicitor or in the solicitor's favour will not be 
 
 upheld imless the client were actually so advised (o) . If 
 
 [ff) Cane v. Alien, 2 Dow. 289, See below, Chap. XVII. 
 
 294, 299; Molon;/ v. Kernan, 2 [m) Edivards-v.Meyrick,2'H.wcc, 
 
 Dr. & War. 31. 60 ; Spencer v. Tophain, 22 Beav. 
 
 (//) Selseij V. Rhoa(ks, 2 S. & S. r)73; Pisaniy . A.-G. for Gibraltar, 
 
 41, 49, 1 Bligh, N. S. 1. L. R. ;5 P. C. ol6 ; and see cases 
 
 (i) Tate v. Wtlliainson, L. R. 2 cited above, u. (/), and Cane v. 
 
 Ch. 55. Alle», 2 Dow, 289. 
 
 [k) Law V. Late, 190'). 1 Ch. (w) See Harrison v. Guest, 6 De 
 
 140. G. M. & G. 424, 432 ; Barnard v. 
 
 [l) Exptc. Lacey, 6 Ves. 625, /f/^w<r>-, 2 Jur. N. S. 1213; /Vw<ow 
 
 626; Coles v. Trccothick, 9 Ves. v. Jtonner, 23 Beav. 285, 291; 
 
 234, 247; Denton v. Donmr, 23 Pisani v. A.-G. for Gibraltar, 
 
 Beav. 285, 290 : Luff v. Lord, 34 L. R. 5 P. C. 516, 540. 
 
 Beav. 220, 227; Cairns, C, [o) Rhodes \. Bate,!,. 'R. \ Ch. 
 
 Thomson v. Kuxtirood, 2 App. Cas. 252 : Lilrs v. Tirr;/, 1895, 'i Q. B. 
 
 215, 236; Plonright v. Lambert, 679; Barron v. Willis, 1900, 2 
 
 .52 L. T. 046; Dougan v. Mac- Ch. 121, affirme<l, 1902, A. C. 271 : 
 
 pherson, 1902, A. C. 197, 204. Wright v. Carter, 1903, 1 Ch. 27.
 
 846 
 
 OF FRAUD, MISREPRESENTATION, 
 
 Solicitor or 
 adviser buy- 
 ing from 
 client after 
 the relation 
 has been 
 severed. 
 
 Trustee so 
 buying from 
 
 cestui-que- 
 trust. 
 
 Examples of 
 the exercise 
 of undue 
 influence. 
 
 TFiniffuis V. 
 Bayley. 
 
 Ellis V. 
 Barl-er. 
 
 StU7-ge V. 
 Sttirge. 
 
 a solicitor or other adviser obtain information while 
 acting as such with respect to some property of his 
 client, and purchase the property at some time after- 
 wards, when the relation between them has been 
 severed, the sale is nevertheless voidable if the pur- 
 chaser did not disclose the information in question {p). 
 And this rule applies equally in the case of a purchase 
 by a trustee from his cedui-qtie-trust [q). 
 
 The following further examples may be given of the 
 exercise of undue influence as a ground for setting 
 aside a sale. They appear to fall principally within 
 the first of the above-mentioned classes of cases (r) ; 
 but in some of them we shall observe the like presump- 
 tion of undue influence and shifting of the burthen of 
 proof as occurs in the second class. They all illustrate 
 the generality of the rule, that a contract or conveyance 
 is voidable in equity whenever such pressure has been 
 used by one party to induce the other to make it that 
 the other was not a free agent in giving his consent. 
 It will be noticed that in some instances the conduct of 
 the party in fault amounted or approximated to fraud. 
 A contract has been avoided where it was procui-ed by 
 giving the contractor to understand that, unless he made 
 it, his son would be prosecuted for forgery (s). A 
 conveyance was set aside, which had been made under 
 pressure of the threat of preventing the grantor from 
 being accepted as tenant of a farm ; this being a neces- 
 sary condition of taking a benefit under his father's will {t). 
 A sale of land was rescinded where it had beentibtained 
 
 {p) Carter v. I'almer, 8 CI. & 
 Fin. 657, 705 sq. ; HolmaH v. 
 Loynes, 4 De G. M. & G. 270; 
 lAiddii's Trustee v. Teard, 33 Ch. 
 D. 500, 517—520. 
 
 {q) See cases cited above, p. 842, 
 n. (o) ; Clark v. Clark, 9 App. 
 Gas. 733, 737 ; Re Boles and British 
 
 Land Go's Contract, 1902, 1 Ch. 
 244, 247 ; below, Chap. XVII. 
 
 (?•) Above, p. 841. 
 
 (s) Williams v. Bayley, L. R. 1 
 H. L. 200 ; see also Kaufman v. 
 Gerson, 1904, 1 K. B. 591. 
 
 {t) Ellis v. Barker, L. R. 7 Ch. 
 104.
 
 DURESS AND UNDUE INFLUENCE. 
 
 847 
 
 by three brothers from their eldest brother without 
 
 adequate consideration, when he was under pressure for 
 
 want of money, ignorant of liis rights, and either 
 
 without legal advice, or with advice meant to promote 
 
 the interests of those A\ith whom he was dealing. Tlie 
 
 eldest brother was in fact entitled to the whole of the 
 
 land as tenant in tail, but supposed that he was only 
 
 entitled to one-fourth of it ; the others were aware of 
 
 the true facts (?/). So a sale will be set aside where Inequalitj' of 
 
 there were such circumstances of inequality in the con- betweoti tlif 
 
 tractinff parties' position and unfairness in the terms partif>'< 
 
 • i, 11-p •! couplefl with 
 
 of the bargain that the oulj' reasonable inference is that unfaimoss. 
 the one took advantage of the other's position to 
 influence his will (,r). Thus a sale of land obtained at Longmatev. 
 a great undervalue from an aged, illiterate and weak- 
 minded man was avoided by his heir after his death (//) ; 
 and so was a sale made by a poor and illiterate man on Clark v. 
 terms very disadvantageous to him in his last illness ' " ^"'^' 
 and without any independent advice (s). And in 
 several other cases Coiu'ts of Equity have set aside 
 sales made at an undervalue by persons in a humble 
 condition of life unacquainted or imperfectly acquainted 
 vnth their rights or with the value of the property and 
 acting without independent advice (rt). So sales of an 
 equity of redemption made by the mortgagor to the 
 mortgagee have been avoided where there was pressure 
 ])ut upon the mortgagor to sell and inequality of 
 position, cou])led with undervalue {h) ; although there 
 is no general rule, whieh prohibits a mortgagee fiom 
 
 (m) Sturgc V. Stiirye, 12 Beav. (a) Wood v. Abrey, 3 Madd. 
 
 229, 245; see also iJumifif/r v. 417; Baker v. Monk, 33 Beav. 
 
 White, 1 Swanst. 137, lol. ' 419, 4 De G. J. i: S. 388 ; Fn/ v. 
 
 (j) Kvanx V. LUwelltu, 1 Cox, Lane, 40 Ch. D. 312, 321, 322; 
 
 333, 340; Woofi v. Ahr.i/, 3 Madd. Janw-s v. Kerr, ib. 449, 460 ; Hees 
 
 417, 423. V. De Bernard;/, 189'J, 2 Cli. 437, 
 
 (y) Loiigiiiatr v. Ledger, 2 Giff. 445. 
 
 157; affiniied, see 4 DeG. F. & J. (6) Ford v. Oldtn, L. 11. 3 Eq. 
 
 402. 461 ; Frees v. Coke, L. R. 6 Ch. 
 
 (z) Clark v. Malpas, 4 De G. F. 645. 
 & J. 401.
 
 848 
 
 OF FRAUD, MISREPRESENTATION, 
 
 buying the equity of redemption (e). Where such 
 circumstances as above mentioned "of inequality of 
 position and absence of independent advice are shown, 
 the burthen of proof is shifted, as in the case of the 
 establishment of a confidential relation (r/) ; and it then 
 lies on the person, who took the benefit of the sale, to 
 make out that the terms of the transaction were in fact 
 fail' and reasonable and the other party acted freely in 
 accepting them (c). 
 
 Inequality of 
 position alono 
 is not suffi- 
 cient. 
 
 Inadequacy of 
 consideration 
 alone is not 
 sufficient. 
 
 It will be observed that in all the above-mentioned 
 cases of inequality of position between a buyer and a 
 seller, the inadequacy of the consideration given for the 
 sale has been a material reason for setting aside the 
 sale. A contract of sale is not voidable merely on the 
 ground that the parties occupied unequal positions, as 
 that the buyer was rich and well advised and the seller 
 was poor or in a humble way of life, or old and ill, and 
 had no independent legal advice (,/') ; although it appears 
 that these circumstances are sufficient to cast upon the 
 buyer the burthen of proof of fairness (g) . In the same 
 way, inadequacy of consideration is not of itself alone 
 a ground for avoiding a sale ; and further, if no more 
 be proved than this, it does not appear that the party 
 challenged is obliged to establish the fairness of his 
 bargain (h). The rule of equity in this respect accords 
 with the rule of law (/) and leaves the parties at 
 
 (c) Knight v. MarJoribmiKs, 2 
 Mac. & G. 10, 13, 14 ; Ilelbourne 
 Banking Corpn. v. Brougham, 7 
 App. Cas. 307, 315 : above. 
 p. 486. n. {r). 
 
 [d) Above, pp. 841, 842. 
 
 [c) Bal-cr v. Monlc, ubi sup. ; 
 Frees v. Coke, L. R. 6 Ch. 645, 
 649 ; FryY. Lane, 40 Ch. D. 312, 
 322 : and other cases cited in 
 notes (y), (s), {a), above, p. 847. 
 
 (/) Harrison v. Guest, 6 De Gr. 
 M. & a. 424, 432, 433, affirmed, 
 8 H. L. C. 481 ; Rosher v. Wil- 
 
 liams, L. R. 20 Eq. 210, 213, 217. 
 
 [g) Above, n. (e). r 
 
 (A) Griffith V. Sprauerj, 1 Cox, 
 383 ; Feacock v. Evans, 16 Ves. 
 512, 517 ; TFoodv. Abrei/, 3 Madd. 
 417,423; Stilwelly. Wilkins, Jac. 
 280, 282 ; Cockell v. Taylor, 15 
 Beav, 103, 115; Harrison v. Guest, 
 ubi sup. 
 
 (i) Litt. s. 344 ; Sturlyn v. 
 Albany, Cro. Eliz. 67 ; Bolton v. 
 Madden, L. R. 9 Q. B. 55, 57 ; 
 Carlill V. Carbolic Smoke Ball Co., 
 1893, 1 Q. B. 256, 264, 271, 275,
 
 DURESS AND UNDUE INFLUENCE. 849 
 
 lihorty, if they be of full legal capacity and no con- 
 straint be iiut upon their wills, to make -what bargain 
 they please between themselves (./). But the fact that 
 a sale was at an undervalue, is evidence from which it 
 may be inferred that the partv thereby benefited was 
 guilty of fraud or undue influence ; and where it is 
 sought to set aside a sale on these grounds the inade- 
 quacy of the consideration given may possibly be so 
 gross as to leave room for no other inference than that 
 the bargain was obtained by undue influence or fraud (/). 
 It is also considered, according to the great prepon- Inadequacy of 
 derauce of authority, that inadequacy of consideration aloue uo 
 is not of itself alone a good ground for resisting the ^^ou^d for 
 specific performance of a contract for the sale of land (/). specific 
 In this case, as in that of the rescission of the contract, P*^'""r"»ance. 
 undervalue is merely a matter of e\idence to be weighed 
 along Avith the other facts of the ease. And notwith- 
 standing that the specific performance of a contract may 
 be refused on the ground of hardship or unfairness — 
 reasons which are of no avail to support a claim to 
 rescind the contract {/i/} — it is thought to be settled at 
 the present day that, where the only evidence offered 
 of hardship or unfairness is the inadequacy of the con- 
 sideration, the Court will not withhold the remedy in 
 (juestion (//) ; unless the undervalue were so gross as to 
 
 (,/) Seen. (//), above, p. SIS. 1.53. Earlier cases had proceeded 
 
 (/•) See Gicytiue v. llcatoi, 1 on the ground that inadequacy of 
 
 Bro. C. C. 1, 9; Uiido-hUl v. consideration alone /'(r'. a sufficient 
 
 Huncood, iO Ves. 209, 219; Htil- ground for refusing to enforce 
 
 ircll V. Jn/liHs, Jac. 2^0, 2S2 ; specific perfunn;in(;e ; Yoiiuq v. 
 
 /iJfVf V. r?o*7/o;/, 11 Beav. 2().i, 270; <'lerh\ IVec.. Ch. 538; San'tr v. 
 
 Summers v. (hijlitlin, 3.) Beav. 27, Havile, 1 1*. W. 74 5 ; Jhiij v. 
 
 33 ; Lord Westbury, Trinuiit v. Ncwmuu, 2 Cox, 77 ; and tlie 
 
 Tcntients, L. R. 2 Sc. App. 6, 9. earlier nile was re-asserted by 
 
 (/) Collier V. Broun, 1 Cox, Kindersley, V.-C, in Falcke v. 
 
 4 2K ; White v. Damon, 7 Ves. 30, (iraii, 4 Drew. G.')l : but this case 
 
 ■'ii ; Voh'K V. Trccotliiclc, 9 Ves. is said by Sir Etlward Fry. Sji. 
 
 234, 246; Jtmroucs v. Loc/~, 10 I'erf. ^ 44;}, 3rd ed., to break tlie 
 
 Ves. 470, 474 ; U'r.^fiin v. Rit.ssill^ current of the later authority. 
 
 3 V. A: B. 1«7, 193; ]}urcll v. , > ., -.„ -_. 
 
 /, o XI KM i-n III 44 ("'I Above, pp. (68, ,(,). 
 
 /hiiiii, 2 Hare, 440, 4.t0; Aliuott ^ ■ ' *^' 
 
 V. Suorder, 4 De G. & Sin. 448; («) Fry, Sp. IVrf. \ 44(;, I'.rd 
 
 /fai/iniiid V. Co/If, 2') Beav. 140. cd. 
 
 w. 54
 
 850 OF FRAUD, MISREPRESENTATION, 
 
 raise, wlien considered in connexion with the circum- 
 stiinces of the case, an irresistible inference of fraud or 
 undue pressure (o). 
 
 Inadequacy An exception to tlie rule, that mere inadequacy of 
 
 of considera- • i - • • p ll- • i • l- 
 
 tiou on sale of consideration is no reason tor setting aside or resisting 
 a reversion. specific performance of a contract, was formerly admitted 
 in tlie case of tlie sale by private contract of estates in 
 remainder or reversion ( j)) or other reversionary pro- 
 perty ; wliere the oini.<t was on tlie purchaser to prove 
 that lie liad given the fair value of the thing sold (7). 
 This exception formed one branch of the jurisdiction of 
 the Courts of Equity to set aside catching bargains 
 made Avith expectant heirs or persons in a similar 
 position {r). The exception was, as we have seen (-s), 
 abolished by statute as from the 1st of January, 1868 ; 
 since when no purchase made hoiid Jidc, and without 
 fraud or unfair dealing, of any reversionary interest in 
 real or j)ersonal estate is to be opened or set aside 
 nirir/f/ 0)1 tJic ground of undervalue [t). It is held that 
 the effect of this statute is simply to place sales of 
 reversionary property on the same footing, with respect 
 to the liability of being avoided for mere inadequacy of 
 consideration, as sales of property in possession ; that 
 the Act does not otherwise alter or affect the jurisdiction 
 of the Court to set aside or revise catching bargains 
 with expectant heirs or reversioners^ and that under- 
 value is still a material element in cases where it is 
 
 (o)Seenotes(;,')(/),aLove,p..S49. tioii ; Sl„lhi v. KkxI,, ?, Madd. 
 
 { p) Not of fiourse including re- 'l''Vl\ nor where the reversion was 
 
 mainders or reversions expectant sold toj^ether with the estate in 
 
 only on a lease at a profitable possession whereon it was expec- 
 
 rent. tant ; H'oad v. Ahrrtf, ib. 417: 
 
 {q) Piacock v. J'Jirois, 16 Ves. and see Vnrdlc v. Cavtir, 7 Sim. 
 
 ol2; (jloiiiand v. Be luiria, 17 490. 
 
 Ves. 20 ; Ilinckmnan v. Siiiit/i, 3 (/ ) Chcsler field v. J(nissni, 2 
 
 Russ. 4 33 ; KnuMl v. r,ecl:rtt, 2 Ves. 125 ; 1 White A: Tudor L. C. 
 
 Russ. & My. 88, 90. This doc- Eq. 
 
 trine was not applied where the (.v) Above, p. 408. 
 
 reversion was sold by public auc- (<) Stat. 31 Vict, c. 4,
 
 DURESS A\D UNDUE INELUENCE. 851 
 
 song! it to set nsido tlio sale of a reversion on other 
 grounds than that of undervahie alone ; as, for instance, 
 where the claim is based on inequality of position and 
 absence of legal advice, coupled with unfaii'ness in the 
 terms of the bargain {u). 
 
 Contracts to sell or bu}- land, which have been Contracts 
 induced bv duress or undue influence, are voidable at dia-csscir'^ 
 the option of the party coerced or unduh' influenced in ""due influ- 
 
 . "t- 6"ce voidable 
 
 the same manner and withm the same limits as con- within the 
 tracts induced by fraud (./). Thus they may be set JJ^^; HIh ll^ed' 
 aside either before or after completi'^in, at suit of the ^v fraud, 
 avoiding- party's trustee in bankruptcy (//), or his repre- 
 sentatives after his death (~), as well as himself; and 
 against the representatives after death of the other 
 party, and all persons eluiming under the transaction so 
 voidable either as volunteers affected by (a) or pur- 
 chasers with notice of the disabling fact (/>). And they 
 are equally unimpeachable against purchasers taking 
 any interest in the land sold for value in good faith and 
 without notice of that fact (r). Such contracts and 
 
 («) Aiihsford V. Morris, L. R. (n) A voluntaiy settlement 
 
 8 Ch. 484, 490, 401; O'liorlr v. made in favour of several per- 
 
 Jl(i/i)if/firu/.r, 2 App. Cas. 814, 822, .sons and indueed, as ro<rards one 
 
 823. 833, 834 ; Fri/ v. Lmir, 40 of them and th(> intenst taken 
 
 Ch. D. ."iri; Brenchlfj/v. Hifigina, by himself alone, by undue in- 
 
 83 L. T. 7ol. Hucnce is not voidable ajraiiist the 
 
 (.r) Above, pp. 828 .w/. others ; Ifrii/hf v. Cart< r, 190:5, 1 
 
 (y) Fordv. Olden,!,. R. 3 Eq. Ch. 27. But the ca.se is different 
 
 461. where a .'settlement is procured by 
 
 [z) Holman v. J.nyiies, 4 De G. the undue influence of one party 
 
 M. & G. 270 ; Grrslcii v. Moiinhij, in favour of himself and other.--, 
 
 4 De G. & J. 78 ; ri(.wri<iht v. for whose beneht, as well as his 
 
 Lamhfrt, 52 L. T. (340. Where own, the imdue influence was 
 
 land has been sold under a con- exercised ; see ne.xt note, 
 
 tract voidable at the vendor's (/>) Jfiif/i/ciiin v. Jlasrlei/, liVes. 
 
 election for duros.s or influence, 273. 289 ; Kciiipxo)! v. Anhbee, 
 
 the option to set the transaction L. R. 10 Ch. lo ; Baiiibriqgc v. 
 
 aside forms part of his real estate, Ilroinie, 18 Ch. D. 18S, 197 • 
 
 a« in the case of a similar con- Mnrleii v. Louglnian, 1893, 1 Ch. 
 
 tract voidable^ for fraud : above, 730, 7o7. 
 
 p. 831 ; Tomson v. Jitdf/r, 3 Drew. fc) liluchic v. Clark, 15 Beav. 
 
 306. 595 ; Bainhrigqc v. Browne, 18 
 
 Ch. D. 188, 197. 
 
 54 (2)
 
 852 
 
 OF FRAUD, MISREPRESENTATION 
 
 Terms of 
 sotting aside 
 sales induce! 
 l>y duress 
 or undue 
 influenee. 
 
 conveyances may be affirmed either expressly or im- 
 pliedly in the same manner as those induced by 
 fraud («■/) ; and long acquiescence therein may be evi- 
 dence of an election to affirm them {e). But of course 
 any such express confirmation must be quite free from 
 all taint of the duress, undue influence or breach of 
 duty which it is intended to condone (,/') ; and it must 
 not be made in ignorance of the party's right to set 
 aside the original transaction ; otherwise it will be 
 equally voidable {</). Sales of land induced by duress 
 or undue influence will be set aside, in general, on the 
 like terms as those induced by fraud, the vendor 
 returning the purchase money paid with interest and 
 the purchaser giving up the land and the profits thereof 
 received or derived by him (//), including an occupation 
 rent for any land which has been in his own possession, 
 having the like allowances made to him for necessary 
 outgoings and substantial improvements and repairs, 
 and being charged, where the relief is claimed against 
 him, and in a proper case where the relief is claimed by 
 him (/;, with the loss caused by any acts of waste or 
 
 (d) Stump V. Gaby, 2 De G. M. 
 & G. 623 ; Jftrratt v. Aldnm, L. R. 
 9 Eq. 463. 
 
 [e) Edwardfi v. Meijrick, 2 Hare, 
 60, "i^ ; IFrif/Iit v. Vinidcrplank, 
 8 De G. M. .\^ G. 133 ; AUcanl v. 
 Skhini'r, 36 Ch. D. 14;5, 187, 192, 
 193. 
 
 (/) Bn'a//i V. rri-r, 1 Wils. 
 (K. B.) 320 ; Savery v. King, 5 
 H. L. C. 627, 664; Moxoi v. 
 Payne, L. R. 8 Ch. 881, 885. 
 
 [g] Bangh v. Prhr, 1 Wils. 
 (K! B.) 320, ;'22 ; lumpson v. Ash- 
 hee, L. R. lOCh. 15. It iseonceived 
 that there can be no doubt that, as 
 a rule, knowledge cf the party's 
 rights is necessary to make an 
 effectual confirmation. But in 
 MifrhcH V. Homfray. 8 Q. B. D. 
 587, it was in special cii'cum- 
 stances lield that a gift of money 
 to a medical man by a patient 
 
 was confirmed by the patient's 
 deliberate assent thereto persisted 
 in during-i^everal years after the 
 relation betAveen them had been 
 severed, although it was not 
 pi'oved that the patient knew 
 that the original gift was void- 
 able. The ground on which this 
 judgment really rests appears to 
 be that such assent was equiva- 
 lent to a new gift made at a time 
 when there was no cjnfidenrial 
 I'elation between the parties to 
 invalidate it. It may be noted 
 that, as the chattels given were 
 already in the donee's possession, 
 nothing was required to make a 
 new gift to him but the expres- 
 sion of the donor's intention to 
 yi\e: Wms. Pars. Prop. 09, 16th 
 cd. 
 
 {],) Above, pp. 834—837. 
 
 (I) See above, pp. 829, 830, 837.
 
 DURESS AND UNDUE INELUENCE. 
 
 853 
 
 deterioration, which he has committed {k). Aud the Whether 
 piirchasor will not he i-(-quire(l to account for the rents aecountable 
 and profits on the footing of wilful default (/), unless a "" the footing 
 special case be made out against hrni {/n), or unless he default, 
 were guilty of a special breach of trust ; as where he 
 purchased when he was standing in a fiduciary relation 
 to the vendor and concealed from the vendor some 
 information Avhich ought to have been communicated to 
 him (»), or where the fiduciary relation was such as to 
 incapacitate him altogether from purchasing the estate(o). 
 It is thought that, where a sale is set aside for any undue 
 influence not amounting to an actionable wrong, the 
 party in fault is not liable to reimburse the other for 
 any loss sustained in the nature of collateral damages 
 and not attributable to any outla}- incurred or act done 
 in pursuance of the contract {p). But in the case of a 
 sale induced by duress (such as false imprisonment, 
 battery or menaces of loss of life or limb(y)), which 
 amounts to an actual tort (/•), it is conceived that the 
 party so coerced can recover all damages attributable to 
 the wrong, as in the case of fraud (*•). 
 
 (/.) Expte. Hiighex, (i Ves. fil7, 
 624, 625 ; E.epte. James, 8 Ve8. 
 ;i:57, 3;)! ; E.<pf<\ lioiiiclt, 10 Ves. 
 381, 400, 401 ; Robinson v. RkIIcii, 
 6 Madd. 2 ; LoiKjmate v. I.nUjii-, 
 2 Gi£F. 1.57 ; Greslei/ v. MoKxlei/, 
 4 De G. & J. 78, 100-102. 
 
 (/) See previous note. 
 
 [m) Above, pp. .)1G, So7. 
 
 (//) Tdtc V. irilliiinixii}!, \j. R. 2 
 Ch. 00 ; Setou on Judirmeiits, 
 
 2S20, 6th ed. : I'loirriijht v. Lnn- 
 hcrt, 52 L. T. t)4fi. 
 
 [fA Adintis V. Su ordtr, 2 De G. 
 J. &: S. 44 : Si//.s/oiir, ^r. ('„. v. 
 Edeiu 11)00, 1 Ch. 167 ; see below, 
 Chap. XVII. 
 
 {p) See above, pp. 834. 835; and 
 cases cited in note (/}, above. 
 
 (y Above, p. 840. 
 
 (r) W Black. Cnmi. 120, 127. 
 
 y>) Above, p. 835.
 
 854 
 
 CHAPTEK XV. 
 
 OF ILLEGALITY IN THE CONTKACT. 
 
 There must 
 be nothing 
 imlawful in 
 the object of 
 the agree- 
 ment. 
 
 Sales fur 
 illegal pur- 
 poses void. 
 
 Contract fur 
 sale of land 
 including 
 some \\u- 
 lawful term. 
 
 We have seen (a) that it is essential to the validity of a 
 contract that there he nothing unlawful in the ohjcct of 
 the agreement. A simple sale {h) of land is not in 
 general affected, hy this condition : but there are some 
 sales of land or other hereditaments which are expressly 
 prohibited by statute (c) ; and a sale of land is void, if 
 it be made for an illegal purpose (»'/). Ag-iin, it' a con- 
 tract for the sale of land include other terms besides the 
 agreement to convey the land on payment of a jtrice in 
 money, and any such other term be illegal, the whole 
 contract or the illegal part of it will be void, according 
 as the lawful portion of the agreement be inseparable 
 from the illegal part or not {''). And if the unlawful 
 stipulation be a part of the consideration for the convey- 
 ance of the land or payment "of ,^the price, as the case 
 may be, the whole contract will be void (,/'). 
 
 What con- 
 tracts or 
 f-tipulations 
 are unlawful. 
 
 With regard to the question, what contracts or stipu- 
 lations are unlawful, contracts for the sale of land are 
 
 {(') Above, p. 2. 
 
 {/)) Above, pp. 1, '2(H). 
 
 {(■) See below, p. iSoT). 
 
 (V/) ]A(jhiJ(jot V. Tcinmt, 1 B. & 
 P. 5ol, .556; Gas Light and Coke 
 Vo. V. Turnc)-, 6 Bing. N. C. ;5i4 ; 
 FiSiher v. Brah/rs, 3 E. & B. 642 ; 
 Smith V. Whiir, L. R. 1 Eq. 6'26 : 
 T'enrce v. Jiri^ols, L. E. 1 Ex. 
 21.3. 
 
 (t) F<ii(]urx'(jn V. Uiilcliuisdii, 
 Cro. ElJz. 109 ; Bridge v. Cccjc, 
 
 Cru. Jac. lOo ; IFditi: v. Joncf^, 1 
 Bing. N. C. 6.5G, 662 ; SlwcMl v. 
 Rosier, 2 Bing. N. C. 634 ; luir 
 V. Lrciium, 6 Q. B. 308, 322, 9 
 Q. B. 371. 39.5 ; lIopkxuH v. Frea- 
 coll, 4 C B. 578 ; Lour.d v. Griin- 
 mide, 39 Ch. D. 605, 613. 
 
 (/) Median v. Mai/, II M. & 
 W. 653 ; IMcr v. Greni, 16 M. 
 & W. 346 ; NichoUs v. Ktrclton, 
 10 Q. B. 346; Vndcnrood v. 
 Barker, lcS90, 1 Ch. 300. 
 
 I
 
 OF ILLlXiALlTV IN THE CONTRACT. .^'^"5 
 
 of course governed by the general law of contract {n). 
 That can liardly be stated in full in a treatise like tlie 
 present : but some examples maybe given. In the first Contracts 
 
 1 • 1 1 1 •! •> 1 1 particularly 
 
 place, some contracts are particularly prohibited by prohibited, 
 statute and are void on that account. Thus tlie sale by Sale by 
 
 ,• n ^ , 1 J auction of 
 
 auction 01 an advowson apart irom any manor or land j^,, advow.son 
 
 was made unlawful by the Benefices Act, 1898 (//), and ^^^ne. 
 
 is therefore void. And the sale of any land byway Sale by way 
 
 T -1 • 1 11 • 1 1 o^ lottery, 
 
 of lottery is expressly prohibited and made void by 
 
 statute (/). Other contracts are infected with illegalitv, f-""*^''^*.-^- 
 not as being particularly prohibited, but because they some rulJ' 
 infringe some rule of law. In this way, contracts for "* ^^" • 
 the sale of land are void if they contemplate the com- eontomplatiug 
 mission of any act, wliicli is illegal by conniion law or "" illegal act. 
 statute ; such as a crime, an indictable otiVuce or a civil 
 wrong (/•), or an act prohibiicd by statute on pain of a 
 lieiialty or otherwise (/). A sale of a house is therefore 
 void if made to the knowledge of both parties witli tlio 
 object of using it for the purpose of manufacturing 
 counterfeit coin or banknotes, or in any manner whicli 
 is a common nuisance ; as a brotliel, for instance [m), or 
 as a comnum gaming or betting house or a disorderly 
 place of entertainment (//) ; or for the purpose of carrying 
 on there any illegal process of manufacture {(>) or busi- 
 ness (;>) ; or for the purpose of putting it up for sale by 
 
 ((/) Sec Pollock ou Contract, ()«; Lhijd \. Johii^mi, \ B. & V. 
 
 Ch. VII., pp. 27;J v'/., 7th ed. ; 340. 341 ; SmUh v. ll'hitr, L. K. 
 
 Wms. I'crs. IVop. 170 vy., KJth cd. 1 Ki|. 62 G : JKmrr v. liiiiuhs, 
 
 (//) Above, p. 4!:'.. L. R. 1 E.\. ■_'1<; and sec above, 
 
 (i) Stats. 10 & II Will. III. p. 770. 
 
 e. 17, s. 1 ; 12 Geo. II. c. 2K, (;/) See Stephen. Dijrest of 
 
 S8. 1, J ; Fisher V. Jlrii/ffts, 3 E. Criminal Law, Art. 1!>7 - 207, 
 
 & "B. (542, 64S. " oS8, 408 sq. 
 
 (/.) Co. Litt. 20iib and ii. 1 ; i«) (inx Li'jhl muf <'<,l;r ('„. v. 
 
 Milch, I V. Ji>;/,n>l'fs. 1 I'. W. IM, Tiinin: (> Biufr- N. C. 324. 
 
 Ibll; Bar. Abr Conditions (K). /') See f'o//c v. Jiijii/<iii/>, 2 M. 
 
 (/) Jinisl,;/ V. Jlir/)ii,//i, .") R. vS: vt W. HO Unlicensed broken ; 
 
 A. 3 to : Cnp' V. Rnii/tuiils. 2 M. Tiu/fof v. r,t>i/{,i)ni (ios Co., M) E\. 
 
 & W. 149, 157 : Tui/lui- \. I'r.iii- 203 uncertilicjjted conveyances) : 
 
 land Uiis Cii , 10 Ex. 293; and Ihiricix. Mal.innt. 29 Ch. D. o9(> 
 
 8ec lUioth V. l{inl; of Einjlaitil, 7 (uuiiualifiedn:e.lical practitioner). 
 CI. & Ein. 509, -VtO.
 
 ^r.e 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 lottery {(/). Ho a sale of land is void if part of the con- 
 sideration be the publication of a libel (/•) or the com- 
 mission of a fraud on persons not parties to the 
 contract (.s), or an illegal transfer of a public office {f), 
 or any stipulation which is illegal as tending to en- 
 courage immorality or as being against the policy of the 
 law (ii). Such are stipulations for future cohabitation 
 (^\'ithout marriage) between a man and a woman (.r) or 
 for stifling a criminal prosecution (//) for some oifence, 
 ■which cannot be the subject of an action for damages, or 
 is an o£fenc3 against the public {z) ; and stipulations in 
 general restraint of marriage {a). And it is thought that 
 stipulations, which are in general or unlimited restraint 
 of alienaUon, are of the same kind (b). Here it may be 
 
 ((/) Fisher v. Bridi/es, 3 E. & B. 
 642 ; see above, p. 85.5. 
 
 (rj Shackell v. Itoslrr, 2 Biua". 
 N. 0. 634. 
 
 (a) Jlal/cihea v. Hodyson, 16 
 Q. B. 689 ; Begbie v. Fhosphatr 
 Hcwdffc Co., L. il. 10 Q. B. 491, 
 499 ; Scoit v. Brown ^- Co., 1892, 
 2 Q. B. 724 ; Jie Mi/ers, 1908, 1 
 K. B. 941, 9i3. 
 
 [1] H'lpklns V. IVcscotl, 4 C. B. 
 578. See Beiijamiii on Sales, 
 415, 437, 2ndcd. 
 
 ('0 See Ef/erton v. Broiniloir, 4 
 H. L. C. L 123— 125, 160, 195. 
 
 (.(■) Walker v. Perk,i,s, 1 W. 
 Black. 517 ; Graij v. Miith'ms, ."> 
 Ves. 286. 
 
 [if) Voliuix V. Bid litem, 2 Wilti. 
 341 ; 1 Smith L. C. ; ll'<//«im.s v. 
 Bai/lei/, L. R. 1 H. L. 200, 213, 
 240 ; Lound v. Grimwadc, 39 Ch. 
 D. 605. 
 
 (r) Keir v. Lccniiin, 6 Q. B. 
 308, 321, 9 Q. B. 371, 395; 
 Fiilicr V. ApoUi)Hiris Co., L. R. 
 10 Ch. 297 ; Expte. Wohrr- 
 Ji iwpion, %c. Banking Co., 14 
 Q. B. D. 32; Windhill Locd 
 Board v. Vmt, 45 Ch. D. 351 ; 
 Jones V. Merionethshire, ifo. Bdtj. 
 i>oci/., 1892, 1 Ch. 173. 
 
 («) Loire V. Feers, 4 Burr. 2225. 
 As to couditions iu general re- 
 straint of marriage, see an article 
 
 by the writer in L. Q. R. xii. 36. 
 (h) Parke, B., Eijerton v.Brown- 
 loir, 4 H. L. C. 1, 125 ; Hope v. 
 Gloucester Curpn., 7 De G. M. & 
 G. 647 ; F" Qnin. 8 Ir. Ch. 578 ; 
 Billimjv. Welch, I. R. 6 C. L. 88, 
 201 ; McLean v. McKai/, L. R. 
 5 P. C. 327, 334, 335 ; Pearson, J., 
 Be Rosher, 26 Ch. D. 801, 810, 
 811, 819, 820; Chitty, J., Be 
 fTJliot, 1896, 2 Gh. 353, 356 ; but 
 see Co. Litt. 206 b, and Mr. 
 Smith's criticism thereon, 1 
 Smith, L. C. 185, 2nd ed. ; 435, 
 11th ed. These authorities are 
 all seated and discussed by the 
 writer in 51 Sol. J. 64 S, 650, 669, 
 670, in an article criticising the 
 decision of Warrington, J., in 
 Worthing Corpn.Y. Heather, 1906, 
 2 Ch. 532 ; see also other articles 
 by the writer iu 42 Sol. J. 628, 
 t)50, and 54 Sol. J. 501, 502, the 
 latter criticising the decision in 
 iSiiuth Eistern Bi/. Co. v. As^o- 
 clntcd Forthind, l^-c. Ltd., 1910, 
 1 Ch. 12. In these articles it is 
 submitted that contracts to make 
 some conveyance, which if actu- 
 ally made by way of shifting use 
 or other executory limitation 
 would be void as breaking the 
 rule against perpetuities, are in 
 general or unlimited restraint of 
 alienation and should on that
 
 OF ille(;ality in the contract. 857 
 
 iiK^iitioiiod that stipulations in unreasonaLle restraint of Stipulations 
 trade are roi(/ as being against tlie policy of the law (r) : |,*bie"reliramt 
 but they are not unlawful ('/^,. If, therefore, such a of trade, 
 stipulation form part of the consideration for a sale of 
 laud, it does not avoid the sale ; for in such cases the 
 Courts will enforce the stipulation so far as it may be 
 reasonable, and reject the excess only (d). (Jontracts to Contracts 
 buy or sell land made with the inhabitants of hostile ™,e inhabi'- 
 states appear to be void, uidess entered into with the >^'"»t? "*' 
 
 1 • . ,. -,-, . , 1 ,. „ hostile states. 
 
 kings licence. Jbor except by royal licence all com- 
 mercial intercourse between the king's subjects and the 
 inhabitants of an enemy's country is prohibited {c). 
 And this rule applies, not only to aliens, but t(j all 
 persons, even to British subjects, residing in a hostile 
 state, who are adherent to the king's enemies by carry- 
 ing on business there or otherwise ( /) . 
 
 Sales of land are also void if they involve the offence Sales iu- 
 of maintenance or champerty, or infringe the principle mainteiiance 
 of legal policy on which those offences are founded, and '^'" ''"amperty. 
 which is intended to prevent the multiplication or stir- 
 ring up of lawsuits ((/). Here it may be mentioned Saleofaright 
 that at common law, if a man were disseised of his action t<i 
 freehold or wrongfully ejected from his leasehold land, i'*-'*'"^''-'!" l"''d- 
 
 account be held to be void ; see K. >i: B. 76;5, 779 ; Juiisu/i v. 
 
 above, pp. ^70— :}72, and notes J)ricf'ontiui, i\r., I'JO.', A. C. 484, 
 
 (.(•), (//). 4SK, .)02, .509 ; below, Chap. XVI. 
 
 yf) See 3/fi.iiin, i\r. ^'o- v. Xor- ^ 1 , under the head of Aliens. 
 
 deitfe/l, 189 J, 1 Ch. G'-MK 1894, { /") M'Coinirft v. Hntor, .i ]i. ic 
 
 A. C. o3.i ; Khr.mtii v. liuiDwIn- P. li:} ; Rvhrrts v. Hind,/, W M. & 
 
 iww, 1898, 1 Ch. 671 ; i'liderwoml S. h'i'i ; Albntchl v. Su-ihiikdui, 2 
 
 V. Barker, 1899, 1 Ch. 30 : V. A: B 323 ; J,uix„„ v. Drufo,,- 
 
 Toirimiii V. Jarnuiii, 1900, 2 Ch. tein, 1902, A. C. 484, .)0.), .')06. 
 
 ()98, 702: JJvudn, v. I'oo/,; 1904, (</) ItcijHttl v. Spri/e, 1 De G. 
 
 1 K. B. 45. IM. ^: G. (560, G77, 686 ; Spryr v. 
 
 (r/) Malhdi V. May, 11 M. cV W. I'urUr. 7 E. \- B. .■)8 ; HatUii v. 
 
 6i3. 609: Green v. I'ria, 13 M. Jli(H<y,L. R. 8 (J. B. 112; j'umts 
 
 & W. 695, 699: affirmed, 16 v. A'r //■, 40 Ch. D. 449, 456 ; 7f/y( 
 
 M. & W. 346, 3.J3; and cases v. Ik limiardii, 1896, 2 Ch. 437, 
 
 cited in previous note ; Beujatnin 446: l.-tinmt'x case, 10 Rep. 46b, 
 
 on Sale, 408, 2nd ed. 48a ; Co. Litt. 214h, 26.')a, n. (1) ; 
 
 ((') See Expositu v. Uuadcii, 7 6/tf///cy v. /o/its, 7 Biug. 369, 377.
 
 858 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 Sale of pre- 
 tencecl right 
 or title. 
 
 lie could nut afterwards sell or dispose of bis interest 
 therein ; for he was then divested of his edate {/i), and 
 had only a right of entry on the land or a right of 
 action to recover it according to the cii-cumstauces of 
 the case(/), and neither of these rights was assign- 
 able (/.•). By the Statute of Bracery (/) the sale was 
 prohibited of any "pretenced rights or titles" to or in 
 any hereditaments, unless the vendor or his predecessors 
 in title had been in possession of the same or the rever- 
 sion or remainder thereof, or in receipt of the rents and 
 profits thereof for one whole }'ear next before the sale 
 was made ; and any promise or covenant to liave any 
 such {/h) right or title was equally forbidden unless the 
 prumissor or covenantor, or his predecessors, had been 
 so in possession for a year before the contract (//). But 
 persons in lawful possession of any hereditaments were 
 jx'rmitted to buy or contract for the pretenced right or 
 titl(? thereto of any other person (o). It was considered 
 thill, if a man were wrongfully held out of possession, 
 liis right of entry or action "\N'as a pretenced right or 
 title within the meaning of this Act, notwithstanding 
 that his claim were lawful (^;). And it appears that 
 such a right was not assignable in equity by way of 
 
 ih) Litt. ^S^ ■^'^^- ^''l) 4-i<5 : Co. 
 Litt.' 2l4a, 2(j6a, 261 n, 345, 369a, 
 374b ; Guodright v. Forrcafrr, S 
 East, 5.V2, 566-568 ; 2 Prcst. 
 Absi. 3b8 nq. ; Culhy v. Doc d. 
 Tinjlersuii, 1 1 A. & E." I(i08, 1020. 
 
 [i) See 3 Black. Comm. 174 sq.; 
 Wnis. Real Trop. 149, 'lUX ed. ; 
 L. Q. R. x\ 227, 229, 230. 
 
 (/■) Not even, befoie the Wills 
 Act. by will : above, ii. (») ; 2 
 I'reist. kh»%. 419, 420. Rights of 
 entry are now devisable under the 
 Wills Act, Stat. 7 Will. IV. & 
 1 Vict. <•. 26, s. 3 ; and see above, 
 p. h3 1 . The right of a copyholder 
 wrongfully ejected was equally 
 unassignable : Kile (aid Qneiiitoii'' s 
 cfur, 4 Rep. 25, 26. 
 
 (/i Stat. 32 Hen. VIII. c. 9, 
 s. 2, now repealed by S'tat. 60 i: 61 
 
 Vict. c. 65, s. 11. 
 
 (ill) See Jenkins v. Jonvi<, 9 Q. 
 B. D. 128, 134. 
 
 [ii] It was held that this Act 
 did not prevent the sale, pending 
 the completion of a contract for 
 the sale of land, of the purchaser's 
 interest in the land sold : Wood v. 
 (ifijtilli, 1 Swanst. 43, i^b, 5() ; 
 Sug. V. & r. 356 ; or the sale by 
 an expectant devisee of his in- 
 terest under the expected devise : 
 Cook v. Field, 15 Q. B. 4t.O, 
 471. 
 
 (</) Stat. 32 Hen. VIII. c. 9, 
 s. 4. 
 
 [p] Plowd. 87, 88 ; Doe d. 
 WUriaim V. EcariK, 1 C. B. 717 : 
 ,/ iikbis V JoiicK, 9 Q. B. D. lL'8, 
 \M. 13'); Ken lied ij v. Liiell, 15 
 Q. B D. 491, 495.
 
 OF ILLEGALITV IN TlIK COXTKAC'l'. So'J 
 
 coalract dealing' with it for value (y), accur<liug to the 
 equitable rule established iu the (;ase of poti.si/ji/ifir.s uot 
 assignable at law (r). By the Real Property Aet, 
 184-3 (s), a right of entry such as we are considering 
 was made assignable by deed. It was held that, since 
 that Act, a lawful right of entry could no longer be 
 properly described as a proteuced right or title, and 
 might well be sold, not only to the person in possession, 
 but to any stranger (0- And now, as we have seen (u), 
 the enactment prohibiting the sale of pretenced rights 
 and titles has been repealed. Under the present law, 
 therefore, a man may lawfully sell his interest in any 
 land, of which he is wrongfully kept out of possession. 
 And it ai»pears that he may lawfully sell a part of his 
 interest in sufli Lmd, so long as it be no jjart of tlie 
 bargain that the purchaser shall maintain or assist him 
 in his suit to recover the land(.r). The law of cham- 
 perty, moreover, does not prohibit the sale pendnitr litr 
 of any property, whicli is subject of an action to recover 
 or realise it, notwithstanding that the purchaser be 
 empowered to sue in the vendcn-'s name and agree to 
 indemnify him against the past and future costs of the 
 litigation (//). And it seems to be equally lawful to 
 sell a pari: of such property, if there be no agreement to 
 
 (7) Wood V. Loiriirs, 18 Vcs. [t] Jen/.iiis v. Join.i, 9 (^1. M.J). 
 
 Tit); ('holnuiiidelcit v. Clinton, 2 128; Kennedi/ v. L'jdl, 1.) (J. H. 
 
 J. A: W. 1, 13.1, i:jrt, \ B]i<rh, I, ]J. 491, 4!)(;.' 
 43-45, Tr), 82; Pn,x.srr v. /;/- /„ Above, p. S.IS, n. (A. 
 
 /«'///</:», 1 Y. & C. 481,490— 4 <)i). ; .. /, . - V, . „ 
 
 (.) See Wrufht v U'ruj},!, 1 J-"^ '^'"''■''' l; \T ' ! ^J",,^' 
 
 Ves. sen. 409, 411 ; 2 l>rest. Ab-t. f' j^f:" J-/''i''""'''!^' 1«'"'- ^ 
 
 204.205. Oh. 43 <, 446, 41/. 
 
 (») Stat. 8 & y Viet. e. IOC, (//) JFood v. Grijfi//,, 1 Swatist. 
 
 s. (> ; held not ti) extend to rig-ht 43, 5(i ; Hurtleii v. Unite//, 1 S. & 
 
 or title of entry upon a forfeiture S. 244 ; Hnmnglon v. I.onq, 2 
 
 for eouditioii broken ; Hnut v. My. & K. 500 ; Hunter v. Itnuirl, 
 
 /;i.v//o;<, 8 Ex. G75, (580 ; Ilnnt \. 4 "llare, 42(», 430; tWi:,// v. 
 
 Remnant, 9 Ex. 635, ()40 ; (hnm Tiii/'or. lo Heav. 103, 117; Kniijlit 
 
 V. Batten, 2 Conira. Law Rep v. linni/ r, 2 De G. & J. 421, 443 
 
 KiOfi, 23 L. T. O. S. 220; Wms. —445;' Myers v. rnif,d, \e. I',,., 
 
 ou Seisin, 125; Jen/.ins v. Junex, 7 I)e G. M. & G. 112; Ja.nei v. 
 
 9 Q. B. D. 128, 131 ; above, Kerr, 40 Ch. D. 449. 450. 457. 
 pp. 404, 405.
 
 800 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 iiuiiutiiiii the vendor in his suit to recover tlie rest (;:). 
 There is an exception, however, in the case of the 
 solicit(jr acting' in the litigation, who cannot lawfully 
 purchase the thing sued for from his client while the 
 action is pending {a) ; though he is permitted to take a 
 mortgage or charge thereon by way of security for a 
 loan (//). 
 
 Sales made 
 void or 
 iiueiiforce- 
 able, but not 
 prohibited. 
 
 Again, some contracts are made void or are rendered 
 unenforceable by statute, though not prohibited. Of 
 this kind are contracts made by way of gaming or 
 wagering (r) ; and if any contract for the sale of land be 
 so made, it will be void accordingly (d). So we have 
 seen that contracts for the sale of land are not enforce- 
 able unless put into writing and signed by the party to 
 be charged or his agent [r). 
 
 lllegH] 
 contracts are 
 void. 
 
 Property 
 
 transferred 
 
 tlicreuuder 
 
 cannot be 
 
 recovered 
 
 back. 
 
 Illegal contracts are altogether void ; no proceedings 
 can be maintained thereon at law or in equity ; and if 
 either |»arty sue the other in respect thereof, the latter 
 is at liberty to plead the illegality of the agreement as 
 a defence (./'). It follows that if an illegal contract be 
 wholly or partly executed, no action can, as a rule, be 
 maintained to recover any money paid or property 
 transferred thereunder (/'). Tims if land be sold for an 
 
 {z) Above, p. S59,n.(//) ; andsee 
 uitidersKH V. Radclifr, E. B. & E. 
 806. As to the question, how 
 far this doctrine is apphcable to 
 an action to recover damages for 
 a wrong, see Wms. Pers. Prop. 
 l.H, Ifitli ed. ; and an article 
 by the writer in L. Q. R. x. 14 3, 
 147 sq. ; above, p. 833. 
 
 («) iSimpxuu V. Lamb, 7 E. & B. 
 84. 
 
 (/') Atidcrtion v. RadcHjI'c, E. B. 
 & E. 80C. 
 
 [c) Stat. 8 \- y Vict. c. 109, 
 s. 18; Bi/amx v Sliua-l Kimj, 
 1908, 2 K.'B 696. 
 
 {d) Consider Roitihr v. Short, b 
 
 E. & B. 904 ; Re Gitre, 1899, 1 
 Q. B. 794. 
 
 {(') Above, pp. 3 — 14. 
 
 ( f) See VijU'uis v. lihoifvrn, 'I 
 Wils. 341 ; Hohiiaii v. Jo/nisitit. 1 
 Cowp. 311; cases cited above, 
 p. 8.)4, n. {d) ; T«n/lor v. Vhcxlcr, 
 L. R. 4 Q. B. 309 ; Ai/cml v. 
 Jad-lHs, L. R. 16 E(i. 275 ; Un- 
 man V. Jciu'hncf, 15 Q. B. D. ')6I ; 
 Kcarley v. Thomso)i, 24 Q. B. D 
 742; 'Scutt v. Brown S; Co., 1892, 
 2 Q. B. 724 ; Gedgc v. Royal 
 y.Xi-haiiye Ash. Corp., 1900, 2 Q. B. 
 214; nurse V. Pearl, i?r. Co.. 1904. 
 1 K. B. ;3o8; Re Myers, li 08, 1 
 K. B. 941.
 
 OF ILLEGALITY IN THE CONTRACT. 861 
 
 illegal purpose and the contract be completed, the ven- 
 dor cannot afterwards recover the land, nor the purchaser 
 the price ; if the purchaser pay the whole or part of the 
 price to the vendor before the land be conveyed to him, 
 tlie vendor may plead the illegality of the agreement as 
 a bar to any action by tlio purchaser eitlior to compel 
 conveyance or recover the money paid (./') ; and if the 
 ^■endor convey the land without payment, he cannot 
 get it back, or enforce payment of the price, either 
 directly, or indirectly by suing upon any bond, covenant 
 or note given to secure such payment (v). Here it may Sale for 
 
 .,,,, ii- 11- illegal pin- 
 
 be mentioned that, where land is purchased in order to p^ses kuown 
 
 be used for an illegal purpose, the contract is only void *« ^9*'' 
 if such purpose be known to both parties to the sale (//). 
 If one contract to buy land, intending to use it for an To one party 
 illegal purpose but without disclosing this intention to 
 the vendor, the purchaser cannot in tliis case allege his 
 own unlawful intent in order to avoid the coutra(!t (/) ; 
 and the contract is enforceable by the vendor. And it 
 seems that this is equally the case, although the vendor 
 may suspect that the purchaser intends to put the pro- 
 perty to an unlawful use, so long as he is not actually 
 aware of any definite intention so to use it (/»•). If the 
 purchaser's unlawful purpose were at first unknown to 
 tli(> vendor, but the vendor afterwards became aware of 
 it before completion, the contract is in effect voidable 
 at the vendor's option ; he may then plead the pur- 
 chaser's illegal purpose as a bar to tlie enforcement of 
 tlie contract (/) : but llic j)urchas('r himself cannot 
 do so. 
 
 There are certain exceptions to tlie rule tliat money Excoptions 
 paid or property delivered under an unlawful agree- xh&t property 
 
 (/; See last note. li. & A. 867. 
 
 [g) Fithry v. lUidyrs, 3 E. & y.) Sue L/oi/il\. Ju/tiiyoii, I B. & 
 
 B. 042. r. :U0; /V«,yv v. Jfri,u/:s, L. R. 
 
 (/i) See oases oitccl above, pp. I Ex. "213." 
 
 8.')4, n. 'd), S5r.. (/) r,„r„,i v. MUlmnni, L. R. _' 
 
 (i) l>oe d. Hohrrtu v. Uobnl^, '1 Ex. -'{0.
 
 862 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 parted with 
 under an 
 illegal con- 
 tract cannot 
 be recovered. 
 
 meiit cannot be recovered back. Thus if one who has 
 paid money or delivered property under such an agree- 
 ment repudiate his unlawful purpose before any part of 
 it be accomplished, he may recover his property back ; 
 unless perhaps the object of the agreement were actually 
 criminal or immoral (;»). But this exception does not 
 apply if the illegal purpose has been partly performed {)i) . 
 And where one has made an unlawful bargain, which 
 would (except for its illegality) be voidable by him, as 
 if he were induced to enter into it by fraud, duress or 
 undue influence, he may recover back any property 
 transferred thereunder (o). Another exception to the 
 rule is where it is sought to recover money paid or pro- 
 perty transferred under a contract made void by some 
 statute passed for the protection of a class of persons, 
 of which the plaintiff is one (]>). And money or pro- 
 }ierty deposited witli a stakeholder or other agent in 
 order to be applied under an illegal contract may be 
 recovered back, if notice not to part with it be given 
 before it be actually delivered over in pursuance of tlie 
 agreement (q). 
 
 {»i) Tappenden v. RandnlK 2 B. 
 & P. 467 ; Tahinrt ^.-mkie, 6 
 M. & S. 290 : T(i]ihr v. Tlou-er.% 
 1 Q. B. D. 291 ; see Hermann v. 
 Charlrm:oHh, 190.'), 2 K. B. 123. 
 
 ('«) Kenrley v. Thomson, 24 Q. 
 B. D. 742 ; .see Hermann v. 
 rhnrlcxirorth, 190.5. 2 K. B. 123. 
 
 (o) (hhorne v. inUiams, 1 8 Vcs. 
 379; Reynell v. Spryc, 1 De G. 
 M. & G. 660, G79 ;' AtJdnson v. 
 Deiihi/, G H. k N. 778, 7 H. & N. 
 934 ; and see Hamc v. Tear/, iS,-r. 
 Co., 1904, 1 K B. 558, 563, 564: 
 Pollock on Contract, 384-^386, 
 7tli ed. 
 
 [p) Barclay v. Pefirxon, 1893, 2 
 Ch. 154, 165—168; Boinuird v. 
 Doft, 1906, 1 Ch. 740 ; Chapman 
 V. MlchaHmi, 1908, 2 Ch. 612, 
 1909, 1 Ch. 238; cf. Lode/c v. 
 
 National J'nion Inrefitmenl Co., 
 Ltd., 1907, 1 Ch. 300, where a 
 plaintiflF applying under the 
 above exception for equUahJe 
 relief in the way of recovery of 
 property was put upon terms as a, 
 condition of havintr it restored to 
 him. The three last cases relate 
 to property mortgaged to an un- 
 registered moneylender ; see 
 above, p. 487. 
 
 (7) Hisfrhif v. Jack-son, 8 B. 
 & C. 221 : Bone v. Ekiesx, 5 H. 
 & N. 925 ; harclaif v. Pearson, 
 1893, 2 Ch. 154, 168—170 ; Stra- 
 chiin V. Universal Stock Exchanqe, 
 1895, 2 Q. B. 329, 1896, A. "C. 
 166; Hhoolhred v. Roberts, 1899, 
 2 Q. B. 560, 1900, 2 Q B. 497, 
 500; Bunie v. Ashlo/, 1900. 1 
 Q. B. 744.
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 863 
 
 Where a contract is not proliihited hy law, but is Proporty 
 merelj made void (/), au}^ money paid or property uuder\-oid 
 transferred thereunder is in general equally irrecover- contracts, 
 able as iri the case of a prohibited contract. For the 
 rule is that money paid or property conveyed away 
 with a full knowledge of the facts, though under a 
 mistake of law, cannot be recovered back (.s). And where 
 an agreement is made which is not prohibited, but is 
 binding in honour only and is void at law, the one 
 party has in general no legal remedy if the other refuse 
 to perform his part of tlie agreement after having 
 received what was due to him thereunder {f). Thus 
 contracts which are illegal merely because they are 
 made void by statute stand in effect on the same footing 
 as contracts which are prohibited. If therefore a void 
 agreement be whoUj- or partly executed, the l;iw will 
 leave the parties in the position in which tliey stand, 
 and will not lend its aid to undo what has actually been 
 performed {/i). But a party to a merelj^ void contract 
 is at liberty to repudiate it before it be performed, and 
 if he do this, he may recover any money or propertj- 
 deposited with the other party as seeurit}^ for his carry- 
 ing out the agreement (.r). And property transferred 
 to a stakeholder or other agent for tlie pur^jose of being 
 ai)plied under a merel}' void contract may be recovered 
 
 (»•) Aliove, p. 860. /„scr. Co., L. R. S (}. P. HIO, '.) 
 
 (s) liMie V. I.nwiii, -1 Kast, ^"^V '^^ ,V*^" ■ „ ,,-„,. 
 
 II u. U.I. „ /I. : -. T,,..f [il] Jldiliiuii/ V. ['((icrll., Do (.J. 
 
 4Ij9 ; liitslKiiitx. Dtiiiis.,.) I aunt. .^^ . ,, .. •;_ ..., ,.,. ,, , 
 
 .,-, ,•- , • 77 ' .,, V. II iilsh, 1 Q. B. D. 189, l)i. 
 
 a. H. J). 742, 743; Fuul.- v. I i "/v" l\ «u-'''o n -^ 
 
 Tra„t,,; 190.5. 1 K. B. 4-27: ami ^^::''"»a'' (No. 2), 189o, 2 Q. B. 
 
 see Seyiiiotr v. I'ukett, ib. 71'). ' ','\ tt . ti- j i w-> t. T^ 
 
 There is an exception where .i'^^rTfr^'y L'^i?/-/^- 
 inouey is paid under a mistake l^^, 192, 194 ; Inmbic x hll, o 
 
 of law to «u officer ..f the fourt : f W" ^;'{^% ^'"l'^''-''^/ ''l"'"'"^ 
 I- .. i„ v.- .. / i« (I Ti It IMW.t, ^ On. l.)4, lb<S ; •Strfic/mn V. 
 J:.i lie. rsunmotKis. 10 y. B. J^. ,. . it...,., ,„ . \ 
 
 -.m; Re Op^,.,, U., 18.1, 2 Ch. /V'T-.l i' rZu, I'^'r^ 
 
 l;54; Itc Tj/rr, 1907, I K. B. ^V ^ ^''*""^^' •'" '^ '^- H" 
 upr. •'"': Stiaihnii v. (nunsnl Stink 
 
 E.ichanin' (No. 2), 189."), 2 Q. B. 
 
 {t) I'ish',- V. Liverpool Maritie (i97, G99, 702, 70.5, 706.
 
 864 
 
 OF ILLEGALITY IN THE CONTRACT. 
 
 back, if notice not to part with it be given before it be 
 delivered over (//). Property transferred under avoid 
 ag-reement induced by misrepresentation or coercion 
 may also be recovered ; as gifts so induced are void- 
 able {z) . And if the contract were made void by a 
 statute passed for the benefit of a certain class of 
 persons, a member of the protected class may recover 
 any property parted with in pursuance of the agree- 
 ment [a). 
 
 
 Contracts un- 
 enforceable 
 under the 
 Statute of 
 Frauds. 
 
 Contracts falling within the 4th section of the Statute 
 of Frauds {b) are governed by rules peculiar to them- 
 selves as regards the recovery of money paid there- 
 under (f). In such cases the contract is not made void, 
 but is merely rendered unenforceable {(/) ; the law 
 regards the (Kjrecnienf between the parties as good 
 (though not perfectly binding), and deems its perform- 
 ance to be meritorious. Thus if one buy land with 
 notice of a prior oral sale to another, he has no equity 
 against the other in ease the. oral sale be completed 
 before he himself has obtained a conveyance {c). And 
 delivery of possession upon an oral sale of land is 
 a good consideration for a promissory note for the 
 price (./■). It is therefore held that, although there is in 
 general no remedj" by suing on the contract against a 
 party who pleads the statute iu bar [g), yet he is under 
 an obligation qud^i ox coidrada to return money paid or 
 to pay for work done under the agreement repudiated {h) . 
 Thus if the whole purchase money be paid on an oral 
 
 {;/) See previous note ; and 
 Viric/le v. H\ggs, 2 Ex. D. 4'2'2. 
 
 '{z) Above", p. 844 ; Re Gluhh, 
 1900, 1 Ch. 3.'i4 ; and see Harse 
 V. rearl, ^-c. Co., 1904, I K. B. 
 
 [a) Barchii) v. Prarxoii. 18915, 2 
 Ch. l.'J4, 166—168 : .see above, 
 p. 862, n. {p). 
 
 (A) Stat. 29 C.'ir. IT. o. 3 : 
 above, p. ?.. 
 
 ((■) See Pollock on Contract, 
 652, 7th ed. 
 
 [d) Above, p. 11. 
 
 (e) Dairson v. Ellis, 1 J. v^' W. 
 524. 
 
 (/) Jonex v. Joins, 6 M. & W. 
 84 ; and see Lavci-if v. Tirrleif, 6 
 H. & N. 2a9. 
 
 (g) See above, pp. 11 — 20. 
 
 (h) See I'ldhriKik v. I.inrrfi^ I 
 Q. B. D, 284. 

 
 OF ILLEGALITY IX THE COXTKACT. 865 
 
 contract for the sale of land, and the vendor plead the 
 statute as a defence to an action to enforce eon\'eyanee, 
 the purchaser can recover the price (/). And where a 
 deposit is paid on such a contract, the vendor pleading 
 the statute is not at liberty to retain it (/•). But the 
 better oi)inion is that the purchaser repudiating the 
 agreement under cover of the statute cannot recover the 
 deposit from a vendor who is willing and able to com- 
 plete the contract ; for such a contract cannot be 
 rescinded by either party at will, as an illegal or a void 
 agreement may (/) ; and if one partj-, having paid a 
 deposit with full knowledge that there Mas no writing 
 to bind him, choose to take advantage of the Act while 
 the other is desirous of performing the agreement, the 
 law will not assist him to get back that payment {u/}. 
 
 It appears that, under the Mortmain Act of Geo. II. (ii), Sale of land 
 a sale of land for the use of a charity was altogether of a charity, 
 void, unless carried out with the formalities proscribed 
 by that Act (o). But we have seen that, under the 
 present Mortmain and Charitable Uses Acts of 1888 
 and 1891 ( p), it is a question whether a contract to 
 sell land to some charitable use is an a-s-surancc required 
 to be made with tlie formalities prescribed by tlie Act 
 of 1888, and therefore void, if not so made (7). There 
 seems to be no doubt however that, where a sale of land 
 to a charity is completed on payment of the purchase 
 money by an assurance not made in compliance with 
 these Acts, as by a deed attested by one witness onl}', 
 the conveyance thereby purported to be effected is void, 
 
 (i) Aiwii., I Ercfin. (K. B.)48G, (w) Stat. 9 Geo. II. c. 36. 
 
 case G64 b ; Sug. V. & 1'. l.y.i. /„, Above, pp. 449 and n. (m), 
 
 (A) Gosbelf V. Jrc/,e,; 2 A. A: 4r,-- ^^ " 
 
 ^\^K^.o.e, pp. 861. 8«3, _ _ ,A^'.f 5t '1 "^-f" ' "^- " '" ^ 
 
 54 & .5.') Vict. p. 7."^. 
 
 ('- 
 liuhrrfs' 31 15ea\. HIM. «■''•» 
 
 (//() Thomas V. Ihnun, I Q. B. I>. 
 714, dis.sentinjr from Cosson \. _('/) Above, pp. 4 !.t-4 Ui, 4.5(i— 
 
 00
 
 866 
 
 OF ILLKGALITY IN THE CONTRACT. 
 
 the assuror, if lie lias parted with possession, acquires a 
 legal right of re-eutry, and the purchaser has no right 
 of action against him to recover the price (r). Where 
 a man has contracted in good faith to buy land and pay 
 for it with his own money, but directs the conveyance to 
 be made to some charitable use, intending to give the 
 land to the charity, and the conveyance is not made in 
 accordance with the Mortmain Act, the assurance of the 
 legal estate is void, and the charity has no equitable 
 interest in the land ; but in equity the land belongs to 
 the purchaser, who has done nothing effectual to divest 
 himself of the equitable estate which he acquired under 
 the contract for sale (-s-). 
 
 t 
 
 Illegality- 
 supervening 
 .since the 
 formation of 
 the contract. 
 
 If the performance of a contract, which was valid in 
 its inception, be rendered illegal by some event occur- 
 ring after the formation, but before the completion of 
 the agreement, the contract is dissolved, so far as it- 
 remains unperformed, and the parties' mutual obliga- 
 tions are discharged [f). And it appears that in such 
 case the parties are placed in the like position as if their 
 obligations were discharged for impossibility of per- 
 formance [ii] ; the law will not interfere to set aside any- 
 thing actually done in pursuance of the contract ; and the 
 parties cannot recover any money paid or property 
 transferred under tUeir agreement during its validity (x). 
 
 i 
 
 (>•) See above, ])p. -iio — 449 
 and notes (<?), (/), (w). 456 ; Thur- 
 staii V. Xoltmyhniii, iVc. JiiJr/. Soci/., 
 190-2. 1 Ch. 1, 13, atfirmed, 19U3, 
 A. C. 6, 10. 1-2; Chapman v. 
 Muhaehon, 1908. 2 Ch. 612, 620, 
 621, affirmed, 1909, 1 Ch. 238 ; 
 and eon.sider Simpsoi/ v. Xic/io/ls, 
 3 M. & W. 240, 244, 5 M. & W. 
 702, and the American case of 
 Tliompsoi) V. Jl'illifims, 68 X. H. 
 248, cited in Keener on Quasi- 
 Con tract, 270, 271. 
 
 (.S-) Ffiec V. Ilathaivaij, 6 Madd. 
 304. 
 
 {t) Brewster v. KitcheU, 1 Salk. 
 198 ; Enposito v. Bowden, 7 E. & 
 B. 763 ; Baibf v. Be Crespxgmj, 
 L. R. 4 Q. B.'l80, 186. 
 
 (m) See Krell v. Benry, 1903, 
 2 K. B. 740; Civil Service Co-op. 
 Soci/. v. Genera? Steam Navigation 
 Co., ib. 766; Chandler v. TFelisfer, 
 1904. 1 K. B. 493; below, Chap. 
 XVIII. i 1. 
 
 (r) Furtado v. Rodfjers, 3 B. & 
 P. 191, 201: and see The Tcutonia, 
 L. R. 3 A. & E. 394, 417.
 
 OF ILLEGALITY IN THE CONTKACT, 
 
 867 
 
 But this doctrine of illegality supervening applies only 
 to cases where the jyorfoniunire of the primary ohligatiou 
 created by the contract is rendered illegal by some 
 event, which has occurred since the formation of the 
 agreement ; it does not extend to dissolve obligations 
 arising from hrench of the contract (//). Illustrations of 
 this doctrine occur where the performance of a contract 
 is rendered illegal by statute passed since its formation (r ) ; 
 and where the act agreed to be done cannot be accom- 
 plished without commercial intercourse with the inha- 
 bitants of some foreign State, which was friendly when 
 the contract was made, but has become hostile before 
 the time stipulated for performance of the agreement {(i) . 
 
 ill) See Flitidt v. Waters, 1.) 
 East, 260, 266 : note to Clfmontnun 
 V. BlcsHtf/, 11 Ex. l-lo ; Janson v. 
 Brief onte ill, ^-c, 1902, A. C. 484; 
 see also tHanqer v. Abbott, 6 
 Wallace (73 U. S.), .)32, o36, 
 .537. 
 
 'z) BrcicsUr v. Kitchell, 1 Salk. 
 198; Baibj v. Be Crespigny, L. R. 
 4 Q. B. 180, 186. 
 
 {a) Esposiio V. Buwdeii, 7 E. «S: 
 B. 763 : see above, p. 857 ; and 
 next Chapter iindei- the head of 
 Aliens. 
 
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