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PRESENTA

TION.

Agreement to be voidable, if not completed

the purchase be

at the time

fixed.

SALE OF NEXT A. B.: THAT if the said grant and assurance shall not be executed, or if the said purchase shall not be, in all respects completed, on the said day of, then the agreement hereby made shall, as against the party through whose neglect or default of such non-completion shall have happened, be voidable, at the option of the other party; and in case the said agreement shall be so made void, the costs and expenses of and incidental to the same, and all the costs and expenses incurred by each party in the investigation of title, and otherwise in relation to the said premises, shall be paid by the party by whose neglect or default such non-completion shall have happened (c): THAT

Costs of the agreement.

Time, the essence of the agreement.

Disposition of a presentation to a vacancy falling during a contract for sale.

Trustee must present nominee of cestui que trust.

Wyvill v. Bishop of Exeter.

Remarks on.

(c) The clause making time the essence of the contract, should always be inserted in agreements for the sale of next presentations, because, as the purchaser can derive no pecuniary benefit from his purchase, it is for his interest to have the purchase completed, and the purchase-money paid by the day fixed.

If a vacancy fall after a contract for sale of an advowson, but before the conveyance to the purchaser, the purchaser cannot present, even though the church remain void till after the conveyance. (Viner's Abr. p. 318, pl. 11, 2 Lutw. 1631). For the next presentation is a chose in action which cannot be transferred. And it would seem that, in such case, neither vendor nor purchaser has any remedy by quare impedit. (Leak v. Bishop of Coventry, Cro. Eliz. 811).

To avoid any questions of this sort, the presentation should be made before the conveyance of the advowson; and, in that case, the vendor having the legal estate is clearly the person to present. But it seems equally clear, on principle, that he is only a trustee for the purchaser, and must present such person as the purchaser shall nominate; for a trustee is bound to present the nominee of the cestui que trust. (Barret v. Glubb, 2 Wm. Black, 1052; Lord Albemarle v. Rogers, 2 Ves. Jun. 477, S. C.; 7 Bro. P. C. 522; Boteler v. Allington, 3 Atk. 458; see, too, 2 Atk. 483); and the vendor, after the contract, is simply a trustee for the purchaser. But it seems to have been decided in Wyvill v. Bishop of Exeter, 1 Price, 292, 295, that the purchaser is not entitled to nominate, unless before the vacancy fall, he has waived all objections to, and has accepted the title. It is, however, submitted, that the doctrine laid down in this case cannot be considered as law; and that the true principle is, that the purchaser is entitled to nominate if he waive his objections, and accept the title at any time, either before or after the falling of the vacancy. For, if the purchaser waive the objections, the parties are in precisely the same situation as though the title were good. The question ought

PRESENTA-
TION.

if the said purchase shall be completed at the time and in SALE OF NEXT manner hereinbefore provided, the costs and expenses of and incidental to this agreement, shall be paid by the said A. B. and C. D., in equal shares. IN WITNESS &c.

to be, can the purchaser enforce a specific performance against the vendor at the time when the vacancy falls? if he can, the vendor is a trustee for him, and cannot be permitted to set up the defects in his own title as a reason for not completing the contract. It must be observed, however, that if a purchaser nominate, pending the investigation of the title, and his clerk be presented, that act would undoubtedly amount to an acceptance of the title; and if the vendor, after a vacancy, proceeded to remove the objections to the title, his so doing would, in all probability, be considered as a recognition of the purchaser's title to nominate. Wyvill v. Bishop of Exeter seems only to decide that the purchaser cannot, after a vacancy, waive objections which are not removed.

The case of Paine v. Meller, 6. Ves. 349, which was much relied on in Wyvill v. Bishop of Exeter, seems to have been misunderstood. That case simply decides, that where there were valid objections to the title, the purchaser would be compelled to complete, if he had waived them, and had accepted the title before the house was burnt. But if there were no valid objections to the title, the question, whether or not the purchaser had accepted the title, would have been of no consequence; he must have completed his contract whether he would or not. When the property purchased is depreciated in value before the conveyance, the inquiry should be, whether at the time of the depreciation there was a contract binding on the purchaser; when the property gains in value, the inquiry should be, whether at the date of the gain there was a contract binding on the vendor.

Remarks on
Paine v. Mel-

ler.

must present nominee of

It may be observed here, that a mortgagee must present the no- Mortgagee minee of the mortgagor; for a mortgagee cannot derive any pecuniary benefit from a fallen presentation. (Mackenzie v. Robinson, 3 Atk. 559; Gardiner v. Griffith, 2 P. Wmns. 404; Amhurst v. Darling, 2 Vern. 401; Gally v. Selby, 1 Com. R. 343; S. C. 1 Stra. 403).

mortgagor.

V.

SALE OF STANDING

TIMBER.

Parties

agree for the

sale of the timber.

AGREEMENT for the SALE of STANDING
TIMBER (a).

ARTICLES OF AGREEMENT made and entered into,
this day of, 18, BETWEEN A. B. of &c., [ven-
dor], of the one part, and C. D., of &c., [purchaser], of
the other part; as follows, (that is to say), EACH of them,
the said A. B. and C. D., (so far as relates to the acts and
deeds on his own part to be performed), doth hereby agree
with the other of them, THAT the said A. B. shall sell, and
the said C. D. shall purchase, at the price or sum of £-

to be paid in manner hereinafter mentioned, the 1,127 oaktrees, and the 235 elm-trees, now marked with, and standing in or upon the several woods and closes, or pieces of land hereinafter mentioned, (that is to say,) All that, Payment of the &c., [parcels]: THAT the sum of £, part of the said purchase-money, or sum of £, shall be paid by the said C. D. to the said A. B., immediately after the execution of these presents, and the sum of £ remainder thereof,

purchase

money.

Whether an agreement for the sale of timber requires to be in writing.

(a) It is not very clear, whether an agreement for the sale of standing timber is within the fourth section of the statute of frauds, so as to require to be in writing.

In an old case, (Anon., Lord Raymond, 182), it was said, that such an agreement was not within the statute; and in Smith v. Surman, 9 B & C. 561, (S. C. 4 Man. & Ry. 455), it was held, that an agreement for the sale of trees, where it seemed that the vendor was to fell them, was not within the fourth section of the statute, but was a contract for the sale of goods within the 17th section of the statute. (See more on this subject, and the cases bearing on it; 1 Sugd. V. &. P. Ch. III., sect. 1.; see, too, Carrington v. Roots, 2 Mee. & Wels. 248).

As to the question, whether fixtures are an interest in land, within the meaning of the fourth section of the statute, see Lee v. Risdon, 7 Taunt. 188; Hallen v. Runder, 1 Cro., Mee. & Ros. 266.

on or before the

SALE OF STANDING

TIMBER.

Purchaser to

have liberty to enter, &c.

day of next: THAT the said C. D., his agents, servants, and workmen, with or without horses, carts, and waggons, shall, at all times before the day of next, have full and free liberty and power to enter into and upon the said woods, closes, and pieces of land, and to fell and cut down the said trees, and every of them, in such manner (b) as the said C. D. shall think fit, and there to lop, cut, and strip off the branches, tops, and bark of the said trees, and every of them; and to put and make the said branches, tops, and bark into such convenient faggots, bundles, or packages as the said C. D., his agents, servants, or workmen, shall think proper; and also full and free liberty and power to bring horses and waggons in and upon the said woods, closes, and pieces of land, for the purpose of removing the said trees, branches, tops, and bark, at such times, and in such manner as to the said C. D., his agents, servants, or workmen, shall be convenient (c) THAT all the said trees, branches, tops, and Timber to be bark, shall be removed by the said C. D. from the land of forfeited to the the said A. B., before the said any or any part of the same trees, branches, tops, or bark given day.

day of

which shall not be so removed before the said

vendor, if not and that removed by a

day of

shall thenceforth be forfeited to the said A. B.: THAT

day of

the said C. D. shall, by or before the said
well and sufficiently repair and amend the hedges or fences,
(if any), which shall be broken or damaged by the fall or
removal of the said timber, or in any manner, by the said
C. D., his agents, servants, or workmen; and shall and will

(b) If it be intended that the purchaser shall cut down the trees in any particular manner, as for instance, by taking or cutting them out by the roots, this should be expressly stipulated.

(c) "Where the law doth give any thing to any one, it giveth impliedly, whatsoever is necessary for the taking and enjoying the same; " (Co. Lit. 56. a.); and, therefore, upon a sale of standing trees, the rights of entry, and other rights necessary for the removal of the trees, belong to purchaser by implication. (11 Co. Rep. 52). But as it is not clear what are the rights which necessarily pass to the purchaser by implication, it is usual and desirable to express in the agreement, the powers he is intended to have.

Purchaser to make good all damages.

SALE OF STANDING

TIMBER.

Arbitration clause.

make good any other injury or damage which he or they shall commit or occasion in or about the lands of the said A. B.: THAT, if any dispute or difference shall arise, respecting any of the premises or matters aforesaid, the same shall be settled by two referees, or their umpire, in manner following; (that is to say), each party shall, within fourteen days after notice to that effect shall have been given, appoint one referee by writing, and the referees so appointed, shall, before they commence their duty, appoint an umpire by writing, and the decision of such referees, if they agree, or of such umpire, if they disagree, shall be final. If either party shall refuse or neglect to appoint a referee within the time specified, the referee appointed by the other party shall make a final decision alone. IN WITNESS &c.

FOR REFERENCE TO ARBI TRATION.

Parties.

Recites a sale by auction, subject to conditions ;

VI.

AGREEMENT for REFERENCE to ARBITRA-
TION, relative to the COMPLETION of a PUR-

CHASE.

THIS INDENTURE, made the day of

18,

BETWEEN A. B. & C. D., of &c., [purchasers], of the one part, and E. F., of &c., and G. H. of &c., [vendors], of the other part: WHEREAS, on the first day of September, 1835, the following hereditaments, (that is to say), ALL THOSE, &c., [parcels, as described in the particular of sale], were, by the order of the said E. F. and G. H., put up to sale, by public auction, at the Swan Inn, in M., in the county of M., subject to certain conditions of sale, then and there produced; and among others, the following conditions, (that is to say); 3rd, The purchaser should pay down immediately into the hands of the auctioneer, the auction duty over and above the purchase-money, and to Mr. B., the

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