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at the time of completing his purchase, according to a Conditions As
valuation thereof to be made on or before the said (t) Duty, Intek
day of ;and the decision as to what are tenant's fix- EST» &c.
tares, and the valuation thereof, shall be made by two valuers or their umpire, such valuers and umpire to be appointed as soon as conveniently may be after the sale, in the same manner and to have the same powers as the referees and umpire mentioned in the condition.
V. That each purchaser shall, at the time of completing his purchase, pay for all timber and timber-like trees, [fruit trees], pollards, and saplings, down to the value of 1#. per stick, according to a valuation thereof, to be made on or before the said (e) day of , by two surveyors or their umpire, such surveyors and umpire to be appointed as soon as conveniently may be after the sale, in the same manner and to have the same powers as the referees and umpire mentioned in the condition.
VI. That each purchaser shall take the straw, manure, fallows, crops, tenant's fixtures, and other things left on his lot or lots by the outgoing tenants, to whom the same shall respectively belong, and pay for the same at the time of completing his purchase, according to a valuation, and the valuation, and the decision as to what are tenant's fixtures, and as to any other disputed point relative thereto, shall be made by two valuers or their umpire, such valuers and umpire to be appointed in the same manner, (save that one of the valuers shall be appointed by the outgoing tenant
«ame form is readily applicable to trade fixtures, or any other class of fixtures, or to all fixtures of every description. If it be intended that the fixtures shall be paid for by the purchaser, a condition of this sort should always be employed; for, otherwise, they would probably be held to go with the freehold, and to be included in the contract for the sale of the property to which they are attached. (Colegrave v. Dios Santos, 2 B. & C. 76; S. C. 3 Dow. & Ryl. 255; see, however, Lord Hardwicke's dictum to the contrary, Ex parte Quincy, 1 Atk. 477).
(t) The day fixed for completing the purchase. In case this condition, or either of those relating to timber or crops, be used, the condition as to interest should extend to the amount of the valuations. See the words included in brackets in that condition, and the precedent of condition for a sale under a decree of the Court of Chancery, infra.
Conditions As instead of the vendor), and to have the same powers as
D*° T"inter. tne referees and umpire mentioned in the condition.
EST. &c- VII. That the expense of any valuation, survey, reference, arbitration, or decision, to be made under any of the present conditions, shall be borne and paid by the purchaser to whose purchase the same shall relate, and the vendor or outgoing tenant as the case may be, in equal moieties (/).
CONDITIONS as to Time.
I. That every purchaser shall make his objections and requisitions, (if any), in respect of the title to the lot or lots purchased by him, and send the same to the said office
of the said Mr. A. B., [vendor's solicitor], within from
the day of the delivery of his abstract; and all objections or requisitions which shall not be made within the time specified, shall be taken to be waived (a).
Limited time for purchaser's requisitions.
(/) A stipulation to this effect is not very common, and, probably, contains nothing more than the law would enforce in its absence; but if employed, it will prevent disputes on the subject to which it relates.
(a) A condition of this nature is very generally used, and has a very beneficial effect in producing expedition on the part of the purchaser; but the time specified should be a reasonable time, proportioned to the length and difficulty of the title; for, otherwise, very slight circumstances would induce a court of equity to relieve the purchaser. If a time be specified for the delivery of the abstract, and the abstract be not delivered within that time, the vendor will lose the benefit of the present condition. (Southby v. HuU, 2 My. & Cra. 207, 211). Of course, the abstract delivered must be a complete abstract of all the muniments of title, and must shew, that, upon certain acts done by the vendor or persons whom he can control, the legal and equitable estates will be vested in the purchaser. (Lewin v. Guest, 1 Russ. 325; 8 Ves. 436; 1 Jac & Walk. 421).
Although a purchaser may fail to make his requisitions and objections within the time allowed, yet, if the vendor receive them after that time, and permit the investigation of title to go on, he will be taken to have waived the advantage of the condition.
It is sometimes stipulated that the purchaser's requisitions shall be II. That if, from any cause whatever, any purchase shall Conditions As
not be completed on or before the said day of (6), 0 TIME'
the vendor shall be then at liberty either to annul or to enforce the contract for such purchase at his discretion; and in case he shall annul the contract for such purchase, the deposit paid in respect of the same shall be forfeited to the vendor, and the purchaser shall have no claim on the vendor for the expenses of investigating the title or otherwise.
made within a given time from the delivery of the abstract; that the vendor's answer shall be made within a given time from the delivery of the requisitions; the purchaser's further requisitions within another given time; the vendor's further answer within a further given time; the draft of the conveyance sent to the solicitor of the vendor, and returned to that of the purchaser within certain specified times; and the purchase finally completed on a given day. But such special stipulations can scarcely ever, in practice, be fully carried into effect; and their object is attained almost as well by stipulating, that if the purchase be not completed by the day fixed, the purchaser shall pay interest on his purchase-money, and by binding him to send in his requisitions and objections within a given time from the delivery of the abstract. If the abstract be (as it always ought to be) complete when sent to the purchaser, so as to leave him no ground for making further requisitions on new evidence to be subsequently furnished, the stipulations in the text will insure the exertion of fair expedition on the part of the purchaser, and the complicated stipulations referred to above could do no more. 'Delay in the completion of the purchase more generally arises from the insufficiency of the abstract and evidence furnished by the vendor, (and which he is, nevertheless, ultimately obliged to complete and supply), than from any laches on the part of the purchaser.
(6) It is now perfectly clear that time may be made the essence of the Time may be contract, even in equity; (1 Sugd.V. & P. 440; Hipwell v. Knight, 1 You. m^*e^ & Col. 401); but the intention must be clearly expressed, because the gene- contract, ral rule in equity is, that the time fixed for the completion of the purchase is merely formal. (See Sugd. V. & P. ch. 8, and ante, Vol. 1, book iii. ch. i.) It must be borne in mind, likewise, that the benefit of a stipulation making time the essence of the contract may, like the benefit of any other condition, be waived by the party entitled to it; (Hipwellv. Knight, ubi supra); and, of course, a vendor would not be permitted to avail himself of the condition in the text to annul a contract, the completion of which, his own laches had prevented. A condition of this sort is very unusual in sales by auction; and as it must most seriously prejudice the aale, it should never be had recourse to, except in cases of absolute necessity.
Custody of title deeds.
Between feoffee and cestui que
Recovery of title deeds by legal owner.
Conditions as to Title Deeds (a).
THAT the production and inspection of all deeds (b), evidences, and muniments of title, which are not in the
(a) The law respecting title deeds is partially treated of in the first volume of this work, (bk. i. ch. iii. sect 2); and in Sugd. V. & P. ch. ix. sect. 3; but as the subject is very important to the conveyancer, it has been thought desirable to add some further observations on the right to the custody of the title deeds, and on other matters relating to them.
When a man seised of land in fee, made a feoffment in fee either without warranty or with warranty only against him and his heirs, the feoffee was entitled to the deeds and evidences of title, that therewith he might be enabled to defend the title; but if the feoffment were with general warranty, so that the feoffor would be bound to defend the title, then he was entitled to retain all deeds and evidences necessary for the maintenance of the title, and the feoffee could only claim such as related simply to the possession, (Co. Lit 6. a.; Lord Buckhurst's case, 1 Rep. I). Hence, on the introduction of conveyances to uses, with the usual qualified covenants, the question arose, whether the feoffee or releasee to uses, or the cestui que use was entitled to the deeds. All the old authorities are in favour of the feoffee and releasee; (Co. Lit. 6. a., n. 4; 1 Sand. Uses and Trusts, 119); but as a feoffee or releasee, having only a momentary seisin, cannot be called on to defend the title, it seems at the present day to be assumed, and may be asserted as the established law, that the cestui que use, or generally the person who for the time being is at law entitled to the land, for an estate in possession not less than freehold, has a right to the custody of the title deeds. (Harrington v. Price, 3 B. & Ad. 170; Lord v. Wardle, 3 Bing. N. C. 680; Lightfoot v. Keane, 1 Mee. & Wels. 745; Phillips v. Robinson, 4 Bing. 106; see, too, 1 Ves. sen. 394; 3 Ves. 225). A question may arise, however, whether a vendor who enters into unqualified covenants for title, would not, on the principles above stated, be entitled to retain the title deeds.
If the title deeds are not delivered up on the completion of the purchase, and the vendor afterwards deposits the deeds with a third person, as a security for money, the purchaser may sustain an action of trover against that person for the deeds, without paying the money due
(6) If the property be copyhold, insert here— "copies of court rolls."
possession of the vendor, and the expense of all journeys (c) Conditions As incidental to such production or inspection, and the pro- tdete'ds E
to him. (Harrington v. Price, ubi supra; Hooper v. Ramsbottom, 6 Taunt 12). And, of course, the solicitor of a person who has no right to the deeds, has no lien on them for costs. (Bell v. Taylor, 8 Sim. 21; Lightfoot v. Keane, and Phillips v. Robinson, ubi supra). A mortgagee in fee is entitled to the deeds, and always ought to get them into his possession, (see note on this subject, infra); and, therefore, probably it is, that the usual decree in a foreclosure suit contains no directions with respect to the deeds. (1 You. & Jer. 121). It is presumed, however, that if the deeds were not in the possession of the mortgagee, the decree would order them to be delivered to him; at least, if the insertion of a direction to that effect were prayed by the bill. But, even if the mortgagee cannot, in the foreclosure suit, obtain the deeds, still, as legal owner of the land, he may recover them either before or after foreclosure. A mortgagee for a term of years, however, is not entitled to the custody of the deeds, either before or after foreclosure, for they belong to the freeholder; ( Wiseman v. Westland, 1 You. & Jer. 117; Harper v. Faulder, 4 Madd. 129); and, therefore, in every mortgage for a term of years, the mortgagor should covenant to allow the mortgagee to retain the title deeds, as well before as after foreclosure.
It was usual, formerly, to convey or assign the title deeds in all con- Custom of veyances or assignments of the property to which they related. But granting deeds this practice is now disused, for, since it has been established that the deeds belong to the legal owner of the land, any special grant of them to him is deemed needless. In the case (as of a mortgage for a term), where the deeds will not belong to the owner of the estate created, and it is intended that he shall have the custody of them, either the old form of granting them may be used, or a special covenant on the subject may be inserted in the deed. The latter method is the most convenient.
As respects the title deeds of leasehold property, the law is the same Leasehold title as for those of freehold; the original lease, and all subsequent documents deeds, relating to the title, belong to the owners of the legal estate in the lease; as above mentioned, he has no claim on any of the deeds of the freehold title.
It is a very common case, that property to which a set of title deeds Common
(c) If the title deeds are not in the possession of the vendor, the purchaser's solicitor must go to the place where they are, in order to compare them with the abstract; but the vendor must bear the expense of the journey. (Sharp v. Page, 1 Sugd. V. & P. 449, and an anonymous case there cited; Hughes v. Wynne, 8 Sim. 85). But it seems, that when the deeds are in London, a country solicitor will not be permitted to charge the expense of a journey thither to examine them, but must employ his agent for that purpose. (Alsop v. Lord Oxford, 1 My. & Ke. 466; ante Vol. 1, p. 48).