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TO TITLE AND
EVIDENCE.

XVII. That the purchaser of lot , shall take the conditions as same, with the title under which it is now held by the To vendor. An abstract of this title may be seen at the office of (vendor's solicitor,] on any day before the sale, and will be produced at the sale (p).

XVIII. That the purchaser of lot — shall presume that the vendor is seised in fee simple, both at law and in equity, of the property comprised therein, and shall not be entitled to call for the production of, or to investigate, or make any objection in respect of the title thereto (p).

authority, as under the General Inclosure Act. (Rex v. Hatfield, 4 Ad. & Ell. 156). And in the case of an ancient highway, to establish the right of the lord of the manor to such waste land and soil, acts of ownership by the lord, or grants by him of the waste, between the road and other inclosures, as well adjoining to as at a distance from the land disputed, are admissible in evidence. (Doe d. Barrett v. Kemp, 7 Bing. 332, S. C., 2 Bing. N. C. 102). If the strip of land communicate with an open common, the presumption is much weakened; for the evidence of ownership, which applies to the larger portions, applies also to the strips. (Grose v. West, 7 Taunt. 29. See, too, as respects the evidence admissible in such cases, Stanley v. White, 14 East, 322; Jones v. Williams, 2 Mee. & Wels. 326; Tyrwhitt v. Wynne, 2 B. & Ald. 554; Hollis v. Goldfinch, 1 B. & C. 205).

The presumption of law, and the rules as to evidence, seem to be the same with regard to the waste land on the side of a river and the bed of a river. (Jones v. Williams, and Hollis v. Goldfinch, ubi supra).

In the case of a sale of lands, which comprise any inclosed strips of waste, it should be stipulated according to the form in the text, that the purchaser shall make no objection to the title. To make out by evidence such a title as a purchaser could be compelled to take, would, in most cases of this kind, be a difficulty almost insurmountable.

(p) A vendor may, if he choose, stipulate for the sale of an estate On selling an with such title only as he happens to have; but he must make his inten- estate with such

Hohe title as the vention perfectly clear, or he will fail in depriving a purchaser of the right to a good title. (Freme v. Wright, 4 Mad. 364; Wilmot v. Wilkinson, 6 B. & C. 506; Southby v. Hutt, 2 My. & Cra. 207). The seventeenth and eighteenth conditions in the text are intended to have the effect of making it incumbent on the purchaser to accept the property, either with the vendor's title, whatever it may be, or without any title at all. Of course, the latter condition will only be employed in desperate cases, since mere possession is no evidence of title. In using the seventeenth condition, it will always be prudent to add the notice respecting the inspection of the abstract before the sale.

dor has.

TO TITLE AND
EVIDENCE.

CONDITIONS AS XIX. That no purchaser, whose entire purchase-money

shall fall short of £ — , shall be entitled to a copy of the abstract of the title of the vendor, unless the same be made at the expense of such purchaser, but an abstract of the title of the vendor shall be produced at all times before the said (the day for completion,] — day of — , at the said office of (vendor's solicitor], for the inspection of the several purchasers, whose respective purchase-money shall fall short of the said sum of £- , and their respective solicitors and counsel. And that, within — from the day of the sale, the vendor shall, at his own expense, deliver to every purchaser, whose entire purchase-money shall amount to or exceed the said sum of £- , or his solicitor, a copy of the said abstract (g).

XX. That if the counsel for any purchaser shall be of opinion that a good title cannot be made to the whole or some part of the property taken by such purchaser, the vendor shall be at liberty either to annul, or to attempt to enforce the contract for such purchase at his discretion, and in case he shall annul the contract for such purchase, it shall be sufficient for him to repay the deposit paid in respect thereof, without any interest for the same, or for any other part of the purchase-money, and he shall not be liable to pay to the purchaser any of the expenses of investigating the title or otherwise (r).

(9) This condition is framed with a view to the case where a large estate, of which the title is very voluminous, is sold in several lots. The expense of making many copies of a large abstract is very great.

Purchaser enti. (r) In case of a sale without special stipulation, if the title of the tled to payment vendor prove defective, the purchaser may, in an action on the contract, of his costs if the title prove recover back from the vendor the expenses of investigating the title; bad.

(Turner v. Beaurain, 1 Sugd. V. & P. 239; Kirtland v. Pounsett, 2 Taun. 145, 146; Hodges v. Earl of Litchfield, 1 Bing. N. C. 492; see, too, Clare v. Maynard, 1 Nev. & Per. 701); but not in an action for money had and received. (Camfield v. Gilbert, 4 Esp. 221; Gosbell v. Archer, 2 Ad. & Ell. 500). Among the expenses of investigating the title, which the purchaser may recover, are, the expense of comparing the deeds with the abstracts, and of searching for judgments, and journeys for that purpose, and the usual charges for perusing the abstract; (Hodges v. Earl of Litchfield, 1 Bing. N. C. 492); but he cannot recover expenses

TO TITLE AND

EVIDENCE.

XXI. That if the counsel for any purchaser shall be of CONDITIONS AS opinion that a good title cannot be made to the whole or some part of the property taken by such purchaser, without the production of evidence not in the possession of the vendor, the contract for such purchase shall be absolutely void, and it shall be sufficient for the vendor to repay the deposit paid in respect thereof, without any interest for the same, or for any other part of the purchase-money, and he shall not be liable to pay the purchaser any of the expenses of investigating the title or otherwise (r).

incurred previously to entering into the contract, nor the expense of a
survey of the estate, nor of a conveyance prepared in anticipation of the
completion of a purchase, nor the extra costs beyond taxed costs of a suit
for specific performance, in which the vendor had been defeated. S. C.
It has been generally considered that a purchaser cannot recover any
(except nominal) damages for the loss of his bargain when occasioned by
the inability of the vendor to make a good title. (Flureau v. Thornhill,
2 W. Black. 1078; Walker v. Moore, 10 B. & C. 416; Clare v. Maynard,
1 Nev. & Per. 701). But where a person who had contracted for the
purchase of an estate, but had not obtained a conveyance, put up the
estate for sale in lots, and engaged to make a good title by a certain day,
and the original vendor refused to convey to him, so that he was unable
to fulfil his engagement, it was held that a sub-purchaser might recover
damages for the loss of his bargain. (Hopkins v. Grazebrook, 6 B. &
C. 31; see, however, Walker v. Moore, ubi supra). In cases where the
title of the vendor proves defective, the purchaser may recover, not only his
deposit and interest thereon, (see supra, note (c), page 30), but also in-
terest on the remainder of his purchase-money, if it have been lying un-
productive. (Flureau v. Thornhill, ubi supra).

The object of the twentieth and twenty-first conditions in the text, is to preclude the purchaser from recovering more than his deposit, if the title prove defective; one of them should be invariably used, if there be any reason to suspect the validity of the title, and there has not been sufficient opportunity for a due examination of it. But conditions of this nature are calculated to raise suspicions, because they cast upon the purchaser an expense which would be more fairly borne by the vendor, and because they lead to a belief that the vendor knows his title to be open to doubt.

A proviso “ that in case the vendors could not deduce a good and Neither vendor marketable title, such as the purchaser or his counsel should approve, nor purchaser

can take advanor if the purchaser should not pay the purchase-money on the appointed

tage of his own day, the agreement should be utterly void, it being the intention of the default. parties that no action or suit in equity should be brought thereon,” was held to mean, that if the vendor could not make a good title by the time

CONDITIONS

AS TO ASSIGNMENT AND SURRENDER OF TERMS.

CONDITIONS of Sale as to the AssIGNMENT

and SURRENDER of Terms.

1. THAT all assignments of satisfied terms, (whether already assigned to attend the inheritance or not), shall be prepared by and at the expense of the purchaser requiring the same, and the expense of deducing the representation to the person or persons in whom any such term is now vested, or of taking out letters of limited administration to the last person in whom the same was vested, shall also be borne by such purchaser (a).

II. That, as to lot — , a term of — years, which was

Costs of deducing title to and assigning terms.

mentioned, the contract should be void as against him, if the purchaser thought fit, but not otherwise; and that, if the purchaser did not pay his money, the contract should be void as againt him, if the vendor thought fit, but not otherwise. (Roberts v. Wyatt, 2 Taun. 268). However, in the case of a similar proviso, it has since been held that a purchaser cannot elect to accept a bad title with a compensation; (Williams v. Edwards, 2 Sim. 78); but see Malins v. Freeman, 4 Bing. N. C. 395, on the construction of a similar clause in an act of parliament.

If any part of the auction duty be made payable by the purchaser, the conditions in the text should extend to the return of that as well as of the deposit.

(a) The general rule, with regard to the expense of deducing a title to terms of years, and assigning them to attend the inheritance, is as follows; that if the term has been already assigned to attend the inheritance, the title to it must be deduced at the expense of the vendor, and the assignment of it made at that of the purchaser; but if the term has never been assigned to attend the inheritance, the expense, both of the deduction of the title, and of the assignment, must be borne by the vendor. (1 Sugd. V. & P. 465). The condition in the text should be used with caution, and only when the expense incident to the titles and assignments of terms is likely to be very heavy; for the purchaser will, if well advised, reduce his biddings considerably, to meet the indefinite expense which the condition is calculated to throw upon him. It is apprehended, that, in the absence of an express stipulation to the contrary, the expense of the perusal of the assignment, both on behalf of the assignor and the vendor, must, in all cases be borne by the vendor.

AS TO

assigned to attend the inheritance in the year — , but CONDITIONS has not been assigned or noticed on any subsequent sale ASSIGNMENT or other occasion, shall be presumed to have been surrendered and merged (b).

AND SURRENDER OF TERMS.

(6) The law, with regard to presuming the surrender of terms, is, at Presumption of present, very unsettled ; a full statement of the points in dispute, and of surrender of

terms. the general law on the subject, will be found in 1 Sugd. V. & P.470—510.“

The present practice of conveyancers is, never to presume the sur- Practice of conrender of a term once assigned to attend the inheritance, from the mere veyancers, absence of any dealing with or notice of the term, on subsequent dealings with the inheritance. But whether this practice will be upheld by the courts, either as between vendor and purchaser, or between adverse parties, is not clear.

The only case on the point between vendor and purchaser is Townsend Case of Townsv. Champernown, (1 You. & Jerv. 543); in that case, a term of 1,000 years end v. Champer

nown. was recited in a deed, dated in the year 1758, to have been created several years before, and to have been then (afterwards ?) assigned to attend the inheritance; but neither the deed creating, nor the assignment of the term were produced. The judgment of Alexander, C. B., as reported, is as follows:-“ Until a different decision be pronounced, I shall, on the authority of Doe v. Hilder, (1 B. & Ald. 782), after the expiration of seventy years without payment of interest, presume the terms to have been surrendered."

It is obvious, however, that there must be some mistake in the report; for as the term had been assigned to attend the inheritance, no question as to the payment of interest could possibly have arisen: and as, moreover, the decision was grounded on the authority of Doe v. Hilder, which is not admitted to be law, (see Sugd. V. & P. 505—508; Doe v. Plowman, 2 B. & Ad. 573), Townsend v. Champernown, cannot be regarded as a case of much authority.

On a recent purchase, a term of 500 years was noticed in a mortgage Another case. deed, dated in 1743, to have been created and assigned to attend the inheritance in 1683, and was treated as subsisting, but was not assigned. No other notice appeared of the term, though the property had been sold, and conveyed in 1802 and in 1829. The deed of 1743, would, for some time hence, necessarily appear on the title, but the deeds of 1683 were lost. Under these circumstances it was held, by a conveyancing counsel of great eminence, to whom the point was submitted by the vendor, at the suggestion of the purchaser's counsel, that a surrender of the term could not be presumed. It being, however, afterwards stated, that the ecclesiastical court would not grant a limited administration to a term, the deed creating which was lost, and the risk being evidently very trifling, the purchaser dispensed with the assignment.

Where terms have never been assigned to attend the inheritance, and Presamption of VOL. III.

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