TO INDEMNITY CONDITIONS AS shall henceforth be charged exclusively on the part comAGAINST RENT- prised in lot; and the purchaser of that lot, (or the vendor, in case the lot be not sold), shall in the usual manner indemnify the remainder of the property and the CHARGES. Suggestion as to mode of indemnity. Apportionment of the rentcharge among several lots. purchasers, the whole rent-charge shall be charged on a particular lot, and the remainder of the property indemnified at the expense of that lot. If (as in the first condition in the text) no special stipulation is made as to the manner in which this is to be effected, it seems that the proper manner is to limit to trustees, out of the property to be exclusively charged, a rent-charge of equal amount with the original rent-charge, and attended with powers of distress and entry, upon trusts for indemnifying the other lots against the original rent-charge; (Casamajorv. Strode, 2 Swanst. 347); observing, however, that the deed there stated was on appeal approved by the Lord Chancellor. (Reg. Lib. A. fol. 2, 136). But it cannot fail to be remarked, that the indemnity so provided is insufficient; for, if the purchaser of the lot to be charged should never make any one payment of the original rent-charge, and the same, with the expenses attendant upon the nonpayment thereof, should be levied upon the remainder of the property, there never will be any fund for the payment of the expenses attendant upon nonpayment of the original rent-charge. This objection is intended to be obviated by the stipulation contained in the second condition in the text; but it is not possible to meet the difficulties of the case within the limits allowed to a condition of sale; much must be left for arrangement, or in case of dispute for the decision of a court of equity. There does not seem any good reason why the indemnity should not be made by simply giving to the trustees a power of distress and entry upon the lands to be charged, upon trust to employ the same, when necessary, for reimbursing the owners of the remainder of the property any sums they may have paid in respect of the original rent-charge, or the costs for nonpayment of the same; it is not obvious that any thing is gained by creating a new rent-charge. (See 2 Swanst. 357). Such a proceeding, however, is not usual. If the purchasers do not exceed the number of two or three, the indemnity may be conveniently made without the intervention of trustees, by limiting separate rent-charges and powers to each separate purchaser. If the rent-charge be of large amount in comparison with the value of the property, it must be apportioned among the different lots, and the different purchasers must have cross powers of distress and entry limited to them. (See note on the apportionment of rents reserved in leases, infra, page 83). Indemnity against a rent-charge is sometimes given by limiting to trustees a term in the land to be charged, but this is obviously improper, except in the case in which the indemnity is secured on incorporeal hereditaments, on which distress and entry cannot be made. A purchaser cannot, at least in ordinary cases, insist on having a term limited. (Casamajor v. Strode, 2 Swanst. 347). owners thereof against the payment of the said rent-charge, CONDITIONS AS and all expenses incidental thereto. II. That a perpetual rent-charge of £-- per annum, which is payable out of the whole property offered for sale, shall henceforth be charged exclusively on the part comprised in lot, and the purchaser of that lot shall indemnify the remainder of the property and the owners thereof, against the payment of the said rent-charge, and all expenses incidental thereto, by covenanting with trustees for the payment thereof, and by limiting to the same trustees a rent-charge of [equal amount or £ per annum], with the usual powers of distress and entry for securing the payment as well of the said new rent-charge, and all expenses incidental thereto, as of the expenses incidental to or occasioned by the non-payment of the original rent-charge; and such trustees shall be of such number as a majority in number of all the purchasers shall determine, and shall be named as to one half by the purchaser of the said lot, and as to the other half by a majority in number of the other purchasers, and with such provisions for the appointment of new trustees, and other usual provisions as a majority in number of all the purchasers shall determine; if the said lot, or any other lots be not sold, the vendor shall, for the purposes of this condition, stand in the place of the purchaser or purchasers of such lot or lots. III. The annual ground rent of £5, payable out of the property comprised in lot, is part of an annual rent of £20, charged on that together with other property not belonging to the vendor, but for twenty years past the said rent of £5 has been separately paid in respect of the property comprised in lot. This will be shewn by the production of separate receipts for the rent of £5, and the purchaser shall not be entitled to call for any other evidence that the property in lot is exonerated from the remainder of the rent of £20, or to call for the production of, or to investigate, or to make any objection in respect of the title to the said rents of £20 and £5, or either of them (b). (b) It often happens, that, although an entire rent-charge has been TO INDEMNITY AGAINST RENT CHARGES. CONDITIONS AS TO TITHES AND COMMUTA TION RENT CHARGES. Evidence of modus and exemption from tithes. CONDITIONS as to TITHES and COMMUTA TION RENT-CHARGES. THAT the purchaser of lot I. II. That the purchaser of lot shall not be entitled to require any evidence that the lands therein comprised are subject to the modus mentioned in the particular in lieu of tithes, except evidence that, for years past, such modus has been paid (a). III. That, as the estate sold is charged, under the general act for the commutation of tithes, with a rent-charge of £- per annum, the same shall be apportioned on the different lots in the sums mentioned in the particular. But such apportionment shall be made at the expense of the purchasers, in shares proportioned to the apportioned limited out of an estate, yet that when separate parts of that estate have become vested in different owners, distinct rents are paid by the several owners for their respective portions, and receipts taken accordingly; but no valid apportionment is ever made. A purchaser cannot be compelled to presume such an apportionment; (Barnwell v. Harris, 1 Taunt. 430); and, therefore, it becomes necessary to sell, subject to a stipulation of the nature of that in the text. Even if there be a valid apportionment subsisting, it may be proper in some cases to preclude the purchaser from examining the title to the rent-charge. (a) The act 2 & 3 Will. 4, c. 100, (ante, Vol. 1, p. 143), has greatly facilitated the operation of establishing a claim of modus, or exemption or discharge from tithes; but in some cases it may still be useful to employ stipulations, of which examples are given in the text. As to the sale of an estate tithe free, see ante, Vol. 1, p. 246; 1 Sugd. V. & P. 295. But questions of this nature will, after the course of a few years, be entirely or in great measure put an end to by the operation of the Act, 6 & 7 Will. 4, c. 71, ante, vol. 1, p. 274. See, particularly, sections 44 to 49 inclusive. See, too, the observations on this act, ante, Vol. 1, p. 315, and the Acts 7 Will. 4 & 1 Vict. c. 69, and 1 & 2 Vict. c. 64; and also the next note. CONDITIONS AS TO TITHES sums, and the delay or neglect to make such apportionment shall not defer the completion of the purchases. If any AND COMMUTAlot or lots be not sold, the vendor shall, for the purposes of this condition, stand in the place of the purchaser or purchasers (b). TION RENT CHARGES. tionment of commutation (b) It will probably be found most convenient for land owners to have As to apporthe rent-charge, for which their tithes shall be commuted, specially apportioned in manner provided by the 58th section of the 6 & 7 Will. 4, rent-charges. c. 71, on the several closes or portions of their lands; or to have the whole rent-charge, in pursuance of the same section, charged upon a part of their lands, and the remainder exempted. For, as long as the whole rent-charge remains charged on the entire estate of any person, it is obvious that he cannot make an advantageous sale of any part of the estate, because every part is subject to the payment of the whole rentcharge; and all the inconveniences would ensue, which have been noticed in a preceding note, with respect to common rent-charges. But the Tithe Act (sect. 72) has provided for a new apportionment of the rent-charge, whenever the land owner thinks fit to have it made; and, therefore, if an apportionment be not originally made, it can be obtained whenever a sale is contemplated. It must, however, be remembered, that the apportionment cannot be made by an equal acreable charge, unless there be a map, which has obtained the seal of the tithe commissioners. See "Form of Apportionment" of the commissioners, dated 31st July, 1837, (o. 1.)-48. Any person at present dealing with tithes should obtain a set of the forms and instructions issued by the commissioners, and which are to be had at their office. If an estate, charged with an entire rent-charge in lieu of the tithes, be sold in lots, without obtaining a previous apportionment among the lots, the best arrangement will probably be, to affix to the description of each lot in the particular the amount of rent-charge which it is in future to bear, and to stipulate in the conditions, that the apportionment shall be made at the expense of the purchasers, in proportionate shares, but that the completion of the purchases is not to be delayed until the apportionments are made. A precedent of such a condition is given in the text. It is obvious, however, that an apportionment ought always to be made among the intended lots, previous to the sale; and in that case, it will only be necessary to affix to the description of each lot in the particular the amount of rent-charge apportioned thereto. In some cases of sales of small value, it might be fit to preclude a purchaser from requiring evidence of the validity or regularity of an apportionment; for it is not clear, that a new apportionment, made under the 72nd section of the act, is protected by the provision in the 66th section. It is likely, that, when the commutation of tithes has become general, many fresh conditions may be required to meet the circumstances which will occur; but it would be a vain task to attempt to anticipate them. In such sales as are made CONDITIONS of SALE of a LEASEHOLD Estate in LOTS. Conditions I., II., III., IV., the same as in common conditions of sale of a freehold or copyhold estate, ante, p. 29. V. (a) That no purchaser shall be entitled to call for during the progress of a commutation of the tithes of the property offered for sale, the fact should be stated, and such stipulations made, as the case may require, as to whether the vendor or purchaser shall be deemed the land owner for the purposes of the act, till the sale be completed,—as to who shall bear the expenses to be incurred in the meantime, and as to such other matters as may need adjustment. It may be noticed, that a difficulty has occurred in commuting the tithes, in cases in which, at the time of attempting to make the commutation, the lands or the tithes are vested in the assignees of a bankrupt; for the act does not appear to have contemplated the case: it is difficult to say that assignees are "owners," within the meaning of sect. 12; and sect. 15 cannot well be construed to apply to the case. With respect to the merger and extinguishment of tithes in the lands out of which they issue, very important alterations have recently been introduced into the law, which will be mentioned in a subsequent note. (a) There is, in every contract for the sale of a lease, (except a lease from an ecclesiastical corporation,) an implied undertaking to make out, as well the lessor's title to demise as the title of the vendor to the lease itself. (Souter v. Drake, 5 B. & Ad. 992; Purvis v. Rayer, 9 Price, 488, ante, Vol. 1, pp. 150, 151). But, of course, it may be matter of special stipulation, that the vendor shall not be required to make out the lessor's title; and as it is hardly ever in his power to do so, a condition to that effect should never be omitted; an auctioneer, (and à fortiori, a solicitor,) who omits such a condition, cannot recover any compensation for his services. (Denew v. Daverell, 3 Camp. 451). As to what terms will constitute a stipulation, that a purchaser shall not be entitled to call for or object to the lessor's title, see Spratt v. Jeffery, 10 B. & C. 249; and the observations, 1 Cro. Mee. & Ros. 127, 128, which shake the authority of that case; and as to how the purchaser's right may be waived by his own conduct, see Warren v. Richardson, 1 Younge, 1. A stipulation, that a vendor shall not be obliged to produce the lessor's |